J-S14024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOAN GENSIAK

                            Appellant                  No. 677 MDA 2015


            Appeal from the Judgment of Sentence October 16, 2014
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002134-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                              FILED APRIL 07, 2016

        Appellant, Joan Gensiak, appeals from the judgment of sentence

entered October 16, 2014, in the Court of Common Pleas of Lackawanna

County, following her guilty plea to Neglect of a Care-Dependent Person,

graded as a felony of the first degree, and Endangering the Welfare of

Children, graded as a felony of the third degree.1 We affirm the convictions,

but vacate the judgment of sentence and remand for resentencing.

        The trial court summarized the history of this case as follows.

               On March 19, 2013, Robert Gensiak (hereinafter “Robert”),
        a thirty-two (32) year old male with Down Syndrome, who was
        the brother of [the Appellant,] was admitted to the hospital

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2713 and 4304(a)(1), respectively.
J-S14024-16


     because he was semi-responsive and unable to stand up.
     [Appellant] resided in the home with Robert.

           At the preliminary hearing, David Utter testified that he
     was the lead emergency room technician at the hospital where
     Robert was admitted. He testified Robert was covered in a rash,
     and was emitting a strong, foul smelling odor. He testified that
     Robert weighed sixty[-]nine (69) pounds. While at the hospital,
     Robert went into cardiac arrest and passed away on March 20,
     2013.

            The Lackawanna County District Attorney’s Officer charged
     [Appellant] with four (4) charges related to her brother’s death
     and the endangerment of her two (2) year old daughter, who
     also resided in the home. [Appellant’s] mother, Susan Gensiak,
     and [Appellant’s] sister, Rebekah Gensiak, were also charged in
     relation to Robert Gensiak’s death. [Appellant] was charged with
     Murder of the Third Degree …, Neglect of Care-Dependent Person
     ..., Involuntary Manslaughter …, and Endangering Welfare of
     Children-Parent/Guardian/Other Commits Offense….

           On May 8, 2014, all three (3) co-defendants pled guilty
     before [the trial court]. [Appellant] entered a guilty plea to
     [Neglect of Care-Dependent Person and Endangering the Welfare
     of Children.] At the time of the guilty plea, [the trial court]
     engaged in an extensive colloquy of the [Appellant]. The
     [Appellant] … stated that she had the opportunity to go through
     the four[-]page guilty plea colloquy with her attorney. She
     further stated that her lawyer answered any and all questions
     about the guilty plea colloquy and that she had an understanding
     of her guilty plea and what she was doing. She also conceded
     that there was no agreement between herself, her attorneys and
     the District Attorney’s Office regarding sentencing. She
     additionally acknowledged that she understood the [c]ourt was
     not a party to any agreement she may have had regarding
     sentencing. When questioned, she answered she knew she had
     the right to a jury trial, and understood her attorney’s would
     have the opportunity to cross-examine any witnesses called by
     the Commonwealth and to object to any evidence the District
     Attorney’s Office sought to have admitted to trial.

            During the colloquy of the [Appellant], the Assistant
     District Attorney read the allegations of the criminal information
     for both crimes into the record. [Appellant accepted
     responsibility and admitted to committing the crimes with which


                                   -2-
J-S14024-16


      she had been charged.] … [Appellant] stated that she was freely
      and voluntarily entering into this plea. … Accordingly, [the trial
      court] found [Appellant] entered into the plea knowingly, freely
      and voluntarily.

            Prior to sentencing, both attorneys for the [Appellant], on
      July 21, 2014 and August 26, 2014, respectively, filed separate
      motions for the appointment of a psychiatrist to aid in the
      sentencing of the [Appellant]. [Appellant’s] attorneys requested
      that a psychiatrist be appointed at the rate of five hundred
      dollars ($500.00) per hour with a cap of five thousand dollars
      ($5,000.00). [The court] granted [Appellant’s] request for a
      psychiatrist, but capped the available amount at two thousand
      dollars ($2,000.00). Defense Counsel declined to use the
      psychiatrist, stating in a letter to the [c]ourt that two thousand
      dollars ($2,000.00) was an insufficient amount.

Trial Court Opinion, 6/2/15 at 1-4.

      The court sentenced Appellant to a term of six to fifteen years’

imprisonment.      Thereafter,   Appellant   filed   a   post-sentence   motion   to

withdraw her guilty plea as well as a motion for reconsideration of sentence.

The trial court denied Appellant’s motions following a hearing. This timely

appeal followed.

      Appellant raises the following issues for our review.

      I.     Whether, where Appellant was an [indigent], mentally-ill
             person, charged with third degree murder, the lower court
             erred in [failing to appoint] a mental health expert to aid
             Appellant’s court-appointed counsel at sentencing?

      II.    Whether, where the Commonwealth misled Appellant into
             pleading guilty, by telling her that her identically-situated
             co-defendant was pleading guilty to an identical offense,
             an untrue fact, the lower court erred in re[f]using to allow
             Appellant to withdraw her guilty plea and proceed to trial?

      III.   Whether, by failing to articulate sufficient grounds on the
             record and by failing to properly weigh the mitigating
             circumstances present and by sentencing Appellant in a
             wildly disproportionate manner to that of her identically

                                       -3-
J-S14024-16


            situated co[-]defendant, the lower court erred in
            sentencing Appellant outside of the aggr[a]vated range?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      Appellant first contends that the trial court erred when it allegedly

denied her motion for the appointment of a psychiatric expert to assist at

sentencing. Although Appellant concedes that the trial court agreed to

provide funds for an expert, she argues that the court’s decision to provide

less money than the $5,000.00 she requested amounted to a tacit denial of

Appellant’s motion.

      Our standard of review, as it relates to the appointment of a defense

expert in a criminal matter, is as follows.

