J-S43003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    BILLY DIAMOND WILLIAMS

                             Appellant                No. 838 WDA 2017


       Appeal from the Judgment of Sentence imposed December 6, 2016
               In the Court of Common Pleas of Allegheny County
                Criminal Division at No: CP-02-CR-0001885-2016


BEFORE: STABILE, DUBOW, and NICHOLS, JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 24, 2018

        Appellant, Billy D. Williams, appeals from the judgment of sentence

imposed on December 6, 2016 in the Allegheny County Court of Common

Pleas following his convictions of aggravated assault, endangering the welfare

of a child (EWOC), and recklessly endangering another person (REAP). 1 The

jury found him not guilty of a second count of aggravated assault.2 Appellant

____________________________________________


1 18 Pa.C.S.A. §§ 2702(a)(8), 4304(a)(1), and 2705, respectively. A person
is guilty of aggravated assault under § 2702(a)(8) if he “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to a child less than
six years of age, by a person 18 years of age or older[.]” (Emphasis added.)

2 18 Pa.C.S.A. § 2702(a)(9). A person is guilty of aggravated assault under
§ 2702(a)(9) if he “attempts to cause or intentionally, knowingly or recklessly
causes serious bodily injury to a child less than 13 years of age, by a person
18 years of age or older.” (Emphasis added.)
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asserts trial court error for excluding the testimony of a defense expert

witness, for denying a continuance after excluding the expert testimony, for

admitting evidence of a prior conviction, and for imposing an excessive

sentence. Upon review, we affirm in part, vacate in part, and remand.

       As the trial court explained:

       Briefly, the evidence presented at trial established that [D.W.],
       born on October 13, 2015, was the daughter of India Murphy and
       [Appellant]. She lived with her mother and her 10-year old sister
       in an apartment on Memory Lane in the Hill District section of the
       City of Pittsburgh. [Appellant] did not live there, but would come
       to the apartment on Friday evening and care for [D.W.] over the
       weekend while her mother rested. He would leave on Monday
       morning to go to work.

       On Tuesday, November 10, 2015, when she was four (4) weeks
       old, [D.W.] was seen by her pediatrician, Dr. Cindy Cook, for a
       linear bruise on her back. Dr. Cook was unable to determine a
       cause for the bruise.[3]

       On Monday, November 16, 2015, [D.W.] was seen by Dr. Cook for
       a subconjunctival hemorrhage in her left eye. She was referred
       to the Child Advocacy Center of Children’s Hospital of Pittsburgh
       for a non-accidental trauma assessment, but the physicians there
       were unable to determine the cause of the hemorrhage.

       On Sunday evening, November 22, 2015, [D.W.] was taken to the
       Emergency Room at Children’s Hospital for subconjunctival
       hemorrhages in both eyes, petechia (burst blood vessels) around
       her eyes and a facial rash. She was admitted to the hospital but
       was later discharged when the doctors were unable to find a
       medical explanation for her injuries.


____________________________________________




3 As a point of clarification, the November 10 visit was a regularly-scheduled
“well baby” check. In the course of the examination, Dr. Cook discovered and
photographed the linear bruise but was unable to determine a cause.

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      On Sunday, December 27, 2015, [D.W.] was again taken to the
      Emergency Room at Children’s Hospital. Upon examination, she
      was found to have subconjunctival hemorrhages and petechia in
      both eyes, bruising to her chest and abdomen and a healing
      fracture to her left 6th rib. She was examined by Dr. Jennifer
      Wolford, the attending physician at the Child Advocacy Center,
      who determined that [D.W.’s] rib fracture was caused by a
      squeezing motion and the subconjunctival hemorrhages were
      caused when blood vessels ruptured while she was struggling to
      breathe. Dr. Wolford concluded that [D.W.] was the victim of child
      abuse and contacted the police and Children, Youth and Families.

      At trial, India Murphy testified that she had caused [D.W.’s]
      broken rib in an accident one month prior, when she had fallen
      asleep with the baby on her chest and the baby fell. Murphy
      testified that she woke suddenly and caught the baby between her
      knees. Dr. Wolford testified that this was medically impossible,
      insofar as the type of rib fracture [D.W.] had can only be caused
      by squeezing and the incident described by Murphy would have
      broken more than one rib and in a different location from [D.W.’s]
      injury. Murphy also testified that the eye hemorrhages were due
      [to D.W.’s] milk allergy, although she conceded that once
      [Appellant] was in custody, [D.W.] continued to have the milk
      allergy issues but suffered no further eye hemorrhages.

