J-S32029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID STARLING,                            :
                                               :
                       Appellant               :   No. 2008 EDA 2018

         Appeal from the Judgment of Sentence Entered March 16, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000527-2016


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                          FILED SEPTEMBER 04, 2019

        Appellant, David Starling, appeals from the judgment of sentence

entered on March 16, 2018, in the Philadelphia County Court of Common

Pleas. After review, we affirm.

        The trial court set forth the facts underlying Appellant’s convictions as

follows:

             [The victim,1 S.S.,2] testified that in mid-2015, she went to
        temporarily live with her aunt [D.S.] in Philadelphia. (N.T.
        12/06/17 at pp. 31, 32, 35, 38, 41). Although she had nowhere

____________________________________________


1   The victim was born in August of 1992.

2 Although the victim’s surname differs from Appellant’s surname, in an effort
to protect the victim’s identity, we refer to her and the familial witnesses using
initials or shortened versions of their first names. See Commonwealth v.
S.M., 769 A.2d 542, 543 (Pa. Super. 2001) (referring to the victim by her
initials because she was a juvenile at the time of the offense); see also 18
Pa.C.S. § 3019(a) (protecting the identity of victims of sex crimes).
J-S32029-19


     else to go, she was reluctant to live there because her older cousin
     [Appellant] resided there. (Id. at 41).

           [S.S.] testified that, when they were children, [Appellant]
     would force her to perform oral sex on him, would make her touch
     his penis, and would touch her chest and vagina without her
     consent. (Id. at 41-42, 45). She would tell him to stop, but he did
     not. (Id. at 49). [S.S.] described these incidents; how “it felt
     weird” when [Appellant] put his hands on her, how [Appellant]
     would grab her head and move it back and forth when he forced
     her to perform oral sex on him, and how he would instruct her not
     to use her teeth on his penis. (Id. at 45-47). Finally, at the age of
     around 11 or 12, [S.S.] told [Appellant] that “enough is enough.
     This is weird. We’re family. Stop.” (Id. at 47-48). According to
     [S.S.], [Appellant] ignored her and kept trying to touch her and
     coerce her to touch him, but after a while he stopped. (Id. at 48).

           [S.S.] testified that these incidents took place at her
     grandmother’s house, her Aunt [Ca.’s] house, and more rarely, at
     her own house. (Id. at 44). When asked for an approximate
     number of times this occurred, [S.S.] testified first that it
     happened more than 100 times, then later testified that it
     happened closer to 1,000 [times]. (Id. at 44, 48). [S.S.] testified
     that she was between the ages of around three and around eleven
     or twelve when this happened, but her statement to the police
     specified that it was between the ages of four and eight. (Id. at
     44).

           The only person [S.S.] told during this time was her mother,
     but her mother—who struggled with schizophrenia, bipolar
     disorder, and drug addiction—called her “fast” and never did
     anything about it. (Id. at 49). Later, when [S.S.] was a teenager
     and living with her sister, [Sh.], [Appellant] tried to sleep over at
     [Sh.’s]; [S.S.] then told her sister about her history with
     [Appellant], and [Sh.] made [Appellant] leave. (Id. at 50-51).

           [S.S.] testified that on the night of May 20, 2015, she was
     sleeping on her aunt’s couch on the first floor. She admitted she
     had used marijuana less than twenty-four hours before this. (Id.
     at 137). [Appellant] slept upstairs and [S.S.] said she was sure to
     never fall asleep when he was in the same room because, although
     he was smaller than she was, she “didn’t trust him.” (Id. at 56,
     112). [S.S.] testified that night she “woke up to the force of
     [Appellant] on me[.]” (Id. at 61). She had been sleeping on her

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     stomach and [Appellant] was now physically laying on top of her.
     (Id. at 68). She could not scream because she could barely
     breathe, but managed to tell him to get off her. (Id. at 69-70.)
     When she tried to fight him off, [Appellant] put his arm around
     her neck and started choking her with his arm or his hand. (Id. at
     68, 143). She testified that she “absolutely” had never given
     [Appellant] consent to have sex with her that night. (Id. at 79).
     She testified that [Appellant] told her she was his first love, forced
     his knees between her legs, moved her boxers to the side, and
     began to penetrate her vaginally. (Id. at 62, 67, 68). [S.S.]
     testified that she struggled to escape, kept trying to fight him off,
     and soon “was able to get him off of me” and started screaming.
     (Id. at 68, 72).