      The provision of public funds to hire experts to assist in the
      defense against criminal charges is a decision vested in the
      sound discretion of the court and a denial thereof will not be
      reversed absent an abuse of that discretion.

Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)

(citation omitted). “[T]he Commonwealth is not obligated to pay for the

services of an expert simply because a defendant requests one.” Id. at 1225

(citation omitted).

      Appellant next claims that the trial court erred when it denied her

post-sentence motion to withdraw her guilty plea. We note that,

         [p]ost-sentence motions for withdrawal are subject to
         higher scrutiny since courts strive to discourage entry of
         guilty pleas as sentence-testing devices. A defendant
         must demonstrate that manifest injustice would result if
         the court were to deny his post-sentence motion to
         withdraw a guilty plea. Manifest injustice may be
         established if the plea was not tendered knowingly,


                                      -4-
J-S14024-16


         intelligently, and voluntarily. In determining whether a
         plea is valid, the court must examine the totality of
         circumstances surrounding the plea. A deficient plea does
         not per se establish prejudice on the order of manifest
         injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(internal quotes and citations omitted).

            To be valid, a guilty plea must be knowingly, voluntarily
      and intelligently entered. [A] manifest injustice occurs when a
      plea is not tendered knowingly, intelligently, voluntarily, and
      understandingly. The Pennsylvania Rules of Criminal Procedure
      mandate pleas be taken in open court and require the court to
      conduct an on-the-record colloquy to ascertain whether a
      defendant is aware of his rights and the consequences of his
      plea. Under [Pa.R.Crim.P.] Rule 590, the court should confirm,
      inter alia, that a defendant understands: (1) the nature of the
      charges to which he is pleading guilty; (2) the factual basis for
      the plea; (3) he is giving up his right to trial by jury; (4) and the
      presumption of innocence; (5) he is aware of the permissible
      ranges of sentences and fines possible; and (6) the court is not
      bound by the terms of the agreement unless the court accepts
      the plea. The reviewing Court will evaluate the adequacy of the
      plea colloquy and the voluntariness of the resulting plea by
      examining the totality of the circumstances surrounding the
      entry of that plea. Pennsylvania law presumes a defendant who
      entered a guilty plea was aware of what he was doing, and the
      defendant bears the burden of proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted).

      We have reviewed Appellant’s first two issues raised on appeal, along

with the briefs of the parties, the certified record and the applicable law.

Having determined that the Honorable Margaret A. Bisignani Moyle’s June 2,

2015 opinion ably and comprehensively disposes of these issues, with

appropriate reference to the record and without legal error, we affirm


                                      -5-
J-S14024-16



Appellant’s first two issues on the basis of that opinion. See Trial Court

Opinion, 6/2/15 at 6-12.

      We write independently to address Appellant’s final issue, which

challenges the discretionary aspects of her sentence. Preliminarily, we must

determine whether Appellant has the right to seek permission to appeal the

sentencing court’s exercise of its discretion. See Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges

the discretionary aspects of his sentence, we utilize a four-part test to

determine:

      (1) whether appellant has filed a timely notice of appeal, see Pa.
      R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see 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).

Id. (internal citations omitted).

      Here, Appellant challenged her sentence in a post-sentence motion

and filed a timely appeal. Appellant’s appellate brief also contains the

requisite Rule 2119(f) concise statement. We must now decide whether

Appellant’s challenge to the discretionary aspects of her sentence raises a

substantial question.

      “A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

                                    -6-
J-S14024-16



norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation

omitted).

     Appellant claims in her Rule 2119(f) statement that the trial court

improperly imposed a sentence outside of the aggravated range of the

sentencing guidelines. A claim that the sentencing court imposed a sentence

outside of the guidelines without specifying sufficient reasons presents a

substantial question for our review. See Commonwealth v. Holiday, 954

A.2d 6, 10 (Pa. Super. 2008).

     Our review of the sentencing transcript reveals that although the

sentencing court announced that it was imposing an aggravated range

sentence for the offense of Neglect of a Care-Dependent Person, the court

proceeded to sentence Appellant outside of the sentencing guidelines. See

N.T., Sentencing, 10/16/15 at 21. The “Pennsylvania Commission on

Sentencing Guideline Sentencing Form” contained within the certified record

indicates that that offense carried an offense gravity store of ten, see also

204 Pa.Code §§ 303.3 and 303.15, and that Appellant had a prior record

score of zero. The sentencing guidelines therefore provide for a standard

range sentence of 22 to 36 months imprisonment, with an aggravated range

                                    -7-
J-S14024-16



sentence of 36 to 48 months imprisonment. See id. at § 303.16(a). The trial

court’s sentence of five to ten years’ imprisonment exceeded the guideline

range.

      “In sentencing outside of the guidelines, the court must demonstrate

that it understands the sentencing guidelines ranges.” Commonwealth v.

Garcia–Rivera, 983 A.2d 777, 780 (Pa. Super. 2009). The Sentencing Code

specifies that “in every case where the court imposes a sentence ... 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.” 42 Pa.C.S.A. § 9721(b).

Section 9781(c)(1) of the Sentencing Code makes clear that “the appellate

court shall vacate the sentence and remand the case to the sentencing court

with instructions if it finds [that] the sentencing court purported to sentence

within the sentencing guidelines but applied the guidelines erroneously.”

