J-S46024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CARLOS INGA

                            Appellant                No. 2953 EDA 2014


             Appeal from the Judgment of Sentence July 14, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001884-2012


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 09, 2015

       Appellant, Carlos Inga, appeals from the judgment of sentence entered

on July 14, 2014, as made final by the denial of Appellant’s post-sentence

motion on September 18, 2014. We vacate and remand for resentencing.

       The learned trial court ably summarized the underlying facts and

procedural posture of this case. As the trial court explained:

         Appellant [] was arrested [in 2011. The Commonwealth
         later charged Appellant with numerous crimes that allegedly
         occurred in 2007, including: rape by forcible compulsion,
         unlawful contact with a minor, unlawful restraint, sexual
         assault, corruption of minors, and indecent assault.1]

         The instant matter commenced with Appellant pleading not
         guilty to all charges and indicating that he wished to have a
____________________________________________


1
 18 Pa.C.S.A. §§ 3121(a)(1), 6318(a)(1), 2902(a)(1), 3124.1, 6301(a)(1),
and 3126(a)(2), respectively.
J-S46024-15


       jury trial. [During Appellant’s trial, t]he Commonwealth
       introduced [the] testimony of[: the victim’s stepfather,
       D.M.;] [the victim’s brother, A.T.;] Susan Tran[; the
       victim;] [the victim’s sister, M.; and,] Detective Thomas
       Brown. The defense introduced [the] testimony of Robert
       Chin, William Cuff, and [Appellant]. . . . [The testimony at
       trial was as follows]:

       1. In 2007, [the victim] worked in her parent’s [Philadelphia
       restaurant]. . . . At the time, [the victim] was 16 years old.

       2. Many of [the victim’s] family members also worked in the
       restaurant, including her parents (mother and stepfather),
       her sister [M.], and her brother, [G.T.]

       3. [The victim] would help out her family with various
       administrative tasks at the restaurant. She would answer
       the phone, take delivery orders, serve as hostess, help
       prepare food, cut up vegetables and meat in the kitchen,
       clear tables, etc.

       4. The restaurant was often quiet and not terribly busy. In
       short, business was slow.

       5. When the restaurant was not busy, [the victim] would
       spend much of her time cleaning the tables and putting
       away plates and silverware for her family.

       6. When the restaurant was busy with people and [the
       victim] was helping out with work inside of the kitchen, she
       would often find herself alone in the back with just the cook
       and occasionally the dishwasher.

       7. [Appellant] was the cook/chef [whom the victim’s family]
       had employed at that time and he would sometimes be
       alone with [the victim] in the kitchen. [The victim] would
       assist [Appellant] in preparing food and with heating up
       some of the food.

       8. [Appellant] would talk to [the victim] while they were in
       the kitchen and [he] made her feel uncomfortable on
       multiple occasions.




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       9. On one such occasion, [Appellant] touched [the victim’s]
       private parts with his hands while they were working
       together in the kitchen. On another such occasion, he
       pulled her pants down while they were alone in a large
       refrigerator room area.

       10. On or around May [] 2007, [Appellant] touched [the
       victim’s] hand and made her put her hand on his penis.
       [The victim] indicated that her hand was placed on top of
       his clothes and not under his clothes.

       11. [The victim] testified that she was uncomfortable and
       took her hand away. [The victim testified] . . . that she did
       not want [Appellant] to take her by the hand and that he
       had forced her to touch his penis.

       [The victim testified that Appellant raped her in or around
       May 2007. According to the victim, at the time, she and
       Appellant were “upstairs in the restaurant,” when Appellant
       grabbed her arm, pulled her onto the couch, “forced down”
       her pants and underwear, and inserted his penis into her
       vagina. N.T. Trial, 4/9/14, at 116-121.]

       12. [The victim] has serious disabilities. The record []
       reflects that [the victim] has difficulty processing
       information; she has spatial issues, intellectual disabilities
       (detailed below), etc.   Further, hundreds of pages of
       documents detailing her health history and disabilities were
       submitted into evidence.

