J. A11033/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 1003 EDA 2014
                                        :
CATHERINE SCHAIBLE                      :


        Appeal from the Judgment of Sentence, February 19, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007633-2013



COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellant        :
                                        :
                  v.                    :         No. 1163 EDA 2014
                                        :
HERBERT SCHAIBLE                        :


        Appeal from the Judgment of Sentence, February 19, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0007634-2013


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 15, 2015

     In these consolidated cases, the Commonwealth appeals from the

judgments of sentence imposed on Herbert Schaible and Catherine Schaible,

husband and wife, on February 19, 2014, by the Court of Common Pleas of

Philadelphia County, as inconsistent with the protection of the public, the



* Former Justice specially assigned to the Superior Court.
J. A11033/15


gravity of the offense, and the rehabilitative needs of the appellees.   We

affirm.

      We adopt the factual history as summarized by the trial court:

                 On April 18, 2013, seven month old Brandon
           Schaible died at his home on Rhawn Street in the
           City and County of Philadelphia.       The medical
           examiner determined that Brandon had suffered
           from bacterial pneumonia, severe dehydration and a
           Group B streptococcus infection. The combination of
           these conditions caused Brandon’s death, and the
           manner of Brandon’s death was ruled a homicide.
           (N.T., 11/14/13, pp. 23-25; Commonwealth Exhibit
           C-1).

                  Following   Brandon’s    death,    the   police
           interviewed his parents, Catherine and Herbert
           Schaible. Catherine Schaible told police that she had
           taken Brandon to a doctor shortly after his birth.
           Other than that doctor visit, Brandon had not seen a
           doctor prior to his death. Approximately one week
           before Brandon’s death, he exhibited signs of illness.
           During that time, Brandon vomited, had difficulty
           eating and sleeping, and his breathing became
           progressively labored. Mrs. Schaible stated that she
           and her husband did not seek medical attention for
           Brandon because of their religious beliefs. Instead,
           the Schaibles contacted various family members and
           their pastor, all of whom gathered and prayed for
           Brandon.      Even when Brandon’s condition grew
           grave, the family continued to pray and did not seek
           medical attention. Mrs. Schaible acknowledged that
           the decision to forego medical treatment was a
           violation of the conditions of her probation, but
           believed that Brandon would be healed by faith.
           (N.T.,    11/15/13,   pp.    25-29;    Commonwealth
           Exhibit C-2).

                 Herbert Schaible’s version of events echoed
           that of his wife.    Mr. Schaible told police that
           Brandon exhibited signs of illness several days
           before his death. Mr. Schaible stated that he and his


                                    -2-
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             wife did not seek medical attention for Brandon
             because it was against their religious beliefs, and
             that it would have been considered a sin to seek
             medical assistance rather than trust in God for
             Brandon’s healing. (N.T., 11/14/13, pp. 29-34;
             Commonwealth Exhibit C-3).

Trial court opinion, 8/7/14 at 3-4.

      On November 14, 2013, the defendants pled nolo contendere to

third-degree murder, endangering the welfare of a child (“EWOC”), and

criminal conspiracy. The Commonwealth sought a sentence of 8 to 16 years’

imprisonment     for   each   defendant   for   third-degree   murder.   This

recommendation was at the bottom end of the standard range of the

sentencing guidelines. With a prior record score of 2 and an offense gravity

score of 14, the sentencing guidelines recommended a minimum sentence of

8 to 40 years’ imprisonment in the standard range, and recommended a

sentence of 7 years’ imprisonment at the lowest end of the mitigated range.

The potential range of sentences for the other offenses, EWOC and criminal

conspiracy, were not addressed at sentencing.             The court deferred

defendants’ sentencing hearing and ordered a pre-sentence investigation.

Catherine Schaible remained free on bail pending sentencing, while

Herbert Schaible remained in custody at the Curran Fromhold Correctional

Facility in Philadelphia.

