J-S68004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JERRY WILLIAM EDGE                         :
                                               :
                       Appellant               :   No. 1508 WDA 2017

             Appeal from the Judgment of Sentence August 29, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0009109-2016


BEFORE:      SHOGAN, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED JANUARY 11, 2019

       Appellant, Jerry William Edge, appeals from the judgment of sentence

entered on August 29, 2017, in the Court of Common Pleas of Allegheny

County. We affirm.

       Appellant was accused of sexually abusing his stepdaughters, M.B. and

S.B. (“the victims”), from 2006 through 2008. N.T., 6/7/17, at 32. At the

time of Appellant’s trial, M.B. was fifteen years old,1 and S.B. was nineteen

years old.2 N.T., 6/7/17, at 42, 70. Appellant and the victims’ mother were

married from 2006 until 2011, although they had separated years prior to

their divorce. N.T., 6/8/17, at 37-38.

____________________________________________


1 M.B. testified that she was abused by Appellant between the ages of six or
seven through eight years of age. N.T., 6/7/18, at 44, 54, 62.

2S.B. testified that she was abused by Appellant from the ages of ten to twelve
years. N.T., 6/7/18, at 72, 81, 92.
____________________________________
* Former Justice specially assigned to the Superior Court.
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       Appellant was charged by criminal information filed on August 24, 2016,

with fifteen counts for offenses committed from January 1, 2006, through

December 31, 2008. Criminal Information, 8/24/16, at 1-6. M.B. was the

victim in counts one through seven, and S.B. was the victim in counts eight

through fifteen. Appellant proceeded to a jury trial on June 7, 2017. Appellant

was convicted of counts five, six, and seven as related to M.B., 3 and counts

thirteen, fourteen and fifteen as related to S.B.4 Sentencing was postponed

for the preparation of a Presentence Investigation Report (“PSI”). On August

29, 2017, Appellant was sentenced to an aggregate eight to seventeen years

of incarceration followed by five years of probation.

       Appellant filed a post-sentence motion on September 1, 2017, which

was denied by the trial court on September 20, 2017.           Appellant filed an

appeal on October 18, 2017.           Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant presents the following issues for our review:

       I.     Did the trial court err when it denied [Appellant’s] motion
              for a mistrial where, during opening statements, the
              Commonwealth’s attorney held herself out as an expert in
              child abuse cases and rendered an expert opinion that the

____________________________________________


3 Indecent assault, child less than thirteen years old, course of conduct, 18
Pa.C.S. § 3126(a)(7); endangering the welfare of children (“EWOC”), 18
Pa.C.S. § 4304(a)(1); and corruption of minors, 18 Pa.C.S. § 6301(a)(1)(i),
respectively.

4Indecent assault, child less than thirteen years old, course of conduct, 18
Pa.C.S. § 3126(a)(7); EWOC, 18 Pa.C.S. § 4304(a)(1); and corruption of
minors, 18 Pa.C.S. § 6301(a)(1)(i), respectively.

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            vast majority of children do not immediately report abuse
            and where the unavoidable effect of this statement was to
            deprive [Appellant] of a fair trial? Moreover, was it the case
            that no cautionary instruction to the jury would have been
            adequate to overcome any possible prejudice to
            [Appellant]?

      II.   Did the trial court abuse its sentencing discretion and
            impose a manifestly excessive and clearly unreasonable
            sentence by failing to provide reasons evidencing its
            consideration of all statutorily required sentencing factors
            under 42 Pa.C.S. § 9721 (Sentencing Generally) and 42
            Pa.C.S. § 9725 (Total Confinement)?

Appellant’s Brief at 5.

      Appellant first argues that during opening statements, the Assistant

District Attorney, Lee Goldfarb (“ADA Goldfarb”) held herself out as an expert

in child abuse cases and rendered an expert opinion that the vast majority of

children do not immediately report abuse. Appellant’s Brief at 18. Appellant

further maintains that:

      [t]he unavoidable effect of these statements was to deprive
      [Appellant] of a fair trial, as the rendition of any opinion from [the
      ADA] was both highly inappropriate and plainly intended to bolster
      or vouch for the credibility of the accusers, to vouch for her own
      credibility, and to vouch for the credibility of the prosecution
      against [Appellant].

Id.