       13. [The victim’s] stepfather, [D.M.], explained that his
       stepdaughter has been diagnosed with various intellectual
       deficits (slight mental retardation and attention deficit
       [hyperactivity] disorder), emotional problems, and anxiety.
       She has structural growth retardation and struggled with
       her academics in normal school. Her stepfather stepped in
       as an advocate for her to get a proper education. [As the
       victim’s stepfather testified, the victim:] is a very
       compassionate and kind individual[;] has difficulty telling
       time and has problems with interspatial recognition[;]
       withdraws and is very shy[; and,] has trouble engaging with
       her peers. As a result of these problems, [the victim’s
       stepfather testified that the victim] had problems at school


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J-S46024-15


       and was made fun of. Moreover, as a result of her specific
       disabilities, [the victim] has trouble communicating.

                                   ...

       15. [After the alleged rape occurred, but on the same night,
       the victim] told [Susan] Tran that she was alone at times
       with [Appellant] and that [Appellant] had requested to see
       her alone and even requested that her parents drop her off
       at the restaurant to be alone with him. Ms. Tran [testified
       that she] was most alarmed when she found out about that
       information. [Ms. Tran testified that she considered] it []
       inappropriate for a 16-year-old to be requested to come see
       a grown man alone. . . . Ms. Tran asked [the victim]
       additional questions about her contact with [Appellant] and
       whether he had ever touched her.

       16. [The victim] then told Ms. Tran that she had been
       inappropriately touched by [Appellant. However, the victim
       did not tell Ms. Tran that Appellant had raped her earlier in
       the night].

       17. Immediately afterwards, Ms. [Tran] told [the victim’s]
       brother about what [the victim had told her]. He was in the
       restaurant at the time. He was furious when he learned
       about the [touching]. He went into the kitchen and started
       yelling at [Appellant].  [That day], he fired [Appellant.
       Evidence at trial demonstrates that Appellant was fired on
       May 15, 2007. See N.T. Trial, 4/10/14, at 90-91 and 154.]

       18. Eventually, [the victim] spoke to her sister [M.] about
       [both the inappropriate touching and the alleged rape]. . . .
       [The victim testified] that [M.] was [] upset [] when she
       told her about [what Appellant had done].

       19. In 2011, [the victim] finally spoke to her mother about
       these events and that led to her speaking to a police
       detective about the assault and alleged rape. . . . [The
       victim testified that her mother] was upset that she had
       waited so long to tell her about everything that [had]
       happened [].

       20. [Ms. Tran] testified that she noticed major changes in
       [the victim’s] personality, mood, and demeanor after the

                                   -4-
J-S46024-15


       [alleged rape] took place. . . . Ms. [Tran] testified that [the
       victim] was visibly wrestling with a great deal of emotion
       and had exhibited signs of frustration and trauma after the
       assault happened[. Ms. Tran testified]:

          I noticed that she – at the time that she told me, I could
          see that she was very scared, like she was holding
          something inside. And then once she told me, I could
          tell she was relieved that she told me. She was letting
          something out but I felt like I should have done more
          and I didn’t. And her mood, she was very – it was very
          up and down all the time . . . she’s a happy girl, sweet
          girl. She’s so kind. And then when I see her just
          completely turn 360, like she’s not even who she is, and
          I wondered what’s wrong, why? Why her? She didn’t
          do anything.

       21. Ms. [Tran] also [testified] that [the victim] seemed less
       lively after the [alleged rape]. In addition, [the victim’s
       brother testified] that [the victim] seemed depressed and
       had serious emotional difficulties after the [alleged rape]
       occurred in or around May of 2007. Similarly, [the victim’s]
       mother [testified] that she noticed her daughter’s mood and
       demeanor were noticeably different; she was reportedly
       more angry, moody, and argumentative. Likewise, [the
       victim’s] stepfather [testified] that he noticed his
       stepdaughter’s mood and demeanor change[] after 2007:
       “Something was hounding her.           She had nightmares,
       screams at night, and we came over. We tried to wake her
       up and then she was in tears.”

