J-S08004-19

                                  2019 PA Super 150



    COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

    ORLANDO FRANCISCO DURAZO,

                             Appellant                  No. 2658 EDA 2018


         Appeal from the Judgment of Sentence Entered August 8, 2018
                 In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0005686-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.:                                FILED MAY 07, 2019

        Appellant, Orlando Francisco Durazo, appeals from the judgment of

sentence of a term of 10 to 20 years’ imprisonment, imposed after he pled

guilty to one count of aggravated assault.1 Appellant solely challenges the

discretionary aspects of his sentence. We affirm.

        The record establishes that at the time of the incident which led to

Appellant’s guilty plea, M.P. and her infant son, L.S. (the victim), were staying

with M.P.’s cousin and her boyfriend (Appellant) at their home located in

Allentown, Pennsylvania. On November 6, 2017, M.P. left the home to take

her dog for a walk.       She was gone for approximately 45 minutes and left

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. § 2702(a)(9).
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Appellant to care for L.S., who was five weeks old at the time. When M.P.

returned, L.S. was sleeping and Appellant went to work. M.P. did not notice

anything wrong at that point.

            [A]round 3:00 p.m.[,] [M.P.] went to wake the baby up and
     the baby was noticeably irritable and so she let him sleep a little
     bit longer.

          Around 5:15[,] she woke the baby up and noticed that [his]
     arms … [were] twitching and the baby was irritable.

          Now, she had been primarily breast-feeding….        The baby
     wasn’t latching.

           She went to the hospital that night and, unfortunately, the
     hospital chalked it up to breast feeding issues, [and told M.P. to]
     take the baby home.

           The baby [went] home. At approximately 6:00 a.m.[,]
     [M.P.] [woke] up her child and he [was] … seizing all throughout
     his body, his legs, his arms, every part of him is seizing. And he
     [was] becoming more lethargic and … refusing to eat.

          She immediately rushe[d] him to the emergency room
     where … the doctors there [saw] the baby and immediately [flew]
     him to St. Christopher’s and he [was] considered a level one
     trauma patient.

           And at St. Christopher’s[,] they did numerous scans and saw
     that he had extensive head, neck and eye injuries. He had
     subdural and subarachnoid hemorrhages.          He had cerebral
     contusions. He had an injury to the neck and retinal hemorrhages.

                                     …

           Detective Murray[,] on November 8th of 2017[,] interviewed
     [Appellant] at which point he said he was babysitting [L.S.] and
     he did admit to grabbing [L.S.] by the hands and feet and throwing
     [L.S.] on the ottoman area, which was in front of him, twice
     almost[,] he said[,] like a wrestling move.

           When he threw [L.S.] the second time[,] [Appellant] said
     that he looked at the victim and he was knocked out, at which
     point he left him on the ottoman[,] and when [M.P.] came [home,]


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      she thought he was sleeping.          [Appellant] was subsequently
      arrested.

N.T. Plea, 6/28/18, at 5-8.       Appellant verbally admitted to the foregoing

events as presented by the Commonwealth at the guilty plea hearing. See

id. at 8.

      Appellant pled guilty to aggravated assault on June 28, 2018.          On

August 8, 2018, the court imposed Appellant’s sentence. Appellant filed a

timely motion to reconsider his sentence, which was denied. He then filed a

timely notice of appeal, as well as a timely, court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.           Herein, Appellant

presents one issue for our review: “Did the trial court abuse its discretion in

imposing an unreasonable sentence outside the sentencing guidelines when

the trial court’s reasons for its diversion from the guidelines do not support

such an aggravated sentence?”            Appellant’s Brief at 4 (unnecessary

capitalization omitted).

      Appellant’s single issue challenges the discretionary aspects of his

sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

            We conduct a four-part analysis to determine: (1) whether
            [the] 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 [the]
            appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
            (4) whether there is a substantial question that the sentence


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         appealed from is not appropriate under the Sentencing
         Code, 42 Pa.C.S.[] § 9781(b).

      Objections to the discretionary aspects of a sentence are generally
      waived if they are not raised at the sentencing hearing or in a
      motion to modify the sentence imposed.

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

and internal quotations omitted).

      Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and included

a separate, concise Rule 2119(f) statement in his appellate brief in compliance

with the Pennsylvania Rules of Appellate Procedure.        Thus, we proceed to

determine whether Appellant has raised a substantial question to meet the

fourth requirement of the four-part test outlined above.