      Our standard of review of a court’s denial of a motion for mistrial is as

follows:

             A motion for a mistrial is within the discretion of the trial
      court. A mistrial upon motion of one of the parties is required only
      when an incident is of such a nature that its unavoidable effect is
      to deprive the appellant of a fair and impartial trial. It is within
      the trial court’s discretion to determine whether a defendant was

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      prejudiced by the incident that is the basis of a motion for a
      mistrial. On appeal, our standard of review is whether the trial
      court abused that discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003) (internal

citations and footnote omitted).

      Our Supreme Court has stated the following in addressing claims of

prosecutorial misconduct:

             In accord with the long-standing principle that a “prosecutor
      must be free to present his or her arguments with logical force
      and vigor,” this Court has permitted prosecutorial advocacy “as
      long as there is a reasonable basis in the record for the
      prosecutor’s comments.” Prosecutorial comments based on the
      evidence or reasonable inferences therefrom are not
      objectionable, nor are comments that merely constitute oratorical
      flair. Furthermore, the prosecution must be permitted to respond
      to defense counsel’s arguments. Any challenged prosecutorial
      comment must not be viewed in isolation, but rather must be
      considered in the context in which it was offered.

             It is improper for a prosecutor to offer his or her personal
      opinion as to the guilt of the accused or the credibility of any
      testimony. However, it is well within the bounds of proper
      advocacy for the prosecutor to summarize the facts of the case
      and then ask the jury to find the accused guilty based on those
      facts.

           The standard by which the court considers allegations of
      improper prosecutorial comments is a stringent one:

            Comments by a prosecutor constitute reversible error
            only where their unavoidable effect is to prejudice the
            jury, forming in their minds a fixed bias and hostility
            toward the defendant such that they could not weigh
            the evidence objectively and render a fair verdict.

Commonwealth v. Chmiel, 30 A.3d 1111, 1146-1147 (Pa. 2011) (emphasis

in original) (internal citations omitted).


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      The following reflects the statements made by counsel and the ruling by

the trial court to which Appellant objects in the case sub judice:

      [ADA Goldfarb]: Thank you, your Honor. Mr. Capone, ladies and
      gentlemen of the jury, this was actually a very quick jury
      selection, but just to reintroduce myself, my name is Lee Goldfarb,
      and I am the Assistant District Attorney that is handling this case.

           I am a member of what we call the Child Abuse Unit.
      And there are four other attorneys that handle these cases
      with me. And all we do are cases in which a child, someone
      under the age of 18, is physically or sexually assaulted by
      an adult, a crime against someone under the age of 18.

            And the reason this is important is that we’re going to
      talk at some point during this trial about a concept, and you
      are going to hear from the detective as to delayed reporting.
      And what does that mean? Delayed reporting means that a
      crime occurred and someone did not tell immediately
      afterwards.

            And you are going to hear from the detective about
      delayed reporting. I can tell you that in the number of cases
      I have handled over the course of my career in child abuse
      I have only had one handful of people, especially children,
      that told immediately.

      [Appellant’s Counsel]: Objection, your Honor.

      [The court]: Can I see counsel at sidebar, please.

      (Discussion at side bar.)

      [Appellant’s counsel]: I believe it is improper for her to comment
      on the other cases, to bolster the credibility of her current victims
      based on her experience or other cases that have come through
      the system. There is going to be no evidence of any of that during
      the course of this trial.

      [The court]: Are you going to be presenting evidence about the
      number of cases?




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     [ADA Goldfarb]: Detective Honan will be called to testify that in
     his experience in investigating child abuse cases, the number of
     cases he has personally investigated that have reported right
     away versus a delayed report, and the fact that there is a variety
     of factors that lead to that.

           The girls are also going to testify as to the reason for their
     delayed report.

     [The court]: I think it fair to allow her to open on the testimony
     will be that delayed reporting is common, and that there are
     various reasons for it, and that she anticipates the witnesses will
     explain their reasons for the delayed report.

           But she can’t testify in the case, and so she can’t say what
     she, herself, would be testifying to.

     [Appellant’s Counsel]: Because she did testify about a handful of
     cases that she has seen, I would at this point move for a mistrial.

     [The court]: It does put the Commonwealth in the position of a
     witness.

     [ADA Goldfarb]: Your Honor, I believe that could just be -- it was
     couched in the testimony from the detective, it wasn’t specifically
     me talking about specific cases; just generally that we don’t have
     this a lot.

            I think that we are allowed to testify -- open and close from
     personal experiences. Defense counsel always tells stories during
     their closing arguments about times that they have been accused
     of things before, and how that made them feel; we are allowed to
     relate a little bit to the subject matter and the nature of these
     charges.

