J-S52027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

J.P.,

                            Appellee                No. 3182 EDA 2013


        Appeal from the Judgment of Sentence entered October 17, 2013,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0006367-2009,
            CP-51-CR-0006369-2009 and CP-51-CR-0006371-2009


BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD*, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED SEPTEMBER 10, 2014

        The Commonwealth appeals from the judgment of sentence entered



three counts of unlawful restraint, and three counts of endangering the

                                               inor grandchildren, B.P., Z.P.

and Q.P.1 We affirm.

        The pertinent facts were previously summarized by this Court as

follows:

        On October 29, 2007, Lauren Adels, a social worker at the
        Department of Human Services, was assigned to investigate the
        children
        reported that the children had not been seen for medical
____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a)(1), 2902(a)(1), and 4304(a)(1).


*Former Justice specially assigned to the Superior Court.
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     treatment for a long time. N.T., 3/19/12, at 55, 85. On October
     29, 2007, Ms. Adels visited the home of Mother and encountered
     Appellee, who advised her that Mother was not home. Id. at 85-
     87. Ms. Adels returned the following day and upon entering the
     home, found B.P. and Z.P., six-year-old twin boys, confined in
     umbrella strollers and Q.P., a three-year-old girl, on a mattress
     on the living room floor. Id. at 86. The children were severely
     emaciated and unable to walk. Id. at 55-65, 85-89. Ms. Adels
     observed that the house was full of bags of trash, the stove did
     not work, the house contained no significant food, and there was
     no hot water in the home. The second floor contained bags piled
     to the ceiling in all of the rooms, and the walls were
     disintegrating due to water damage and mold. Black trash bags
     had been taped over the windows on the first floor to prevent a
     view into the interior. Id. at 85-89. The only food in the house
     consisted of a container of milk and a bag of cereal. Id. Mother
     and her children shared the one mattress on the living room
     floor, and Mother did not permit the children to leave the house.
     Id. at 67, 88. The children were removed from the home the
     following day. Id. at 89. When the children were removed from
     the house, they experienced a reaction from being exposed to
     light. Id. at 88.


            T.D., who became the foster mother and then adoptive
     mother of the children, testified that when she assumed custody
     of the children, they could not walk, could not talk, were not
     toilet trained, and were severely underweight and malnourished.
     Id. at 27-30. B.P. and Z.P., the six-year-old boys, each weighed
     31 pounds. Pre-Sentence Investigation Report, 5/7/12. B.P.


     umbrella stroller, to which they had been confined for extended
     periods. Id. at 31-48; Criminal Complaint, 10/20/2008. Their

     the floor. Id. at 32, 40. When they later learned to stand, as a
     result of intensive medical intervention, they maintained their
     bent posture. Id. at 31-33, 36-40. Both B.P. and Z.P. remained
     in diapers for up to a year and half after their removal from
                       Id                                         Id.
     at 45-46.     Her posture, though bent, was not as severely
                                     Id
     children gained weight, and with rigorous therapy, learned to



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      talk, walk upright; they also began to attend school. Id. at 31-
      53.
            Dr. Lauren Brennan, who
      records, reported that the injuries, failure to thrive, and
      developmental delays of the children resulted from neglect, lack
      of care, failure to seek medical treatment, and social deprivation.
      Id. at 89-92. Dr. Brennan reported that the atrophy in the leg
      muscles of the children had occurred over a substantial period of
      time due to malnutrition and lack of use. Id. at 91. Neither B.P.
      nor Z.P. had seen a doctor in over two and a half years. In the
      four years prior to October, 2007, B.P. and Z.P. had gained less
      than five pounds. Id
      maternal grandmother, lived at the residence, and cared for the
      children daily between 3 p.m. and 11 p.m. while Mother was at
      work. Id. at 93.


Commonwealth        v.    J.P.,   82   A.3d   1078   (Pa.   Super.    2013)

(unpublished at 1 - 4).

      Appellee   was      subsequently    arrested   and    charged    with   the

aforementioned crimes.      A non-jury trial commenced on March 19, 2012.

However, in the course of trial, Appellee opted to enter a guilty plea by the

terms of which the Commonwealth agreed not to seek any mandatory

sentences. See Guilty Plea, 3/19/12.

      Following a sentencing hearing on May 22, 2012, the trial court

sentenced Appellee to 11½ to 23 months of house arrest on each count,

with the sentences to run concurrently, followed by 10 years of probation

under the supervision of the mental health unit of the Department of

Probation and Parole.

