J-S08007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JARVIS DANIEL SANDERS

                        Appellant                   No. 724 WDA 2015


     Appeal from the Judgment of Sentence entered January 22, 2015
               In the Court of Common Pleas of Erie County
             Criminal Division at No: CP-25-CR-0003577-2013


BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MAY 12, 2016

      Appellant, Jarvis Daniel Sanders, appeals from the judgment of

sentence imposed on January 22, 2015 in the Court of Common Pleas of Erie

County following his entry of no contest pleas to charges of aggravated

assault and simple assault, 18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1),

respectively.   Appellant contends the trial court improperly imposed a

sentence in the aggravated range for the aggravated assault conviction and

erred by failing to find that the simple assault conviction merged with the

aggravated assault conviction. Following review, we affirm.

      In its Rule 1925(a) opinion, the sentencing judge explained:

      On November 4, 2014, Appellant appeared before the [plea
      judge] and entered a no contest plea to count 1 (aggravated
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       assault) and count 7 (simple assault).[1] Count 1 of the Criminal
       Information charged that on November 8, 2013, Appellant
       inflicted a subdural hematoma and/or brain edema and/or retinal
       hemorrhaging on his infant daughter. Count 7 charged that on
       that same day, Appellant inflicted several rib fractures on his
       daughter.

       On January 22, 2015, Appellant appeared before [the sentencing
       judge] and was sentenced to a term of 7 to 15 years’
       imprisonment at Count 1 (aggravated assault) and a concurrent
       term of 3 to 24[2] months’ imprisonment at [C]ount 7 (simple
       assault). On January 26, 2015, Appellant filed a timely Motion
       for Reconsideration of Sentence, which was denied by the
       [sentencing judge] on April 30, 2015.

Trial Court Opinion, 7/6/15, at 1-2 (record citation and footnotes omitted).3

       Appellant filed a timely statement of errors complained of on appeal in

accordance with Pa.R.A.P. 1925(b) raising two issues that he rephrases for

this appeal as follows:

       [1.] Did the lower court violate the fundamental norms which
       underlie the Sentencing Code in sentencing [Appellant] in the
       aggravated range and thereby failing to take into consideration
       [Appellant’s] lack of criminal record and a lack of evidence for
       the reasoning set forth on the record for placing the sentence in
       the aggravated range?



____________________________________________


1
  The Commonwealth non prossed the remaining five counts as part of the
plea agreement.
2
 As reflected in the sentencing transcript, the sentence imposed for Count 7
was actually “three to 60 months,” concurrent with the sentence imposed for
Count 1. Notes of Testimony, Sentencing, 1/22/15, at 37.
3
  The sentencing judge shall be referred to as the trial court throughout the
remainder of this Memorandum.



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      [2.] Did the lower court commit reversible error in failing to
      merge the simple assault and aggravated assault counts for
      sentencing purposes?

Appellant’s Brief at 1.

      Appellant’s first issue presents a question involving the discretionary

aspects of sentencing.    In Commonwealth v. Allen, 24 A.3d 1058 (Pa.

Super. 2011), this Court stated:

      Our review of discretionary aspects           of   sentencing   claims
      implicates the following principles:

            [T]he proper standard of review when considering
            whether      to      affirm   the    sentencing    court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment          exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. . . . An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest        unreasonableness,      or  partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous. . . . The rationale behind
            such broad discretion and the concomitantly
            deferential standard of appellate review is that the
            sentencing court is in the best position to determine
            the proper penalty for a particular offense based
            upon an evaluation of the individual circumstances
            before it.

      Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
      (2007) (internal citations omitted).          Challenges to the
      discretionary aspects of sentencing do not entitle an appellant to
      review as of right. Commonwealth v. Sierra, 752 A.2d 910,
      912 (Pa. Super. 2000).            An appellant challenging the
      discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test: (1) whether appellant
      has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903;

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       (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. Evans, 901
       A.2d 528, 533 (Pa. Super. 2006).

Id. at 1064.4

       Appellant filed a timely notice of appeal, satisfying the first prong of

the test for challenging the discretionary aspects of sentence. As for the

second prong, the trial court contends Appellant did not did not preserve

the issue because his motion for reconsideration of sentence requested only

the merger of his Count 7 sentence with his Count 1 sentence. Trial Court

Opinion, 7/6/15, at 3.        However, our review of the motion reveals that

Appellant did ask the trial court to modify the sentence on Count 1 to one

in the standard range.        Motion for Reconsideration, 1/26/15.   Therefore,

Appellant has satisfied the second prong by preserving the issue in his

motion for reconsideration of sentence. We next consider whether there is

a fatal defect in his brief.       We conclude there is not, as Appellant has

____________________________________________


4
  Pa.R.A.P. 2111(a)(3) requires that an appellant’s brief include a statement
of the applicable scope and standard of review. This does not mean that
counsel is to define scope and standard of review, as Appellant’s counsel has
done in the brief filed in this case. Rather, it means that counsel is to advise
the appellate court of the scope of review and standard of review applicable
to an appellant’s case, for example, as here, where the scope of review for
Appellant’s first issue—discretionary aspects of sentence—is plenary, see,
e.g., Walls, 926 A.2d at 961 n.2, and the standard of review is abuse of
discretion. Id. at 961; Allen, 24 A.3d at 1064.