            It[’]s not expert testimony, not testimony, it is just
     these are a fact [sic]. I don’t believe it would be improper,
     I will move on from this. I also don’t believe it warrants a
     mistrial in this case.

     [The court]: I haven’t researched this specific issue. I would
     ordinarily say that the Commonwealth summarizing testimony
     from witnesses generally is absolutely appropriate. The concern


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     I have here is that Ms. Goldfarb used herself in her case as the
     example, and she can’t testify.

           I can instruct the jury to ignore that, and I am to
     assume that the jurors are capable of following the
     instructions of the [c]ourt.  I will instruct them that they
     must ignore statements of the District Attorney’s personal
     experience, they can only consider the District Attorney’s
     summary of the evidence.

           And I believe that would be sufficient to cure any
     miscue here. I don’t know where the prejudice would be to
     the defense in the case, particularly in light of the fact that
     Ms. Goldfarb is the one at the end of the case that has to
     stand up and meet her burden and what she’s told them she
     is going to present, so as she summarizes testimony from
     the detective and that then doesn’t come out for some
     reason, I am sure you will be the first to point that out, too,
     during closing.

     [Appellant’s Counsel]: Yes, your Honor.

     [The court]: So the mistrial will be denied. I will instruct the jury
     to ignore the comments.

     [Appellant’s Counsel]: Thank you, your Honor.

     [ADA Goldfarb]: Thank you.

     (End of sidebar discussion.)

     [The court]: Ladies and gentlemen, I am going to strike from the
     record any comments that Ms. Goldfarb made about her own
     personal experience. She is permitted to summarize for you what
     the Commonwealth’s evidence in the case will be, but she is not,
     as I indicated, the attorneys are not witnesses in the case, and so
     she is not permitted [to] tell you about her personal experience
     with regard to the cases.

          So I will ask that you ignore any comments about her
     personal experience, you can’t consider it for any reason. Thank
     you.

N.T., 6/7/17, at 25-31.

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J-S68004-18



      In addressing Appellant’s claim in its Pa.R.A.P. 1925(a) opinion, the trial

court concluded:

      Appellant did not suffer prejudice as it related to this [c]ourt’s
      decision not to declare a mistrial, as the Commonwealth continued
      to carry the burden of testimony consistent with her opening
      statement. The prosecutor indicated that one of her witnesses
      would speak to his experience with delayed reporting, and further
      indicated that two of the victims would testify and explain why
      they failed to report the abuse promptly. Had the Commonwealth
      failed to produce testimony consistent with the prosecutor’s
      opening statement, Appellant’s counsel would have been free to
      exploit the deficiency during his closing argument. Appellant did
      not suffer prejudice and his first claim is without merit.

Trial Court Opinion, 2/12/18, at 4.

      We agree with the trial court that Appellant is entitled to no relief on

this claim.   First, the jury was instructed by the trial court that opening

remarks and argument of counsel do not constitute evidence that is to be

weighed. N.T., 6/7/17, at 20-21. “The jury is presumed to have followed the

court’s instructions.” Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).

Second, as the trial court observed, the jury heard testimony from Detective

Honan regarding the concept of delayed reporting of abuse. N.T., 6/8/17, at

18-32. Moreover, the victims testified regarding their reasons for delayed

reporting of the abuse. N.T., 6/7/17, at 41-69, 69-99. Finally, the trial court

issued a curative instruction, advising the jury that it was not permitted to

consider ADA Goldfarb’s comments regarding her personal experience in

handling these matters. Id. at 31. As noted, the jury is presumed to have

followed the court’s instructions. Flor, 998 A.2d at 632. In light of these

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factors, we are compelled to conclude that the prosecutor’s isolated opening

argument remark did not result in prejudice to Appellant. Thus, Appellant is

entitled to no relief on his first claim.

        In his second issue, Appellant argues that the trial court abused its

sentencing discretion by imposing a manifestly excessive and unreasonable

sentence. Appellant’s Brief at 35. Specifically, Appellant asserts that the trial

court abused its discretion in sentencing him “to four consecutive terms of

incarceration by failing to place reasons on the record evidencing its

considerations of the factors statutorily required by 42 Pa.C.S. §§ 9721(b) [5]

and 9725.[6]” Id. at 37.