      Appellant contends that his sentence is manifestly unreasonable and

that the trial court failed to state adequate reasons for imposing a sentence

that falls outside the standard range of the sentencing guidelines. Based on

the argument presented in Appellant’s Rule 2119(f) statement, and the case

law on which he relies, we conclude that Appellant has presented a substantial

question for our review. See Commonwealth v. Sheller, 961 A.2d 187, 190

(Pa. Super. 2008) (concluding that a substantial question may exist where the

appellant contends that the sentencing court exceeded the recommended

range in the sentencing guidelines without providing an adequate basis).

Accordingly, we will review the merits of his claim.

      Our standard for reviewing a claim challenging the discretionary aspects

of a sentence is well-settled:

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     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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (quoting

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).

     When imposing a sentence, the sentencing court is required to
     consider the sentence ranges set forth in the Sentencing
     Guidelines, but it [is] not bound by the Sentencing Guidelines.
     Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118
     (2007) (“It is well established that the Sentencing Guidelines are
     purely advisory in nature.”); Commonwealth v. Walls, 926 A.2d
     957, 965 (referring to the Sentencing Guidelines as “advisory
     guideposts” which “recommend … rather than require a particular
     sentence”). The court may deviate from the recommended
     guidelines; they are “merely one factor among many that the
     court must consider in imposing a sentence.” Yuhasz, 923 A.2d
     at 1118. A court may depart from the guidelines “if necessary, to
     fashion a sentence which takes into account the protection of the
     public, the rehabilitative needs of the defendant, and the gravity
     of the particular offense as it relates to the impact on the life of
     the victim and the community.” Commonwealth v. Eby, 784
     A.2d 204, 206 (Pa .Super. 2001). When a court chooses to depart
     from the guidelines[,] however, it must “demonstrate on the
     record, as a proper starting point, [its] awareness of the
     sentencing guidelines.” [Id.] Further, the court must “provide a
     contemporaneous written statement of the reason or reasons for
     the deviation from the guidelines.” 42 Pa.C.S.[] § 9721(b).

Sheller, 961 A.2d at 190.      The requirement that the court provide a

contemporaneous written statement is satisfied “when the judge states his

reasons for the sentence on the record and in the defendant’s presence.”

Antidormi, 84 A.3d at 760 (internal quotation marks and citation omitted).

See also Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa. Super. 1994).

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      When reviewing a sentence outside of the guidelines, the essential

question is whether the sentence imposed was reasonable. Sheller, 961 A.2d

at 190; Walls, 926 A.2d at 963.      “The appellate court shall vacate the

sentence and remand the case to the sentencing court with instructions if it

finds … the sentencing court sentenced outside the sentencing guidelines and

the sentence is unreasonable.”   42 Pa.C.S. § 9781(c)(3).     In determining

whether the sentence is reasonable, an appellate court should consider the

following factors:

      (1)   The nature and circumstance 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.

Walls, 926 A.2d at 963 (quoting 42 Pa.C.S. § 9781(d)). “A sentence may be

found unreasonable if it fails to properly account for these four statutory

factors … [or] if the sentence was imposed without express or implicit

consideration by the sentencing court of the general standards applicable to

sentencing.” Sheller, 961 A.2d at 191 (internal quotation marks and citation

omitted).

      In the instant matter, the trial court sentenced Appellant to 10 to 20

years’ imprisonment, which was beyond the aggravated range of the sentence

guidelines, but within the statutory limits.   The trial court provided the




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following detailed explanation of its sentence in its order denying Appellant’s

motion for reconsideration:

            This [c]ourt considered all the required statutory factors in
      sentencing [Appellant].        Indeed, in imposing [Appellant’s]
      sentence, this [c]ourt considered the “protection of the public, the
      gravity of the offense as it relates to the impact on the victim and
      the community, [Appellant’s] rehabilitative needs, and the
      sentencing guidelines.” 42 Pa.C.S.[] § 9721(b); Commonwealth
      v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008).

            Prior to sentencing, this [c]ourt reviewed the Pre-Sentence
      Investigation Report [(“PSI”)] prepared on August 3, 2018. The
      [c]ourt was aware of all of the information contained therein,
      including [Appellant’s] lack of a prior record, [Appellant’s]
      employment history, the recommendation of the [PSI] author, and
      the assistance that [Appellant] had previously provided to the
      victim’s mother, [M.P.]. Indeed, this [c]ourt did not fail to
      consider mitigating factors. Commonwealth v. Rhoades, 8
      A.3d 912, 919 (Pa. Super. 2010) (stating that where the
      sentencing court had the benefit of a [PSI], it may be assumed
      that the sentencing court was aware of all relevant information
      regarding a defendant, including any mitigating factors);
      Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988)
      (holding that where a [PSI] exists, there is a presumption that the
      sentencing judge was aware of and adequately considered
      information relevant to the defendant’s character, as well as any
      mitigating factors).      In addition, this [c]ourt viewed the
      videotaped reenactment of the crime, as well as heard testimony
      from Dr. Deborah Esernio-Jenssen, an expert in child abuse
      pediatrics, that the baby suffered and continues to suffer
      immensely due to the extreme nature of the injuries, and that the
      baby will have significant long term physical, social, emotional,
      and behavioral disabilities.