      When he was interviewed by the police, [Appellant] admitted to
      squeezing [D.W.] and demonstrated how he did so.              His
      demonstration matched Dr. Wolford’s description of how the injury
      occurred.

Trial Court Opinion, 12/4/17, at 2-3.

      As noted above, a jury convicted Appellant of aggravated assault,

EWOC, and REAP. The trial court sentenced him to consecutive terms of five

to ten years in prison for aggravated assault and three and a half to seven

years for EWOC. The court did not impose any additional sentence for REAP.

Post-sentence motions were filed and denied. This timely appeal followed.

Appellant asks us to consider four issues in this appeal as follows:


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       I.     Whether the trial court erred in excluding [Appellant’s]
              expert witness when the expert was crucial to [Appellant’s]
              defense and was highly qualified in the field of forensic
              epidemiology to render an opinion on the cause of the
              victim’s injuries?

       II.    Whether the trial court erred in denying [Appellant’s] motion
              for a continuance after excluding his expert on the eve of
              trial, depriving [Appellant] of the opportunity to present a
              full and fair defense?

       III.   Whether the trial court erred in admitting [Appellant’s] prior
              conviction into evidence, when the risk of unfair prejudice
              highly outweighed the probative value?

       IV.    Whether the trial court abused its discretion in sentencing
              [Appellant] to consecutive statutory maximum sentences
              based on incorrect facts and without considering
              [Appellant’s] character and rehabilitative needs?

Appellant’s Brief at 6-7.4

       Appellant’s first issue involves a challenge to an evidentiary ruling, i.e.,

the trial court’s exclusion of Appellant’s expert testimony. As our Supreme

Court reiterated in Commonwealth v. Melvin, 103 A.3d 1 (Pa. 2014):

       Our standard of review for a trial court’s evidentiary rulings is
       narrow, as the admissibility of evidence is within the discretion of
       the trial court and will be reversed only if the trial court has abused
       its discretion. Commonwealth v. Hanford, 937 A.2d 1094,
       1098 (Pa. Super. 2007), appeal denied, 598 Pa. 763, 956 A.2d
       432 (2008). An abuse of discretion is not merely an error of
       judgment, but is rather the overriding or misapplication of the law,
       the exercise of judgment that is manifestly unreasonable, or the
____________________________________________


4 The Commonwealth asks us to find Appellant’s issues waived for failure to
preserve each issue with requisite specificity in Appellant’s Rule 1925(b)
statement. We decline to find waiver. It is clear from the trial court’s opinion
that the court was able to identify and address each issue without having to
speculate as to the nature of Appellant’s claims.

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      result of bias, prejudice, ill will or partiality, as shown by the
      evidence of record. Commonwealth v. Mendez, 74 A.3d 256,
      260 (Pa. Super. 2013), appeal denied, [624 Pa. 688], 87 A.3d 319
      (2014).

Id. at 35. Further, “[g]enerally speaking, the admission of expert testimony

is a matter left largely to the discretion of the trial court, and its rulings

thereon will not be reversed absent an abuse of discretion.” Commonwealth

v. Watson, 945 A.2d 174, 176 (Pa. Super. 2008) (citations omitted).

      On May 3, 2016, Appellant filed a motion seeking funds to obtain

“Medical Expert Assistance at the Commonwealth’s Expense.” Motion, 5/3/16,

at 1. Neither the motion nor the proposed order identified an expert or any

particular area of medical expertise. The Commonwealth filed a response,

objecting on the grounds that Appellant had privately-retained counsel and

did not allege any legally sufficient basis for the Commonwealth to pay for his

defense. Response to Motion, 5/3/16, at 1. On July 28, 2016, the trial court

entered an order granting Appellant’s motion, allotting $2,500 for Forensic

Epidemiologist Steven A. Koehler, MPH, Ph.D., to investigate, prepare a

report, and testify, if appropriate. Order, 7/28/16, at 1.

