J-S14037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
               v.                              :
                                               :
                                               :
    JERRY BRANCH, JR.                          :
                                               :   No. 1011 EDA 2017
                      Appellant                :

           Appeal from the Judgment of Sentence September 22, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002170-2014


BEFORE:      OTT, J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                  FILED APRIL 26, 2018

        Appellant, Jerry Branch, Jr., appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for involuntary deviant sexual intercourse (“IDSI”) with a

person less than sixteen years of age, sexual assault, and corruption of

minors.1 We affirm Appellant’s convictions, but we vacate the judgment of

sentence and remand for resentencing.

        Beginning when the victim, J.K. (“the Victim”), was thirteen years old,

Appellant provided him with beer and marijuana.               Notes of Testimony

(N. T.), 6/14/16, at 28, 33-35. Appellant was a co-worker of the Victim’s

mother.      On five separate occasions, each occurring in Philadelphia, the

____________________________________________


1   18 Pa.C.S. §§ 3123(a)(7), 3124.1, and 6301(a)(1), respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14037-18



Victim awoke during the night to realize that his penis was in Appellant’s

mouth and that Appellant was “right in front” of the Victim, on his knees.

Appellant did not say anything at the time, because he was embarrassed.

Id. at 37.

      The first occasion occurred at Appellant’s home. Id. at 33. The Victim

became drunk on alcohol provided by Appellant and passed out on the couch

in the living room. Id. He awoke at about 2:00 a.m. “with [his] penis in

[Appellant’s] mouth.” Id. Although two other minors, including the Victim’s

friend, P.G., had been drinking alcohol with Appellant and the Victim earlier

that evening, the other two had left, and the Victim was the only one who

had slept at Appellant’s house. Id. at 33, 35.

      The second incident occurred at the Victim’s residence. Id. at 37. The

Victim was sober but tired after a long trip, and he and the Appellant fell

asleep in the family room.    Id. at 38-39.      Appellant again molested the

Victim at approximately 2:00 a.m. Id. at 39.

      The third incident was at Appellant’s home. Id. at 40. After a party,

the Victim and two other minor males, including P.G., slept downstairs. Id.

at 40. The Victim was drunk and fell asleep on the couch in the living room.

Id. at 40-41. At around 2:00 a.m., Appellant “proceeded to do the same

thing.” Id. at 41.

      The fourth incident was again at Appellant’s home, but the Victim was

sleeping on a couch in Appellant’s bedroom. Id. at 44. P.G. was asleep in




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the bed in the same room.       Id.   The Victim was awakened at 1:00 a.m.,

“and it was the same thing again.” Id.

      The fifth and final incident, when the Victim was “about 16” years old,

occurred in Appellant’s new home. Id. at 45. After a party, the Victim, who

had been drinking beer, was the only invitee to stay overnight. Id. at 46.

At about 2:00 a.m., Appellant made the Victim touch Appellant’s penis, then

insisted that they go to Appellant’s bedroom; once in the bedroom, Appellant

made the Victim manually stimulate him. Id. at 46-47.

      In Fall 2013, the Victim broke down and told his girlfriend, D.S., that

Appellant had molested him for years. Id. at 52-53, 141.

      During trial, the Victim testified that he had told P.G. about the abuse

after the fifth assault.   Id. at 71-72; N. T., 6/15/16, at 11.     P.G. testified

that the Victim never specifically told him the nature of the abuse and

instead recalled that the Victim had claimed there had been an “altercation”

between the Victim and Appellant. When asked if the Victim said that the

altercation “was sexual,” P.G. answered affirmatively.         The Victim further

testified that he was no longer dating D.S., but D.S. testified that she was

the Victim’s current girlfriend. N. T., 6/14/16, at 53, 182.

      At the close of Appellant’s trial, his counsel requested that the trial

court issue the “false in one, false in all” jury instruction, Pennsylvania

Suggested Standard Criminal Jury Instructions (“SSJI (Crim.)”) 4.15,

arguing that the Victim’s trial testimony was contradicted by that of other




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witnesses. The trial court denied the request but gave the following general

jury instruction on the credibility of witnesses:

      So how do you evaluate the witnesses? How do you decide
      credibility? I’m going to give you a list of things that you should
      consider, and as I do this, you’ll recognize that these are things
      that you already use in your [everyday] life. You’re constantly
      judging the credibility of people. People that you see speaking
      on television, people that you speak to face to face.

