J-S65033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ESSENCE JAMES

                            Appellant                   No. 3266 EDA 2014


           Appeal from the Judgment of Sentence October 13, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0002959-2013

BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED JANUARY 07, 2016

        Essence James appeals from her judgment of sentence of 3½ - 7

years’ imprisonment for endangering the welfare of a child (“EWOC”). 1 We

affirm.

        The relevant facts and procedural history of this appeal are as follows.

On March 9, 2013, police responded to 718 N. 15th Street, Allentown,

Lehigh County, Pennsylvania to provide medical assistance for a fifteen-

month-old child (“the victim”).         The victim was transported to St. Luke’s

Hospital, where he was pronounced dead. A subsequent autopsy revealed

horrific injuries. The victim had multiple facial and head injuries, a broken

collarbone, and rib fractures, his liver was lacerated; and his small and large

intestine had hemorrhages.           Additional rib fractures were in a state of
____________________________________________


1
    18 Pa.C.S. § 4304(a)(1).
J-S65033-15



healing.    The victim had been physically abused since at least February

2013. The coroner ruled that the cause of death was homicide.

       According to James’ boyfriend, on the evening of March 8, 2013,

James took the victim into the bathroom, where he heard her beating him.

James went out for the evening, and her boyfriend went to sleep. He later

woke to the sound of the victim gasping for breath.             He repeatedly

attempted to telephone James, but was unable to reach her.

       James was charged with homicide and EWOC. On October 3, 2014, a

jury acquitted defendant of homicide but convicted her of EWOC, graded as

a third degree felony. Following a pre-sentence investigation, the trial court

sentenced James to 3½ - 7 years’ imprisonment, the maximum sentence for

a third degree felony. James filed a timely post-sentence motion, which the

court denied. This timely appeal followed.

       James raises two questions in this appeal:

       1. Whether the [trial] court abused its discretion by imposing
          the maximum sentence allowed by law?

       2. Did the [trial] court err when it failed to state on the record
          sufficient reasons for a sentence that exceeded the
          aggravated range of the Sentencing Guidelines?

Brief For Appellant, at 6.2

____________________________________________


2
  Although James does not challenge the legality of her sentence, we may
address this question sua sponte. Commonwealth v. Orellana, 86 A.3d
877, 883 n. 7 (Pa.Super.2014) (challenge to legality of sentence can never
be waived and may be raised by appellate court sua sponte).
(Footnote Continued Next Page)


                                           -2-
J-S65033-15


      James’ first argument is a challenge to the discretionary aspects of her

sentence. An attack on discretionary aspects of sentencing does not entitle

a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must (1) file a timely notice of appeal; (2) preserve

the issue at sentencing or in a motion to reconsider and modify sentence;

(3) include in her brief a concise statement of reasons relied upon for

                       _______________________
(Footnote Continued)


The record demonstrates that it was proper to grade James’ offense as a
third degree felony for purposes of sentencing. 18 Pa.C.S. § 4301(a)(1)
provides: “A parent, guardian or other person supervising the welfare of a
child under 18 years of age, or a person that employs or supervises such a
person, commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection or support.” 18 Pa.C.S. §
4301(b) provides: “An offense under this section constitutes a misdemeanor
of the first degree. However, where there is a course of conduct of
endangering the welfare of a child, the offense constitutes a felony of the
third degree.” Any fact that changes the grading of an offense must be
proved to the jury beyond a reasonable doubt.           Commonwealth v.
Shamsud-din, 995 A.2d 1224, 1231 (Pa.Super.2010).

In addition to charging the jury on the standard elements under section
4301(a)(1), the trial court instructed the jury with regard to “course of
conduct,” the element that the Commonwealth had to prove to elevate the
grading of the offense from a first degree misdemeanor to a third degree
felony. Specifically, the court stated that in order to find James guilty of
EWOC, the jury had to find, beyond a reasonable doubt, that James engaged
in a “course of conduct of endangering the welfare of a child … A course of
conduct means a pattern of actions composed of more than one act over a
period of time, however short, evidencing a continuity of conduct …” N.T.,
10/3/14, at 220. The jury subsequently found James guilty of EWOC. Id. at
231. This procedure comported with Shamsud-din and validated the
treatment of James’ crime as a third degree felony at sentencing.




                                            -3-
J-S65033-15


allowance of appeal with respect to the discretionary aspects of her

sentence; and (4) present a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code. Id.