      In its Rule 1925(a) opinion, the trial court explained:

      On September 7, 2016, 12 days before the start of trial, the
      Commonwealth received the proposed expert report of
      epidemiologist Steven Koehler and forensic nurse consultant
      Karen Applegate. The report purported to adopt India Murphy’s
      recitation of events as [an] “alternative explanation” for [D.W.’s]
      rib fracture after conducting a “doll re-enactment,” though the
      “doll re-enactment” was only perfunctorily described as follows:




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          FMI[5] provided a doll with an approximate location of the
          skeletal structure superimposed of the infant (Figure 1).
          Using this doll we asked India Murphy to demonstrate to us
          how she caught the infant between her thighs that caused
          the rib fracture.

       (p. 4).

       The bulk of the report, however, was a wide-ranging and
       sometimes vitriolic personal criticism of Dr. Jennifer Wolford, at
       times calling her conduct unethical, repeatedly insisting she made
       decisions based on “dogma” and “instituted bias,” asserting that
       she was prejudiced against India Murphy and abusive to her[.]

Trial Court Opinion, 12/4/17, at 4.

       The Commonwealth filed a motion in limine, seeking to bar the

testimony of Dr. Koehler and asserting, inter alia, that Dr. Koehler was not a

medical doctor or an expert in child abuse; that the attacks against Dr. Wolford

were not a proper subject of expert testimony; that the methodology

employed by Dr. Koehler did not satisfy Pennsylvania’s test for scientific

evidence enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

or Pennsylvania Rules of Evidence 702 and 703; and that a video reenactment

of India Murphy’s actions in “catching” the child between her legs was

inadmissible. Motion in Limine, 9/17/16. The Commonwealth asked the trial

court to exclude Dr. Koehler’s testimony or, alternatively, conduct a Frye

hearing. Id. Appellant did not file a response to the Commonwealth’s motion.




____________________________________________


5The report was on letterhead from “Forensic Medical Investigations, LLC,”
bearing the names of Dr. Koehler and Nurse Applegate.

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       At a hearing on the motion prior to trial, the Commonwealth reiterated

the points raised in its motion. Appellant’s counsel countered that Dr. Koehler

was not being “presented for medical treatment. We’re not calling him for

that. This is a forensic case. This is what caused the injuries, and this man

has all types of credentials concerning that.” Notes of Testimony, Trial, at 8.

Appellant’s counsel further asserted that the fractured rib was the only injury

at issue and that the Commonwealth’s case was not one of child abuse. Id.

at 11-12 and 14-16. The Commonwealth disputed that contention, arguing

that all of the child’s injuries were at issue. Id.

       The trial court agreed with the Commonwealth and granted its request

to exclude the testimony of Dr. Koehler.6 Id. In its Rule 1925(a) opinion, the

court explained:

       As this [c]ourt noted at argument, . . . the proposed report
       discussed only [D.W.’s] fractured rib and completely ignored her
       infraorbital hemorrhages and petechia. The medical records
       produced by the Commonwealth demonstrate a pattern of injuries
       involving squeezing/strangulation on the days of or immediately
       after [Appellant] was caring for her, initially subconjunctival
       hemorrhages and petechia, bruising on her chest and back and,
       ultimately, a fractured rib. The central question[] of the trial was,
       therefore, whether [D.W.’s] constellation of injuries and the
       pattern of their occurrence constituted abuse and whether
       [Appellant] was the individual who inflicted those injuries. The
       report proposed by [Appellant] did not address either of these
       issues and in fact did not ever mention the subconjunctival
       hemorrhages, the petechia or the bruising. Neither did the report
____________________________________________


6 With respect to the alternative relief requested in the form of a Frye hearing,
the Commonwealth voiced its understanding that Appellant “does not have
anyone present to present evidence as to Frye.” Notes of Testimony, Trial,
at 4. Appellant did not offer any suggestion to the contrary.

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      mention [Appellant’s] admission that he squeezed [D.W.] or his
      demonstration of how he did so. Instead, the report was almost
      exclusively a personal criticism of Dr. Wolford and the other
      physicians and staff at Children’s Hospital. To the extent that the
      report did purport to posit an “alternative explanation” for
      [D.W.’s] rib fracture, it also failed entirely to consider (or even
      mention) her other injuries and any common causation or
      interrelation between them.         The report was purposefully
      deceptive in this omission and allowing it to be presented to the
      jury would have been tantamount to a fraud on the court.
      Therefore, this [c]ourt was well within its discretion in excluding
      it.