      On February 19, 2014, the trial court sentenced the defendants to

concurrent prison terms of 3½ to 7 years followed by 30 months’ reporting

probation.   In addition, the trial court ordered that the defendants not be


                                      -3-
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permitted to make any future decisions regarding the medical care of their

children.1 Finally, the court sentenced the defendants to prison terms of 3½

to 7 years’ imprisonment and 30 months’ reporting probation for violating

the terms of their probation (cases docketed at CP-51-CR-0012965-2009 for

Catherine Schaible and CP-51-CR-0012966-2009 for Herbert Schaible).2 The

charges related to the violation of probation (“VOP”) cases, involuntary

manslaughter, EWOC, and criminal conspiracy, arose from the 2010 death of

another child, Kent Schaible. That case, like the instant matter, involved the

failure of the defendants to seek medical attention for Kent. That failure led

to Kent’s death.   On February 2, 2011, the defendants pled guilty.       The

Honorable Carolyn Engle Temin sentenced both defendants to 10 years’

probation and directed that, as a condition of their probation, the defendants

provide each of their other children with routine medical check-ups at least

once a year and seek medical attention for their children should they

become ill. The VOP sentences were ordered to run concurrently with the

sentences imposed in the instant case.

      The Commonwealth filed a timely motion to modify sentence.           On

March 14, 2014, the trial court denied the Commonwealth’s motion after


1
   Family Court Judge Allan L. Tereshko presided over the dependency
proceedings related to the defendants and their six minor children. Each
child had been placed in a foster home and had periodic visits with his or her
siblings.
2
  Supervision of the defendants’ cases was transferred to the Honorable
Benjamin Lerner who presided over the instant matter.


                                    -4-
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hearing further argument from all counsel. Before denying the motion, the

court placed on the record a detailed statement of its reasons for departing

downward from the sentencing guidelines.

      On March 25, 2014, the Commonwealth filed a notice of appeal and a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A. The Commonwealth raised the following issue:

“Did the lower court abuse its discretion in imposing a sentence that is

inconsistent with [the] protection of the public, the gravity of the offense,

and the rehabilitative needs of the offender, and which in its practical effect

imposes no penalty at all for the murder of a child?”             (Id.)    The

Commonwealth has challenged the discretionary aspects of defendants’

sentences.   We begin by addressing our standard of review in sentencing

matters:

                  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.

             Commonwealth v. Hoch, 936 A.2d 515, 517-518
             (Pa.Super. 2007) (citation omitted).




                                     -5-
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                 The right to appellate review of the
           discretionary aspects of a sentence is not absolute,
           and must be considered a petition for permission to
           appeal.    See Hoch, 936 A.2d at 518 (citation
           omitted). An appellant must satisfy a four-part test
           to invoke this Court’s jurisdiction when challenging
           the discretionary aspects of a sentence.

                 [W]e conduct a four-part analysis to
                 determine: (1) whether appellant has
                 filed a timely notice of appeal;
                 (2) whether the issue was properly
                 preserved at sentencing or in a motion to
                 reconsider    and    modify     sentence;
                 (3) whether appellant’s brief has a fatal
                 defect; and (4) whether there is a
                 substantial question that the sentence
                 appealed from is not appropriate under
                 the Sentencing Code.

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

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa.Super.

2014).

     Our review of the certified record confirms the Commonwealth’s appeal

is timely,3 the issue was preserved in the court below, and the required

Pa.R.A.P. 2119(f) statement has been included.        Therefore, we must

determine whether reasons given in the Rule 2119(f) statement raise a

substantial question.   Here, the Commonwealth identified the “overarching


3
  The record in this case appears to reflect that the Commonwealth’s post-
sentence motion was filed one day late. However, in response to this court’s
Rule to Show Cause on the issue of timeliness, the Commonwealth
responded that the Philadelphia Court of Common Pleas was closed on
Monday, March 3, 2014 due to inclement weather conditions. The post-
sentence motion was filed on Tuesday, March 4, 2014.


                                    -6-
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issue” in this matter as whether the trial court abused its discretion for

imposing an excessively lenient sentence that is inconsistent with the

sentencing norms. A claim that the trial court has imposed an excessively

lenient sentence raises a substantial question. See Hoch, 936 A.2d at 518.

     In addition to the sentence being lenient, the Commonwealth raises

sub-arguments that the sentence depreciates the gravity of the offense and

fails to properly consider the defendants’ failure to be rehabilitated along

with the continuing danger they pose to their surviving children.       See

Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa.Super. 2005) (“A

substantial question exists where an appellant sets forth a plausible

argument that the sentence . . . is contrary to the fundamental norms

underlying the sentencing process.”), appeal denied, 887 A.2d 231 (Pa.