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included a statement of reasons for reviewing the discretionary aspects of

sentence, satisfying the requirements of Pa.R.A.P. 2119(f). Therefore, we

must determine whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.

      In his Rule 2119(f) statement, Appellant claims he has raised a

substantial question, arguing his sentence was excessive “in that it was not

individualized, as mitigating factors were not taken into account.         The

specific portion of the Code violated was 42 Pa.C.S. § 9781, which requires

that a sentence not be clearly unreasonable.”        Appellant’s Brief at 4.   A

substantial question will be found if it can be shown that the sentence was

inconsistent with a specific provision of the Sentencing Code or if it is

contrary to the fundamental norms that underlie the sentencing process.

See, e.g., Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002).

Here, Appellant asserts the trial court improperly imposed a sentence in the

aggravated range when Appellant “had no criminal history.          The [c]ourt

failed to take into account factors which would have placed the sentence in

a standard range.” Appellant’s Brief at 4. We find Appellant has raised a

plausible substantial question. Mouzon, 812 A.2d at 621-22. Therefore,

we shall consider his discretionary aspects claim.

      Appellant complains that his sentence was harsher than required to be

“consistent with the protection of the public, the gravity of the offense, and

the rehabilitative needs of [Appellant].” Appellant’s Brief at 4. We disagree.


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     At the sentencing hearing, the trial court explained its rationale for

going above the standard range as follows:

     Whatever happened here, [Appellant] - - something went terribly
     wrong. I need to read from what the doctor wrote. “Kamryn
     had a long protracted hospital course with many complications.
     She eventually went to Children’s Home for continued therapy
     after her discharge. Kamryn’s head CT looks terrible. She has
     brain atrophy and abnormal EEG leads. The severe brain injury
     that she has is permanent. Additionally, it is unlikely she will
     ever see again.” And Miss Lambert indicates there may be some
     vision. How useful it is, we don’t know. “She requires all of her
     nutrition by a “G” tube.” And now we have a child that cannot,
     and will never feed herself.      “She is incapable of eating.”
     Indeed, to my eye, the child is incapable of performing most of
     the basic functions of life that constitutes autonomy and joy.
     “Kamryn will be dependent for her care for the greater portion
     for the rest of her life.”

     "In review of her injuries - - subdural hematomas, multiple
     healing and fresh rib fractures and a tibia fracture - - It is my
     assessment medically that Kamryn has been the victim of
     abusive head trauma. And she is the victim of child abuse. And
     notably, the healing rib fractures on her first day in November
     will tell us that she had been the victim of physical child abuse
     on more than one occasion."

     "Kamryn’s injuries are so severe and permanent, I cannot
     imagine the amount of violence and pain that this young infant
     had to endure in her short life.”

     One of the more chilling things I’ve ever had to read. And in my
     view, the injuries inflicted on this child come close to the most
     severe I’ve seen in a serious bodily injury case.

     [Appellant] - - I’ll grant you all the things that can be said on his
     behalf. But here the sentence is driven, not by the defendant’s
     character or his past, but by the horror of what occurred to this
     child. And it’s that that the sentence must speak to. I note the
     guidelines here of 36 to 54 months; but my conclusion is the
     defendant, notwithstanding a good background, demonstrated a
     hardness of heart, a wickedness of deposition, a mind totally
     bereft of his duty of parent to a child, and inflicted horrific

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     injuries on the child from which she will never recover. This is
     an act short - - short of murder. It’s hard to fathom his intent.
     That he intended or was he just reckless? The statute captures
     both.

     But here it’s the [c]ourt’s view that the injuries inflicted on the
     child and the degree of injuries and her youth, go outside the
     guidelines and a sentence of 34 - - 36 to 54 [] months are not
     appropriate to capture the severity of what occurred here. So
     I’m going to depart from the guidelines. I’m going to find these
     injuries and their extensiveness, and as Ms. Lambert laid out, on
     a child so young by a parent does warrant a sentence above the
     guidelines.

Notes of Testimony, Sentencing, 1/22/15, at 34-37.

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

     Despite Appellant’s argument to the contrary, this [c]ourt did not
     err in considering evidence of the victim’s extensive injuries and
     exhaustive medical treatment. “Sentencing courts may consider
     evidence that might not be admitted at trial.” Commonwealth
     v. Charles, 488 A.2d 1126, 1129 (Pa. Super. 1985) (citation
     omitted). “[F]actors that are not specific elements of an offense
     may be considered by the sentencing court in imposing its
     sentence.” Commonwealth v. Perry, 32 A.3d 232, 242 (Pa.
     2011). Furthermore, “[e]ven if a sentencing court relies on a
     factor that should not have been considered, there is no abuse of
     discretion when the sentencing court has significant other
     support for its departure from the sentencing guidelines.”
     Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super.
     2008) (citation omitted).