      Because the record in the instant case does not indicate that the trial

court properly considered the sentencing guidelines, and it appears that the

trial court erroneously believed it was sentencing Appellant within the

sentencing guidelines, when it in fact sentenced Appellant beyond the

guidelines, we are constrained to vacate the judgment of sentence and

remand for resentencing. See id. See also Commonwealth v. Byrd, 657

A.2d 961 (Pa. Super. 1995) (vacating the judgment of sentence where the

sentencing court failed to set forth the permissible range of sentences under

the guidelines, and provided reasons on the record to support what it

                                     -8-
J-S14024-16



believed was a sentence in the aggravated range, while actually sentencing

the appellant outside of the guidelines without providing a contemporaneous

statement of its reasons for such deviation). As our decision upsets the trial

court’s sentencing scheme, we must vacate the entire judgment of sentence

and remand for resentencing.2 See generally Commonwealth v. Tanner,

61 A.3d 1043, 1048 (Pa. Super. 2013).

       Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016




____________________________________________


2
  Due to our disposition of this issue, we decline to address Appellant’s
additional claim that the sentencing court failed to adequately explain the
disparity between Appellant’s sentence and that of her co-defendant,
Rebekah Gensiak.



                                           -9-
                                                                        Circulated 03/17/2016 03:36 PM


                                                                                                     (.iry
                                                                                                    {'
                                                                                                         ·1~-L
                                                         CLERK OF JUDICJAL
                                                         RECO'RDS CRIMHHiL
                                                              DIVISION
        COMM. OF PENNSYLVANIA                        : 1N[llr~,co;µRT:rPF2~9¥MON
                                                     : ~~;A~l't)p 'LA~K!A WA~A
                                                     :COUNTY
                    vs.
                                                     : CRIMINAL DIVISION

        JOAN GENSIAK                                 : 2013 CR 2134


           MEMORANDUM OPINION PURSUANT TO Pa. R. A. P. 1925(a)

          BISIGNANI MOYLE, J.
11
I           I.       INTRODUCTION
I                 The following Opinion, pursuant to the requirements under Pa. R.A.P.

    I       1925(a), addresses the four (4) issues raised by Defendant/Appellant Joan

            Gensiak in her Statement of Errors Complained of on Appeal pursuant to

            Pa. R.A.P. 1925(b).


            II.      FACTUAL/PROCEDURALHISTORY

            On March 19, 2013, Robert Gensiak (hereinafter "Robert"), a thirty-two

        (32) year old male with Down Syndrome, who was the brother of the

        Defendant, Joan Gensiak (hereinafter "Defendant" or "Appellant") was

        admitted to the hospital because he was semi-responsive and unable to stand up.

        N.T. 9/27/13 at 113.Q. Defendant resided in the home with Robert. N.T. 9/27/13

        at p. 46.

            At the preliminary hearing, David Utter testified that he was the lead

        emergency room technician at the hospital where Robert was admitted. He

        testified Robert was covered in a rash, and was emitting a strong, fou~ smelling



                                               1
I
         I
                 odor. N.T. 9/27/13 at p. 46. He· testified that Robert weighed sixty nine (69)

                 pounds. N.T. 9/27/13 at p. 53. While at the hospital, Robert went into cardiac

                 arrest and passed away on March 20, 2013. N.T. 9/27/13 at p. 56.

                    The Lackawanna County District Attorney' s Office charged Defendant,

                 Joan Gensiak, with four (4) charges related to her brother's death and the

                 endangerment of her two (2) year old daughter, who also resided in the home.

                 Defendant's mother, Susan Gensiak, and Defendant's sister, Rebekah Gensiak,

                 were also charged in relation to Robert Gensiak's death. Defendant was charged

                 with Murder of the Third Degree in violation of Title 18 Pa. C.S.A. § 2502,

             Neglect of Care-Dependent Person, in violation of Title 18 Pa. C.S.A. § 2713,

                 Involuntary Manslaughter, in violation of Title 18 Pa. C.S.A. § 2504, and
d            Endangering Welfare of Children-Parent/Guardian/Other Conunits Offense, in
11
     i
     l       violation of Title 18 Pa. C.S.A. 4304(a)(l).

                    On May 8, 2014, all three (3) co-defendants pled guilty before this Court.

             Defendant Joan Gensiak entered a guilty plea to one (1) count of Neglect of

                 Cate-Dependent Person, graded as a felony of the first degree, in violation of

             Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering Welfare of

             Children, graded as felony of the third degree, in violation of Title 18 Pa. C.S.A

             § 4304. At the time of the guilty plea, this Court engaged in an extensive

             colloquy of the Defendant.1 The Defendant, upon this Court's questioning,

             stated that she had the opportunity to go through the four page guilty plea

             colloquy with her attorney. N.T. 5/18/14 at p. 5. She further stated that her

             I
               Defendant's entire guilty plea colloquy by this Court can be found from pages three (3)
             through twenty-four (24) in the May 8, 2014 transcript.


                                                            2
11

!
     lawyer answered any and all questions about the guilty plea colloquy and that

     she had an understanding of her guilty plea and what she was doing. N.T.

     5/18/14 at p. 6, 13. She also conceded that there was no agreement between

     herself, her attorneys and the District Attorney's Office regarding sentencing.

     N.T. 5/18/14 atp. 16. She additionally acknowledged that she understood the

     Court was not a party to any agreement she may have had regarding sentencing.

     N.T. 5/18/14 at p. 16. When questioned, she answered she knew she had the

     right to a trial by jury, and understood her attorneys would have the opportunity

     to cross-examine any witnesses called by the Commonwealth and to object to

     any evidence the District Attorney's Office sought to have admitted to trial.

     N.T. 5/18/14 at p. 18.

         During the colloquy of the Defendant, the Assistant District Attorney read

     the allegations of the criminal information for both crimes into the record. After

     the Assistant District Attorney read the allegations regarding the charge of

     Neglect of Care-Dependent Person, Defendant responded that she did in fact

     commit this crime, stating "I should have done more and .... yes.11 N.T. 5/18/14

     at p. 22. The Assistant District Attorney then read the allegations regarding the

     charge of Endangering the Welfare of a Child. N.T. 5/18/14 at p. 23. She

     admitted that she did in fact commit that crime and she "should have done more

     with her also." N.T. 5/18/14 at p. 23. Defendant stated that she was freely and

     voluntarily entering into this plea. N.T. 5/18/14 at p. 23. Her attorneys stated

     that in their opinion, the Defendant was entering into the plea freely and




                                            3
,,
                                                             I

     voluntarily, N.T. 5/18/14 at p. 24. Accordingly, this Court found Defendant

     entered into the plea knowingly, freely and voluntarily. N.T. 5/18/14 at p. 24.