      As judges of the facts, you are the sole judges of the credibility
      of the witnesses and their testimony. This means you must
      judge the truthfulness and the accuracy of each witness’
      testimony and decide whether to believe all, or part, or none of
      that testimony. The following are some of the factors that you
      may and should consider when judging credibility and deciding
      whether or not to believe testimony.

      First, was the witness able to see, hear, or know the things that
      that witness testified about?      How well could the witness
      remember and describe those things? Did the witness testify in
      a convincing manner? How did the witness look, act and speak
      while testifying? Was the testimony uncertain, confused, self-
      contradictory, evasive?

      Did the witness have any interest in the outcome of the case?
      Did the witness have any bias, any prejudice, any motive that
      might have affected that witness’ testimony? How well does the
      testimony of the witness fit with the other evidence in the case,
      including the testimony of other witnesses. Was it contradicted
      or supported by the other testimony and evidence? Does it
      make sense?

      If you believe that some part of the testimony of a witness is
      inaccurate, consider whether that inaccuracy casts doubt upon
      the rest of the witness’ testimony. This may depend on whether
      or not the witness has been inaccurate in an important matter,
      or simply some minor detail, as well as any possible explanation.
      For example, did the witness make an honest mistake? Did they
      simply forget, or deliberately falsify?

      While you are judging the credibility of each witness, you are
      likely to be judging the credibility of other witnesses and
      evidence. If there is a real irreconcilable conflict, it is up to you

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      to decide which, if any, conflicting testimony or evidence to
      believe.

      As sole judges of credibility and fact, you are responsible to give
      the testimony of every witness and all of the other evidence
      whatever credibility, whatever weight you think it deserves.

      What about conflicting testimony, where there is a conflict in the
      testimony, where the witnesses testify but their testimony
      diverges on some issue? The jury has the duty of deciding which
      testimony to believe. So you should first try to reconcile, that is,
      fit together any conflicts in the testimony, if you can fairly do so.

      Discrepancies and conflicts between the testimony of different
      witnesses may cause you to disbelieve some or all of their
      testimony. Remember, two or more persons witnessing an
      incident may see it happen differently, or may hear it happen
      differently.  Also, it is not uncommon for a witness to be
      innocently mistaken when recollecting how something happened.

      If you cannot reconcile a conflict in the testimony, it is up to you
      to decide which testimony, if any, to believe, and which
      testimony to reject as being untrue or inaccurate.

      In making this decision, consider whether the conflict involves a
      matter of importance or merely some detail. And whether the
      conflict is brought about by an innocent mistake or by an
      intentional falsehood. You should also keep in mind the other
      factors already discussed which go into deciding whether or not
      to believe a witness.

      In deciding which of conflicting testimony to believe, you should
      not necessarily be swayed by the number of witnesses on either
      side. You may find the testimony of a few witnesses, even the
      testimony of just one witness, is more believable than the
      opposing testimony of a greater number of witnesses. On the
      other hand, you should also consider the extent to which
      conflicting testimony is supported by other evidence.

N. T., 6/15/16, at 111-15.       Following deliberations, the jury convicted

Appellant on all counts.

      During his sentencing hearing in September 2016, Appellant presented

evidence that he had no prior criminal record, had graduated college and


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attended graduate school, and was employed. N. T., 9/22/16, at 16-17, 31,

33-35. He was sentenced to an aggregate of fifteen to thirty-five years of

confinement.       In explaining the sentence, the trial court stated that

Appellant “destroyed lives on one side of the courtroom and has shocked,

disappointed, and destroyed lives on the other side of the courtroom.” Id.

at 41. The remainder of the reasons that the trial court gave on the record

at the sentencing hearing were, in their entirety, as follows:

       [DEFENSE COUNSEL]:                 I'm asking for a period of 25 years
       of reporting probation.

       THE COURT:           Yeah, that’s ridiculous.

       This is not an offense that you get probation for. At one point,
       he was offered the opportunity to plead and -- but he wouldn’t
       accept responsibility.

