J-S16037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellee                :
                                               :
                v.                             :
                                               :
    ROCKY MOSKOWITZ                            :
                                               :      No. 1422 MDA 2017
                       Appellant               :


            Appeal from the Judgment of Sentence August 31, 2017
               in the Court of Common Pleas of Bradford County
              Criminal Division at No.: CP-08-CR-0000107-2017


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                  FILED APRIL 30, 2018

        Appellant, Rocky Moskowitz, appeals from the judgment of sentence

imposed following his entry of an open guilty plea to two counts each of simple

assault and recklessly endangering another person.1 Appellant challenges the

discretionary aspects of his sentence. We affirm.

        The trial court aptly set forth the relevant background of this case as

follows:

              [Appellant] was charged with (i) five counts of Aggravated
        Assault, under 18 Pa.C.S.A. §§ 2702(a)(8) and (9), each being
        felonies of the first or second degree, (ii) six counts of Simple
        Assault, under 18 Pa.C.S.A. § 2701(a)(1), each being
        misdemeanors of the second degree, and (iii) six counts of
        Recklessly Endangering Another Person, under 18 Pa.C.S.A. §
        2705, each being misdemeanors of the second degree. The
        charges arose after police responded to a report from an
____________________________________________


1   18 Pa.C.S.A. §§ 2701(a)(1) and 2705, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       elementary school that one of their students disclosed being shot
       by [Appellant] with an air soft bb gun. The investigation soon
       revealed that five of the children in the home had allegedly been
       shot with the air soft gun at close range by [Appellant] or hit with
       the gun itself.

             On June 12, 2017, [Appellant] entered a guilty plea to two
       counts of Simple Assault, 18 Pa.C.S.A. § 2701(a)(1), graded as
       misdemeanors of the first degree, with the understanding and
       agreement that a deadly weapons enhancement[2] would apply to
       one of the two counts. [Appellant] also pled guilty to two counts
       of Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705,
       both graded as misdemeanors of the second degree. As part of
       the plea agreement, “[Appellant] can argue based on health
       reasons for non-incarceration.” (N.T. Guilty Plea, 6/12/17, at 2-
       3). Counsel for both parties and [Appellant] understood and
       agreed that the deadly weapons enhancement would add six (6)
       months of incarceration to the recommended minimum sentence
       within the standard range. [Appellant] confirmed his intention to
       plead guilty after listening to a description of the potential
       penalties he faced for each count.

             After some discussion about the nature of the weapon used
       and whether it was a gun or a toy, [Appellant] and his counsel
       acknowledged that the “Airsoft gun” at issue was “like a BB gun,”
       and that such gun “could be a deadly weapon” in that it “shoots
       rubber BB’s.” (Id. at 12). While [Appellant] believed it was a
       “toy,” he acknowledged and agreed that the deadly weapon
       enhancement was going to apply to one of the counts. (Id. at 9;
       see id. at 13-14).

            At the conclusion of the oral plea colloquy, [Appellant]
       having previously completed a written plea colloquy with his
       lawyer, the [trial court] accepted [Appellant’s] guilty plea as
       knowing, voluntary and intelligent.



____________________________________________


2 “The deadly weapon enhancement provisions of the Sentencing Guidelines
provide that an enhancement ‘shall apply to each conviction offense for which
a deadly weapon is possessed or used.’ 204 Pa. Code § 303.10(a)(4).”
Commonwealth v. Tavarez, 174 A.3d 7, 10 (Pa. Super. 2017).


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          At the sentencing hearing on August 31, 2017, [Appellant’s]
     counsel, as expected, argued against incarceration.

           Defense counsel submitted a letter from [Appellant’s doctor]
     that stated [Appellant] would have difficulty sleeping if
     incarcerated and that “[u]ndue discomfort is not advised.” (N.T.
     Sentencing, 8/31/17, at 15; see id. at 10). [Appellant] also
     offered a mental health evaluation [stating that he] suffers from
     adjustment disorder with mixed anxiety and depression.
     [Appellant] was given an opportunity to speak and confirmed that
     he has had health difficulties since 2014 when he was electrocuted
     at work, testifying that he has no function in three fingers, heart
     damage, and limited use of his left leg.         In fashioning an
     appropriate sentence, the [trial court] considered all information
     that was available, including that offered by [Appellant] and his
     counsel.

           The Probation Department, acknowledging this was
     [Appellant’s] first contact with the criminal justice system,
     recommended incarceration at the lowest end of the standard
     range of the sentencing guidelines for the simple assault
     conviction with the deadly weapon enhancement, and consecutive
     sentences of probation for the other three convictions. The
     guideline sentence form for simple assault with use of a deadly
     weapon provided a minimum sentence of incarceration of six (6)
     to nine (9) months within the standard range. There is no
     mitigated range identified on the guideline sentence form but the
     minimum in the aggravated range could be as much as twelve
     (12) months.

           The Commonwealth agreed with the recommendation of the
     Probation Department in the Pre-sentence Investigation report,
     noting that the affidavit of probable cause described [Appellant]
     as perpetrating “a series of cruel acts to the young children.” (Id.
     at 14). The Commonwealth also related that the “agreement was
     that the weapons enhancement would apply.” (Id.).

           The [trial court] imposed a sentence of total confinement
     and supervision such that [Appellant] would undergo an
     indeterminate period of incarceration for the conviction of simple
     assault with a deadly weapon, the minimum of which would be six
     (6) months, and the maximum of which would be twelve (12)
     months. [Appellant] received consecutive orders of probation for


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       an aggregate of eighteen (18) months for the three other counts.
       The sentence was at the lowest end of the standard range.