2005).   The Commonwealth also claims the sentencing court relied on

mistaken or improper factors to depart from the guidelines.     All of these

claims raise a substantial question. See Commonwealth v. Downing, 990

A.2d 788, 792 (Pa.Super. 2010) (claim that sentencing court relied on

improper factors and inaccurate factors presents substantial question for

review); Commonwealth v. Sims, 728 A.2d 357, 359 (Pa.Super. 1999)

(claim that factors court relied on to deviate from guidelines were

unreasonable presented a substantial question).

     We begin our analysis with the trial court’s statements of reasons at

the sentencing hearing:



                                   -7-
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                What I intend to do with the sentence is
          provide for a period of incarceration followed by
          probation, at the end of which you will be able to
          resume whatever contact with your children the
          parties and the law permit but which will enable your
          youngest child to be old enough so that if for some
          reason you ever got control of this issue again, this
          issue of medical care, all of your children will be old
          enough to make these kinds of decisions for
          themselves.

                 I’m departing downward in this sentence for
          two reasons.      One is, of course, the standard
          criminal justice reason which is that you accepted
          responsibility and early on entered pleas of nolo
          contendere. The other and more important is the
          one that I addressed earlier, and that is you are not
          the kind of parents generally and this is not the kind
          of family that ought to be or needs to be torn apart
          forever. In fact, I believe the contrary is true, your
          children need you in their lives at some level in some
          way, you need your children in your lives at some
          level in some way. The sentence should not prevent
          that from happening, but what must be prevented
          from happening is that either one of you ever again
          have the right to make the kind of determinations
          about your children’s lives that you made for Kent
          and for Brandon.

                So the sentence of the Court is as follows. For
          both defendants on all of the charges concurrently
          and on the probation violations concurrently,
          because you’re in violation of your probation, your
          probation has been revoked and I’m giving you the
          same sentences for the probation violation as for
          these new offenses. I’m sentencing you each to a
          term of incarceration in the state prison system of
          not less than three and a half, nor more than seven
          years.    That will be followed by a period of
          30 months[’] probation. That probation will be under
          the supervision of the State Board of Probation and
          Parole because they’re the ones who will be
          supervising your parole once you are paroled. The



                                   -8-
J. A11033/15


           mandatory costs are imposed. There are no other
           charges that need to be nolle prossed.

Sentencing hearing, 2/19/14 at 72-74.

     On March 14, 2014, the trial court heard argument from all counsel

regarding the Commonwealth’s motion to modify (increase) the sentences of

the defendants.   At the end of the hearing, the trial court addressed the

Commonwealth’s allegations as follows:

                  My responsibility in this case is to provide case
           specific reasons for the downward departure. And I
           believe, especially after rereading the notes of
           testimony from the sentencing hearing, I believe that
           I did that.

                 l want to address specifically a couple of
           points[,] and I'm going to start with what
           Ms. Pescatore [the Assistant District Attorney] raised
           last because that is the one point on which perhaps
           there ought to be more clarity.

                 When I imposed this sentence, aware as I was
           of the Family Court proceedings thus far, it was my
           intention and my understanding that the Schaibles
           probably will never have custody of their children
           again.    And if they ever did, and that is not
           something that is in this Court[’]s power, that’s
           within the jurisdiction of the Dependency Court
           Judge in Family Court.

                 But if they did[,] it seemed clear to me when I
           imposed the sentence that that would never even be
           considered not until after their sentence in the
           criminal cases was completed.         Not until after
           whatever time happens to pass before they are
           released on parole but until ten years plus thirty
           months.

                And one of the things that I considered in that
           sentence was that the Schaibles[’] youngest child[,]


                                    -9-
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          at the end of that period of time[,] will be fourteen
          years old.

                And even in the extremely unlikely event that
          the Schaibles were given the right to regain custody
          by a Family Court Judge, at that point all of their
          children, including the youngest one, would be old
          enough to have a major say in their own medical
          care.

                 However, if that’s not clear enough from my
          original sentence, let me clarify the conditions of any
          parole and probation which is where I have
          jurisdiction. To make it clear that during this period
          of time[,] ten years plus thirty months[,] the
          Schaibles will not be permitted to make any
          decisions regarding the medical care of their
          children.

                That was the original intention of my
          sentence[,] and if I did not make it clear enough
          then[,] I’ll make it clear enough now.

