J-S11018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    GLENVILLE MOSLEY

                             Appellant                 No. 694 EDA 2017


      Appeal from the Judgment of Sentence imposed September 26, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0111341-2006


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 17, 2018

        Appellant, Glenville Mosley, appeals from his judgment of sentence of

14-33 years’ imprisonment imposed at resentencing for involuntary deviate

sexual intercourse (“IDSI”), unlawful contact with a minor, indecent assault,

endangering the welfare of children and corruption of minors.1        Appellant

argues that his sentence is vindictive because it is longer than his original

sentence of 11-22 years’ imprisonment. We affirm.

        The record reflects that in 1990, Appellant became romantically involved

with the victim’s mother and moved into her home with her and her five

children. The victim was the youngest of three boys. The oldest brother,

Mickey, then nineteen, had arguments with Appellant and was forced to leave

____________________________________________


1   18 Pa.C.S. §§ 3123, 6318, 3126, 4304, and 6301, respectively.
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the home. After about a year, Appellant had the victim’s other brother, Lance,

evicted from the home. N.T. 1/29/10, at 5-12; N.T. 2/1/10, at 136-139.

      The victim’s mother became pregnant, and Appellant began to assault

the victim, now the only boy in the house. At first, Appellant manipulated the

victim’s penis as he took baths. The victim did not report Appellant’s conduct

to his mother. N.T. 1/29/10, at 12-13.

      When the victim was eleven or twelve, Appellant began construction

work on the house, and the victim’s mother and sisters relocated to another

house, leaving Appellant and the victim alone. The victim had to sleep in

Appellant’s bed, and Appellant tried to perform fellatio on the victim. When

the victim resisted, Appellant forced the victim out of bed, placed Vaseline on

the victim’s penis, forcibly inserted the victim’s penis into his own anus and

told the victim to “hump” him. The child complied until he ejaculated. These

attacks occurred several times a week for many months.            On occasion,

Appellant would have the victim bend over the bureau and cross his legs.

Appellant would then stick his lubricated penis between the victim’s thighs,

pushing it back and forth until Appellant ejaculated. The victim told his mother

about these assaults a couple of times, but nothing changed. N.T. 1/29/10,

at 15-20, 34-37; N.T. 2/1/10, at 26-27, 40-41, 55.

      In May 1998, when the victim was thirteen, Appellant tried to assault

him in the usual way, but the victim jumped out of bed and complained.

Appellant said: “You should be used to it by now.” When the victim awoke


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the next morning, Appellant was gone. After that, the victim stayed with his

brother Mickey. N.T. 1/29/10, at 15-19, 21.

      In 2004, after turning eighteen, the victim reported the abuse to the

District Attorney’s Office. The following year, he filed a second statement with

the District Attorney’s Office and advised that he wanted to pursue charges

against Appellant.    In 2006, Appellant was charged with multiple sexual

offenses.

      Following further delays, on February 3, 2010, a jury found Appellant

guilty of IDSI, indecent assault, endangering the welfare of a child and

corruption of a minor. N.T. 2/3/10, at 8. On October 26, 2010, the trial court

found that Appellant was a sexually violent predator based on the stipulated

report of the mental health expert. N.T. 10/26/10, at 5-9. The court then

imposed consecutive terms of imprisonment of 10-20 years for IDSI, a

mandatory minimum sentence, and 1-2 years for endangering the welfare of

a child.    The court also imposed concurrent terms of imprisonment of 1-2

years for corruption of a minor and indecent assault. The aggregate sentence

was 11-22 years’ imprisonment. N.T. 10/26/10, at 11-25.

      Appellant filed a direct appeal, which this Court dismissed on July 12,

2012 due to Appellant’s failure to file a brief. On April 15, 2013, Appellant

filed a PCRA petition.     On January 21, 2014, the PCRA court, without

opposition, reinstated Appellant’s right to file a direct appeal nunc pro tunc.

Since the sentencing judge had retired, the case was reassigned to a new


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judge, the Honorable Charles A. Ehrlich, to write the Pa.R.A.P. 1925 opinion.