     James filed a timely notice of appeal, preserved her sentencing issue

in a post-sentence motion, and included a concise statement of reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of sentence in her brief.     We now must determine whether Appellant

presents a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

     James contends that the trial court imposed an excessive sentence

above the aggravated range of the Sentencing Guidelines and failed to

consider her lack of a prior criminal record or rehabilitative needs. James

asserts:

     At the time of sentencing, [James] had no prior criminal
     convictions and therefore had a Prior Record Score of zero (0).
     The Offense Gravity Score for the charge of [EWOC], graded as a
     Felony 3, is a six (6). Using the sentencing guidelines
     promulgated by the Commission, [the] standard sentencing
     range for her minimum sentence is three (3) to twelve (12)
     months. Applying the same sentencing guidelines, the …
     aggravated sentencing range for the charge of [EWOC] is up to
     eighteen (18) months as a minimum. [James] received a
     sentence that is two (2) years longer than the top of the
     aggravated range of the sentencing guidelines.

Brief For Appellant, at 11.    We conclude that this argument raises a

substantial question that James’ sentence is inappropriate. Thus, we grant

her petition for allowance of appeal and address the merits of her claim.


                                    -4-
J-S65033-15


Commonwealth        v.   Caldwell,   117    A.3d    763,   770    (Pa.Super.2015)

(appellant’s challenge to his sentences as unduly excessive, together with

claim that court failed to consider his rehabilitative needs upon fashioning its

sentence, presents a substantial question).

      When reviewing a challenge to the discretionary aspects of sentencing,

      we determine whether the trial court has abused its discretion …
      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.

Caldwell, 117 A.3d at 770. Sentencing guidelines are merely advisory, and

the court may, in its discretion, sentence outside the guidelines. When a trial

court deviates from the guidelines, it must state its reasons for deviation on

the record at the time of sentencing or in a contemporaneous written

statement.      Commonwealth         v.    Lawson,     650       A.2d   876,   881

(Pa.Super.1994).     In determining       whether   a sentence      is manifestly

excessive, the appellate court must give great weight to the sentencing

court’s discretion, as it is in the best position to measure factors such as the

nature of the crime, the defendant’s character, and the defendant’s display

of remorse, defiance, or indifference.     Commonwealth v. Ellis, 700 A.2d

948, 958 (Pa.Super.1997).      Where an excessiveness claim is based on a

court’s sentencing outside the guideline ranges, we look, at a minimum, for


                                     -5-
J-S65033-15


an indication on the record that the sentencing court understood the

suggested sentencing range. 42 Pa. C.S.A. § 9721(b). When the court so

indicates, it may deviate from the guidelines, if necessary, to fashion a

sentence which takes into account the protection of the public, the

rehabilitative needs of the defendant, the gravity of the particular offenses

as it relates to the impact on the life of the victim and the community, so

long as the court also states of record the factual basis and specific reasons

which compelled it to deviate from the guideline range. Commonwealth v.

Mouton, 828 A.2d 1126, 1128 (Pa.Super.2003) (citations omitted). If “the

sentencing court proffers reasons indicating that its decision to depart from

the guidelines is not unreasonable,” its responsibilities have been fulfilled

and we will not disturb the sentence. Commonwealth v. Gibson, 716 A.2d

1275, 1277 (Pa.Super.1998).

      We hold that James’ sentence was an appropriate exercise of the

court’s discretion. The court presided over James’ trial and reviewed James’

pre-sentence investigation report prior to sentencing. N.T., 10/13/14, at 3.

Based on the pre-sentence investigation, the “unbelievably horrific” evidence

presented at trial, and consideration of all criteria within 42 Pa.C.S. § 9721,

the court had good reason to impose the maximum sentence for EWOC as a

third degree felony.     Trial Court Opinion, 10/23/14, at n. 1.        James

repeatedly beat her helpless infant son so badly that he died from his

injuries.   N.T., 10/13/14, at 6-7.   To make matters even more tragic, a


                                      -6-
J-S65033-15


family in New York wanted to adopt James’ baby, and James accepted the

family’s gifts and pretended to take its offer seriously at the same time that

she was inflicting unspeakably cruel beatings on her baby.       As the court

observed at sentencing:

          You took advantage of those innocent people up in New York
          who only wanted to love that baby, take care of him … You took
          their money. You took their clothes. You took their food. You
          took their care. You took their compassion. You took their
          kindness and you turned it into what you are.

N.T., 10/13/14, at 7-8. Notwithstanding James’ lack of a prior record, we

can certainly understand the court’s decision to impose the maximum

available sentence under these circumstances.

          James’ second argument is that the court failed to state sufficient

reasons on the record for James’ sentence.          We disagree.    We have

summarized above what the court said at sentencing, and we conclude that

it was more than sufficient to justify James’ sentence.

          For these reasons, neither argument in James’ brief entitles her to

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2016

                                      -7-