____________________________________________


5 Section 9721(b) provides that “the 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.”

6   Section 9725 states:

        The court shall impose a sentence of total confinement if, having
        regard to the nature and circumstances of the crime and the
        history, character, and condition of the defendant, it is of the
        opinion that the total confinement of the defendant is necessary
        because:

        (1)   there is undue risk that during a period of probation or
              partial confinement the defendant will commit another
              crime;

        (2)   the defendant is in need of correctional treatment that can
              be provided most effectively by his commitment to an
              institution; or



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       Appellant’s issue challenges the discretionary aspects of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of a

sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for allowance

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

       As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

             An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a four-
       part test:

                    [W]e conduct a four-part analysis to determine:
              (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. [708]; (3) whether appellant’s brief has
              a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
              there is a substantial question that the sentence
              appealed from is not appropriate under the
              Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)). The determination of whether there is a substantial question is made

on a case-by-case basis, and this Court will grant the appeal only when the

appellant advances a colorable argument that the sentencing judge’s actions


____________________________________________




       (3)    a lesser sentence will depreciate the seriousness of the
              crime of the defendant.

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were either: (1) inconsistent with a specific provision of the Sentencing Code;

or (2) contrary to the fundamental norms which underlie the sentencing

process.    Commonwealth v. Sierra, 752 A.2d 910, 912–913 (Pa. Super.

2000).

       Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenges in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

       “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”            Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement,

Appellant argues that the trial court’s sentence is manifestly excessive,

constituting too severe a punishment, and the trial court failed to offer reasons

for its sentence that comport with the requirements set forth in 42 Pa.C.S.

§§ 9721(b) and 9725.7 Appellant’s Brief at 32-33. Appellant also argues that

____________________________________________


7 In the argument section of his brief, Appellant specifically argues that the
trial court “failed to account for [Appellant’s] non-criminal justice system
related history and character; his condition; and his rehabilitative needs,
which were and are substantial. Most significantly, the trial court failed to
acknowledge or at all consider the severe diseases of mental illness and



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“by imposing four consecutive sentences of incarceration, [Appellant]

contends that the trial court imposed a manifestly excessive sentence

constituting too severe a punishment.” Id. at 32-33.

       This Court has held that a challenge to the imposition of consecutive

sentences as unduly excessive, together with a claim that the trial court failed

to consider the defendant’s rehabilitative needs upon fashioning its sentence,

presents a substantial question.         Commonwealth v. Caldwell, 117 A.3d

763, 770 (Pa. Super. 2015) (en banc). Because Appellant has presented a

substantial question, we proceed with our analysis.

              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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).

             When imposing a sentence, the sentencing court must
       consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
       protection of the public, gravity of offense in relation to impact on
       victim and community, and rehabilitative needs of defendant, and
       it must impose an individualized sentence. The sentence should
       be based on the minimum confinement consistent with the gravity
       of the offense, the need for public protection, and the defendant’s
       needs for rehabilitation.




____________________________________________


addiction underlying [Appellant’s] criminality.”       Appellant’s Brief at 39
(internal citation omitted).

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Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006). Guided

by these standards, we must determine whether the court abused its

discretion by imposing a “manifestly excessive” sentence that constitutes “too

severe a punishment.” Id. Moreover, this Court has explained that when the

“sentencing court had the benefit of a presentence investigation report

(“PSI”), we can assume the sentencing court ‘was aware of relevant

information    regarding    defendant’s       character   and   weighed     those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.

       At the sentencing hearing, the trial court gave the following reasons for

imposing Appellant’s sentence:

             THE COURT: So I have carefully reviewed his pre-sentence
       report, and while these charges were a result of delayed report
       and the conduct for which he was convicted relates back to, I
       believe, it was 2008, I am going to take into consideration
       [Appellant’s] subsequent behavior in the community when I make
       a determination regarding my obligation to consider the protection
       of the public.

             I note that [Appellant] began committing crimes in 1987
       with a retail theft, and that since that time, he has consistently
       been involved with the criminal justice system for the course of
       years.

             He has been convicted four times, according to my count,
       of simple assault with female victims, and the majority of the
       crime[s] of violence [were] involving female victims, terroristic
       threats, one time, harassment and disorderly conduct and so on.

             In addition to that, he has a total of four, now, felony
       convictions. He has, over the course of time, served sentences of
       probation where he was afforded the opportunity to address his


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      mental health issues and his addiction, and his supervision history
      can really only be described as poor.

