J-A13041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
KENNETH M. PARROTTE,                      :
                                          :
                   Appellant              :           No. 1131 WDA 2015

           Appeal from the Judgment of Sentence February 18, 2015
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0003276-2012

BEFORE: OLSON, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 18, 2016

        Kenneth M. Parrotte (“Parrotte”) appeals from the judgment of

sentence imposed after a jury convicted him of indecent assault (victim less

than 13 years of age), endangering the welfare of children (“EWOC”),

corruption of minors, and indecent exposure.1 We affirm.

        The victim, Z.S., Parrotte’s six-year-old biological granddaughter,

resided with him, his wife, and other family members in his home located in

Braddock, Pennsylvania. In December 2011, Parrotte sexually assaulted the

victim by engaging in sexual intercourse with her.     In January 2012, the

victim told her mother about the assaults.    The victim’s mother then took

her to Children’s Hospital in Pittsburgh, as she had complained of pain in her




1
    See 18 Pa.C.S.A. §§ 3126(a)(7), 4304(a)(1), 6301(a)(1)(ii), 3127(a).
J-A13041-16

vaginal area. During a forensic interview at the hospital, the victim informed

the authorities that Parrotte had assaulted her on more than one occasion.2

        In March 2012, the Commonwealth charged Parrotte with the above-

mentioned crimes, as well as rape of a child, incest, and sexual assault 3

(collectively, “the remaining offenses”). The matter proceeded to a jury trial

in October 2012, at the close of which the jury acquitted Parrotte of the

remaining offenses and convicted him of indecent assault, EWOC, corruption

of minors, and indecent exposure.        Prior to sentencing, the trial court

ordered the preparation of a presentence investigation report (“PSI”).     On

June 6, 2013, the sentencing court (the Honorable Donna Jo McDaniel

“Judge McDaniel”) ruled that Parrotte met the criteria of a sexually violent

predator, and sentenced him as follows:

           a prison term of three and one-half to seven years on the
            indecent assault conviction;

           a prison term of three and one-half to seven years on the
            EWOC conviction,4 to run consecutive to the indecent assault
            sentence;

           no further penalty for corruption of minors and indecent
            exposure.



2
  During the forensic interview, the victim described a skin pigmentation
anomaly on Parrotte’s penis, which was later observed by the detectives who
had arrested Parrotte.
3
    See 18 Pa.C.S.A. §§ 3121(c), 4302(a)(1), 3124.1.
4
 The sentencing court stated that the EWOC charge was graded as a third-
degree felony.


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Accordingly, Parrotte received an aggregate sentence of seven to fourteen

years in prison.5 Parrotte filed post-sentence Motions, which the trial court

denied in July 2013.

      On October 3, 2013, the sentencing court issued an amended

sentencing Order, stating that the court had made a clerical error in the

previous sentencing Order.    In the amended Order, the court imposed a

consecutive sentence, on the corruption of minors conviction, of three and

one-half to seven years in prison (the statutory maximum sentence),

resulting in a new aggregate sentence of ten and one-half to twenty-one

years in prison.

      Parrotte timely appealed to this Court asserting, inter alia, that the

sentencing court abused its discretion by imposing a manifestly excessive

sentence that was outside of the aggravated range of the sentencing

guidelines, and imposed an illegal sentence on the EWOC conviction. This

Court affirmed Parrotte’s convictions, but vacated the judgment of sentence

and remanded for resentencing.     See Commonwealth v. Parrotte, 104

A.3d 43 (Pa. Super. 2014) (unpublished memorandum). We held that the

sentencing court imposed an illegal sentence on the EWOC conviction, in




5
  Notably to the instant appeal, each of the individual prison sentences
imposed exceeded the aggravated range of the applicable sentencing
guidelines, and was the statutory maximum sentence allowed.

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that the offense should have been graded as a first-degree misdemeanor,

instead of a third-degree felony. Id. (unpublished memorandum at 4-7).6

      On remand, Judge McDaniel imposed the following sentence:

          a prison term of three and one-half to seven years on the
           indecent assault conviction;

          a prison term of two and one-half to five years on the EWOC
           conviction (graded as a first-degree misdemeanor), to run
           consecutive to the indecent assault sentence;

          a prison term of three and one-half to seven years on the
           corruption of minors conviction, to run consecutive to the
           other sentences;

          no further penalty for indecent exposure.