(Trial Court Opinion, 11/30/17, at unnumbered pages 1-3) (citation formatting

provided; some record citations omitted). This timely appeal followed.3

       Appellant raises one issue for our review: “[Whether] [t]he [trial] [c]ourt

erred in not considering Appellant’s health issues when imposing the deadly

weapons enhancement[] [b]ecause it believed that there was no mitigated

sentence or departure allowed under enhancement sentence[?]” (Appellant’s

Brief, at VI).   He argues that the trial court “appeared confused as to the

application of the enhancement” and believed that it was required to sentence

him without taking into consideration the mitigating factors of his electrocution

and the resultant injuries and pain. (Id. at 10; see id. at 7-8).

       Appellant’s 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. Rather, Appellant must
       first meet his burden of satisfying the following four elements
       before we will review the discretionary aspect of a sentence:

                     (1) whether 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 appellant’s brief has a
              fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
              is a substantial question that the sentence appealed
              from is not appropriate under the Sentencing Code,
              42 Pa.C.S.[ ] § 9781(b).


____________________________________________


3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on September 27, 2017. The trial court entered its
opinion on November 30, 2017. See Pa.R.A.P. 1925.

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Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017),

appeal denied, 174 A.3d 1029 (Pa. 2017) (case citations and quotation marks

omitted).

     In the instant case, Appellant met the first three elements by filing a

timely notice of appeal, preserving his issue at sentencing, and including a

Rule 2119(f) statement in his brief. Because “[o]ur case law has established

that application of the deadly weapons enhancement presents a substantial

question[,]” we will review the merits of his claim. Commonwealth v. Shull,

148 A.3d 820, 831 (Pa. Super. 2016) (citations omitted).

     Our standard of review is as follows:

            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.

Johnson-Daniels, supra at 28 (citation omitted).

     We begin by noting that where “the trial court has the benefit of a pre-

sentence report [PSI], we presume that the court was aware of relevant

information   regarding   the   defendant’s   character   and   weighed    those

considerations along with any mitigating factors.”        Commonwealth v.

Johnson, 125 A.3d 822, 827 (Pa. Super. 2015) (citation omitted). We further

note that the sentencing guidelines are not mandatory, and sentencing courts

retain broad discretion in sentencing matters.      See Commonwealth v.


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Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275

(Pa. 2014). Likewise, “[[a]lthough] [t]he trial court lacks the discretion to

refuse to apply the deadly weapon sentencing enhancement, [t]he court’s

discretion comes into play when it is time to impose a sentence, once the court

determines the adjusted sentencing guideline ranges.” Commonwealth v.

Kneller, 999 A.2d 608, 614 (Pa. Super. 2010), appeal denied, 20 A.3d 485

(Pa. 2011) (citation omitted).

      Here, at the sentencing hearing, the trial court heard from defense

counsel and Appellant regarding his numerous health ailments and financial

problems stemming from his work-related electrocution in 2014. (See N.T.

Sentencing, at 10-14). The Commonwealth noted that Appellant’s offenses

involved a series of cruel acts against children, and that the plea agreement

contemplated application of the weapons enhancement. (See id. at 14). The

trial court noted that it had reviewed the PSI, and explained its rationale for

the sentence as follows:

               . . . [T]he Commonwealth was apparently insistent that . . .
      in order to reach the plea agreement, that one of the counts would
      have a deadly weapon enhancement. Otherwise, it wouldn’t have
      been there. The fact that it’s there, and now it’s just being asked
      to be essentially ignored, by [Appellant], I think is really not giving
      . . . it’s really not honoring the agreement that was reached. . . .
      The health concerns of [Appellant], I understand those. The
      doctor suggests that you are going to have difficulty sleeping on
      a mattress. Undue discomfort is not advised. Being in jail is not
      a comfort to anybody, you know.           And so, certainly I am
      sympathetic to your health concerns but these are pretty serious
      charges[.] . . . I agree with the probation department that
      because of your history, because of your health situation, you
      don’t deserve anything above what would be the standard, the

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J-S16037-18


      lowest end of the standard range and that would be in each of the
      other counts, probation. But with the one count that was, that
      has the deadly weapon enhancement I think you need the six
      months. I mean that’s what everybody contemplated, that’s what
      was expected, based on what everybody knew about the case. So
      I think that is what is appropriate and that’s what I’m going to
      impose today. . . .

(Id. at 14-16; see id. at 1).

      Following imposition of the sentence, defense counsel asked for

clarification and the following exchange took place:

      [Defense counsel]: [Is] the court under the belief that it has no
      authority to override the sentence as it pertains to him?

      [Trial court]: No. I’m not under that impression. The guidelines
      are simply guidelines. They are advisory.

      [Defense counsel]:    And the enhancement is not a mandatory
      sentence.

      [Trial court]: I understand that as well. . . .

(Id. at 19).

      In its opinion, the trial court further explained that, in formulating an

appropriate sentence for Appellant, it took into consideration his health

difficulties, history, character, and rehabilitative needs; the nature and

circumstances of the crime, which involved violent acts against young

children; the impact on the multiple victims; the need to protect the

community; and the sentencing guidelines. (See Trial Ct. Op., at unnumbered

pages 3-4).    Thus, the record reflects that the court was not confused

regarding application of the deadly weapons enhancement, and that it

thoroughly considered Appellant’s background, including his health issues,



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and the circumstances of the offense, and sentenced him accordingly.

Because we discern no abuse of discretion in the court’s imposition of

Appellant’s sentence, his issue on appeal merits no relief.   See Johnson-

Daniels, supra at 28. Therefore, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2018




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