             Failing to cooperate and abide by supervision conditions,
      violating his [Justice Related Services (“JRS”)] plan, and in light
      of the serious nature of these offenses, and the fact that there are
      two victims and [Appellant] has demonstrated an inability or an
      unwillingness to comply with any sort of supervision or avail
      himself of treatment opportunities that he has been given over
      the many years[.]

N.T., Sentencing, 8/29/16, at 8-9.

      In its Pa.R.A.P. 1925(a) opinion, the trial court further explained that:

      This [c]ourt considered Appellant’s ongoing involvement with the
      criminal justice system since 1987 in determining that Appellant
      remained a considerable threat to the public. He has been
      convicted four times of assaulting women and now has four felony
      convictions. He has not taken advantage of previous probation
      sentences to address his mental health and addiction issues, and
      his supervision history is poor. The sentence is thoroughly
      reflective of the gravity of the offense as it relates to the impact
      on two young victims by Appellant, a man who was in a position
      of trust with them as their stepfather, and of the need to protect
      the community, but also allows the possibility for Appellant to
      reenter society as a rehabilitated man after having served his
      aggregate sentence of 8 to 17 years.

Trial Court Opinion, 2/12/18, at 6.

      As is reflected by the record, the trial court considered the protection of

the public, the gravity of the offense in relation to its impact on the victim and

community, and the rehabilitative needs of Appellant in sentencing Appellant.

Fullin, 892 A.2d at 847. Moreover, the trial court considered these factors in

imposing a sentence of confinement. Accordingly, we conclude that the trial

court did not abuse its discretion by failing to take into consideration the




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factors required by 42 Pa.C.S. §§ 9721(b) and 9725 in imposing upon

Appellant an individualized sentence.

      Moreover, the trial court had the benefit of a PSI. Thus, we can assume

the sentencing court was aware of relevant information regarding Appellant’s

character and weighed those considerations along with mitigating statutory

factors. Moury, 992 A.2d at 171; see also Commonwealth v. Fowler, 893

A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court had and

considered a [PSI], this fact alone was adequate to support the sentence, and

due to the court’s explicit reliance on that report, we are required to presume

that the court properly weighed the mitigating factors present in the case.”).

Accordingly, Appellant’s argument that the trial court failed to consider

mitigating evidence, specifically his need for rehabilitation, fails. See Moury,

992 A.2d at 171; Fowler, 893 A.2d at 766.

      Furthermore, we cannot agree that the sentence imposed was

excessive. Appellant was sentenced to the following with regard to each of

the convictions:

      [The Court]: [A]t Count 5, I would I [sic] impose a sentence in
      the aggravated range of 27 to 60 months incarceration. He is not
      RRRI eligible. He does have some credit time on this case, I
      believe, [Appellant’s counsel]?

      [Appellant’s Counsel]: Yes. Your Honor. March 30, 2016 was the
      arrest date on this case. He’s been incarcerated ever since.

      [The Court]: At Count 6, endangering, also a course of conduct,
      a Felony 3, a period of incarceration of 21 to 42 month[s]. That
      is consecutive to Count 5.


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           At Count 7, the corruption, a misdemeanor of the first
     degree, a period of five years of probation, consecutive to all the
     incarceration. You’re charged with specific special conditions of
     supervision to apply.

                                         ***

     With regard to the second victim, at Count 13, [indecent] assault,
     a period of 27 to 60 months. That is also consecutive to Count 6,
     and at Count 14, a period of 21 to 42 months consecutive to Count
     13.

           At Count 15, the corruption count, a period of five years of
     probation consecutive to incarceration, but concurrent with the
     probation imposed at Count 6, subject to the same special
     conditions of supervision.

            All of his sentences, as I indicated at Count 5, he is not RRRI
     eligible, but he will receive credit.

N.T., Sentencing, 8/29/17, at 9-11.

     Appellant’s convictions at counts five and thirteen for indecent assault

of a victim less than thirteen years of age/ course of conduct at 18 Pa.C.S.

§ 3126(a)(7) were graded as felonies of the third degree.            18 Pa.C.S.