            [S.S.] and her brother [Sa.] both testified that at this point
     [Sa.] ran up from the basement. (Id. at 68, 72, 178). [Sa.] (who
     had been previously unaware of [Appellant’s] prior assaults on
     [S.S.]) testified that he had been asleep in the basement when he
     heard his sister scream. (Id. at 176-78, 189, 193). Both testified
     that [S.S.], crying and angry, told [Sa.] that [Appellant] had just
     raped her. (Id. at 75, 178). They testified that [Appellant] ran
     upstairs and [Sa.] chased him, but was blocked by their [a]unt,
     who had appeared at the top of the stairs. (Id. at 62, 181). Both
     testified that at this point [S.S.] left the apartment (without her
     phone). (Id. at 76, 184). [Sa.] testified that he went looking for
     her but was unsuccessful. (Id. at 186). [S.S.] testified that she
     sat somewhere and watched the sunrise, before returning to
     retrieve her belongings. (Id. at 76). [S.S.] testified that her aunt
     then told [S.S.] that she had called the police, kicked [Appellant]
     out, and never would have let [Appellant] stay there “if she would
     have known.” (Id. at 77, 108). [S.S.] then went to her sister’s
     house and washed herself. (Id. at 78).

            [S.S.], Officer Timothy McGinn, and Officer Carl Diaz all
     testified that on May 20, 2015, [S.S.] arrived at the 17th Police
     District Headquarters and reported that she was raped by her
     cousin the night before. (Id. at 4-6, 28, 31; N.T. 12/07/17 at pp.
     31, 32, 35, 38, 41). Officer Diaz also testified that [S.S.] told him
     she had additionally been raped by [Appellant] multiple times
     when she was between the ages of four and eight. (N.T. 12/07/17
     at p. 44).




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             It was stipulated that at 8:18 p.m., on May 20, 2015, a
       nurse “performed a rape kit on the victim and vaginal areas were
       swabbed, and subsequent analysis did not reveal any DNA of the
       [Appellant].” (Id. at 107). [S.S.’s] physical exam noted that she
       had no visible physical injuries at that time. (Id. at 139-140).

              Finally, [S.S.’s] aunt [D.S.] testified that on November 21st
       or December 1st, 2017, she received a witness subpoena from the
       District Attorney stating that her attendance at trial was
       mandatory and asking her to contact the District Attorney to
       provide any information she might have. (Id. at 104). In response,
       [D.S.] left a voicemail with the District Attorney stating she did
       not want to speak to him or a detective. (Id. at 106).

Trial Court Opinion, 1/15/19, at 2-5.

       Appellant was arrested and charged with rape, sexual assault, indecent

assault, unlawful restraint, and simple assault.3         Criminal Information,

1/20/16. At the conclusion of Appellant’s trial on December 8, 2017, the jury

found Appellant guilty of unlawful restraint. Verdict, 12/8/17. The jury found

Appellant not guilty of rape and sexual assault, and a nolle prosequi was

entered on the charges of indecent assault and simple assault. Id. On March

16, 2018, the trial court sentenced Appellant to a term of one to two years of

incarceration, followed by three years of probation, for the conviction of

unlawful restraint. N.T., Sentencing, 3/16/18, at 16. On March 22, 2018,

Appellant filed a timely post-sentence motion that the trial court denied on




____________________________________________


3 18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3126(a)(1), 2902(a)(1), and 2701(a)
respectively.


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June 1, 2018. This timely appeal followed. Both the trial court and Appellant

complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises the following issues for this Court’s

consideration:

      I. Whether the court erred allowing evidence of Appellant’s past
      sexual behavior toward Complainant into evidence.

      II. Whether the court erred in declining to grant a mistrial because
      of the prosecutor’s remarks regarding [Appellant’s] mother’s
      failure to testify.

      III. Whether the court’s sentence was harsh and unreasonable.

Appellant’s Brief at 8.

      In his first issue, Appellant avers the trial court erred in admitting

evidence of his past sexual behavior. It is well settled that the admissibility

of evidence is left to the sound discretion of the trial court, and a reviewing

court will not disturb an evidentiary ruling absent an abuse of that discretion.

Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).

      In its Pa.R.A.P. 1925(a) opinion, the trial court thoroughly addressed

Appellant’s claim of error as follows:

            [Appellant] first contends that the [trial court] erred in
      allowing [S.S.] to testify that [Appellant] had continuously raped
      her as a child, prior to the incident at bar. Despite the fact that
      [Appellant] was found not guilty of all sexual charges, he argues
      that the admission of the incidents was “extremely prejudicial.”
      [Appellant’s] assertion is incorrect.

            Notably, even if the prior incidents had been entered
      erroneously, it would be a moot point and harmless error. The
      doctrine of harmless error was designed “to advance judicial
      economy by obviating the necessity for a retrial where the

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J-S32029-19


     appellate court is convinced that a trial error was harmless beyond
     a reasonable doubt. Its purpose is premised on the well-settled
     proposition that a defendant is entitled to a fair trial but not a
     perfect one.” Commonwealth v. Bond, 190 A.3d 664, 671 (Pa.
     Super. 2018), appeal denied, 189 A.3d 992 (Pa. 2018) ((quoting
     Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012)). As
     the Commonwealth remarked at [Appellant’s] post-sentence
     reconsideration hearing, “either the jury didn’t put any credit to
     the prior bad acts … or they didn’t hold it with much weight
     because they found [Appellant] ultimately not guilty of the
     underlying sexual offenses.” (N.T. 06/01/18 at pp. 9-10). As
     [Appellant] was found not guilty on every single charge relating
     to sexual contact and the prior incidents were admitted in
     response to those charges, it is apparent that excluding the
     evidence of sexual crimes would not affect the outcome of the trial
     in any way. Therefore, respectfully, regardless of whether the
     prior crimes should have been admitted, the court’s decision
     should be affirmed.

            However, even if [Appellant] had been found guilty of any
     sexual charge, the incidents would still be properly admitted. … To
     determine whether the evidence in question should be admitted,
     the trial court “must weigh the evidence and its probative value
     against its potential prejudicial impact.” [Commonwealth v.
     Wattley, 880 A.2d 682, 685 (Pa. Super. 2005)]. Even when the
     evidence is prejudicial, it may be admitted under Pa. R. Evid.
     404(b) “where it serves a legitimate purpose” such as inclusion to
     show motive, intent, absence of mistake, common scheme, and
     identity. Id.

            Additionally, evidence of a prior sexual allegation is
     [admissible] if it shows that the [d]efendant’s sexual misconduct
     was “of a continuing and escalating nature” towards a specific
     victim. Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992).
     This is admissible to show “a passion or propensity for illicit sexual
     relations with the particular person concerned in the crime on
     trial.” Commonwealth v. Lomax, 8 A.3d 1264, 1266-67 (Pa.
     Super. 2010) (quoting McCormick, Evidence § 190, at 449 (2d ed.
     1972)). “This ‘lustful disposition’ exception to the general rule
     against the admission of evidence of prior or subsequent bad acts
     has been consistently recognized by our Supreme Court for more
     than a century.” Commonwealth v. Wattley, 880 A.2d 682, 686-
     87 (Pa. Super. 2005).


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            To be admissible, prior sexual misconduct between a
     defendant and a victim needs to be connected to the current case
     enough to show a continuing course of conduct, or lead to a
     reasonable inference that a defendant has a propensity towards
     illegal sexual acts with the victim. Commonwealth v. Young, 989
     A.2d 920, 924 (Pa. Super. 2010). The former conduct does not
     require a conviction in court to be admissible. Id. at 926. The
     former conduct does not have to be within the same time period
     or even within the statute of limitations to be admissible.
     Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa. Super. 2005).
     And the former conduct does not have to be of the same nature
     as the conduct at trial to be admissible. Commonwealth v. Dunkle,
     602 A.2d 830, 839 (Pa. 1992).

          Finally, another legitimate purpose exception for prior
     sexual allegations in a trial is the res gestae exception:

           Pennsylvania courts “have long recognized the special
           significance of evidence which provides the factfinder
           with the res gestae, or complete history, of a crime.”
           . . . Res gestae evidence is of particular import and
           significance in trials involving sexual assault. “By their
           very nature, sexual assault cases have a pronounced
           dearth of independent eyewitnesses, and there is
           rarely any accompanying physical evidence. . . . In
           these cases the credibility of the complaining witness
           is always an issue.”

     Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005)
     (citations omitted).

           In the present case, the court weighed the probative aspects
     of these prior incidents against the possible prejudice to
     [Appellant] and concluded that any prejudice was outweighed. In
     addition to more generally demonstrating [Appellant’s] intent,
     common scheme, and absence of mistake in sexually assaulting
     his cousin, these incidents would demonstrate his “lustful
     disposition” towards illicit sexual relations with this specific victim
     and a necessary res gestae of the case. The incidents were
     primarily admissible to demonstrate [Appellant’s] “passion or
     propensity for illicit sexual relations with the particular person
     concerned in the crime on trial.” [S.S.’s] testimony that
     [Appellant] had sexually assaulted her on numerous prior
     occasions tended to show a continuing course of conduct wherein

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     [Appellant] force[d] himself on his cousin when they were alone
     in the homes of various family members. Additionally they also
     provided the factfinders with the case’s res gestae; in deciding to
     include these incidents, the court noted that they were necessary
     to show “a complete picture” of [Appellant] and [S.S.’s]
     relationship. (N.T. 12/04/17 at p. 10). For example, the previous
     incidents provided context for when [Appellant] told [S.S.] “you
     are the love of my life” and “I’ve always loved you” during the
     sexual encounter at issue. Without this history, the nature of the
     relationship between the cousins would have been unnecessarily
     confused.

            The potential prejudice from the admission of these
     incidents was lessened by the court’s pointed jury instruction on
     the matter: this is because “when examining the potential for
     undue prejudice, a cautionary jury instruction may ameliorate the
     prejudicial effect of the proffered evidence.” Commonwealth v.
     Hairston, 84 A.3d 657, 666 (Pa. 2014) (noting that jurors are
     presumed to follow the court’s instructions). The court
     emphasized, in a jury instruction approved by [Appellant], that
     the evidence was before the jury for a limited purpose and should
     not be considered for any reason other than showing [Appellant’s]
     lustful desires toward [S.S.] and the cousins’ relationship history.
     As a jury is presumed to follow jury instructions, this lessened the
     prejudicial effect of the statements.

            [Appellant] argued primarily that these incidents were
     overly prejudicial because they were “unproven” and because they
     ended between twelve and sixteen years before the incident in
     question. [Appellant’s] first argument is null: case law shows that
     admissible prior incidents under Rule 404(b) are not limited to
     court convictions. Young, 989 A.2d at 924. His second argument,
     that a lengthy pause in alleged sexual activity meant “there is not
     a continuing course of conduct,” is more persuasive, but still
     insufficient to overcome the probative effect of the prior incidents.
     (N.T. 12/04/17 at p. 11).

           As highlighted continuously in our case law, the remoteness
     in time of former conduct is simply one more factor to be
     considered in … [an] admissibility determination; it is not
     dispositive as long as the former conduct leads to a reasonable
     inference that a defendant has a continuing course of illicit sexual
     contact with a victim. Commonwealth v. Knowles, 637 A.2d 331,
     333 (Pa. Super. 1994) (finding a continuing course of conduct

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      despite a gap of five to seven years, because the evidence
      indicated that “the sexual abuse was resumed when the defendant
      had an opportunity to be alone with the victim”); see also
      Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010)
      (holding evidence of the defendant’s prior sexual assault of a
      different but similar victim was admissible despite a ten to eleven
      year gap between incidents).

            Here, the trial court found that there was enough evidence
      to show a continuing course of conduct of illicit sexual activity
      between [Appellant] and [S.S.] due to the fact that whenever
      [Appellant] had access to [S.S.], the contact would occur. [S.S.]
      was more accessible to [Appellant] as a child when their families
      would spend a significant amount time together. As she grew
      older, [S.S.] testified that she autonomously told [Appellant]
      “enough is enough,” shut down all sexual contact, and avoided
      him, for example, telling her sister not to allow him in her house.
      However, years later, when [Appellant] finally again had access to
      [S.S.] again (when she was forced by circumstances to sleep over
      at [Appellant’s] mother’s home) the sexual abuse continued.

Trial Court Opinion, 1/15/19, at 5-9 (internal footnote omitted).