            This [c]ourt articulated the reasons for the imposition of a
      maximum sentence: (1) the five week old victim sustained
      extreme injuries as a result of [Appellant’s] actions; (2) the
      criminal conduct of [Appellant] caused harm to the five (5) week
      old baby while he was in a caregiving role; (3) a lesser sentence
      would depreciate the gravity and seriousness of the offense; and
      (4) confinement is more likely to contribute to [Appellant’s]
      rehabilitation than any other form of supervision.

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            Using its discretion, this [c]ourt imposed a sentence that
      complied with the negotiated plea agreement, and was within the
      guidelines and within the law.          Accordingly, [Appellant’s]
      argument is baseless and [Appellant’s] [p]ost[-s]entence
      [m]otion is denied.

Trial Court Order, 8/27/18, at 3 n.1 (emphasis in original).

      As noted by the trial court, prior to sentencing, it heard testimony from

Dr. Debra Esernio-Jenssen, regarding the severity of L.S.’s injuries, as well as

a statement from M.P. regarding the impact that Appellant’s actions have had

not only on her child, but on her as well.   Dr. Esernio-Jenssen explained in

great detail the injuries to L.S. that were observed while he was being treated

at St. Christopher’s. She reported that an MRI revealed bleeding on top of his

brain, “a sign that the child’s brain went through rotational cranial

acceleration/deceleration,” and that “the bridging veins that connect from

inside the skull onto the brain itself were stretched and torn and they bled.”

N.T. Sentencing, 8/8/18, at 8.     A neck MRI further indicated a significant

separation between the first and second cervical vertebrae, which is indicative

that the “head and neck were put through extreme forces of either – or a

combination of both – hyperflexion, meaning like the head going forward,

hypertension, meaning the head going back, or lateral flexion, meaning the

head going to either side.” Id. at 9. Dr. Esernio-Jenssen observed:

      Those type[s] of injuries, other than abusive head trauma, are
      seen when children are unrestrained in a car, in a motor vehicle
      crash; or they’re a pedestrian in a motor vehicle crash; or they’re
      being carried by a caregiver and are in a motor vehicle crash as a
      pedestrian. They’re extreme forces to cause these injuries.

Id. at 9-10.


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        As to L.S.’s progress since the incident, Dr. Esernio-Jenssen reported

that:    L.S. is moving the right side of his body, but that his tone is still

decreased compared to the left; he has central vision but cannot see

peripherally on either side; he is able to sit but is not able to creep, crawl, or

pull himself up to stand; he has made little progress with verbal skills; and he

lacks object permanency—a skill typically developed between four to seven

months of age and L.S. is ten months of age. Id. at 12-13. “But what is most

devastating is that his head circumference growth is basically … ceasing.” Id.

at 14. L.S.’s head circumference was measuring below the 0.01 percentile,

which Dr. Esernio-Jenssen explained is the most significant factor in

determining long-term abilities. “Cessation of brain growth is the number one

determinant of what this child is going to be able to do as he gets older….”

Id. Dr. Esernio-Jenssen concluded that:

        Because [L.S.] was so young when this happened[,] he is the most
        vulnerable for having long-term sequelae….

        It is very clear that because of his brain injury, the fact that he
        presented with seizures, which is a bad prognostic sign, the fact
        that he presented with … retinal hemorrhages, which is also a bad
        prognostic sign, [L.S.] is going to have significant disabilities long
        term – not only cognitive, behavioral, social, emotional – for his
        future.

Id. at 15.

        Moreover, M.P. read a prepared statement on the record at the

sentencing hearing, “to be the voice for [L.S.] who is still too young to speak

for himself and to speak for the family that has been dramatically changed in

a devastating way,” due to Appellant’s actions. Id. at 19. M.P. described L.S.

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prior to the incident as a “vibrant, happy, thriving little infant…,” “a very

healthy baby, with no medical issues.” Id. “Tragically, due to the injuries

that [L.S.] suffered at the hands of [Appellant,] he will never be the same

baby.” Id. M.P. explained that the left side of L.S.’s brain has been severely

damaged, that multiple therapists are working with L.S. several times a week,

and that doctors have indicated that the extent of his deficits will remain

unclear until he gets older. Id. at 20.