§ 3126(a)(7).   The statutory maximum sentence for a felony of the third

degree is seven years. 18 Pa.C.S. § 106(b)(4). The trial court sentenced

Appellant to twenty-seven to sixty months of incarceration for these

convictions. Thus, Appellant’s sentence for these convictions does not exceed

the statutory maximum. Moreover, Appellant’s offense gravity score (“OGS”)




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was six, and his prior record score (“PRS”) was four.8 Sentencing Guidelines

Forms, 8/29/17, at 1-6.          The standard-range guideline sentence for that

OGS/PRS pairing is a minimum sentence of fifteen to twenty-one months of

incarceration, with the aggravated/mitigated range modifier of +/- six

months.     204 Pa.Code § 303.16.              Accordingly, Appellant’s sentence for

indecent assault at Section 3126(a)(7) was in the aggravated sentencing

range but was still within the guidelines. Therefore, we review for whether

that sentence was “clearly unreasonable.” Commonwealth v. Bowen, 975

A.2d 1120, 1123-1124 (Pa. Super. 2009); 42 Pa.C.S. § 9781(c).

       As noted, the trial court placed its reasons for imposition of this sentence

on the record, including Appellant’s history, the impact on the victims, and

Appellant’s failure to rehabilitate. “A sentencing court may consider any legal

factor in determining that a sentence in the aggravated range should be

imposed.” Commonwealth v. Stewart, 867 A.2d 589, 592–593 (Pa. Super.

2005).    “In addition, the sentencing judge’s statement of reasons on the

record must reflect this consideration, and the sentencing judge’s decision

regarding the aggravation of a sentence will not be disturbed absent a



____________________________________________


8 We note that for the convictions of 18 Pa.C.S. § 3126(a)(7), the trial court
misidentified the OGS as “five”, but properly indicated the grade as a felony
of the third degree, the standard range, and the statutory maximum.
Sentencing Guideline Forms, 8/29/17, “Form 5 of 15”, at 1; “Form 13 of 15”,
at 1. See Sentencing Guidelines, 204 Pa.Code § 303.15, (identifying 18
Pa.C.S. § 3126(a)(7), indecent assault with victim less than thirteen years of
age/ course of conduct, as having an OGS of six).

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manifest abuse of discretion.” Id. at 593. Considering the reasons placed on

the record by the trial court, we cannot conclude that the trial court’s

imposition of sentence in the aggravated range was “clearly unreasonable.”

Bowen, 975 A.2d at 1124. Thus, we find that the trial court did not commit

an abuse of its discretion.

      The convictions at counts six and fourteen for EWOC at 18 Pa.C.S.

§ 4304(a)(1) were felonies of the third degree.    18 Pa.C.S. § 4304(a)(1).

Again, the statutory maximum sentence for a felony of the third degree is

seven years. 18 Pa.C.S. § 106(b)(4). The trial court sentenced Appellant to

twenty-one to forty-two months. Order, 8/29/17, at 1-2. Thus, Appellant’s

sentence did not exceed the statutory maximum.       Moreover, the standard

range guideline for Appellant’s OGS (six)/ PRS (four) pairing for these

convictions is a minimum sentence of fifteen to twenty-one months of

incarceration, with the aggravated range modifier of +/- six months.     204

Pa.Code § 303.16.     Therefore, Appellant’s sentences for these convictions

were within the standard range. “A standard range sentence carries its own

presumption of reasonability.” Commonwealth v. Hicks, 151 A.3d 216, 228

(Pa. Super. 2016) (quoting Commonwealth v. Walls, 926 A.2d 957, 964–

965 (Pa. 2007)).

      Furthermore, counts seven and fifteen, for convictions of corruption of

minors at 18 Pa.C.S. § 6301(a)(1)(i), were misdemeanors of the third degree,

carrying with them a maximum sentence of five years. Order, 8/29/17, at 1-


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2; 18 Pa.C.S. § 106(b)(6). Appellant was sentenced to five years of probation

on each of those counts, to be served concurrently. Order, 8/29/17, at 1-2.

Accordingly, Appellant’s sentences for these convictions were not unlawful,

and in fact, were in the mitigated guideline range. Thus, we cannot conclude

that they were unreasonable.

      In sum, the trial court carefully considered the Sections 9721(b) and

9725 factors when sentencing Appellant, including his rehabilitative needs.

The trial court reviewed the PSI and other information at its disposal when

determining the sentence necessary considering the gravity of the offenses,

the impact on the victims, and the need to protect the public in the future. It

sentenced Appellant to consecutive terms of imprisonment, which resulted in

an aggregate term of eight to seventeen years of imprisonment, and two

sentences of five years of probation to be served consecutively to the

imprisonment, but concurrently to each other.         This application of the

guidelines was not unreasonable.       Thus, the trial court did not abuse its

discretion in sentencing Appellant.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 1/11/2019




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