       Somebody has to explain to him that until he accepts
       responsibility, the parole board won’t let him out. So at some
       point, he’s going to have to say, “This is what I did. I’m sorry
       that I did it.” But he hasn’t done it so far. I see no reason to
       mitigate [Appellant]’s sentence.

       Considering the impact on the [V]ictim and family, I’m
       sentencing [Appellant] according to the guidelines within the
       aggravated range.

Id. at 42-43 (emphasis added).2

       Appellant filed a motion for reconsideration of sentence in October

2016. In January 2017, the trial court granted Appellant leave to amend his

____________________________________________


2After sentence was imposed, defense counsel protested that Appellant had
no criminal record; the trial court threatened to have the sheriff remove
defense counsel from the courtroom. N. T., 9/22/16, at 44.



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post-sentence motion.        In February 2017, Appellant filed a post-sentence

motion challenging the weight of the evidence and requesting a new trial.

       During the hearing on both motions, the trial court stated that it was

denying the motion for reconsideration of sentence, because:

       [Appellant] was hardly a gentleman. He destroyed the life of the
       [V]ictim. He destroyed the lives on one side of the courtroom,
       as I explained at sentencing, and disappointed and surprised the
       people on the other side of the courtroom by his abuse of the
       complainant.

       You weren’t here for the trial[3] so I don’t expect you to
       appreciate the seriousness of the harm he did in this case. But
       as I explained at sentencing, much of his sentence is based on
       the damage that he did to the complainant. . . . No, you couldn’t
       understand it unless you were here in the courtroom and
       watched him testify. He was destroyed by what happened to
       him. It took a lot of courage to come in here and talk about it.
       He’s spent a long time trying to figure out what his sexuality was
       because of the homosexual nature of these acts.

       As I pointed out with regard to one of these sentences, I gave
       him the statutory maximum; however, I would have liked to
       have given him more, but the most I could give him was 5 to 10
       years [for sexual assault].

                                       *       *   *

       No, I don’t care about the people who stand up [in support
       of Appellant] at the sentencing. They are in denial. But he’s in
       denial as well, which I pointed out at his sentencing. I explained
       to him that the parole board policy is he’s not going to get out
       until he admits he did it, says he’s sorry, and he’ll never do it
       again. And he’s never said that in this courtroom. I don’t know
       if some day he’ll say it in front of the parole board.

____________________________________________


3Appellant was represented by different counsel for trial and post-sentence
motions.



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                                 *    *    *

     Nothing indicates recidivism more than that attitude. He has a
     problem. He doesn’t acknowledge it. He’s not going to work on
     it because as far as he’s concerned he doesn’t have a problem.

     And the parole board takes the same approach.

     So do you have anything extra additionally you want to throw in
     because so far you’re not convincing me.

                                 *    *    *

     I don’t care about [the individuals who testified at sentencing
     for Appellant]. I don’t care what their level of acceptance is.
     But I do care about the [perpetrator’s,] and [Appellant] has
     never accepted what he did, never acknowledged what he did.
     Twelve people agreed with the [Victim] that this is what your
     client did. I think they had a good basis for their verdict.

     And unless you have something additional. . . .

N. T., 2/22/17, at 11-15 (emphasis added). The trial court also denied the

post-sentence motion challenging the weight of the evidence. Id. at 16-17.

     Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a responsive opinion.

     Appellant raises three issues for our review:

     I.    Were the verdicts against the clear weight of the evidence
     where the [Victim]’s testimony was patently incredible in that he
     claimed each assault took place at the exact same time and in
     the exact same manner, while other individuals were in the same
     room or nearby and, additionally, where the [Victim]’s credibility
     was impeached by other witnesses who contradicted the
     [Victim]’s testimony regarding the nature of his disclosure,
     conversations they had about the abuse, and the [Victim]’s
     characterization of his relationship with his girlfriend?

     II.   Did the trial court abuse its discretion in failing to give
     Appellant’s requested “false in one, false in all” jury instruction


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      where the testimony presented at trial clearly supported the
      issuance of the requested instruction?

      III. Did the [trial] court abuse its discretion in sentencing
      Appellant to a manifestly excessive aggregate sentence of 15 to
      35 years of imprisonment where the record discloses that the
      court focused solely on the serious nature of the crimes and their
      impact on the complainant while failing to consider all other
      relevant sentencing factors under the sentencing code?