        Prior to sentencing, both attorneys for the Defendant, on July 21, 2014 and

     August 26, 2014, respectively, filed separate motions for the appointment of a

     psychiatrist to aid in the sentencing of the Defendant. Defendant's attorneys

     requested that a psychiatrist be appointed at a rate of five hundred dollars

     ($500.00) per hour with a cap of five thousand dollars ($5,000.00). This Court

     granted Defendant's request for a psychiatrist, but capped the available amount

     at two thousand dollars ($2,000.00). Defense Counsel declined to use the

     psychiatrist, stating in a letter to the Court that two thousand dollars ($2,000.00)

     was an insufficient amount.

         On October 16, 2014, this Court sentenced all three co-defendants. The

     Defendant was sentenced to six (6) years to fifteen (15) years in a State

     Correctional Institution. N.T. 10/16/14 at p. 21. On October 23, 2014, she filed

     a Motion to Withdraw Plea of Guilty as well as a Motion for Reconsideration of

     Sentence.   On November 3, 2014, the Commonwealth filed an Answer to

     Defendant's Motion to Withdraw Guilty Plea. On December 17, 2014, this

     Court held a hearing on Defendant's Motions. Although she raised several

     arguments in her Motion to Withdraw Guilty Plea, by the time of the heating,

     she abandoned all but one (1) argument. N.T. 12/17/14 at p. 109. Namely, she

     argued that she was not aware that her co-defendant, Rebekah Gensiak, pled

     guilty to a misdemeanor charge of Neglect of Care-Dependent Person. Rather,

     she was under the mistaken impression her sister pled to Neglect of Care-



                                              4
!',j


       Dependent Person graded as a felony. Defendant's Motion for Reconsideration
i1
I      overlapped with her Motion to Withdraw her Guilty Plea, only setting forth one
11
I      additional argument. She raised the disparity between her sentence and the

       sentence of her sister co-defendant, arguing the range of prison terms were too

       disparate. On April 8, 2015, this Court issued an Order and an Opinion denying

       Defendant's Motions.

                On April 13, 2015, Defendant filed her Statement of Matters

       Complained of on Appeal Pursuant to Rule 1925(b). Defendant raised the

       following four issues:

                1. The trial court erred in refusing to appoint an appropriate Psychiatric
                   and/or Psychological Expert Witness to assist Appellant and
                   Appellant's Counsel at Sentencing in this matter.


                2.    The trial court erred in refusing to allow Appellant to withdraw her
                     guilty plea after sentencing despite the fact that the Commonwealth
                     made material misstatements to Appellant in inducing her plea in
                     this matter.

                3. The trial court erred in sentencing Appellant in the aggravated range
                   in this case. The court failed to articulate sufficient and/or
                   acceptable grounds for an aggravated range sentence on the record.

                4. The trial comi abused its discretion in sentencing Appellant.
                   Specifically, the court sentenced Appellant in a wildly
                   disproportionate manner to her co-defendant, Rebekah Gensiak who
                   was similarly situated to her, without adequate reason for doing so.


          Each of Defendant's four (4) issues complained of on appeal is discussed

       below.




                                                5
    III.      DISCUSSION

    A. Appointment of an Appropriate Psychiatric and/or Psychological
       Expert Witness

           a. Defendant's Argument

           Defendant asserts, on appeal, as follows:

           (a) The trial court erred in refusing to appoint an appropriate
               Psychiatric and/qr Psychological Expert· Witness to assist
               Appellant and Appellant's Counsel at Sentencing in this
               matter.



           b. Applicable Law

           "Under the law of Pennsylvania, as in a majority of states, the

appointment of an expert witness or an investigator to assist in the preparation

of a defense is vested in the sound discretion of the trial court." Comm. v.

Gel01mo, 475 A.2d 765, 769 (Pa. Super. 1984). "There is no constitutional

mandate, either federal or state, that experts be appointed at public expense to

assist in the preparation of a defense whenever requested by one accused of

crime." Id. citing United States ex rel. Smith v. Baldi. 344 U.S. 561, 568

(1953). "There is no obligation on the part of the Commonwealth to pay for the

services of an expert." Com. v. Cruter, 643 A.2d 61, 73 (1994) citing

Commonwealth v. Williams, 561 A.2d 714, 718 (1989). In Carter, the trial

court granted Defendant's request for a psychiatrist, but Defendant failed to use

the testimony of the psychiatrist during trial. The Carter Court held "the

appellant cannot now assert that he was prevented from presenting his case

where he failed to utilize the experts approved by the court." Carter, 643 A.2d

at 73.

                                           6
11




            c. Application

         At the outset, this Court notes that the Court did not refuse to appoint a

     psychiatrist or psychological expert to assist with sentencing. Instead, this

     Court capped the total available funds at a reasonable amount ($2,000.00) to

     allow the appointment of either a psychiatrist or psychological expert to assist

     with sentencing. Defendant then chose to proceed without use of the two

     thousand dollars ($2,000.00) to hire an expert and proceed directly to

     sentencing.

         "There is no is no obligation on the part of the Commonwealth to pay for

     the services of an expert." Carter, 643 A.2d at 73 (1994) citing Williams. 561

     A.2d at 718. However, this Court was willing to provide a reasonable amount

 I   of money for a psychiatrist or psychologist. This Court calculated a reasonable

     amount for Defendant to use for a psychiatrist or psychologist and provided the

     Defendant the opportunity to use that amount. The Defendant declined to use

     that amount, and now is attempting to frame this Court's grant of two thousand

     dollars ($2,000.00) as a "refusal refusing to appoint an appropriate psychiatric

     and/or psychological expert witness."