                                    ...

       At the culmination of the evidence presented, . . . [the jury
       found Appellant] not guilty of [] rape, unlawful restraint[,]
       and sexual assault. The jury found Appellant guilty, beyond
       a reasonable doubt, of the indecent assault [], unlawful
       contact with minors [], and corruption of [minors] []
       charges. . . .

       On July 14, 2014, [the trial court sentenced] Appellant [] as
       follows: [one to three years in prison on the indecent
       assault conviction; one-and-a-half to three years in prison
       on the unlawful contact with minors conviction; and, one to

                                    -5-
J-S46024-15


           three years in prison on the corruption of minors conviction.
           The trial court ordered the three sentences to run
           consecutively, resulting in an aggregate sentence of three-
           and-a-half to nine years in prison. However, during the
           sentencing hearing, the trial court did not provide any on-
           the-record explanation for its particular sentence.2]. . . .

           Appellant’s   [counsel   filed  a   timely]    motion  for
           reconsideration of the above sentence. . . . [On September
           18, 2014, following oral argument, the trial court denied
           Appellant’s post-sentence motion].

Trial Court Opinion, 1/16/15, at 1-7 (some internal capitalization and

citations omitted).

        Appellant raises the following claims to this Court:

           [1.] Did the trial court commit an abuse of discretion by
           failing to charge the jury in accordance with 23 [Pa.C.S.A.]
           § 6311, which requires certain persons to report suspected
           child abuse?


____________________________________________


2
    Specifically, during Appellant’s sentencing hearing, the trial court declared:

           Okay, the jury has spoken in this case. Of course they did
           not find you guilty of the most serious charge of rape but
           you were found guilty of unlawful contact, corruption of
           minors[,] and indecent assault.

           I’ll sentence you to the following:

           On the unlawful contact charge I sentence you to one and a
           half to three years.    Consecutive to that corruption of
           minors one to three years. Consecutive to that on indecent
           assault one to three years.

           That’s the order of the Court. . . .

N.T. Sentencing, 7/14/14, at 38-39.



                                           -6-
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        [2.] Did the sentencing court commit an abuse of discretion
        by imposing sentences outside the recommended
        guideline[] ranges without providing adequate reasons for
        doing so?

        [3.] Did the sentencing court commit an abuse of discretion
        by improperly considering offenses Appellant was found not
        guilty of committing in structuring Appellant’s sentence?

        [4.] Did the sentencing court commit an abuse of discretion
        by imposing sentences that were unreasonable and
        excessive under the circumstances and which failed to take
        into account Appellant’s rehabilitative needs?

Appellant’s Brief at 4 (some internal capitalization omitted).

      First, Appellant claims that the trial court erred when it “refus[ed] a

defense request that the jury be charged in accordance with 23 [Pa.C.S.A.]

§ 6311, which requires certain persons to report suspected child abuse.”

Appellant’s Brief at 10. This claim fails.

      As this Court explained:

        In reviewing a challenge to the trial court’s refusal to give a
        specific jury instruction, it is the function of this Court to
        determine whether the record supports the trial court's
        decision. In examining the propriety of the instructions a
        trial court presents to a jury, our scope of review is to
        determine whether the trial court committed a clear abuse
        of discretion or an error of law which controlled the outcome
        of the case. A jury charge will be deemed erroneous only if
        the charge as a whole is inadequate, not clear or has a
        tendency to mislead or confuse, rather than clarify, a
        material issue. A charge is considered adequate unless the
        jury was palpably misled by what the trial judge said or
        there is an omission which is tantamount to fundamental
        error. Consequently, the trial court has wide discretion in
        fashioning jury instructions. The trial court is not required
        to give every charge that is requested by the parties and its
        refusal to give a requested charge does not require reversal
        unless the Appellant was prejudiced by that refusal.