                With regard to the other points raised by the
          Commonwealth[’]s request, first of all Ms. Pescatore
          points out that I did not impose separate sentences
          for the new offense and the violation of probation
          and that is correct. But that does [not] mean[,] as
          the Commonwealth suggests[,] that the violation of
          probation does not figure in to the sentence that I
          imposed.

                Even in the example that the Commonwealth
          gave about a defendant who was on probation or
          parole for a gunpoint robbery and was convicted of
          another one, if I have both the open case and the
          probation violation, as is the case here, I’m going to
          impose one sentence.

                The decision isn’t really how much time is due
          on the probation violation and how much time is due
          for the new case. In my view[,] the decision is
          that[,] for the sentencing Judge[,] is how much
          prison time, what is the length of the prison


                                  - 10 -
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          sentence that the Judge thinks is fair and just under
          all the circumstances of the case.

                 So, it’s really not accurate to suggest that I did
          not consider not only that there were new offenses
          but that these new offenses constituted a direct
          violation of the Schaibles[’] probation[,] because I
          did.

                So, that brings us to the final point[,] which is
          the length of the sentence. And as Ms. Pescatore
          says[,] reasonable minds can differ.

                I want to make it clear[,] as I thought I did at
          the last hearing[,] that from this Court[’]s point of
          view[,] imposing an appropriate sentence involves
          not only the specific offenses, how they are labeled,
          what their maximums are and what the guidelines
          are, but it involves a specific examination of all of
          the facts and circumstances surrounding that
          offense.

                Not every robbery is the same. Not every
          assault is the same. Not every third degree murder
          is the same. And it’s the Court’s responsibility to
          look beyond the labeling of the offense and the
          guidelines. That’s why the guidelines are advisory,
          to look at the specific facts and circumstances of a
          particular offense.

                It is also the Court’s responsibility not merely
          to sentence[,] as I said at the sentencing hearing[,]
          so as to “make the punishment fit the crime”.

                 Our   sentencing   structure    calls   for a
          consideration of all of the facts and circumstances
          surrounding the defendants, and in this case the
          defendants[’] children, so that one can make the
          punishment not only fit the crime but the best of my
          ability make the punishment fit the criminals.

                This is unlike any other child endangerment,
          child homicide by parents or caregivers that this
          Court has ever seen. And it’s unlike it not in my


                                   - 11 -
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          view because of the so-called religious reasons for
          the Schaible[s’] action.

                I want to make it clear again[,] as I thought I
          did last week. I give no credence to that. I pay no
          attention to that. It’s offensive to me as a Judge and
          as a human being when people use extremist ideas
          about the teachings of any religion[,] including my
          own[,] to justify horrendous[,] even criminal[,]
          conduct.

               So in case there is any misunderstanding[,] it
          is not the so-called religious basis for the
          Schaible[s’] activities here that lead me to the
          sentence that I imposed.

                But I heard the testimony from Ms. Trotty. I
          saw the videos. I know what all the evidence in the
          case is. These are not parents who fit the mold of
          either the standard endangering the welfare of a
          child caregiver or fit the mold of the standard
          aggravated assault or murder prosecution involving
          caregivers and children.

                 In my view, in my judgment, although what
          happened here as well []as what happened with Kent
          is inexcusable, not merely negligent but criminal and
          justifies a sentence.

                 These actions were not performed by uncaring,
          unloving parents. On the contrary[,] one need only
          listen to Ms. Trotty’s testimony and [see] that video
          and look at all the other evidence in the case about
          the Schaible[s’] relationship with their children to
          understand that as that neighbor I referred to said
          with one exception they’re wonderful, caring, loving
          people. Well[,] the exception puts them in state
          prison and it ought to[,] as far as I’m concerned.

                But the exception also affects[,] in my view[,]
          how long they ought to be in state prison and how
          long they should be, they and their children, should
          be separated from each other.



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                 This is an   unusual situation. The Schaible[]s
           should never       have custody of their children
           especially when    they’re young because of this one
           major area of      parenting in which they have so
           horribly failed.

                  But in every other area of parenting[,] their
           children and they should be able to resume their
           relationship not just for them but because it’s in the
           children’s best interest, within a reasonable period of
           time.

                 People toss around years in sentencing
           sometimes as if they were jellybeans. Well that’s
           not the case. I believe that a state prison sentence
           of the length that I imposed is a substantial amount
           of prison time for Herbert and Catherine Schaible.
           And I spent a lot of time considering all of the
           elements that I believe go into an appropriate
           sentence. That is my best judgment.