Subsequently, this Court affirmed Appellant’s convictions but vacated the

judgments of sentence because his mandatory minimum sentence for IDSI

was illegal under the intervening decision in Commonwealth v. Wolfe, 106

A.3d 800 (Pa. Super. 2014).

      On September 26, 2016, the case proceeded to resentencing before

Judge Ehrlich.    Appellant presented documentation of his progress as a

prisoner and requested a sentence in the standard range of the Sentencing

Guidelines, suggesting that would be consistent with the original sentencing

judge’s intent.   N.T. 9/26/16, at 7.       The Commonwealth requested an

aggregate term of 15-33 years’ imprisonment and demonstrated that the

present offenses were similar to Appellant’s conviction for IDSI against

another victim in 1986. The 1986 conviction, like the present convictions,

involved Appellant functioning as a father figure in a family and forcing his

adolescent stepson to perform anal intercourse on him.            Id. at 13-17.

Appellant spoke directly to the court, emphasizing his progress in prison,

acceptance of responsibility and desire not to repeat his crimes. Id. at 19-

21. The court acknowledged Appellant’s rehabilitative efforts in prison but

expressed its concern that he had been in state prison for the 1986 conviction

but then committed the same crime on a similar victim after his release. Id.

at 22-23. The court specifically noted that the prior record score did not reflect

the “similarities in the type of crimes” committed by Appellant and similarity


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in the age and family structure of the victims.     Id. at 28. The court was

particularly concerned about the effect that Appellant’s breach of trust, as the

father figure to his stepsons, had on his victims, and based on the Sexually

Violent Predator report, doubted that he could ever fully control his impulse

outside of a prison environment. Id. at 23-24.

      The court imposed consecutive terms of imprisonment of 8-20 years for

IDSI, 3½-7 years for endangering the welfare of a child, 1½-4 years for

corrupting the morals of a minor and 1-2 years for indecent assault, resulting

in an aggregate term of 14-33 years’ imprisonment. Id. at 25-26. Each of

the sentence terms were in the aggravated guideline range except for the

sentence for endangering the welfare of a child, which was beyond the

guideline range because of the “sharp similarities in these two crimes” and the

court’s concern about the heavy toll on the children victimized and the

possibility of future victims. Id. at 26-28.

      Appellant filed a timely motion for reconsideration, which was denied by

operation of law on January 31, 2017.      This timely appeal followed.    Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

      Was the court vindictive in resentencing Appellant to a
      consecutive and harsh sentence of 14 to 33 years following a
      remand from an illegal sentence where the court based its
      sentence on same facts available at first sentencing and fact that
      this was Appellant’s second offense for same crime which was
      already factored in the prior record score?

Appellant’s Brief at 4.

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      Appellant challenges the discretionary aspects of sentencing, which “is

not automatically reviewable as a matter of right.”      Commonwealth v.

Grays, 167 A.3d 793, 815 (Pa. Super. 2017). Before we can reach the merits

of a discretionary aspects challenge,

      [w]e conduct a four part analysis to determine: (1) whether
      [A]ppellant 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 [A]ppellant’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).

Id. at 815–16. Here, Appellant filed a timely notice of appeal, preserved the

issue at sentencing and included a statement in compliance with Pa.R.A.P.

2119(f). Furthermore, Appellant’s claim that his sentence was the product of

vindictiveness raises a substantial question. Commonwealth v. Barnes, 167

A.3d 110, 123 (Pa. Super. 2017) (en banc).      Accordingly, we address the

merits of Appellant’s argument.

      Appellant suggests that a presumption of vindictiveness arises because

the judge at resentencing imposed a higher sentence based on precisely the

same facts that were before the original sentencing judge. No basis existed

for a sentence higher than the original sentence, Appellant argues, because

there was no newly obtained information that warranted a higher sentence,

and Appellant’s conduct subsequent to original sentencing was spotless. We

disagree.