      The Commonwealth filed a post-sentence motion for reconsideration,

which the trial court denied on June 1, 2012. The Commonwealth appealed.



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On July 25, 2013, this Court issued a memorandum opinion and order

vacating the judgment of sentence and remanding for resentencing on the



arrest or home confinement is a form of county intermediate punishment,

and   only   eligible   offenders   may   benefit   from    county    intermediate

punishment. Commonwealth v. J.P., supra. Pursuant to 42 Pa.C.S.A. §

9802, Appellee, with a conviction for aggravated assault, was not eligible for

house    arrest;   we   thus   determined   that    her    sentence   was   illegal.

                                              s sentence of house arrest, far

below the mitigated range of the sentencing guidelines, constituted an abuse

of discretion because the trial court failed to place adequate reasons on the

record for the lenient sentence.

                                          e trial court, on remand, convened a

sentencing hearing on October 17, 2013. At the conclusion of the hearing,

the trial court imposed the following concurrent sentences:

        Docket No 6367-2009: 11½ to 23 months of imprisonment followed by

six years of probation for aggravated assault, a concurrent 11½ to 23

months of imprisonment for unlawful restraint, and a concurrent 11½ to 23

months of imprisonment for endangering the welfare of a child.

        Docket No. 6371-2009:       11½ to 23 months of imprisonment for

aggravated assault, followed by six years of probation, a concurrent 11½ to

23 months of imprisonment for unlawful restraint, and a concurrent 11½ to

23 months of imprisonment for endangering the welfare of a child.

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       Docket No. 6369-2009: 11½ to 23 months of imprisonment followed

by four years of probation for aggravated assault, a concurrent 11½ to 23

months of imprisonment for unlawful restraint, and a concurrent 11½ to 23

months of imprisonment for endangering the welfare of a child.2

       On November 8, 2013, the Commonwealth filed a motion requesting

the   recusal    of   the   trial   court,     and   on   November   18,   2013,   the

Commonwealth filed a notice of appeal as well as a statement of errors

complained of on appeal.            On January 16, 2014, the trial court filed an

opinion pursuant to Pa.R.A.P. 1925(a).

       The Commonwealth raises the following issue for our review:

       Where this Court held in the prior appeal that the below-
       mitigated-guidelines-
       five years of unfathomable cruelty to three young children were
       both illegal and an abuse of discretion (in that they did not
       reflect the gravity of the offenses and their effect on the
       children, and because the court relied on impermissible and
       inaccurate factors), did the [trial] court again abuse its discretion

       sentences that are still below the mitigated range of the
       guidelines, still do not reflect the gravity of the offenses and
       their impact on the children, and still rest in impermissible and
       inaccurate factors?

Commonwealth Brief at 3 (footnote omitted).



____________________________________________


2
  The trial court imposed the 4 year probationary term at Docket No. 6369-
2009 consecutive to the 6 year probationary term at Docket No. 6367-2009
but concurrent with the 6 year probationary term at Docket No. 6371-2009,
for a total 10 year probationary term.



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     The Commonwealth raises a challenge to the discretionary aspects of



is no automatic right to appeal and the appeal should be considered a

petition for allowance of appeal.    Commonwealth v. Curran, 932 A.2d

103, 105 (Pa. Super. 2007).         Before we can address a discretionary

challenge, an appellant must comply with the following requirements:

     An appellant challenging the discretionary aspects of [a]
     sentence must invoke this Court's jurisdiction by satisfying a
     four-part test: (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.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

     Here, the Commonwealth filed a timely notice of appeal.       While the

Commonwealth did not file a written post-sentence motion, at the

resentencing hearing, the Commonwealth preserved its claim by strenuously




Additionally, the Commonwealth has included in its brief a Pa.R.A.P. 2119(f)

statement, and has raised a substantial question for our review.          See

Commonwealth Brief at 15-19; Commonwealth v. Sims, 728 A.2d 357,



upon by the trial court for the imposition of a sentence below the mitigated


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range of the guidelines were unreasonable, and that the circumstances do

not support such downward deviation, presents a substantial question for

review.). We therefore proceed to address the merits of this appeal.

     Our standard of review in sentencing matters is well settled:

     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,
     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.