                Again, reasonable people can differ.         The
           Commonwealth has a right to an appeal.             My
           sentence is likely to be reviewed by a higher court. I
           understand that, I accept that, I agree that that’s
           the way it ought to be.

                 But I still think that considering all of the
           factors that I believe go into a just sentence that
           these sentences were fair, just and appropriate.

Hearing, 3/14/14 at 13-20.4

     “[T]he parameters of this Court’s review of the discretionary aspects of

a sentence is confined by the dictates of 42 Pa.C.S. § 9781(c) and (d).”




4
  We observe that the trial court twice mentioned a period of “ten years plus
thirty months.” We are unsure what the court was referring to. We are only
reviewing the sentence of 3 ½ to 7 years’ incarceration followed by 30
months’ probation imposed on both defendants.


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Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011), quoting

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).

            Section 9781(c) specifically defines three instances
            in which the appellate courts should vacate a
            sentence and remand: (1) the sentencing court
            applied the guidelines erroneously; (2) the sentence
            falls within the guidelines, but is “clearly
            unreasonable” based on the circumstances of the
            case; and (3) the sentence falls outside of the
            guidelines and is “unreasonable.”

Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011).

     Section 9781(d) provides that when reviewing a sentence, we must

consider:

            (1)   The nature and circumstances of the offense
                  and the history and characteristics of the
                  defendant.

            (2)   The opportunity of the sentencing court to
                  observe   the    defendant, including  any
                  presentence investigation.

            (3)   The findings upon which the sentence was
                  based.

            (4)   The   guidelines      promulgated     by    the
                  commission.

42 Pa.C.S.A. § 9781(d).

            [T]he term “unreasonable” generally means a
            decision that is either irrational or not guided by
            sound judgment. [A] sentence can be defined as
            unreasonable either upon review of the four
            elements contained in § 9781(d) or if the sentencing
            court failed to take into account the factors outlined
            in 42 Pa.C.S. § 9721(b).

Daniel, 30 A.3d at 497, quoting Walls supra.


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      42 Pa.C.S.A. § 9721(b) offers the following guidance:

            [T]he court shall follow the general principle that the
            sentence imposed should call for confinement that is
            consistent with 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. The court
            shall also consider any guidelines for sentencing and
            resentencing      adopted    by    the   Pennsylvania
            Commission on Sentencing . . . .

42 Pa.C.S.A. § 9721(b).

            [T]he weighing of the factors under 42 Pa.C.S.
            § 9721(b) [is] exclusively for the sentencing court,
            and an appellate court could not substitute its own
            weighing    of   those   factors.      The    primary
            consideration, therefore, is whether the court
            imposed an individualized sentence, and whether the
            sentence     was   nonetheless    unreasonable    for
            sentences falling outside the guidelines, or clearly
            unreasonable for sentences falling within the
            guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.Super. 2012), quoting

Commonwealth v. Bowen, 975 A.2d 1120, 1123-1124 (Pa.Super. 2009)

(citations omitted).

      Instantly, the Commonwealth first contends the defendants’ sentence

is excessively lenient because the trial court failed to impose an additional

penalty on the defendants for the killing of a second child, Brandon.

(Commonwealth’s brief at 22-23.)         The record does not support the

Commonwealth’s contention.

      The trial court imposed a concurrent sentence for the probation

violation in the case stemming from the death of Kent. The court made it


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clear that it considered the probation violation and the new case as each

affected the other, and therefore imposed a larger aggregate sentence than

it might otherwise have imposed.      (Hearing, 3/14/14 at 15-16.)     For the

probation violation and the instant case, the defendants were sentenced to a

term of incarceration of 3½ to 7 years, to be followed by a term of probation

of 2½ years.      The sentences were to be served concurrently.            The

Commonwealth appealed the sentence for the new case, but did not appeal

the sentence for the probation violation.

      Next, the Commonwealth argues the sentence depreciates the gravity

of the offense and fails to properly consider the defendants’ failure to be

rehabilitated and the continuing danger they pose to their surviving children.

(Commonwealth’s brief at 23.) Basically, the Commonwealth is challenging

the weight the trial court assigned to the Section 9721(b) considerations.