               [L.S.] is the main victim who has been most impacted….
         But, unfortunately, he’s not the only victim and not the only one
         left with devastating consequences. Not knowing the level of
         struggle [L.S.] will face in [the] future but knowing that there will
         be struggles with his future … is like a form of torture for me to
         live with.

               The constant worry and reminder of what happened to
         [L.S.], it is so scary and heartbreaking to live with these facts and
         the thought of the possibility of … one day having this little angel
         boy [] ask me why he is the way he is[,] or why certain tasks are
         so hard for him. This crushes my heart all over again. It takes
         my breath away.
                                           …

               As [L.S.’s] mom[,] I cannot even begin to explain and put
         into words the heartache, the guilt, the anger, the sadness, the
         pain, and the fear I feel on a regular basis.

Id. at 22-23. M.P. also expressed that their family has been “completely torn

apart” as a result of Appellant’s actions. She “lost an aunt who is more like a

mother” and “a cousin[] who is more like a sister and my best friend….” Id.

at 24.

         Finally, after hearing all of the foregoing testimony, the court addressed

Appellant from the bench:


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     It’s a very troubling case…. Motive is never a part of a criminal
     charge because we’re not supposed to be able to jump into a mind
     like yours and figure out why people like you do the things you
     do.

     You were so matter of fact in your recitation on the video of, “I
     did this. I did that. I did this. I did that.”

     And as [M.P.] expressed herself, not a tear, not watching the
     video, not listening to Dr. [Esernio-]Jenssen describe the
     significance of the injuries, not while [M.P.] described her pain and
     that of her family, and the division within the family this has
     caused.

     And, most importantly, that 15 minutes before you were the
     primary caregiver of that child, [L.S.’s] future was the same as
     any other healthy-born one-month-old baby. And you took all
     that away in an instant. All of it.

     When you hear experts, doctors, talk about and use terms like
     “severe[,”] “extreme[,”] “significant[,”] those mean something.
     It’s not a “maybe this child will suffer in the future[.”] It is, “This
     child will suffer forever[.”]

     That baby was completely reliant, couldn’t do anything by himself.
     You took it all away.

     The sentence is that you pay the costs of prosecution….

     Undergo imprisonment for not less than ten nor more than 20
     years, State….

     This sentence is a maximum sentence as a result of the extreme
     severity of the injuries to the victim.

     The criminal conduct of [Appellant] caused harm to a five-week
     old baby while he was in a caregiving role. A lesser sentence
     would depreciate the seriousness of this crime.

     Confinement is absolutely more likely to contribute to the
     rehabilitation of [Appellant] than any other form of supervision.

N.T. Sentencing at 39-41.

     It is clear from the trial court’s statement that it considered all the

requisite factors, including the nature and circumstances of the offense, the


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recommended guideline range, the gravity of the offense, and the

rehabilitative needs of Appellant, when fashioning its sentence.        See 42

Pa.C.S. § 9781(d).     Moreover, the trial court had a PSI at the time of

sentencing and clearly had an opportunity to generally consider and observe

Appellant’s history and characteristics. See Sheller, 961 A.2d at 192. Thus,

we find no abuse of discretion.

      Appellant contends that the reasons given by the trial court for the

imposition of a maximum sentence were inadequate, and Appellant argues

that factors such as the age of the victim have already been taken into account

by the legislature. Appellant’s Brief at 16-18 (citing 18 Pa.C.S. § 2702(a)(9)

(providing that a person 18 years of age or older is guilty of aggravated assault

if he “attempts to cause or intentionally, knowingly or recklessly causes

serious bodily injury to a child less than 13 years of age”)).   However, to the

extent that the statute delineates a crime for assault on a child under the age

of 13, nothing prevents the court from considering the extreme age difference

of the victim, such as in the present case where the victim was a 5-week-old,

defenseless baby. Moreover, even if the trial court relied on factors that were

subsumed within the guideline recommendation, such as the age of the victim,

we discern no abuse of discretion. See Commonwealth v. Smith, 673 A.2d

893, 896-97 (Pa. 1997) (determining that even if a sentencing court relies on

a factor that should not have been considered, there is no abuse of discretion

where the court provides significant additional support for its departure from

the sentencing guidelines). See also Commonwealth v. P.L.S., 894 A.2d

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120, 133 (Pa. Super. 2006).     Here, the trial court expressly cited proper

factors that it took into consideration when determining the appropriate

sentence for Appellant, including the impact the crime had on relatives of the

victim. See Sheller, 961 A.2d at 192.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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