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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(internal quotations and citations omitted).       Further, “Pennsylvania law

makes [it] clear that the court is bound to charge the jury only on the law

applicable to the factual parameters of a particular case and that it may not

instruct the jury on inapplicable legal issues.      Consequently, where the

record evidence fails to satisfy the elements of a particular legal doctrine,

the court may not discuss that doctrine in its charge.”               Geise v.

Nationwide Life & Annuity Co., 939 A.2d 409, 422 (Pa. Super. 2007)

(internal quotations, citations, and corrections omitted).

      We will explain the basis for Appellant’s current argument.

      During Appellant’s cross-examination of the victim, the victim testified

that she “told [her] emotional support [teacher] at [school] in [] between

the fall of [2007] and the spring of [2008] that [she] had been raped.” N.T.

Trial, 4/9/14, at 141. However, during Appellant’s trial, Appellant introduced

the victim’s school records into evidence; and, as Appellant noted during

trial, there was “no mention anywhere in any [school] record about a

complaint to a teacher.” N.T. Trial, 4/10/14, at 220. As Appellant argued to

the trial court, if the victim had informed an employee of her high school

about the alleged rape, 23 Pa.C.S.A. § 6311 would have required – under

penalty of criminal prosecution – that the school employee report the

suspected child abuse. See N.T. Trial, 4/10/14, at 251-254 and N.T. Trial,

4/11/14, at 4-5 and 39-41. Appellant claimed that the absence of such a

report in the victim’s school records cast doubt upon the victim’s credibility.

                                     -8-
J-S46024-15



      Based upon the above argument, Appellant requested that the trial

court instruct the jury on 23 Pa.C.S.A. § 6311. The trial court refused. Now

on appeal, Appellant claims that the trial court’s refusal to instruct the jury

on Section 6311 constituted prejudicial error and requires a new trial.

Appellant claims that knowledge of the statute “would have permitted the

jury to consider the lack of a report by a school official in the school records

in its assessment of the credibility of [the victim; the] lack of a report of

child abuse in a situation where one was statutorily required strongly implies

that no such complaint was made.” Appellant’s Brief at 13.

      Appellant’s claim fails. Indeed, the mere fact that a child abuse report

was not found in the victim’s school records is irrelevant on the issue of

whether the victim “told [her] emotional support [teacher] at [school] in []

between the fall of [2007] and the spring of [2008] that [she] had been

raped.” See N.T. Trial, 4/9/14, at 141.

      In “the fall of [2007] and the spring of [2008]” – which is when the

victim testified that she told informed her emotional support school teacher

of the alleged rape – the relevant portions of the Child Protective Services

Law read:

        § 6311. Persons required to report suspected child
        abuse.

        (a) General rule.—A person who, in the course of
        employment, occupation or practice of a profession, comes
        into contact with children shall report or cause a report
        to be made in accordance with section 6313 (relating
        to reporting procedure) when the person has reasonable


                                     -9-
J-S46024-15


       cause to suspect, on the basis of medical, professional or
       other training and experience, that a child under the care,
       supervision, guidance or training of that person or of an
       agency, institution, organization or other entity with which
       that person is affiliated is a victim of child abuse, including
       child abuse by an individual who is not a perpetrator. . . .

       (b) Enumeration of persons required to report.—
       Persons required to report under subsection (a) include, but
       are not limited to, any licensed physician, osteopath,
       medical examiner, coroner, funeral director, dentist,
       optometrist, chiropractor, podiatrist, intern, registered
       nurse, licensed practical nurse, hospital personnel engaged
       in the admission, examination, care or treatment of
       persons, Christian Science practitioner, member of the
       clergy, school administrator, school teacher, school nurse,
       social services worker, day-care center worker or any other
       child-care or foster-care worker, mental health professional,
       peace officer or law enforcement official.