The trial court recognized the defendants were possibly a danger to their

children, but not a danger to the general public.5 The trial court explained:

            [T]hese defendants are not “typical” of defendants
            convicted of murder. Aside from the instant matters,
            the defendants have no criminal record. Moreover,
            the defendants have no history of violence in general
            or, more specifically, with regard to their children.
            On the contrary, all of the evidence presented at
            sentencing shows the Schaibles to be loving and
            caring parents, with the significant exception of their
            absurd and dangerous views on medical care for
            their children.

5
  At the sentencing hearing, the prosecutor stated, “The only people [the
defendants] are a danger to are their own children.” (Sentencing hearing,
2/19/14 at 36.)


                                    - 16 -
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Trial court opinion, 8/7/14 at 6.

      With the above in mind, the trial court fashioned a sentence it deemed

to be of sufficient length that would protect the defendants’ other children.

The trial court’s order did not permit the defendants to have any say in

medical decisions for their children.       While the trial court anticipated the

defendants     would   have   little   chance    of   ever   regaining   custody,6   it

nevertheless planned for this unlikely contingency by imposing a sentence of

such length that the youngest Schaible child would be 14 years old and

capable of a say in his own medical care by the end of the defendants’

supervision.

      Next, we turn to whether the sentence was consistent with the gravity

of the offense.        The Commonwealth argues the trial court failed to

appreciate the gravity of the offense.            (Commonwealth’s brief at 24.)

According to the Commonwealth, the defendants were given a lenient

sentence of 10 years’ probation for killing Kent under similar circumstances,

yet this lenient sentence did nothing to prevent the same thing from

happening to Brandon. (Id.)




6
  Following a hearing on August 4, 2014, Judge Tereshko entered orders
permanently terminating the parental rights of both Herbert and
Catherine Schaible as to all of their children. The court further ordered the
Philadelphia Department of Human Services (“DHS”) to plan for the adoption
of each child. The court entered identical orders for each child.


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      At sentencing, the trial court told the defendants, “You’ve killed two of

your children, that’s it in a nutshell.” (Sentencing Hearing, 2/19/14 at 71.)

Additionally, the court stated:

             So I share completely the Commonwealth’s outrage
             about these killings because that’s what they are,
             these killings, and I understand that the
             Commonwealth’s sentencing recommendation, which
             after all, is at the bottom end of the standard range
             of our sentencing guidelines, is not in any way an
             unreasonable recommendation for the crimes
             committed.       But our sentencing code and our
             sentencing philosophy in this country is not simply to
             let the punishment fit the crime, it’s to have the
             punishment fit not only the crime, but the criminal
             also.

Id. at 68.

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

             Here the parents have demonstrated consistent love,
             devotion and support for their children. There is
             absolutely no history of violence or neglect outside of
             the Schaibles’ totally unjustifiable decisions to deny
             their children medical attention because of the
             nonsensical demands of their church. This conduct
             alone calls for a harsh sanction, and the Schaibles
             have earned their state prison sentences. But their
             conduct simply cannot be equated with the conduct
             of defendants in the vast majority of child
             abuse/child neglect homicide cases, and it is those
             cases and those defendants which are contemplated
             by the sentencing guidelines.

Trial court opinion, 8/7/14 at 6. Based on the above, the record does not

support the Commonwealth’s argument that the trial court did not

appreciate the gravity of the defendants’ offense. Trial courts are obliged to

consider each defendant individually and pronounce a sentence based upon


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the facts, findings, and circumstances presented.      The fact that the trial

court came to a different conclusion than the Commonwealth does not mean

the trial court was either unreasonable or abused its considerable discretion.

      Next, the Commonwealth argues the trial court failed to properly

consider the defendants’ failure to be rehabilitated. The Commonwealth is

referring to the fact the defendants had already watched one child die due to

their failure to obtain medical attention for that child.    The same conduct

occurred once more, resulting in Brandon’s death.           In both cases, the

Schaibles stated they did not seek medical attention because it was against

their religious beliefs, and that it would have been considered a sin to seek

medical assistance rather than to trust in God for the children’s healing.

      The trial court addressed this argument as follows:

                  First, it has been conceded from the outset of
            these cases that the Schaibles have never been a
            danger to the general public, or to anyone except
            their own children. (N.T., 2/19/14, pp. 34, 3[]). As
            demonstrated earlier in this Opinion, the court’s
            sentences fully protect even the youngest of the
            Schaible children (Supra, pp. 1-2, 5-6, ftn.2) from
            future adverse consequences stemming from their
            parents’ belief about medical treatment.