     The sentencing court is permitted to deviate from the sentencing
     guidelines; however, the court must place on the record its
     reasons for the deviation.        42 Pa.C.S.A. § 9721(b); In
     sentencing outside of the guidelines, the court must demonstrate

     the trial judge deviates from the sentencing guidelines ... he
     must set forth on the record, at sentencing, in the defendant's
     presence, the permissible range of sentences under the
     guidelines and, at least in summary form, the factual basis and
     specific reasons which compelled the court to deviate from the



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




Commonwealth v. Daniel, 30 A.3d 494 (Pa. Super. 2011), quoting

Commonwealth v. Walls, 592 Pa. 55

9781(c) specifically defines three instances in which the appellate courts

should vacate a sentence and remand: (1) the sentencing court applied the

guidelines erroneously; (2) the sentence falls within the guidelines, but is

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Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa. Super. 2011).

     Section 9781(d) provides that when reviewing a sentence, we must

consider:

            (1) The nature and circumstances of the offense and the
                history and characteristics of the defendant.
            (2) The opportunity of the sentencing court to observe the
                defendant, including any presentence investigation.
            (3) The findings upon which the sentence was based.
            (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).



irrational or not guided by sound judgment. [A] sentence can be defined as

unreasonable either upon review of the four elements contained in §

9781(d) or if the sentencing court failed to take into account the factors

                                     Daniel, 30 A.3d at 497, quoting Walls,

supra.

     42 Pa.C.S.A. § 9721(b) offers the following guidance:


     [T]he court shall follow the general principle that the 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 rehabilitative needs of the defendant. The court shall also
     consider any guidelines for sentencing and resentencing adopted


42 Pa.C.S.A. § 9721(b).


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      [The] weighing of factors under 42 Pa.C.S. § 9721(b) [is] exclusively

for the sentencing court, and an appellate court could not substitute its own

weighing of those factors. The primary consideration, therefore, is whether

the court imposed an individualized sentence, and whether the sentence was

nonetheless unreasonable for sentences falling outside the guidelines, or

clearly unreasonable for sentences falling within the guidelines, pursuant to

                        Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.

Super. 2012) quoting Commonwealth v. Bowen, 975 A.2d 1120, 1123

1124 (Pa. Super. 2009) (citations omitted).

      The sentencing guidelines in this case recommended the following:


      Aggravated Assault:                  2 to 3½ years (mitigated range)
                                           3 to 4½ years (standard range)
                                           4 to 5½ years (aggravated range)

      Unlawful Restraint:                  9-16 months(+/- 9)

      Endangering welfare of a child:      3-12 months (+/-6)



aggravated assault therefore fell below the mitigated range of the

sentencing guidelines, while the sentences of 11½ to 23 months for each

count of unlawful restraint and endangering the welfare of a child fell within

the standard range of the guidelines.

      At   the   sentencing   hearing,   the   trial   court   heard   from   the




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Appellee, after which the trial court provided the following rationale for its

sentence:

             The [trial court] is very much familiar with this case from a
      trial aspect ...    [The trial court] heard the facts of this case,
      and ... heard from counsel. I have heard no objections to the
      medical conclusions and the psychological conclusions that were
      proffered by the defense in favor of [Appellee] ... she does have
      an IQ of 56. ...

           [The trial court] does take note of the severity of the
      charges here and the facts associated with it. I think that this

      mother] was primarily responsible for the caretaking of those
      children and subjecting those children to the [in]juries that they
      have sustained. That is not to say that the [trial] court [has]
      absolved [Appellee] from anything involved in that.

               not going to sit up here and pretend that there might
      not be a reason for [Appellee] not allowing the authorities into
      the house [when they arrived to conduct an investigation into

             have that. But I do know there is a relationship between
      the mother ... and the grandmother and the daughter whose
      children they were.



      condition. ...

            Our own probation department or whoever did the
      background checks has indicated that she is a low risk factor.
      So there is no reason, to now all of a sudden after 16 years, not
      to believe what is posted in a report by her own sub-agencies
      who are there to assist the [trial] court in making considered
      opinions and decisions. I am going to take into account the fact
      that she has been free her whole life.

                                     ***
            [Appellee is] 54 years old and free of any contact. At least
      to my knowledge she has had no contacts other than this case
      with the Criminal Justice System and had no contact with the


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     Criminal Justice System as a juvenile ... that is another
     [m]itigating factor.