Accordingly, Parrotte received an aggregate sentence of nine and one-half to

nineteen    years   in   prison.7   Parrotte   thereafter   filed   a   Motion   for

reconsideration of sentence, which was denied by operation of law.

      Parrotte filed a timely Notice of Appeal.     In response, the trial court

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.       Parrotte timely filed a Concise Statement, after

which the trial court issued an Opinion.

      Parrotte now presents the following issues for our review:

      I.   Does a sentencing court abuse its discretion by imposing an
           excessive sentence, significantly outside the sentencing


6
  The Supreme Court of Pennsylvania subsequently denied Parrotte’s Petition
for allowance of appeal. See Commonwealth v. Parrotte, 105 A.3d 736
(Pa. 2014).
7
  As was the case with Parrotte’s original sentence, each individual sentence
imposed on remand was the statutory maximum sentence.

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J-A13041-16

         guidelines, without bothering       to   consider   the   correct
         sentencing guidelines?

      II. Does a sentencing court abuse its discretion by imposing an
          excessive and unreasonable statutory maximum sentence,
          without considering appropriate sentencing factors to support
          its substantial deviation from the sentencing guidelines?

Brief for Appellant at 9 (capitalization omitted). We will address these two

related issues together.

      Parrotte’s claims challenge the discretionary aspects of his sentence,

from which there is no absolute right to appeal.     See Commonwealth v.

Hill, 66 A.3d 359, 363 (Pa. Super. 2013).         Rather, where, as here, the

appellant has preserved the sentencing challenge for appellate review by

raising it at sentencing or in a timely post-sentence motion, the appellant

must (1) include in his brief a concise statement of the reasons relied upon

for allowance of appeal with respect to the discretionary aspects of a

sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code. Hill, 66 A.3d at 363-64.

      Here, Parrotte included a Rule 2119(f) Statement in his brief.         See

Brief for Appellant at 17-21. Moreover, his above-mentioned issues present

a substantial question for our review. See Commonwealth v. Scassera,

965 A.2d 247, 250 (Pa. Super. 2009) (stating that a claim that the

sentencing court failed to consider the applicable sentencing guidelines, prior

to exceeding them, presents a substantial question); Commonwealth v.

Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating that an “[a]ppellant’s

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J-A13041-16

contention that the sentencing court exceeded the recommended range in

the Sentencing Guidelines without an adequate basis raises a substantial

question for this Court to review.”); Commonwealth v. Holiday, 954 A.2d

6, 10 (Pa. Super. 2008) (stating that “[a] claim that the sentencing court

imposed a sentence outside of the guidelines without specifying sufficient

reasons presents a substantial question for our review.”); Commonwealth

v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (stating that “[a] claim that the

sentencing court misapplied the Sentencing Guidelines presents a substantial

question.”).

      Accordingly, we will address the merits of Parrotte’s claims, mindful of

our standard of review:

      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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

(citations omitted).

      In every case where, as here, a court imposes a sentence outside of

the sentencing guidelines, the court must provide, in open court, a

contemporaneous statement of reasons in support of its sentence.           42

Pa.C.S.A. § 9721(b).

      [A sentencing] judge … [must] demonstrate on the record, as a
      proper starting point, its awareness of the sentencing guidelines.

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      Having done so, the sentencing court may deviate 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, so long as it also states of record the factual basis
      and specific reasons which compelled it to deviate from the
      guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted); see also 42 Pa.C.S.A. § 9721(b) (setting forth the

general considerations a sentencing court must take into account when

formulating   a    sentence).     “[A]   sentencing    judge     may     satisfy   [the]

requirement of disclosure on the record of [the judge’s] reasons for

imposition of a particular sentence without providing a detailed, highly

technical statement.” Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa.

Super. 2005) (citation omitted).

      An appellate court must vacate and remand a case where it concludes

that “the sentencing court sentenced outside the sentencing guidelines and

the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). However, “if the

sentencing court proffers reasons indicating that its decision to depart from

the   guidelines   is   not   unreasonable,   the     sentence    will   be   upheld.”