     The sentence was tailored to Appellant’s individual situation and
     the reasons for the sentence imposed were clearly set forth on
     the record. Any lesser sentence would have depreciated the
     nature of the offense and “diminish[ed] what’s been taken from
     this child, which is in the [c]ourt’s view, everything short of life
     itself.” N.T. Sentencing, 01/22/15, at 37. Because Appellant’s
     sentence was within the statutory limits and not manifestly
     excessive, there was no sentencing error.




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Trial Court Opinion, 7/6/15, at 6-7. We agree. As our Supreme Court has

recognized, “Even with the advent of the sentencing guidelines, the power of

sentencing is a function to be performed by the sentencing court.          Thus,

rather than cabin the exercise of a sentencing court's discretion, the

guidelines merely inform the sentencing decision.” Walls, 926 A.2d at 961-

62 (footnote and citations omitted).      The trial court, with the benefit of a

pre-sentence report, devised a sentence the court believed was appropriate

for Appellant, despite his lack of a prior record, and was warranted by the

severity of the crime.     We find no abuse of discretion in the trial court’s

imposition of Appellant’s sentence above the standard range but within

statutory limits. Appellant’s first issue fails.

      In his second issue, Appellant contends the trial court committed an

error of law for failure to merge the simple assault and aggravated assault

counts for sentencing purposes. As a challenge to the legality of sentence,

the standard of our review is de novo and the scope of our review is plenary.

See, e.g., Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super.

2012).

      With respect to merger of sentences, 42 Pa.C.S.A. § 9765 provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.




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42 Pa.C.S.A. § 9765. In Commonwealth v. Baldwin, 985 A.2d 830 (Pa.

2009), our Supreme Court stated, “The statute’s mandate is clear.             It

prohibits merger unless two distinct facts are present: 1) the crimes arise

from a single criminal act; and 2) all of the statutory elements of one of the

offenses are included in the statutory elements of the other.” Id. at 833.

      In Commonwealth v. Williams, 958 A.2d 522 (Pa. Super. 2008, this

Court reiterated:

      [I]n all criminal cases, the same facts may support multiple
      convictions and separate sentences for each conviction except in
      cases where the offenses are greater and lesser included
      offenses. The Supreme Court further defines “the same facts” as
      follows: any act or acts which the accused has performed and
      any intent which the accused has manifested, regardless of
      whether these acts and intents are part of one criminal plan,
      scheme, transaction or encounter, or multiple criminal plans,
      schemes, transactions or encounters.           Regarding the
      consideration of greater and lesser included offenses, if each
      offense requires proof of a fact which the other does not, the
      offenses are not the same for double jeopardy and merger
      purposes, even though arising from the same conduct or
      episode.

Id. at 527 (internal quotations, citations, and brackets omitted).

      Here, the trial court conceded that the elements of simple assault are

included within the statutory elements of aggravated assault.        Trial Court

Opinion, 7/6/15, at 8. However, with regard to whether the crimes arose

from a single act, “[a] determination must be made on whether Appellant’s

actions ‘constituted a criminal act,’ with reference to elements of the crime

as charged by the Commonwealth.”            Id. (emphasis in original) (citing

Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa. Super. 2014)).

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         The trial court looked to the criminal information, which charged

Appellant with aggravated assault for “caus[ing] the victim to sustain a

subdural hematoma and/or brain edema and/or retinal hemorrhaging,” and

simple assault for “caus[ing] the victim to sustain several rib fractures.”    Id.

at 9 (quoting Criminal Information, 1/23/14).          The trial court concluded

that, “[d]espite Appellant’s argument to the contrary, this case involved

multiple acts. Appellant squeezed the victim and also shook her three times,

causing her to suffer two distinct injuries.” Id.

               When considering whether there is a single criminal
               act or multiple criminal acts, the question is not
               whether there was a ‘break in the chain’ of criminal
               activity. This issue is whether the actor commits
               multiple criminal acts beyond that which is necessary
               to establish the bare elements of the additional
               crime, then the actor will be guilty of multiple crimes
               which do not merge for sentencing purposes.

Trial Court Opinion, 7/6/15, at 8 (citing Commonwealth v. Pettersen, 49

A.3d 903, 912 (Pa. Super. 2012) (internal citations and quotation marks

omitted)). The trial court therefore concluded, “Appellant was appropriately

sentenced at Count 7.”      Id.

         We agree with the trial court’s characterization of this issue as a “close

call.”     Id. (quoting Notes of Testimony, Sentencing, 1/22/15, at 19).

However, based on our review, we also agree that the crimes charged

involved separate criminal acts such that the crimes do not merge for

sentencing purposes. Therefore, Appellant’s second issue fails.

         Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2016




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