           Because this Court granted Defendant's request, even though this Court

     had no obligation to do so, and Defendant chose not to use the expert,

     Defendant's first matter complained of on appeal is without merit.




                                             7
           B. · Refusal to Allow Appellant to Withdraw Guilty Plea After
                Sentencing

               a. Defendant's Argument

           Defendant asserts, on appeal, as follows:

               (b) The trial court erred in refusing to allow Appellant to
                    withdraw her guilty plea after sentencing despite the fact that
                  . the Commonwealth made material misstatements . to
                    Appellant in inducing her plea in this matter.

           Defendant asserts that she should be allowed to withdraw her guilty plea

      posHfntence because she was unaware that her sister and co-defendant,

      Rebekah Gensiak, pled guilty to a misdemeanor. N.T. 12/17/14 at p. 10. This

      issue formed the basis of Defendant's argument in her motion to withdraw

      guilty .plea, for which this Court held a hearing. In order to frame Defendant's

      argument more clearly, one must look at the procedural history of this case.

           As stated above, Defendant, along with her mother, Susan Gensiak, and

      sister, Rebekah Gensiak, were each charged with several criminal offenses

I
1 ·
I
      related to the death of Robert Gensiak. Rebekah Gensiak cooperated with the

      Commonwealth and testified at the preliminary hearing. N.T. 9/27/13 at p. 144-

      200. At the preliminary hearing, the District Attorney asked Rebekah Gensiak,

      "And did I ever offer you anything for your testimony today?" N.T. 9/27/13 at

      ~·       Ms. Gensiak replied "[t]o plead to Neglect of Care-Dependent." N.T.

      9/27/13 at p. 145.

           On May 8, 2014, all three (3) co-defendants pled guilty before this Court.

      Susan Gensiak pled guilty to Murder of the Third Degree in violation of Title

      18 Pa. C.S.A § 2502(C). Defendant then pled, as aforestated, to one (1) count

                                               8
of Neglect of Care-Dependent     Person, graded as a felony of the first degree, in
     I


violation of Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering

Welfare of Children, graded 8;S felony of the third degree, in violation of Title

18 Pa. C.S.A § 4304. Finally, Rebekah Gensiak, in exchange for her

cooperation, pled to one (1) count of Neglect of a Care-Dependent Person,

graded as a misdemeanor of the first degree.

    This Court sentenced Defendant, her mother; and her sister on October 16,

2014. On October 23, 2014, Defendant filed a Motion for Reconsideration and

a Motion for Withdrawal of Guilty Plea. Defendant's counsel argued that they

were .unaware, until after sentencing, that Rebekah Gensiak pled guilty to a

misdemeanor. N.T. 12/17/14 at p. 99. Defendant's counsel argued that when

Rebekah Gensiak stated that she was going to plea to Neglect of a Care-

Dependent Person, they assumed she was going to plea to that crime, graded as

a felony. A hearing was held on December 17, 2014, on Defendant's· Motion to

Withdraw Guilty Plea and Defendant's Motion for Reconsideration of

Sentence. At the hearing, Defendant's counsel argued that if they had known

that Rebekah Gensiak pled guilty to a misdemeanor, they would have advised

Defendant not to take the plea offer. N.T. 12/17/14 at p. 105. Defense counsel

reasoned the co-defendant's plea agreement would have undermined her

credibility as a witness during trial. N.T. 12/17/14 at p. 105.

         ( c) Applicable Law

   When considering a petition to withdraw a guilty plea after sentencing, it is

well-established that "a showing of prejudice on the order of manifest injustice"


                                         9
ii




I
11        is required before withdrawal is properly justified. Commonwealth v. Starr, 301

I         A.2d 592, 595 (Pa. 1973). "A defendant is presumed to be aware of what he

'1       . was doing and the burden of proving involuntariness is squarely on him."
1,,
     I    Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) quoting

I'        Commonwealth v. West 485 A.2d 490, 493(Pa. Super. 1984). The burden

          placed on a defendant in such a motion increases significantly after sentencing.

          Commonwealth v. English, 597 A.2d 122, 123 (Pa. Super. 1991). Post-

          sentencing attempts to withdraw a guilty plea must sustain this more substantial

          burden because of the recognition that a withdrawal of a guilty plea can be used

          as a sentence-testing device. StalT, 301 A.2d at 594. "A demonstration of

          manifest injustice requires a showing that the plea was involuntary or was

          entered without knowledge of the charge.'' Commonwealth v. Warren, 453

          A.2d 5, 6 (Pa. Super. 1982).

             In Commonwealth v. Kephart, 594 A.2d 358, 360 (Pa. Super 1991), the

          Pennsylvania Superior Court held that a court reviewing a post-sentence motion

          to withdraw a guilty plea must examine the totality of the circumstances and

          determine whether the plea was entered into involuntarily or without

         knowledge of the chargers). In Kephart, the Defendant; who pied guilty to DUI,

         Driving at an Unsafe Speed and Homicide by Vehicle, sought to withdraw his

         guilty plea in light of newly discovered evidence that might have supported his

         averment that another individual was driving at the time of the accident. In

         Kephaii, the Defendant asserted that a woman witnessed the car being driven

         by the decedent just prior to the accident and that the Commonwealth had this



                                                10
        evidence and did not turn it over to him. Kephart, 594 A.2d at 360. At the

        sentencing hearing, the witness stated she saw two males in the car and one of

        them was bearded.       Id. However,   the witness testified   that she could not

        determine whether the bearded male was the driver or the passenger.       Id. She

        further stated that she never told the police investigator the bearded male was

        driving.    In addition, the police investigator testified that his notes from

        interviewing the witness contained no reference to any statement regarding the

        identity of the driver. Id. The Kephart Court ruled the witness' testimony does

        not amount· to exculpatory evidence and second, the Commonwealth had no

        reason to believe that the witness's statement was exculpatory. · Id. In

        conclusion, the Court found that "a manifest injustice does not result from the

        denial of appellant's motion to withdraw his guilty plea." Id.