Commonwealth v. Smith, 863 A.2d 1172, 1177-78 (Pa. Super. 2004).

      Finally, when evaluating a challenge to the discretionary aspects of

sentence, it is important to remember that the sentencing guidelines are

“purely advisory in nature.” Commonwealth v. Yuhasz, 923 A.2d 1111,

1118 (Pa. 2007). The sentencing guidelines



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J-A13041-16

      have no binding effect, create no presumption in sentencing, and
      do not predominate over other sentencing factors – they are
      advisory guideposts that are valuable, may provide an essential
      starting point, and that must be respected and considered; they
      recommend, however, rather than require a particular sentence.

Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa. 2007); see also id.

at 964 (stating that the sentencing guidelines “are but one factor among the

many enumerated in the Sentencing Code as a whole[.]”) (citation and

quotation marks omitted).

      Here, Parrotte argues that the sentencing court abused its discretion

by sentencing him to statutory maximum, consecutive sentences on three of

the four counts of which he was convicted, amounting to a manifestly

excessive and unreasonable aggregate sentence. Brief for Appellant at 22.

Parrotte contends that, at resentencing following this Court’s remand, the

sentencing court (1) failed to state that it had considered the correct

sentencing guidelines; (2) “impose[d] the statutory maximum sentence

without any guidance from the guidelines whatsoever”; and (3) “offered no

discussion during the sentencing hearing supporting the court’s decision to

sentence significantly outside of the guidelines.” Id. at 24.

      Initially, we observe that in Parrotte’s prior appeal, a panel of this

Court rejected his challenge to the discretionary aspects of the sentence,

which appears very similar to the challenge he raises herein. See Parrotte,

104 A.3d 43 (unpublished memorandum at 3). Specifically, we stated that

the sentencing court




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J-A13041-16

      acted within its discretion when it imposed sentence outside [of
      the] aggravated range[, where (1) the] sentence imposed did
      not exceed [the] statutory maximum; [(2) the] court …
      considered [Parrotte’s PSI] prior to [the] sentencing hearing;
      [(3) the] record reflects [that the] court considered all
      appropriate factors in determining sentence; [(4) the] court
      placed its reasons for [the] sentence on [the] record; … [(5)]
      given [the] facts and circumstances of [Parrotte’s] assaults on
      [his] six-year old granddaughter, [the] sentence was
      appropriate; [and (6) the] court was within its discretion in
      imposing the] statutory maximum[.]

Id.8 This Court remanded the matter solely for the trial court to rectify the

illegal sentence imposed on the EWOC count (i.e., as a result of the

improper grading). Id. at 5-7.

      In the instant appeal, the trial court asserted in its Pa.R.A.P. 1925(a)

Opinion that the resentencing hearing “was merely a procedural event to

correct the grading and maximum term of [the EWOC] charge[,] and [the

trial c]ourt was not crafting a new sentence[; accordingly, the c]ourt found it

unnecessary to restate its reasoning.”    Trial Court Opinion, 1/20/16, at 5;

see also id. (stating that the court “had already placed sufficient reasons on

the record in support of its deviation from the [sentencing] guidelines and

imposition of the statutory maximum[] [sentences].”).

      To the contrary, Parrotte urges that the trial court never stated any

reasons for deviating from the guidelines at resentencing, and improperly


8
  It is generally beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court, see Commonwealth v. Beck, 78 A.3d
656, 659 (Pa. Super. 2013); however, here, the trial court’s resentencing
Parrotte on remand (which resulted in a reduction of his aggregate
sentence) permitted Parrotte to again challenge the discretionary aspects of
his sentence.

                                  -9-
J-A13041-16

“felt [that the] resentencing hearing was merely a procedural matter[,] since

the court was just going to once again impose a statutory maximum

sentence, regardless of the significant change in the guideline ranges” (i.e.,

as a result in the change of grading of the EWOC charge).                Brief for

Appellant at 27, 33; see also id. at 27-28 (citing Commonwealth v.

Losch, 535 A.2d 115 (Pa. Super. 1987), which stated that “[w]hen a

sentence is vacated and the case remanded for resentencing, the sentencing

judge should start afresh.” Id. at 121 (citation omitted)).