Trial Court Opinion, 12/4/17, at 10-11 (reference to notes of testimony

omitted). Based on our review of the record, we find no abuse of discretion

on the part of the trial court. Therefore, Appellant is not entitled to relief on

his first issue.

      Appellant next argues that the trial court erred by denying its request

for a continuance after granting the Commonwealth’s motion to exclude Dr.

Koehler’s testimony. In Commonwealth v. Pettersen, 49 A.3d 903 (Pa.

Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013), this Court recognized:

      “It is well settled that the grant of a continuance rests within the
      sound discretion of the trial court and that the decision to deny
      the continuance will not be reversed unless a clear abuse of
      discretion is shown.” Commonwealth v. Hughes, 264 Pa.
      Super. 118, 399 A.2d 694, 698 (1979). Moreover, an appellate
      court will not find an abuse of discretion if the denial of the
      continuance      did   not prejudice      the   appellant.      See
      Commonwealth v. McKelvie, 471 Pa. 541, 370 A.2d 1155
      (1977)[.]

Id. at 914 (additional citation omitted). “[A defendant] must be able to show

specifically in what manner he was unable to prepare his defense or how he

would have prepared differently had he been given more time. [This Court]

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will not reverse a denial of a motion for continuance in the absence of

prejudice.”   Commonwealth v. Ross, 57 A.3d 85, 91 (Pa. Super. 2012)

(citation omitted), appeal denied, 72 A.3d 603 (Pa. 2013).         In Ross, the

defendant sought to have court-appointed counsel removed from his case for

alleged ineffectiveness.   The trial court denied the request, leading the

defendant to secure privately-retained counsel who entered an appearance

two weeks before the scheduled start of trial. We concluded that the trial

court abused its discretion by denying new counsel’s requests for continuance

based on, inter alia, the need for additional time to secure expert opinions to

refute anticipated Commonwealth expert witness testimony and the need to

meet with scores of witnesses who had been interviewed by the State Police.

Id. at 88-93.

      Unlike the defendant in Ross, Appellant here has not demonstrated

specifically the manner in which he was unable to prepare his defense or how

he would prepare differently, given more time. As indicated above, Appellant

requested funding for a “medical expert investigation” approximately five

months prior to trial. He did not retain a medical expert, opting instead to

retain a forensic epidemiologist, despite his awareness of the anticipated

expert   medical   testimony   to   be   presented   by   the    Commonwealth.

Nevertheless, he argued to the trial court that “[w]ithout some type of medical

or some type of expert testimony to counter the Commonwealth’s case, this

is prejudice in our case[.]” Notes of Testimony, Trial, at 18.


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      As the trial court reasoned:

      [T]he record reflects that this court’s denial of a continuance did
      not change the outcome of the case. Defense counsel had several
      months to secure expert review and produced only the report from
      Dr. Koehler. Given [D.W.’s] multiple injuries and the pattern of
      their occurrence it seems unlikely that any physician would not
      have classified the injuries as child abuse or that [Appellant] could
      otherwise have easily secured an expert to that effect.         Thus,
      more time would have served no further purpose, nor would it
      have changed the verdict. It is further clear from the record that
      [Appellant’s counsel] was well-prepared for trial, that he engaged
      in thoughtful and effective cross-examination and made cogent
      arguments to the jury. Under these circumstances, this court was
      well within its discretion in denying [Appellant’s] request for a
      continuance immediately prior to jury selection. This claim must
      fail.

Trial Court Opinion, 12/4/17, at 13 (some capitalization omitted). We find no

abuse of discretion in the trial court’s denial of a continuance. Appellant’s

second issue fails.

      Appellant next argues that the trial court erred by allowing introduction

on evidence relating to a prior conviction. Once again, Appellant is presenting

a challenge to an evidentiary ruling for which our standard of review is abuse

of discretion. See Melvin, supra, 103 A.3d at 35.

      Pennsylvania Rule of Evidence 404(b) governs the introduction of

evidence of crimes, wrongs or other acts. Whereas evidence of a crime is not

admissible “to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character,” such evidence

“may be admissible for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of


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accident.” Pa.R.E. 404 (b)(1) and (2). However, “this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2).