                   (d) Application                                                          !
            Under Kephart, this Court is required to examine the totality of the            I
        circumstances to determine if Defendant has met her burden of establishing
                                                                                            I.
        manifest injustice. Like the Kephatt Court, after reviewing the totality of the

        circumstances regarding Defendant's plea, this Court finds that her discovery

        that Rebekah. Gensiak pled to a misdemeanor, rather than a felony,
                                                                       .
                                                                           lends itself
    I
I       to a Kephait analysis. Defense counsel contends this discovery is tantamount to

        newly discovered evidence. Further they contend their strategy would have

        been to cross-examine the cooperating co-defendant about her plea agreement,

        suggesting the deal would have undermined her credibility as a witness. As in

        Kephart, this newly discovered "evidence" does not constitute the type of


                                                 11
    exculpatory epiphany that sways this Court to find a manifest injustice. The         I
                                                                                         I
    newly discovered evidence that one of the co-defendants .in this case pled to a      !
    misdemeanor and not a felony is not exculpatory evidence. The Defend~nt

I   admitted that she committed the crimes for which she was sentenced. The

    Assistant District Attorney read the statement of facts for each crime into the      I
    record, and Defendant admitted to committing both crimes, stating with respect
                                                                                         l
    to both offenses "I should have done more." N.T. 5/18/14 at p. 22-23.
                                                                                         I
        More importantly, the Defendant is not asserting her innocence. Rather, she      lI
    is asserting that she would have proceeded to trial if she had known about her
                                                                                         I
    co-defendant's plea agreement. This scenario does not equate to the discovery        l
    of exculpatory evidence. Rather she asserts, if she went to trial, a jury would be   I
    less inclined to believe Rebekah Gensiak's testimony. This is pure speculation

    on her part. It is just as plausible that a jury would not have been swayed by the
                                                                                         I
    Defense's cross-examination, In either event, this type of attenuated speculation

    does not give rise to· the stringent standard utilized by our courts to warrant a

    post-sentence guilty plea withdrawal.

       There is no indication that this newly discovered information would have

    affected the outcome of the trial and therefore, Defendant's second matter

    raised on appeal is without merit.




                                            12
I'

I
l,        C; This Court Set Forth Sufficient Reasons for Defendant/Appellant's
                                                                            .
             Sentence in the Aggravated Range

I        · a. Defendant's Argument

I!I       Defendant asserts, on appeal, as follows:

i'            ( c) The trial court erred in sentencing Appellant in the
11        · · aggravated range in this case. The court failed to articulate
              sufficient and/or acceptable grounds for an aggravated range
I             sentence on the record.

             This Court sentenced Defendant to five (5) years to ten (10) years for
I!t
,1
I I
      Neglect of Care-Dependent Persori under Title 18 Pa: C.S.A § 2713, graded    as a
I'
      felony one (1). This Court also sentenced Defendant to one (1) year to five (5)

      years for Endangering the Welfare of a Child under Title 18 Pa. C.S.A § '4304; ·

      graded as felony three (3). These sentences were run consecutively for an

      aggregatesentence of six (6) years to fifteen (1.S) years imprisonment. ·


          b. Applicable Law

          The Defendant is challenging the discretionary aspect of her sentence. In

      Pennsylvania, "such challenges must be raised in a post sentence motion or

      during the sentencing proceedings, or they are waived." Pa. R. Crim.P. 720

      (B)(l)(a); see Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003).

      "Sentencing is within the sound discretion of the trial court and will not be

      disturbed absent an abuse of discretion." Commonwealth v. Tirado, 870 A.2d

      362, 365 (Pa. Super. 2005). A sentencing court has not abused .its discretion

      "unless the record discloses that the judgment exercised was manifestly

      unreasonable,   or the result of partiality, prejudice, bias or ill-will."

      Commonwealth v. Wall, 926 A.2d 957, 961 (2007) quoting Commonwealth v.


                                             13
11



I    Smith, 673 A.2d 893, 895 (1996). "When determining the appropriate

     punishment for any convicted defendant, the trial court must be guided by

     several principles: [t]he sentence imposed should call for confinement that is

     consistent with the protection of the public, the gravity of the offense as it

     relates to the impact on the life of the victim and on the community, and the

11   rehabilitative   needs   of the defendant,"      42 Pa.C.S.A;      §9721(b);    See

11   Commonwealth. v. Young, 895 A.2d 40, 42 (Pa. Super. 2006). In addition, "the

I    trial court must consider the sentencing guidelines as well as the history and

     character of the defendant and the particular circumstances of the offense."

     Young. 895 A.2d at 44. "A sentence will not be disturbed where it is evident

     that the court was aware of the sentencing considerations and weighed the

     considerations in a meaningful fashion." Commonwealth v. Cappellini, 690

     A.2d 1220, 1228 (1997). Moreover, where the court's sentencing colloquy

     "shows consideration of the defendant's circumstances, prior criminal record,

     personal characteristics and rehabilitative potential, and the record indicates that

     the court had the benefit of the presentence report, an adequate statement of the

     reasons for the sentence imposed has been given." Commonwealth v. Brown,

     741 A.2d 726, 735 (Pa. Super. 1999) quoting Commonwealth v. Phillips, 601

     A.2d 816, 823-24 (1992).