           ... I am not going to discount the fact that we have seen
     her do what she was required to do under that house arrest
     sentence. She has incurred no infractions, which I think is proof
     and goes a long way to proving that she is a low risk factor to
     being a recidivist, a repeat offender.

                                                   she is 56, but she is
     not literate....



     the mental health component. There have been no violations of
     that. There have been no violations of anything that the [trial
     court] placed on her at the time of sentencing ... 16 months ago.


     that in the event there is a violation of the court sentence, she
     will face a severe penalty by way of that violation because there
     is going to be a long term of probation. ...

                                     ***

     [Appellee] accepted responsibility by pleading guilty. It was not
     a negotiated guilty plea. So that is another mitigating factor.

N.T., 10/17/13, at 32-36, 41.

     In its Pa.R.A.P. 1925(a) opinion, the trial court further explained:

            [T]he sentencing court took into consideration the
     severity of the crime against the children who lived in deplorable
     conditions, sustaining physical and mental injury, as well as the
     progress of their treatment and recovery under the care of their
     adopti
     daughter, her co-
     limited mental and physical limitations by designating her to
                                    a task she was clearly unfit and
     incapable of doing. Moreover, Appellee has an IQ of 56 following
     an evaluation at the time of her arrest (mild to moderate
     retardation): she is illiterate and has a 6th grade education
     despite being 54 years old. Appellee also suffers from blindness

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     in her left-eye, partial right-eye impairment, diabetes, glaucoma,
     depression, hypertension, and arthritis in her hands, feet, and
     legs, and a possible cancerous growth in her left ear. It is

     viewed through the eyes of the sentencing court was just one of
     many factors considered.

           Second, the greatest advantage the sentencing court has
     over the appellate court is the ability to observe the defendant.
     Although Appellee did not testify on her behalf, the [trial] court
     was able to question and observe her during the hearing on
     March 19, 2012, the first sentencing hearing on May 22, 2012,
     and the re-sentencing on October 17, 2013 another factor the

     addition to reviewing her pre-sentence investigation report.


     physical impairments and conditions, the sentencing court did
     also consider not only the nature of the crimes, but the mental
     and physical progress of the children. Further, in considering the
     impact of the crimes on the community, Appellee has clearly
     demonstrated that she can barely think for herself and is
     incapable of making basic decisions and was confined to her
     home as a recluse. In addition to a permanent stay-away order
     that includes all children, it was determined that Appellee does
     not pose any danger to the community and is very unlikely to be
     a repeat offender.


     or adult criminal record. In addition, Appellee served 16 months
     of her original sentence with no infractions. The [trial court] also
     determined that due to the fact that Appellee pled guilty, she did
     in fact accept responsibility for her actions.

            Lastly, the [trial] court in considering numerous factors,
     imposed a sentence below the mitigated range of the sentencing
     guidelines. Although the sentencing court is required to consider
     and consult the sentencing guidelines, it retains the discretion to
     sentence below the mitigated range as long as it clearly explains
     its reasons for doing so. ...

           Here,   after   reviewing     the    pre-sentence   reports,   the

                                                               l as argument

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      from both sides, the court imposed a total sentence of eleven
      and one-half (11½) to twenty-three (23) months incarceration,
      followed by ten (10) years reporting probation.


Trial Court Opinion, 1/16/14, at 4-

footnote deleted).



guideline range it is especially important that the court consider all factors

                                                           Commonwealth v.

Messmer, 863 A.2d 567, 573 (Pa. Super. 2004) (citations omitted). Here,

we conclude that the trial court, after considering the pre-sentence

investigation report and the guidelines, placed adequate reasons on the

record for its decision to impose sentences that fell below the mitigated

range.   The trial court appropriately took into account the requisite

sentencing factors, including the severity and impact of the crime on the



remorse, her criminal history, and her likelihood of reoffending.    The trial

court observed Appellee during the sentencing hearing and assessed her



the sound discretion of the trial judge.       Absent a finding that the court

manifestly abused its discretion, this Court will not substitute its judgment



merely because an appellate court might have reached a different

conclusion.   Commonwealth v. Rickabaugh, 706 A.2d 826, 847 (Pa.

Super. 1997), appeal denied, 558 Pa. 607, 736 A.2d 603 (1999).           After

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decision to impose sentences below the mitigated range of the guidelines,

we do not find the sentence to be unreasonable. See Coulverson, 34 A.3d

at 146. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2014




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