      Parrotte additionally contends that although the sentencing guidelines

are non-mandatory advisory guideposts, a sentencing court is obligated to

consider the guidelines prior to deviating from them, which the court in the

instant case failed to do.      Brief for Appellant at 28-29 (citing, inter alia,

Scassera, 965 A.2d at 250, 251 (stating that a “sentencing court must

consider the sentencing guidelines, and the consideration must be more

than mere fluff. … Failure to even consider the guideline ranges is an abuse

of discretion and a violation of 42 Pa.C.S.A. § 9721(b).”) (emphasis in

original; citation omitted). According to Parrotte, “the record [] is devoid of

any   indication   that   the   sentencing   court   understood   the   suggested

sentencing ranges before deviating from them.” Brief for Appellant at 32;

see also id. at 36 (asserting that the sentencing court “fail[ed] to review

the sentencing guidelines when imposing its excessive sentence”). Finally,

Parrotte argues that the sentencing court, by imposing statutory maximum

sentences, inappropriately “focused on the seriousness of the offenses,

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rather than addressing how [] Parrotte’s case deviated from a typical case

involving these offenses.   Although these offenses involving a child are

serious, the standard range of the guidelines took the seriousness into

account.” Id. at 40.

      Initially, we observe that the sentencing court here had the benefit of

a PSI, which is contained in the certified record. Where a sentencing court is

informed by a PSI, it is presumed that the court is aware of all appropriate

sentencing factors and considerations (which includes the sentencing

guidelines), and that “where the court has been so informed, its discretion

should not be disturbed.”   Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009). Moreover, “[t]he sentencing judge can satisfy the

requirement that reasons for imposing sentence be placed on the record by

indicating that he or she has been informed by the [PSI]; thus properly

considering and weighing all relevant factors.”   Id. (citation omitted); see

also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006).

      Here, prior to imposing sentence at the original sentencing hearing,

the sentencing court stated as follows:

      Well, I have reviewed the [PSI], and I find that it is horrific in
      that the victim in this case was your [Parrotte’s] six-year old
      granddaughter that you assaulted multiple times. You violated a
      position of trust, and although I don’t know that this has been
      discussed, you told [the victim that] she wasn’t allowed to tell
      anyone. You have been involved in the criminal justice system
      since you were 13 years of age. You have convictions for five
      counts of receiving stolen property, unauthorized use, theft and
      robbery. You have summary convictions. You have not done
      well with community[-]based supervision. You were in a State
      Correctional Institution one time, and you got out and violated

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      parole, and you were sent back. If you aren’t a danger to our
      community, I don’t know who would be.

N.T., 6/6/13, at 55.9

      At the resentencing hearing, the sentencing court (1) acknowledged

this Court’s ruling that the EWOC conviction must be graded as a first-

degree misdemeanor (subject to a shorter statutory maximum sentence

than that originally imposed at this count), N.T., 2/18/15, at 2; (2)

considered defense counsel’s statement concerning Parrotte’s remorse and

good behavior while in prison, id. at 3; (3) considered Parrotte’s statement

to the court that he is “deeply sorry for this whole ordeal[, and] … trying to

better [him]self,” id.; and (4) proceeded to again impose three consecutive

terms of incarceration, which were the statutory maximum sentences

permitted, id. at 4-5.

      Though the sentencing court’s stated reasons for imposing a sentence

in excess of the sentencing guidelines were not prolix, the court was not

required to provide a highly detailed statement.    See Hunzer, supra. At

the original sentencing hearing, the sentencing court adequately informed

Parrotte of the reasons why the court deemed it appropriate to exceed the

sentencing guidelines, including Parrotte’s extensive criminal history, the


9
  Prior to imposing sentence, the sentencing court also considered the
testimony of the Sexual Offenders Assessment Board evaluator, Dr. Allan
Pass, who stated that Parrotte (1) had a substantial criminal history,
extending back to when he was thirteen-years-old, N.T., 6/6/13, at 12-14;
(2) exhibited “behavior [that] constitutes a pattern of disregard for and
violation of the rights of others[,]” id. at 14; and (3) has been only
sporadically employed, id.

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“horrific” nature of the crime, the danger Parrotte posed to the community,

Parrotte’s risk for recidivism, and the court’s consideration of the PSI.