        In order to sentence a Defendant in the aggravated range, Comm. v. Hoover,

     492 A.2d 443, 444 (1985) sets forth the three criteria that are applicable. First, a

     sentencing judge may consider any legal factor in deciding whether a defendant

     should be sentenced within the aggravated range. Id. Second, the sentencing



                                             14
        judge's    statement   of reasons on record must reflect this consideration.        Id.

        Finally, the sentencing judge's decision regarding the aggravation of a sentence

        will not be disturbed        absent   a manifest   abuse   of discretion.   Id. citing

        Commonwealth v. Duffy. 491 A.2d 230, 233 (198'5).

            This Court set forth its reasons for sentencing Defendant in the aggravated

        range, as follows:

                  [T]he reasons for the sentence being imposed today is that this
                  sentence recognizes the serious nature of the offenses that have
                  been committed by you, the fact that both of your victims suffered
                  and they suffered for a prolonged period of time-unfortunately
                  Mr. Robert Gensiak suffered a painful and prolonged conditionof
                  the Norwegian scabies-that both victims were unable either due
                  to their age or their deteriorating condition or disability to care for
                  themselves. We're talking about a two-year-old child and an adult
                  male but with a deteriorating condition and a disability. Both of the
                  victims were dependent upon you and other members of the family
                  to provide the proper attention and medical care necessary to
                  prevent any further suffering.

                  The sentences that I'm imposing here today, ma'am, are consistent
                  with the protection of the public and the rehabilitative needs of
                  you, the defendant.

                  Another reason· for the sentence here today with respect to Robert
                  is that by your own statements to the officers at the time of your
                  arrest and your own statements in the presentence investigation is
                  that you did take a more proactive role in the treatment and care of

    I             your brother Robert Gensiak, placing you in a better position to
                  observe his deteriorating condition, to be alarmed by it, and to
                  bring that attention to the appropriate authorities even if your
I                 mother wouldn't act.

                  For all of those reason, ma'am, the sentence is imposed here
                  today."

                  (tl.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.)

           In sum, this Court considered that the Defendant's victims suffered for a

        prolonged period of time, that Robert Gensiak suffered a painful and prolonged


                                                  15
condition of the Norwegian scabies, that both victims were unable either due to

their age or condition or disability to care for themselves and that both victims

relied on Defendant for proper attention and medical care   to prevent any further
suffering. Further, this Court considered that Defendant took a more proactive

role in the care of Robert Gensiak, placing Defendant in a better position to

observe his deteriorating condition, to be alarmed by it, and to bring that

attention to the appropriate authorities even if Defendant's mother wouldn't act.

The Court set forth these reasons on the record during sentencing.

    Further, this Court reviewed and took into consideration the. presentence

investigation report, heard from the Commonwealth, counsel for the Defendant

and the Defendant herself. This Court also took into consideration Defendant's

circumstances, personal characteristics, education level and rehabilitative

potential. After careful consideration of all these factors, this Court imposed the

above referenced sentence.

   Based on this Court's consideration of the requisite factors, the sentencing

guidelines and based on the reasons set forth on the record, Defendant's third

matter raised on appeal is without merit.


   D. This Court Did Not Abuse its discretion in Sentencing .
      Defendant/Appellant Disproportionately to her Co-Defendant,
      Rebekah Gensiak


   a. Defendant's Argument

   Defendant asserts, on appeal, as follows:

       ( d) The trial court abused its discretion in sentencing Appellant.
       Specifically, the court sentenced Appellant in a wildly


                                       16
       disproportionate manne to her co-defendant, Rebekah Gensiak
       who was similarly situ ted to her, without adequate. reason for
       doing so.

    The Defendant argues th t because there is a disparity in sentencing

between her and her cooperati g co-defendant the Court should reconsider her
                                                                             .j       .

sentence. As noted above, this    ourt sentenced Defendant to sixty (60Y.months
                                                                              i
                                                             '                i
to ten (10) years for Neglect of Care-Dependent Person under TitJJ 18 Pa.
                                                                              i
C.S.A § 21n, graded as a fel ny one (1). This sentence is in the aggravated
                                                                              I
                                                                              I
range. This Court also sentenc d Defendant to twelve (12) to twenty-four (24)
                                                                              i
months for Endangering the        elfare of a Child under Title 18 Pa. C.S,A §
                                                                     .        I
                                                                              I
4304, graded as felony thr e (3). The respective sentences wpre run
                                                                     I
consecutively for an aggregate sentence of six (6) years to fifteen Op) years
                                                                              I
                                                                              i

imprisonment. This Court sen enced Rebekah Gensiak to six (6). m~nths. to
                                                                              I

twenty-three (23) months impr sonment stemming from her guilty ple~ to one
                                                    .                         I
                                                                              I
(1) count of Neglect of a Care- ependent Person, graded as a misdemeanor of

the first degree. This sentence   as also in the aggravated range.            I
                                                                              I
                                                                              !
                                                                              I
   c. Applicable Law
                                                                 ,            I
   A trial court is not bound to impose a "like" sentence on!all participants of a
                                                                 I            I

crime. Commonwealth. v. Land', 421 A.2d 442, 444 (1980)] "After conbidering
                                                                 i            '
                                                                 I            !


the circumstances relating to each defendant, the trial !court may ! impose
                                                                 ,            I
                                                                 I       .    j
different sentences." Common ealth v. Bu1ion, 301 A.2d 675, 677 (Pe, 1973).
                                                                 I                '



In order to impose different sentences on co-defendants, the collj(i must

articulate differences between the co-defendants that jjstify the ~isparate
                                                        .        .            I
                                                                              i
sentences .. Commonwealth v.      hurmond 390 A.2d: 1330( 1330 (Pa; Super.