       (c) Staff members of institutions, etc.—Whenever a
       person is required to report under subsection (b) in the
       capacity as a member of the staff of a medical or other
       public or private institution, school, facility or agency, that
       person shall immediately notify the person in charge of the
       institution, school, facility or agency or the designated
       agent of the person in charge. Upon notification, the person
       in charge or the designated agent, if any, shall assume the
       responsibility and have the legal obligation to report or
       cause a report to be made in accordance with section
       6313. This chapter does not require more than one report
       from any such institution, school, facility or agency.

23 Pa.C.S.A. § 6311 (effective May 29, 2007 to December 30, 2014) (some

emphasis added).

     Section 6313 then provided:

       § 6313. Reporting procedure.

       (a) General rule.—Reports from persons required to report
       under section 6311 (relating to persons required to report
       suspected child abuse) shall be made immediately by

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J-S46024-15


         telephone and in writing within 48 hours after the oral
         report.

         (b) Oral reports.—Oral reports shall be made to the
         department[3] pursuant to Subchapter C (relating to
         powers and duties of department) and may be made to
         the appropriate county agency.[4] When oral reports of
         suspected child abuse are initially received at the county
         agency, the protective services staff shall, after seeing to
         the immediate safety of the child and other children in the
         home, immediately notify the department of the receipt of
         the report, which is to be held in the pending complaint file
         as provided in Subchapter C. The initial child abuse report
         summary shall be supplemented with a written report when
         a determination is made as to whether a report of
         suspected child abuse is a founded report or an unfounded
         report or an indicated report.

         (c) Written reports.—Written reports from persons
         required to report under section 6311 shall be made
         to the appropriate county agency in a manner and on
         forms the department prescribes by regulation. The written
         reports shall include the following information if available . .
         ..

23 Pa.C.S.A. § 6313 (effective July 1, 1995 to December 30, 2014) (some

emphasis added).
____________________________________________


3
  At the time, the Child Protective Services Law defined the term “the
department” as “the Department of Public Welfare of the Commonwealth.”
23 Pa.C.S.A. § 6303 (effective July 1, 1995 to December 30, 2014).
4
  At the time (and still today), the Child Protective Services Law defined the
term “county agency” as “[t]he county children and youth social service
agency established pursuant to section 405 of the act of June 24, 1937 (P.L.
2017, No. 396), known as the County Institution District Law,[] or its
successor, and supervised by the Department of Public Welfare under Article
IX of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare
Code.” 23 Pa.C.S.A. § 6303 (effective July 1, 1995).




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J-S46024-15



      Finally, Section 6331 of the Child Protective Services Law, entitled

“establishment of pending complaint file, Statewide central register and file

of unfounded reports,” provided:

          There shall be established in the department:

                                     ...

          (2) A Statewide central register of child abuse which shall
          consist of founded and indicated reports.

23 Pa.C.S.A. § 6331 (effective July 1, 1995 to June 30, 2014) (emphasis

added).

      Again, on appeal, Appellant claims that the trial court erred when it

refused to charge the jury on 23 Pa.C.S.A. § 6311, as there was no report of

child abuse in the victim’s school records and “the lack of a report of child

abuse in a situation where one was statutorily required strongly implies that

no such complaint [to the victim’s emotional support teacher] was made.”

Appellant’s Brief at 10-13.

      A review of the above-quoted statutes demonstrates the fallacy in

Appellant’s argument.    Certainly, from the above statutes, it is clear that,

even if the victim’s “emotional support teacher” were an “enumerated

person required to report” child abuse under Section 6311(b), any such

report would have gone to either the Department of Public Welfare of the

Commonwealth or the county children and youth social service agency – not

the victim’s school.     23 Pa.C.S.A. § 6313 (effective July 1, 1995 to

December 30, 2014). Further, the report would not have been maintained


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J-S46024-15



by the victim’s school – instead, the Child Protective Services Law required

that such reports be maintained by the Department of Public Welfare.        23

Pa.C.S.A. § 6331 (effective July 1, 1995 to June 30, 2014). Therefore, the

lack of a report in the victim’s school records does not (as Appellant

claims) “impl[y] that no such complaint was made.” Appellant’s Brief at 13.