Appellant’s Brief at 5 (trial court’s answers omitted).

                           Weight of the Evidence

      Appellant first asserts that the verdicts were against the weight of the

evidence.     Appellant’s Brief at 11.    Appellant alleges that the Victim’s

testimony was “patently unreliable,” because --

      [the Victim] claimed each assault took place at the exact same
      time and in the exact same manner, while other individuals were
      in the same room or nearby and, additionally, where the
      [Victim]’s credibility was impeached by other witnesses who
      contradicted the [Victim]’s testimony regarding the nature of his
      disclosure, conversations they had about the abuse, and the
      [Victim]’s characterization of his relationship with his girlfriend.

Id. Appellant requests a new trial “in the interests of justice.” Id.

      Our standard of review for a challenge to the weight of the evidence is

as follows:

      The weight of the evidence is exclusively for the finder of fact,
      who is free to believe all, none or some of the evidence and to
      determine the credibility of the witnesses.

      Appellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight


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      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015)

(internal brackets, citations, and quotation marks omitted; some additional

formatting).

      Appellant alleges that the Victim’s testimony was unreliable, because

he allegedly “claimed each assault took place at the exact same time and in

the exact same manner.” Appellant’s Brief at 11. However, a review of the

record indicates that, during his trial testimony, the Victim testified that the

assaults occurred at different addresses, in different rooms, at different

times of day, with a different number of people present, and with the Victim

experiencing different levels of inebriation or sobriety. Three of the assaults

occurred at Appellant’s former home, one occurred at the Victim’s house,

and one occurred at Appellant’s new residence. N. T., 6/14/16, at 33, 37,

40, 44-45. Three of the incidents occurred downstairs in a living room or

family room, one occurred in an upstairs bedroom, and one began

downstairs but moved to an upstairs bedroom. Id. at 33, 38-39, 44, 46-47.

Four of the assaults began at approximately 2:00 a.m., but one began at

1:00 a.m. Id. at 33, 39, 41, 44, 46-47. In three incidents, no one else was

present in the room; in one, two other minor males were in the same room;

in another one, one other minor male was in the same room. Id. at 33, 35,




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38-40, 44, 46. For three incidents, the Victim was drunk – once to the point

of passing out, but, in another, he was not.             Id. at 33, 38-41, 46.4   This

level of detail in the Victim’s testimony about the differing circumstances of

each assault not only contradicts Appellant’s allegation that each assault was

exactly the same, occurring “in the exact same manner,” Appellant’s Brief at

11, but the specificity of the Victim’s testimony bolsters its reliability.

       Appellant also argues that no one would commit a sexual assault in

proximity to other individuals. Appellant’s Brief at 11, 13. This argument is

appropriate for the jury, as fact-finders and adjudicators of credibility, not

for this Court. Talbert, 129 A.3d at 545–46. Moreover, Pennsylvania case

law provides examples where a defendant committed a sexual assault in

proximity to      the   victim’s    family or      friends, demonstrating that the

circumstances      described       by   the    Victim   are   possible.   See,    e.g.,

Commonwealth v. Halye, 719 A.2d 763, 795 (Pa. Super. 1998) (en banc)

(defendant caught performing oral sex on minor by parents who were in the

next room).

       Additionally, Appellant maintains that the Victim’s credibility was

impeached by other witnesses, particularly P.G. and D.S. Appellant’s Brief

at 11, 13.      Reviewing the record, we find no discrepancy between the

Victim’s testimony and that of P.G. The Victim testified that he confided in

____________________________________________


4 For the fourth incident, the Victim did not testify as to whether he had
been drinking alcohol. N. T., 6/14/16, at 44.



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P.G. that Appellant abused him, and P.G. testified that the Victim told him

that abuse occurred but not the specific nature of the abuse. N. T., 6/14/16,

at 71-72; N. T., 6/15/16, at 11. We cannot concluded that the jury abused

its discretion by not finding the Victim’s testimony “patently unreliable”

based upon a difference in phrasing.