      Judge Ehrlich correctly described the applicable standards as follows:

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      When an appellant is resentenced and receives a greater sentence
      than that which was originally ordered, the possibility that judicial
      vindictiveness motivated the increased sentence may implicate
      the due process concern that defendants will be chilled from
      exercising their appellate rights. North Carolina v. Pearce, 395
      U.S. 711, 724 (1969), overruled on other grounds by Alabama
      v. Smith, 490 U.S. 794 (1989); Commonwealth v. Robinson,
      931 A.2d 15, 22 (Pa. Super. 2007) (citing Commonwealth v.
      Speight, 854 A.2d 450, 455 (Pa. 2004)). Accordingly, the Court
      in Pearce established a presumption of vindictiveness when a
      more severe sentence is imposed following retrial. 395 U.S. at
      726. When the presumption applies, the sentencing court must
      place on the record non-vindictive reasons for the increased
      sentence, such as a defendant’s conduct subsequent to the
      original sentencing. Id.

      Subsequently, the Pearce presumption has been limited to
      instances in which there is a “reasonable likelihood” that the
      increased sentence was “the product of actual vindictiveness.”
      Alabama v. Smith, 490 U.S. 794, 799 (1989); Speight, 854
      A.2d at 455 (“The inquiry is whether there is a reasonable danger
      a state may have retaliated against the accused for exercising a
      legal right”). The Pearce presumption does not apply in instances
      in which the judge who imposes a more severe sentence did not
      impose the initial sentence. Commonwealth v. Tapp, 997 A.2d
      1201, 1205 (Pa. Super. 2010); Tex. v. McCullough, 475 U.S.
      134, 140 (1986) (no presumption of vindictiveness where
      different judge imposed original sentence and judge on
      resentencing provided non-vindictive reasons on the record for the
      increased sentence). When a different judge is responsible for
      resentencing, that judge retains the same level of discretion
      afforded to a judge imposing an original sentence. Tapp, 997
      A.2d at 1204 (citing McCullough, 475 U.S. at 140). In such
      cases, an appellant “may seek to establish vindictiveness by
      affirmative evidence,” but “must bear the burdens of production
      and persuasion on that issue and prove vindictiveness as a matter
      of fact.” Id. at 1205.

Trial Court Opinion, 8/1/17, at 5-6.

      In this case, the presumption of vindictiveness does not arise, because

a different judge resentenced Appellant than the original sentencing judge.


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Tapp, 997 A.2d at 1204.      Thus, Appellant had to establish vindictiveness

through affirmative evidence. Id.

      At resentencing, Appellant argues, the judge vindictively double-

counted Appellant’s 1986 IDSI conviction to arrive at a higher sentence. In

other words, even though the 1986 conviction was already factored into

Appellant’s prior record score, the judge used the conviction to enhance

Appellant’s sentence above the standard guidelines range. Appellant’s Brief

at 14. We disagree.

      Judge Ehrlich did not merely impose a higher sentence because

Appellant had a prior IDSI conviction. Instead, the judge found it necessary

to impose a higher sentence because Appellant committed these serious

offenses after committing the same criminal acts against a similarly situated

victim, a young stepson in a family where he was the father figure, and after

serving time in state prison for his first IDSI conviction. Trial Court Opinion,

8/1/17, at 8-9. As Judge Ehrlich stated on the record, even though the prior

record score of four takes the prior conviction into account, “the four is very

problematic because of the similarities in the type of crimes and what was

done and the issue of the age of the kids . . . and the fact that you’ve been in

state prison before and still came out and did such a crime.” N.T. 9/26/16, at

28. Moreover, a higher sentence was warranted to protect the public, because

Appellant’s history demonstrated that he posed a greater danger to re-offend

after his release than most defendants.     Trial Court Opinion, 8/1/17, at 9.


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This was a proper exercise of discretion. Commonwealth v. Andrews, 720

A.2d 764, 768-69 (Pa. Super. 1998) (court may consider prior record score to

sentence outside guideline range where prior record score does not entirely

reflect defendant’s criminal history); Commonwealth v. Guth, 735 A.2d 709,

712 (Pa. Super. 1999) (court properly considered need to protect public when

sentencing beyond the guideline range).        Moreover, the court properly

imposed a sentence beyond the aggravated range for endangering the welfare

of a child to reflect Appellant’s betrayal of trust reposed in him by a young

stepson in his care and the severe injury caused to this victim by his betrayal.

N.T. 9/26/16, at 24.

      For these reasons, Appellant’s challenge to the discretionary aspects of

his sentence fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/18




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