Rather, the lack of a mandated report of child abuse in the victim’s school

records is irrelevant on the issue of whether the victim “told [her]

emotional support [teacher] at [school] in [] between the fall of [2007] and

the spring of [2008] that [she] had been raped.” N.T. Trial, 4/9/14, at 141.

Therefore, Appellant was not entitled to a jury instruction regarding 23

Pa.C.S.A. § 6311. Geise, 939 A.2d at 422 (“the court is bound to charge

the jury only on the law applicable to the factual parameters of a particular

case and that it may not instruct the jury on inapplicable legal issues”)

(internal quotations, citations, and corrections omitted). Appellant’s claim to

the contrary fails.

      Next, Appellant claims that the trial court abused its discretion at

sentencing because it sentenced him outside of the sentencing guideline

ranges on one conviction and in the aggravated sentencing guideline range

on the remaining two convictions, and yet did not provide any rationale for

its sentence.   We are constrained to agree.      Therefore, we must vacate

Appellant’s judgment of sentence and remand for resentencing.

      Appellant challenges the discretionary aspects of his sentence.

“[S]entencing is a matter vested in the sound discretion of the sentencing

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J-S46024-15



judge, whose judgment will not be disturbed absent an abuse of discretion.”

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001).

Moreover, pursuant to statute, Appellant does not have an automatic right to

appeal the discretionary aspects of his sentence.        See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

     As this Court explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, Pa.R.Crim.P. 720; (3) whether appellant’s brief
        has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
        is a substantial question that the sentence appealed from is
        not appropriate under the Sentencing Code, [42 Pa.C.S.A.]
        § 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

     In the case at bar, Appellant satisfied the first three requirements, as

he filed a timely notice of appeal, properly preserved his discretionary

challenge in a post-sentence motion, and facially complied with Pennsylvania

Rule of Appellate Procedure 2119(f).        We must now determine whether

Appellant presented a “substantial question that the sentence appealed from

is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.

     Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were:    (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

                                   - 14 -
J-S46024-15


fundamental     norms     which     underlie     the   sentencing    process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining

whether an appellant has raised a substantial question, we must limit our

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.

This limitation ensures that our inquiry remains “focus[ed] on the reasons

for which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.”       Id. at 727

(internal emphasis omitted).

      Appellant claims that the trial court abused its discretion because it

sentenced him outside of the sentencing guideline ranges on his unlawful

contact with a minor conviction and in the aggravated guideline ranges on

his corruption of minors and indecent assault convictions – and yet did not

provide any rationale for its sentence.        This claim raises a substantial

question under the Sentencing Code, as it asserts that the trial court’s action

was “inconsistent with a specific provision of the Sentencing Code.”

Specifically, Appellant asserts that the trial court acted in contravention of

42 Pa.C.S.A. § 9721(b), which states in relevant part:

        In every case in which the court imposes a sentence for a
        felony or misdemeanor, modifies a sentence, resentences
        an offender following revocation of probation, county
        intermediate punishment or State intermediate punishment
        or resentences following remand, the court shall make as a
        part of the record, and disclose in open court at the time of

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J-S46024-15


        sentencing, a statement of the reason or reasons for the
        sentence imposed. In every case where the court imposes
        a sentence or resentence outside the guidelines adopted by
        the Pennsylvania Commission on Sentencing . . . the court
        shall provide a contemporaneous written statement of the
        reason or reasons for the deviation from the guidelines to
        the commission, as established under section 2153(a)(14)
        (relating to powers and duties). Failure to comply shall be
        grounds for vacating the sentence or resentence and
        resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

      Further, as this Court held:

        when sentencing a defendant beyond the ranges
        recommended by the sentencing guidelines, the trial court
        must state its reasons for departing from the guidelines on
        the record. When doing so, a trial judge must demonstrate
        on the record, as a proper starting point, its awareness of
        the sentencing guidelines. Having done so, the sentencing
        court may deviate from the guidelines, if necessary, to
        fashion a sentence which takes into account the protection
        of the public, the rehabilitative needs of the defendant, and
        the gravity of the particular offense as it relates to the
        impact on the life of the victim and the community, so long
        as it also states of record the factual basis and
        specific reasons which compelled it to deviate from
        the guideline range.