      After review, we agree with the trial court’s analysis, and we adopt the

trial court’s rationale as own. Accordingly, Appellant is entitled to no relief on

his first claim of error.

      Next, Appellant asserts that the trial court erred in denying a mistrial

based on the prosecutor’s closing remarks concerning Appellant’s mother’s

failure to testify. Appellant’s Brief at 21. After review, we conclude that this

issue is waived.

      It is well settled that in order to preserve a claim for appellate review,

a party must make a timely and specific objection, or the claim is waived.

Pa.R.A.P. 302(a); Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa.

Super. 2017). It is not this Court’s responsibility to develop an argument for

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an appellant or scour the record to find evidence to support an argument.

Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018). In

his brief, Appellant failed to direct our attention to the place in the record

where the allegedly improper remark occurred, cite to where he lodged a

timely and specific objection, or point out where he moved for a mistrial.

Accordingly, we conclude that this issue is waived.4

       In his final claim of error, Appellant asserts that the sentence the trial

court imposed was harsh and unreasonable. We conclude that no relief is due.

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). An appellant challenging the discretionary




____________________________________________


4We reiterate that this Court is not required to conduct an independent review
of the record to develop an appellant’s argument. Cannavo, 199 A.3d at
1289. Nevertheless, it appears that the allegedly improper comment made
by the prosecutor, which Appellant references in his brief at page 22, is located
at pages 144 through 145 of the notes of testimony from December 7, 2017.
N.T., 12/7/17, at 144-145. Assuming, arguendo, that we were to address
Appellant’s issue, we would note that, although the Commonwealth refers to
Appellant’s mother, id. at 144, Appellant’s counsel merely made a general
objection and said: “Your Honor, objection.” Id. To the extent that this could
be construed as an objection to the Commonwealth remarking that Appellant’s
mother refused to testify, we point out that the trial court did not specifically
rule on this general objection. Moreover, Appellant never moved for a
mistrial. Were we to reach this issue and deem this a specific objection and
motion for a mistrial that was denied, we would conclude that Appellant is due
no relief. Rather, we would rely on the rationale espoused by the trial court
on this issue in its opinion. Trial Court Opinion, 1/15/19, at 10-13.

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aspects of his sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

             [W]e 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.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).      Whether a particular issue constitutes a

substantial question about the appropriateness of a sentence is a question to

be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d

808, 811 (Pa. Super. 2001). As to what constitutes a substantial question,

this   Court   does   not   accept   bald   assertions   of   sentencing   errors.

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An

appellant must articulate the reasons the sentencing court’s actions violated

the sentencing code. Id.

       Herein, Appellant has met the first three requirements of the four-part

test. Appellant filed a timely appeal, raised the challenge in a post-sentence

motion, and included in his appellate brief the necessary statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

Therefore, we next determine whether Appellant raised a substantial question.

       In his Rule 2119(f) Statement, Appellant asserts that his sentence was

“manifestly excessive as to constitute too severe a punishment,” and it was

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imposed without consideration of mitigating factors or the factors set forth in

42 Pa.C.S. § 9721(b).      Appellant’s Brief at 16.     This claim presents a

substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 769-

770 (Pa. Super. 2015) (en banc) (holding that an assertion that a sentence is

excessive, in conjunction with an claim that the trial court failed to consider

mitigating factors, raises a substantial question). Therefore, we will review

the merits of Appellant’s challenge to the discretionary aspects of his

sentence.

      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.   Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.

2006). In this context, an abuse of discretion is not shown merely by an error

in judgment. Rather, an 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. Id.

      The sentencing judge has broad discretion in determining the proper

penalty, and this Court accords the sentencing court great deference because

the sentencing court is in the best position to view a defendant’s character,

displays of remorse, defiance, or indifference, and the overall effect and

nature of the crime.    Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted).     When imposing a sentence, the


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sentencing court must consider “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.”              42 Pa.C.S.

§ 9721(b). As we have stated, “a court is required to consider the particular

circumstances      of the    offense    and the    character   of the   defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,

the court should refer to the defendant’s prior criminal record, his age,

personal characteristics and his potential for rehabilitation.” Id.