                  The Commonwealth also claims that these
            sentences      are   inconsistent  with   appellees’
            rehabilitative needs. This is also not accurate. In
            this court’s view, at their sentencing hearing the
            Schaibles expressed grief, great remorse and sincere
            understanding of their own responsibility for the
            deaths of both children (N.T., 2/19/14, pp. 60-64).
            Undoubtedly, for Brandon and Kent Schaible this
            understanding and acceptance of responsibility
            comes far too late. But, I am not inexperienced in


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             listening to defendants’ expressions of remorse and
             acceptance of responsibility at sentencing, and I
             firmly believe that Herbert and Catherine Schaible
             finally understand the consequences of what they
             have done and why they made these terrible wrong
             choices. To the extent such a thing is possible, they
             are rehabilitated.

Trial court opinion, 8/7/14 at 10.

        Here, the trial court observed the defendants at sentencing and

concluded that their statements of remorse were sincere and worthy of

consideration. We cannot second-guess this determination simply because it

does not please the Commonwealth any more than we will second-guess a

trial   court’s   determination      that   displeases   a   defendant.    See

Commonwealth v. A.W.Robl Transport, 747 A.2d 400, 403 (Pa.Super.

2000) (Superior Court will not second-guess the trial court’s credibility

determinations on appeal), appeal denied, 764 A.2d 1063 (Pa. 2000).

        Last, the Commonwealth argues the trial court relied on mistaken or

improper factors to depart from the guidelines. The trial court’s opinion is

replete with the reasons given for the sentences imposed. After setting forth

its reasons along with pertinent discussion, the trial court ended by stating:

                    At its core, the Commonwealth’s issue with this
             court’s sentences comes down to the question of
             punishment:        the Commonwealth believes the
             Schaibles have not been punished sufficiently for
             their conduct and its horrendous consequences. This
             is a sincerely held position which the court deeply
             respects. But, it is also a position with which this
             court profoundly disagrees.




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                   The court imposed a significant state prison
            sentence on two conscientious parents who believed
            - erroneously and tragically - that they were raising
            their children with love and caring. In all [but] one
            critically important respect, they were.      At both
            sentencing hearings and in this opinion, the court
            has articulated its specific, case related reasons for
            its significant downward sentencing departures.
            Respectfully, the placing of those reasons on the
            record, and the reasons themselves, demonstrate
            that this court did not abuse its discretion in
            imposing these sentences.

Trial court opinion, 8/7/14 at 10. The record demonstrates the trial court

understood the severity of the defendants’ crimes, but was convinced the

defendants were markedly different from the usual defendant convicted of

third-degree murder in cases involving the death of a child. In those cases,

the parents or caregivers usually exhibit violence towards children or there is

a sustained pattern of abuse and/or neglect. The trial court found this case

atypical in that the defendants exhibited consistent love, devotion, and

support for their children. Additionally, the trial court had the opportunity to

review a pre-sentence investigation report.         See Commonwealth v.

Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has

benefit of PSI, law expects court was aware of relevant information

regarding defendant’s character and weighed those considerations along

with any mitigating factors).

      To conclude, the Commonwealth’s appeal seems to be grounded in

mere dissatisfaction with the sentence imposed, as the court did not follow

the Commonwealth’s recommendation of 8 to 16 years for third-degree


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murder; such an argument generally fails when made on behalf of the

defendant, and gains no potency simply because it is advanced by the

Commonwealth instead.              We recognize that a significant downward

departure from the sentencing guidelines will no doubt raise a cynical eye.

However,      absent   statutory    mandates,    such   deviations   are   permitted

provided the trial court’s decision is not unreasonable or an abuse of

discretion.   As previously stated, trial courts are obliged to consider each

defendant individually and pronounce a sentence based upon the facts,

findings, and circumstances presented. It is our determination that the trial

court followed the law on sentencing. The certified record does not support

the Commonwealth’s claims. While another court might have handed down

a different sentence, that is not proof of an abuse of discretion or an

unreasonable result. Accordingly, we find no abuse of discretion or error of

law.

       The defendants’ judgments of sentence are affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/15/2015




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