Commonwealth v. Warren, 84 A.3d 1092 (Pa. Super. 2014) (internal

quotations, citations, and corrections omitted) (emphasis in original); see

also Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012)

(“Appellant maintains that the sentencing court violated the Sentencing

Code by failing to state sufficient reasons for imposing a sentence outside

the   sentencing   guidelines.       This   raises   a   substantial   question”);

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)


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(same); see also Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.

Super. 2008) (“an allegation that the [trial] court failed to state adequate

reasons on the record for imposing an aggravated-range sentence . . . raises

a substantial question for our review”); Commonwealth v. Fullin, 892

A.2d 843, 850 (Pa. Super. 2006) (same).

       Since Appellant raised a substantial question, we may reach the merits

of Appellant’s claim that, at sentencing, the trial court failed to adequately

state the reasons for sentencing Appellant outside of the guideline ranges on

one conviction and in the aggravated guideline range on the other two

convictions.

       Appellant is correct that the trial court sentenced him outside of the

sentencing guideline ranges on his unlawful contact with minors conviction

and in the aggravated guideline ranges on his corruption of minors and

indecent assault convictions.5        Appellant is also correct that the trial court

provided no reason for its sentence.           As such, the trial court abused its

discretion by failing to “make as a part of the record, and disclose in open
____________________________________________


5
  At sentencing, the parties and the trial court agreed that the sentencing
guideline ranges for Appellant’s three convictions were all “[restorative
sanctions] to nine [months in prison], plus or minus three [months].” N.T.
Sentencing, 7/14/14, at 9. The trial court then sentenced Appellant to one-
and-a-half to three years in prison on the unlawful contact with minors
conviction (an outside-the-guideline-range sentence); one to three years in
prison on the corruption of minors conviction (an aggravated range
sentence); and, one to three years in prison on the indecent assault
conviction (an aggravated range sentence).




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court at the time of sentencing, a statement of the reason or reasons for the

sentence imposed.”        42 Pa.C.S.A. § 9721(b).     We must, therefore, vacate

Appellant’s judgment of sentence and remand for resentencing.6, 7

       Judgment of sentence vacated.               Case remanded.    Jurisdiction

relinquished.

       Judge Musmanno joins.

       Judge Mundy concurs in the result.




____________________________________________


6
  Within the Commonwealth’s brief to this Court, the Commonwealth claims
that the trial court cured its error by stating the reasons for its sentence
during Appellant’s post-sentence motion hearing. This argument fails, as
Section 9721(b) plainly requires that the trial court “make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.” 42 Pa.C.S.A.
§ 9721(b). The post-sentence motion hearing was not “at the time of
sentencing;” therefore, the Commonwealth’s argument fails. See also
Commonwealth v. Warren, 84 A.3d 1092, 1097-1098 (Pa. Super. 2014)
(at sentencing, the trial court did not “evince an awareness of the
sentencing guidelines or explain [its] decision to deviate therefrom, as was
required;” however, “[t]he trial court attempted to ameliorate [its] error in
its subsequent Pa.R.A.P. 1925(a) opinion by stating additional reasons for
the sentence;” this Court held that the trial court’s after-the-fact attempt to
rectify its error “does not suffice” because Section 9721(b) “requires that the
trial court state its reasons for the sentence in court at the time of
sentencing”).
7
 Given our disposition, we will not consider Appellant’s remaining two claims
on appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/9/2015




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