                                        17
11
 I
     1978).
      .
            The. reason why one
                            .
                                co-defendant receives . a more severe
                                                                 .
                                                                      sentence than
                                                                             '   •.'




     another must be stated on the record. Commonwealth v. Sinwell, 457 A.2d 957,
                                                                                                  I

     960 (Pa. Super. 1983) citing Commonwealth v. McQuaid, 41_7 A.2d 1210, 1216                   I
     (Pa. Super 1980).
                                                                                                  I
         d. Application


         At the time of sentencing, this Court had reviewed and · took into

     consideration       the   presentence   investigation   report,   heard     from       the

     Commonwealth, counsel for the Defendant and the Defendant herself. This

     Court also took into consideration Defendant's               circumstances, personal

ii   characteristics, education level and rehabilitative potential, After. careful

     consideration of all these factors, this Court imposed the above referenced

     sentence. Notably, the Defendant has not demonstrated .that the judgment
                                                              .          .
 I                                                      .

     exercised by this Court was manifestly unreasonable, or the result of parti~lity,

     prejudice, bias or ill-will. Instead, Defendant's sentence was the result. of

     careful consideration of the reasons listed above. Further, as stated above, this

     Court articulated specific reasons for Defendant's sentence in the aggravated

     range.

        Moreover, there are several reasons for the disparity in. sentences between

     Defendant, Joan Gensiak, and her· co-defendant, Rebekah Gensiak, Th~se

     reasons were articulated on the record . First and foremost, the defendants pied

     guilty to different classifications of charges. Namely, Defendant Joan Gensiak
                     '                                                                  '

     pled guilty to Neglect of Care-Dependent Person in violation of Title 18 Pa.

     C.S.A § 2713, graded as a felony one (1) and Endangering Welfare ofChildren

                                               18
I
I       in violation of Title 18 Pa. C.S.A § -4304, graded as a felony three (3).
I       Defendant Rebekah Genisak pled guilty to one (1) count of Neglect of a Care-

        Dependent person in violation Title 18 Pa. Cons. Stat. Ann. § 2713, graded as

        a misdemeanor of the first degree. These different classifications obviously

        carry different sentencing guidelines ..

            Second, all three (3) co-defendants received a sentence in the aggravated
    I   range.
11
II         Third, this Court articulated the reasons for the sentences of Defendant and


    I   Rebekah Gensiak on the record. In setting forth the reasons for Defendant Joan

        Gensiak's sentence, this Court stated as follows, and as stated above:

                  [T]he reasons for the sentence being imposed today is that this
                 sentence recognizes the serious nature of the offenses that have
                 been committed by you, the fact that both of your victims suffered
                 and they suffered for a prolonged period of time=unfortunately
                 ML Robert Gensiak suffered a painful and prolonged condition of
                 the Norwegian scabies-that both victims were unable either due
                 to their age or their deteriorating condition or disability to care for
                 themselves. We're talking about a two-year-old child and an adult
                 male but with a deteriorating condition and a disability. Both of the
                 victims were dependent upon you and other members of the family
                 to provide the proper attention and medical care necessary to
                 prevent any further suffering.

                 The sentences that I'm imposing here today, ma'am, are consistent
                 with the protection of the public and the rehabilitative needs of
                 you, the. defendant.

                 Another reason for the sentence here today with respect to Robert
                 is that by your own statements to the officers at the time of your
                 arrest and your own statements in the presentence investigation is
                 that you did take a more proactive role in the treatment and care of
                 your brother Robert Gensiak, placing you in a better position to
                 observe his deteriorating condition, to be alarmed by it, and to
                 bring that attention to the appropriate authorities even if your
                 mother wouldn't act.



                                                   19
            For· all of those reason, ma'am, the sentence is imposed here
            today."


             ill.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.)

            In setting forth the reasons for Rebekah Gensiak's Sentence, the Court

     stated as follows:

II          The reasons for my sentence here today are that the sentence is
            consistent with the protection of the public and the rehabilitative
            needs of you, the defendant..... that the victim due to his
11          deteriorating condition and his own disability was unable to care
            for himself and was dependent upon his family members to
            provide care for him, the fact that your brother suffered a painful
 I
            and prolonged death. This sentence also recognizes the serious
            nature of the offense."                           ·

            (N.T. Rebekah Gensiak? 2013 CR 2143, 10/16/14 at p. 16)


            It is clear from the reasons set forth on the record that Defendant Joan

     Gensiak was the more culpable of these defendants. Defendant Joan Gensiak

     pled to two (2) felonies, each of which concerned a separate victim. Further,

     while both sisters lived in the house with Robert Gensiak, Joan had more of an

     opportunity to see the pain and suffering Robert suffered before his death. In

     placing the reasons for the sentences on the record, this Court noted Joan's

     more proactive role in her brother's care which, as stated by this Court, placed

     her in a better position to observe his deteriorating condition. Joan also placed

     her daughter in immediate danger and caused her daughter to suffer. Defendant

     Rebekah Gensiak, while culpable in the death of Robert Gensiak, was not as

     culpable in the eyes of the Court because she was out of the house more often

     due to school and work. Additionally, she was on bed rest due to her pregnancy.



                                           20
N.T. 12/17/14 at p. 80. Further, Rebekah Gensiak did not participate in hands

on care with Robert. N.T. 12/17/14 at p. 80. Finally, Rebekah Gensiak only

pied. to a misdemeanor in exchange with her cooperation as a witness for the

prosecution.

   Based on the reasons set forth in the record for the differences in sentence

between Rebekah Gensiak and the Defendant, as well as this Court's

consideration of the requisite factors, Defendant's fourth matter raised on

appeal is without merit.



   IV.     CONCLUSION

   For the reasons set forth in this Opinion, Defendant/Appellant's matters

raised on appeal are without merit.

                                      BY THE COURT:



                                                                      J.



                                      DATE:



                                       & - I - 1-s-



                                      21