      Prior to trial, the Commonwealth filed its notice of intent to introduce

Appellant’s 2014 conviction for simple assault stemming from his guilty plea

relating to injuries suffered by his deceased five-month old son. Although the

cause of the child’s death was determined to be pneumonia, injuries observed

on a post-mortem skeletal survey included ribs fractures.         The autopsy

confirmed two healing rib fractures and one “fresher” one, believed to be fewer

than five days old. By history, the child had presented with minor injuries on

various other occasions, including a two-inch long laceration on his face,

abrasions on his chin and nose, possible facial bruises, and a red mark in his

eye. Notes of Testimony, Trial, at 148-54.

      Our Supreme Court has “long recognized an exception to the general

inadmissibility of other crimes evidence where there is a striking similarity—

or logical connection—between the proffered prior bad acts and the underlying

charged crime.” Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017).

Here, the trial court explained:

       A review of the record demonstrates that this court’s decision was
      well within its discretion. [Appellant’s] plea to simple assault for
      causing injuries including rib fractures (caused by the mechanism
      of squeezing) and eye hemorrhages to his three (3) (sic) month
      old son is reflective of an inherent similarity and the absence of
      mistake or lack of accident contemplated by Rule 404(b).

Trial Court Opinion, 12/4/17, at 16 (some capitalization omitted).

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       In Hicks, our Supreme Court also recognized that “[w]here a logical

connection between the other crimes and the underlying charged crime has

been established . . . the court must also determine whether the probative

value of the evidence outweighs any unfair prejudice.” Hicks, 156 A.3d at

1128 (citing Pa.R.E. 404(b)(2)).               “Obviously, the impact of introducing

evidence of other crimes is significant and may be highly prejudicial. However,

such evidence is also highly probative when the Commonwealth's case is

otherwise based largely on circumstantial evidence.” Id. (citations omitted).

The trial court considered the prejudice and observed:

       Neither was the evidence unduly prejudicial. By its very nature,
       all evidence presented by the Commonwealth is prejudicial to a
       criminal defendant. However, evidence regarding his prior plea
       was not so overly prejudicial that it justified exclusion. Ultimately,
       the evidence was [] vastly more probative than prejudicial and so
       this court correctly allowed its admission.

Trial Court Opinion, 12/14/17, at 16-17 (some capitalization omitted). As in

Hicks, “the probative value of the evidence to the Commonwealth’s largely

circumstantial case clearly outweighed any unfair prejudicial effect, which was

properly limited by the trial court’s cautionary instructions to the jury.” Hicks,

156 A.3d at 1129.7         We find no abuse of discretion in the trial court’s

evidentiary ruling. Appellant’s third issue fails.

____________________________________________


7 In the instant case, the trial court similarly delivered a cautionary, limiting
instruction to the jury as follows:




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       In his fourth and final issue, Appellant argues that the trial court abused

its discretion by imposing consecutive statutory maximum sentences, without

considering Appellant’s character and rehabilitative needs. As such, Appellant

is challenging the discretionary aspects of his sentence.

       In Commonwealth v. Levy, 83 A.3d 457 (Pa. Super. 2013), this Court

reiterated:

       Appellant is not entitled as of right to a review of such a challenge.
       Our jurisdiction over a claim regarding the discretionary aspects
       of sentence must be established as follows:

          We conduct a four-part analysis 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. § 9781(b).

Id. at 467 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010).

____________________________________________


       You have heard evidence to prove that [Appellant] was guilty of
       simple assault. This evidence is before you for a limited purpose.
       That is for the purpose to show intent, motive, identity, absence
       of mistake or accidents. This evidence must not be considered by
       you in any other way other than for the purpose I just stated.

       You must not regard that evidence as showing [Appellant] is a
       person of bad character or criminal tendency from which you
       might be inclined to infer guilt.

Notes of Testimony, Trial, at 280.

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      A review of the record reveals that Appellant has satisfied the first three

elements of the test. Therefore, we must determine whether he has presented

a substantial question as required by the fourth prong of the test outlined in

Levy. In Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015) (en

banc), this Court held that a “challenge to the imposition of consecutive

sentences as unduly excessive, together with a claim that the trial court failed

to consider the defendant’s rehabilitative needs upon fashioning its sentence,

presents a substantial question.” Id. at 770. See also Commonwealth v.