      While there was a minor discrepancy between the testimony of the

Victim and of D.S. as to the current nature of their relationship, nothing

about this inconsistency undermined the key fact that the Victim told D.S.

about the long-term abuse. N. T., 6/14/16, at 52-53, 182-84; Trial Court

Opinion (TCO), 6/29/17, at 4.

      Also, P.G. and D.S. corroborated one another.      As each experienced

the Victim’s revelation at different times and locations, their descriptions of

what exactly the Victim told them varied slightly, but both indicated that the

Victim told them that he had been sexually assaulted by Appellant. N. T.,

6/14/16, at 183-84; N. T., 6/15/16, at 11; TCO at 4-5.

      Moreover, this Court cannot and will not second-guess the conclusions

of the fact-finder as to what evidence to believe or to distrust and whether

to find the witnesses credible. Talbert, 129 A.3d at 545–46. None of the

slight incongruities indicated by Appellant – even if they were all supported

by the record -- are significant enough, alone or in combination, for us to

conclude that the trial court abused its discretion in weighing the evidence

and accepting the jury’s verdict.




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                               Jury Instruction

      Next, Appellant contends that “the trial court abused its discretion in

failing to give Appellant’s requested ‘false in one, false in all’ jury instruction

where the testimony presented at trial clearly supported the issuance of the

requested instruction.” Appellant’s Brief at 14.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference — an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation

omitted).

      “‘False in one, false in all’ is a concept for assessing the weight of

evidence. . . . It currently means that a jury may disregard the testimony of

a witness if the jury believes that witness deliberately, or willfully and

corruptly, testified falsely about a material issue.”       Commonwealth v.

Vicens-Rodriguez, 911 A.2d 116, 117 (Pa. Super. 2006) (emphasis added)

(footnote omitted).

      Here, the trial court stated that there was no evidence on record that

the Victim deliberately falsified his testimony, making the general jury

instruction on the credibility of witnesses accurate. TCO at 5-6. Appellant

argues that the trial court should have allowed the fact-finder to determine

whether the Victim had deliberately testified falsely. Appellant’s Brief at 15.

      Looking at the trial court’s instruction on the issue of false or

inconsistent testimony, quoted in its entirety above, we see that it

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encompasses a large portion of the “false in one, false in all” charge – that

being the instruction to consider all relevant factors in considering credibility.

Specifically, it explains to the jury how to decide credibility and that it is the

sole judge of credibility, lists the factors that it may consider when judging

credibility, distinguishes between a witness making an innocent mistake or

forgetting and a witness deliberately falsifying, and explains the relationship

between the credibility of each witness to the credibility of other witnesses

and evidence. N. T., 6/15/16, at 111-15. Thus, it was not reversible error

for the trial court to decline to give the “false in one, false in all” charge,

because the other aspects of credibility were thoroughly discussed.          See

Vicens-Rodriguez, 911 A.2d at 120.

                           Individualized Sentencing

      Finally, Appellant maintains that the trial court --

      abused its discretion in sentencing [him] to a manifestly
      excessive aggregate sentence of 15 to 35 years [of]
      imprisonment where the record discloses that the court focused
      solely on the serious nature of the crimes and their impact on
      the [Victim] while failing to consider all other relevant sentencing
      factors under the Sentencing Code.

Appellant’s Brief at 22.

      This claim involves the discretionary aspects of sentencing, and

consequently is not appealable as of right. Commonwealth v. Colon, 102

A.3d 1033, 1042–43 (Pa. Super. 2014).           Therefore, before we exercise

jurisdiction to reach the merits of Appellant’s issue, we must engage in a

four-part analysis to determine:      (1) whether the appeal is timely; (2)


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whether Appellant preserved his issue; (3) whether Appellant's brief includes

a concise statement of the reasons relied upon for allowance of an appeal

with respect to the discretionary aspects of his sentence; and (4) whether

the concise statement raises a substantial question whether the sentence is

inappropriate under the Sentencing Code. Id. Only if the appeal satisfies

each of these four requirements may we proceed to decide the substantive

merits of the case. Id.

      Instantly, Appellant filed a timely notice of appeal and properly

preserved his issue in his post-sentence motion, and his brief contains a

concise statement of the reasons on which he relies. Appellant’s Brief at 21.