       Despite Appellant’s protestations to the contrary, our review of the

record reflects that at the time of Appellant’s sentencing, the trial court was

aware of the Sentencing Guidelines, reviewed all relevant and available

information, balanced those considerations pursuant to 42 Pa.C.S. § 9721(b),

and informed Appellant of the basis for the sentence. N.T., 3/16/18, at 4, 16-

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

             In the case at bar, [Appellant’s] sentence is reasonable and
       appropriate. [Appellant] asked for a sentence of eleven and a half
       to twenty-three months,[5] and the court bestowed an extremely
       similar sentence of twelve to twenty-four months. Though this
       sentence is slightly above the guideline range (restorative
       sanctions to nine months, plus or minus three), it is well below
       the maximum sentence for a misdemeanor of the first degree (five
       years) and fits the seriousness of [Appellant’s] particular crime. …

             In deciding upon this sentence, the court considered all
       relevant    reports,   including   [Appellant’s]   sentencing
____________________________________________


5Specifically, at the sentencing hearing, Appellant’s counsel stated: “We both
agreed that the sentence of 11 and a half to 23 months would be appropriate
with some sort of probationary tail[.]” N.T., 3/16/18, at 5-6.

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       memorandum, the presentence psychiatric report, the sentencing
       guidelines, [Appellant’s] criminal history, and [Appellant’s] mental
       health evaluation. (N.T. 3/16/18 at pp. 4, 16). The court also read
       a letter in support of [Appellant] from his aunt and listened to that
       same aunt speak on his behalf. (Id. at 9, 16). The court listened
       as [Appellant] made the following statement: “I’m sorry that this
       happened to my family and hopefully my family can get through
       this all right.” (Id. at 16). In addition, the court sat through the
       entire jury trial, observed all witnesses and testimony, and
       remarked at sentencing that “I remember the trial” and “I am
       concerned about the nature of this crime.” (Id. at 11, 16).

             The court also noted its concern regarding a prior similar
       indecent assault on [Appellant’s] record. (Id. at 11-12). Although
       this earlier assault took place when [Appellant] was a juvenile, it
       has been established that a prior juvenile conviction may be
       considered as a factor in discretionary sentencing. 42 Pa.C.S.A. §
       6354 … ; See Commonwealth v. Hale, 128 A.3d 781, 785 (Pa.
       2015) (noting that a juvenile record may be used as a
       consideration in a discretionary sentencing determination). As in
       Conte,[6] the sentence here is fair, reasonable, and well-founded.
____________________________________________


6  In Commonwealth v. Conte, 198 A.3d 1169 (Pa. Super. 2018), the
defendant was charged with multiple counts of rape, involuntary deviate
sexual intercourse, aggravated indecent assault, and endangering the welfare
of a child. Id. at 1172. Following a jury trial, the defendant was found guilty
on only the charge of endangering the welfare of a child. Id. at 1173. The
trial court imposed the statutory maximum sentence of thirty to sixty months
of incarceration. Id. On appeal, the defendant alleged that the trial court
abused its discretion in imposing such a long sentence as he was found guilty
of only a “relatively insignificant misdemeanor.” Id. at 1175. This Court
affirmed the judgment of sentence concluding as follows:

       [T]he reasons for the sentence were aptly stated on the record.
       As mentioned by the trial court in its opinion, it had the benefit of
       sitting through the entire trial and observing the presentation and
       demeanor of the witnesses, including [the defendant]. The
       sentencing court is in a superior position to review the defendant’s
       character, defiance or indifference, and the overall effect and
       nature of the crime. Simply stated, the sentencing court sentences
       flesh-and-blood defendants and the nuances of sentencing
       decisions are difficult to gauge from the cold transcript used upon



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J-S32029-19



Trial Court Opinion, 1/15/19, at 15-16.

        Upon review, we discern no abuse of discretion in the sentence imposed.

The trial court set forth its considerations, explained the basis for the

sentence, and considered the factors set forth in 42 Pa.C.S. § 9721(b).

Accordingly, Appellant’s contrary claim lacks merit.

        For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Therefore, we affirm the March 16, 2018 judgment of sentence.

        Judgment of sentence affirmed.

        Judge Nichols did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/19




____________________________________________


        appellate review. Moreover, the sentencing court enjoys an
        institutional advantage to appellate review, bringing to its
        decisions an expertise, experience, and judgment that should not
        be lightly disturbed.

Id. at 1177 (internal citations and quotation marks omitted).

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