Pursuant to 42 Pa.C.S.A. § 9721(b), the record reflects that the sentencing

court fashioned a sentence that took into account the protection of the

public, the impact that the heinous crime had on the life of the victim and on

the community, and Parrotte’s rehabilitative needs.

      We acknowledge that the record supports Parrotte’s claim that the

court never referenced the applicable sentencing guidelines on the record,

either at the original sentencing hearing or the resentencing on remand.

See Brief for Appellant at 36.    However, it is well established that “[a]

sentencing court is not required to recite on the record the guideline

sentencing range, as long as the record demonstrates the court’s recognition

of the applicable sentencing range and the deviation of sentence from that

range.” Commonwealth v. Perry, 32 A.3d 232, 235 n.7 (Pa. 2011).

      [W]hen deviating from the sentencing guidelines, a trial judge
      must indicate that [s]he understands the suggested ranges.
      However, there is no requirement that a sentencing court must
      evoke “magic words” in a verbatim recitation of the guidelines
      ranges to satisfy this requirement. Our law is clear that, when
      imposing a sentence, the trial court has rendered a proper
      “contemporaneous statement” under the mandate of the
      Sentencing Code so long as the record demonstrates with clarity
      that the court considered the sentencing guidelines in a rational
      and systematic way and made a dispassionate decision to depart
      from them.      …     When the record demonstrates that the
      sentencing court was aware of the guideline ranges and contains
      no indication that incorrect guideline ranges were applied or that
      the court misapplied the applicable ranges, we will not reverse
      merely because the specific ranges were not recited at the
      sentencing hearing.



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Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa. Super. 2002) (citations,

paragraph breaks, and some quotation marks omitted); see also Ventura,

supra (stating that where a sentencing court is informed by a PSI, it is

“presumed that the court is aware of all appropriate sentencing factors,

which includes the applicable sentencing guidelines).

      Contrary to Parrotte’s assertion, there is no indication in the record

that the sentencing court was unaware of the guideline ranges or misapplied

them (aside from the above-discussed issue concerning the proper grading

of the EWOC count, which the court remedied on remand). See Griffin, 804

A.2d at 8 (rejecting the defendant’s claim that the sentencing court abused

its discretion in sentencing defendant above and outside of the sentencing

guidelines, by failing to indicate that the judge had any understanding of the

applicable guideline range, where (1) the court stated that it had considered

the defendant’s PSI, which included a Guideline Sentence Form; and (2) the

record demonstrated that the sentencing court was aware of the guideline

ranges).

      Finally, the Commonwealth points out that, at the resentencing

hearing, Parrotte’s counsel never (1) “object[ed] to the abbreviated

hearing”; (2) “asked for new guideline [sentencing] forms to be prepared”;

and (3) “requested the trial court [to] veer from its original decision to

impose statutory maximum terms of incarceration at Counts 4, 5, and 6[,]

to run consecutively.” Commonwealth’s Brief at 20. These assertions are

supported by the record.    Accordingly, Parrotte’s challenge to the lack of

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stated reasons at the resentencing hearing does not entitle him to relief.

See, e.g., Griffin, 804 A.2d at 8 (where the defendant complained that the

sentencing court had failed to consider the sentencing guidelines prior to

imposing sentence, stating that if the defendant “wanted the trial judge to

recite the applicable ranges in open court, counsel was afforded the

opportunity to request him to do so[,]” but never did).10

      Based upon the foregoing, we discern no abuse of discretion by the

sentencing court in imposing a sentence in excess of the aggravated range,

nor do we determine that the court’s decision to depart from the sentencing

guidelines was unreasonable.    See Smith, supra.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2016




10
   However, we caution the sentencing court that, in sentencing a defendant
(particularly where the sentence exceeds the aggravated range of the
guidelines), the court should at least mention that it had considered the
applicable guidelines, and state its reasons for deviating from those
guidelines. See Griffin, 804 A.2d at 8 (stating that “[w]e do caution the
trial court … that it is preferable to articulate the applicable ranges, as well
as the reasons for deviating from them.”); see also Scassera, supra
(stating that a “sentencing court must consider the sentencing guidelines,
and the consideration must be more than mere fluff.”) (emphasis omitted).

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