In that concise statement of the reasons relied upon for allowance of appeal,

Appellant contends that the sentence imposed is “excessive” and “unduly

harsh,” because the trial court failed to consider his “lack of criminal history

and employment and academic achievements.” Id. “An averment that the

court sentenced based solely on the seriousness of the offense and failed to

consider all relevant factors raises a substantial question.” Commonwealth

v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation and internal

brackets omitted).     Thus, we will consider the substantive merits of

Appellant’s sentencing claim.

      A trial court has discretion when it sentences a defendant:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,

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       that the sentencing court ignored or misapplied the law,
       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2015).

       Appellant now maintains that the trial court abused its discretion when

it sentenced him to an aggregate sentence of fifteen to thirty-five years,

when the standard range of the sentencing guidelines for IDSI, Appellant’s

most serious offense, was forty-eight to sixty-six months. Appellant’s Brief

at 22. He insists that the trial court focused only on the seriousness of the

crime and its impact on the Victim and ignored “substantial” mitigating

evidence, including that Appellant “had never previously been arrested, had

attended college, and had maintained gainful employment.”           Id. at 22-23

(citing N. T., 9/22/16, at 16-17).5

       A judge’s statement of the reasons for imposing a particular sentence

“must clearly show that he has given individualized consideration to the

character of the defendant.” Commonwealth v. Ritchey, 779 A.2d 1183,

1187 (Pa. Super. 2001) (citation omitted).         “[I]t is an abuse of discretion

when the nature of the criminal act is used as the sole basis for the

determination of the length of sentence.” Commonwealth v. Luketic, 162

A.3d 1149, 1165 (Pa. Super. 2017) (citation and internal brackets and

quotation marks omitted); accord Commonwealth v. Wright, 600 A.2d
____________________________________________


5 The Commonwealth presents no argument for this issue, beyond relying
upon the trial court opinion. Commonwealth’s Brief at 14.



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1289, 1291 (Pa. Super. 1991) (“a sentencing court abuses its discretion

when it considers the criminal act, but not the criminal himself” (citation and

internal quotation marks omitted)).

      After careful review, we are constrained to conclude that the trial court

abused its discretion when imposing the above sentence on Appellant. In its

remarks during the hearings for sentencing and for reconsideration, quoted

above in their entirety, the trial court explicitly stated that it only considered

the impact upon the Victim and his family and it did not care about the

testimony of the people who spoke in support of Appellant during his initial

sentencing hearing. N. T., 9/22/16, at 42-43; N. T., 2/22/17, at 13, 15.

      In its opinion, the trial court’s explanation for imposing this sentence,

in its entirety, is:

      In this particular instance, the [trial c]ourt applied an
      appropriate sentence.      The court, relying on the impact
      [Appellant] had on the [V]ictim, stated that “[Appellant]
      destroyed lives on one side of the courtroom and has shocked,
      disappointed, and destroyed lives on the other side of the
      courtroom.” N. T., 9/22/16, [at] 41. The [c]ourt further went
      on to explain that because of the impact on the [V]ictim and
      family, “[The trial court is] sentencing [Appellant] according to
      the guidelines within the aggravated range.”        [Id. at] 43.
      Because the reasoning for the aggregate sentence was explained
      on the record, the sentence of [Appellant] was an appropriate
      one within the aggravated range.

TCO at 7 (emphasis added) (some formatting).

      Nowhere does the trial court indicate that it gave individualized

consideration to Appellant’s personal history or background, including his

educational and employment history and his lack of a prior criminal record.


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N. T., 9/22/16, at 41-43; N. T., 2/22/17, at 11-15; TCO at 7; see also

Appellant’s Brief at 22-23; N. T., 9/22/16, at 16-17, 31, 33-35; Ritchey,

779 A.2d at 1187. The trial court focuses exclusively on the seriousness of

the crime. N. T., 9/22/16, at 41-43; N. T., 2/22/17, at 11-15; TCO at 7;

see also Ritchey, 779 A.2d at 1187. By considering only the criminal act

and not the criminal, the trial court abused its discretion. Luketic, 162 A.3d

at 1165; Wright, 600 A.2d at 1291. For this reason, we vacate Appellant’s

judgment of sentence and remand for resentencing.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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