Swope, 123 A.3d 333, 340 (Pa. 2015) (claim of excessiveness coupled with

claim trial court failed to consider rehabilitative needs and mitigating factors

presents a substantial question). As in Caldwell and Swope, Appellant has

presented a substantial question in this case. In addition, the Commonwealth

concedes Appellant has raised a substantial question in his assertion that the

trial court made “erroneous factual findings” justifying Appellant’s sentence.

Commonwealth Brief at 59. Therefore, we shall consider Appellant’s claims.

      “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.

Additionally, this Court’s review of the discretionary aspects of a sentence is

confined by the statutory mandates of 42 Pa.C.S.[A]. § 9781(c) and (d).”

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (quotation

marks and citations omitted). “When reviewing sentencing matters, this Court

must accord the sentencing court great weight as it is in best position to view


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the defendant's character, displays of remorse, defiance or indifference, and

the overall effect and nature of the crime.” Commonwealth v. Ventura,

975 A.2d 1128, 1134 (Pa. Super. 2009) (quoting Commonwealth v.

Hanson, 856 A.2d 1254, 1260 (Pa. Super. 2004)).

      At Appellant’s sentencing hearing, his counsel suggested a sentence in

the standard range, i.e., nine to sixteen months in prison for aggravated

assault, six to fourteen months in prison for EWOC, and six months’ probation

for REAP. Notes of Testimony, Sentencing, 12/6/16, at 2. Counsel further

suggested “lengthy probation with some supervision and no contact [with

D.W. or any infant or child unable to talk]. I told him that for his own good,

because any time a child is injured, if he's in the vicinity, it may fall on him.”

Id.   The trial court then heard testimony from Appellant’s grandmother,

father, cousin, and Appellant himself.

      Counsel for the Commonwealth next addressed the court, explaining

that D.W. “is safe now because [Appellant] is removed from the situation.”

Id. at 11. “Because of [Appellant’s] repeated history with infants and causing

injuries to helpless infants in his care,” the Commonwealth requested “a

substantial sentence, and . . . a no contact order once [Appellant] is eventually

released on parole or probation.” Id.

      The trial court then pronounced sentence, set forth in its entirety as

follows:

      I ordered, read, and considered a presentence report. I have the
      guidelines. And, Mr. Williams, you obviously come from a loving

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       family. You said that you have one brother and then you told us
       you have three brothers and four sisters, and your grandmother
       said you had two brothers. But, nevertheless, the people who
       have spoken here today, obviously, are very caring. They love
       you. They think you’re a good person.

       I don’t know that you are an evil person. What I do think is that
       you lost your temper, you got angry, and you let the whole
       situation get away from you. You caused serious injury to a two-
       month-old child. And the records indicate that you squeezed your
       daughter who was two months old causing fractured ribs,
       subconjunctival hemorrhages, right lateral side, and infraorbital
       petechia. The baby also had a fractured right fibula. Now, that is
       one thing.

       The second thing that concerns me beyond belief is that you were
       charged with the prior aggravated assault on your five-month-old
       son. I believe he was found by you to be unresponsive. It showed
       that he had healing ribs, he had a skull fracture. I believe
       technically he died of pneumonia but that doctors found both old
       and new injuries. I don’t think you should ever be around a child.
       I don’t know, I’m just beyond words on your case.

       So, on count one – and I will recognize [Appellant’s counsel] is a
       kind man and can find good in anybody. That’s not to be taken
       as a fault but as a compliment. At count one, as a felony, I order
       you to serve not less than five years nor more [] than ten years,
       to have no contact with your daughter when you are released with
       credit from January 7 of 2016.

       At count three, I order you to serve three-and-a-half to seven
       years consecutive to the sentence I just imposed. This sentence
       is not a mandatory sentence. [Appellant] is not RRRI eligible.

       You have the right to appeal the decision of this court within 30
       days and the right to have a lawyer represent you. If you cannot
       afford a lawyer, I will appoint one to represent you free of charge.

Id. at 11-13 (emphasis added) (some capitalization omitted).8
____________________________________________


8 A brief discussion then ensued in which Appellant’s counsel advised the court
that he had spoken with Appellant’s family and would not be representing



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       As reflected in the sentencing transcript, the trial court “ordered, read,

and considered a presentence report.”          Id. at 11. In Ventura, this Court

noted:

       Our Supreme Court has determined that where the trial court is
       informed by a pre-sentence report, it is presumed that the court
       is aware of all appropriate sentencing factors and considerations,
       and that where the court has been so informed, its discretion
       should not be disturbed. Commonwealth v. Devers, 519 Pa.
       88, 101–102, 546 A.2d 12, 18–19 (1988). In discussing Devers,
       our Court has explained:
          In imposing sentence, the trial court is required to consider
          the particular circumstances of the offense and the
          character of the defendant. The trial court should refer to
          the defendant’s prior criminal record, age, personal
          characteristics, and potential for rehabilitation. However,
          where the sentencing judge had the benefit of a presentence
          investigation report, it will be presumed that he or she was
          aware of the relevant information regarding the defendant’s
          character and weighed those considerations along with
          mitigating statutory factors. Additionally, the sentencing
          court must state its reasons for the sentence on the record.
          The sentencing judge can satisfy the requirement that
          reasons for imposing sentence be placed on the record by
          indicating that he or she has been informed by the pre-
          sentencing report; thus properly considering and weighing
          all relevant factors.
       Commonwealth v. Fowler, 893 A.2d 758, 766–[6]7 (Pa. Super.
       2006) (citations omitted).

Ventura, 975 A.2d at 1135. In addition, we recognize the statutory mandate

of 42 Pa.C.S.A. § 9781(c), which provides:



____________________________________________


Appellant on appeal. The court responded that the public defender’s office
would be ordered to represent him. Notes of Testimony, Sentencing, 12/6/17,
at 13-14.

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        (c) Determination on appeal.—The appellate court shall
       vacate the sentence and remand the case to the sentencing court
       with instructions if it finds:

          (1) the sentencing court purported to sentence within the
          sentencing   guidelines   but   applied  the   guidelines
          erroneously;

          (2) the sentencing court sentenced within the sentencing
          guidelines but the case involves circumstances where the
          application of the guidelines would be clearly unreasonable;
          or

          (3) the sentencing court sentenced outside the sentencing
          guidelines and the sentence is unreasonable.

       In all other cases the appellate court shall affirm the sentence
       imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

       Here, it appears the sentencing court “purported to sentence within the

sentencing guidelines but applied the guidelines erroneously.”           Section

9781(c)(1). The trial court completed sentencing guideline forms for both

aggravated assault and EWOC.             The form for aggravated assault (under

18 Pa.C.S.A. § 2702(a)(8)) reflects Appellant’s prior record score of four, a

standard sentence range of nine to sixteen months, an aggravated sentence

of 22 months,9 and statutory limits of 60 to 120 months. Although the trial



____________________________________________


9 The sentencing forms do not provide a range of sentences in the aggravated
range. However, Appellant represents that consecutive sentences for both
convictions in the aggravated range would total 42 to 84 months in prison,
i.e., three and one half to seven years in prison. Appellant’s Brief at 59.
Again, the sentence imposed here totaled eight and a half to seventeen years,
more than twice the term of a sentence in the aggravated range.

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court imposed the statutory limits of 60 to 120 months, an “x” appears in the

box indicating the sentence conforms to the standard range. The form for

EWOC reflects Appellant’s prior record score of four, a standard sentence

range of six to fourteen months, an aggravated sentence of 20 months, and

statutory limits of 42 to 84 months.       Again, the trial court imposed the

statutory limits.   However, no boxed is marked indicating whether the

sentence conforms to the standard, aggravated, or mitigated range.

      Neither the trial court’s statements at sentencing nor the sentencing

guideline forms demonstrate any recognition on the part of the trial court that

the sentences were above the aggravated range and constituted statutory

maximum sentences. Moreover, in its Rule 1925(a) opinion, the trial court

represents that the “sentence was appropriate and well below the statutory

maximum.”      Trial Court Opinion, 12/4/17, at 21 (emphasis added).          The

Commonwealth maintains that Appellant’s sentence is “not unreasonable,

excessive, or unduly harsh.” Commonwealth Brief at 69. However, even the

Commonwealth acknowledges that “the state of the record is such that the

Commonwealth does not know whether or not the trial court intended to

impose statutory maximum terms of incarceration.” Id. at 68-69.

      The sentence also raises questions as to whether the sentence is

“unreasonable” under Section 9781(c)(3) in light of factual inaccuracies

articulated by the trial court at sentencing. For instance, in its statement at

sentencing, the trial court refers to Appellant’s infliction of a “serious injury”


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on D.W., and refers to D.W.’s “fractured ribs” and “fractured fibula” as well as

Appellant’s deceased infant son’s “skull fracture.” Notes of Trial, Sentencing,

12/6/16, at 11-12.     The trial court was mistaken in all fours instances.

Appellant   was   convicted   of   aggravated   assault   under   18   Pa.C.S.A.

§ 2702(a)(8), which involves “injury,” but was acquitted under 18 Pa.C.S.A.

§ 2702(a)(9), which involves a “serious injury.”       Further, the trial court

represents that D.W. sustained fractured ribs (plural) when testimony

confirmed a single fractured rib. Also, D.W. did not sustain a fractured fibula,

nor did Appellant’s deceased son suffer a skull fracture. Moreover, the trial

court mentioned Appellant’s previous conviction for “aggravated assault” with

respect to Appellant’s deceased son. The record reflects that Appellant was

convicted of misdemeanor simple assault. Notes of Testimony, Sentencing,

12/6/16, at 10.

      In its Rule 1925(a) opinion, the trial court “concedes counsel’s point that

[a Commonwealth expert] did indicate that [Appellant’s deceased son] was

not ultimately found to have a skull fracture, despite an area of concern on

his x-rays, however, that was not the determinative factor in crafting this

sentence and so it does not require resentencing.”         Trial Court Opinion,

12/4/17, at 20.    The court continued, representing that “the record does

reflect great deliberation and consideration in the formulation of the sentence.

Under the circumstances, the sentence was appropriate and well below the

statutory maximum.” Id. at 21. As already explained, the sentence was not


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“well below the statutory maximum,” it was a statutory maximum sentence

for each conviction, running consecutively.

      Again, we are cognizant of the constraints on an appellate court when

the trial court has had the benefit of a presentence report and states on the

record that the court has reviewed and considered the report. However, we

are nevertheless empowered—and in fact we are required under Section

9781(c)—to vacate a sentence and remand for resentencing if the trial court

applied the guidelines erroneously or where a sentence outside the guidelines

is unreasonable. We find that to be the case here.

      Moreover, our reading of the sentencing transcript suggests that the

trial court’s focus here was on the seriousness of the offenses.              In

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

that focusing on the severity of the crime warranted vacating a sentence

where the court only perfunctorily acknowledged the presentence report and

did not discuss various factors, including possible rehabilitative potential. Id.

at 150.    Similarly, the trial court here perfunctorily acknowledged the

presentence report. Notes of Testimony, Sentencing, 12/6/16, at 11. Despite

the court’s statement that the record “reflect[s] great deliberation and

consideration in the formulation of [Appellant’s] sentence[,]” Trial Court

Opinion, 12/4/17, at 21, the trial court’s pronouncement at sentencing is silent

as to any considerations beyond the seriousness of the events involving D.W.




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and Appellant’s deceased child.10 Although 42 Pa.C.S.A. § 9721(b) requires

that a sentence should reflect confinement consistent with certain factors,

including rehabilitative needs of the defendant, the sentencing transcript does

not reflect any consideration of rehabilitative needs. Nor does the transcript

reveal any stated rationale for deviating from the sentencing guidelines, as

mandated by Section 9721(b). As the statute provides, failure to comply with

Section 9721(b) “shall be grounds for vacating the sentence . . . and

resentencing the defendant.” 42 Pa.C.S.A. § 9721(b). Therefore, we vacate

the sentence and remand for resentencing.

       We find no error in the trial court’s exclusion of the testimony of

Appellant’s expert, Dr. Koehler, or in its denial of Appellant’s motion for a

continuance. Further, we find no error in admitting evidence of Appellant’s

prior conviction. However, as discussed above, because the trial court abused

its discretion in imposing its sentence, we vacate the judgment of sentence

and remand for resentencing.

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




____________________________________________


10With respect to Appellant’s prior conviction, we note that “factors already
used in [Sentencing] Guideline computations, including inter alia, prior
convictions, may not be used to justify an aggravated sentence.”
Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa. Super. 2000),
appeal denied, 775 A.2d 803 (citations omitted).


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J-S43003-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2018




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