J-S63009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL THOMAS SEARLE,

                            Appellant                No. 833 MDA 2014


              Appeal from the Judgment of Sentence April 2, 2014
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000386-2014


BEFORE: BOWES, PANELLA, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 15, 2014

       Daniel Thomas Searle appeals from the judgment of sentence of time

served (seventy-five days) to twelve months incarceration imposed by the

court after he pled guilty to simple assault. We affirm.

       Appellant pled guilty to simple assault on April 2, 2014, after he was

charged with aggravated assault and simple assault following an attack on

his wife.    The assault occurred while Appellant was on parole for a prior

simple assault conviction for choking his wife.     In a statement to police,

Appellant’s wife set forth that this was not the first time he had hit her. She

stated that this incident resulted in him hitting her across the face, slamming

her body down, hitting her more times in the face, and then strangling her.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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He continued his assault by throwing sports balls at her and attempting to

strangle his wife again.      Appellant, according to his wife’s statement, then

slammed her against the wall several times.          A police video also existed

where Appellant admitted to kicking his wife.

        As a result of his plea, the court entered a no-contact order with his

wife.   However, despite the repeated abuse at the hands of her husband,

Appellant’s wife asked that the no-contact provision be removed so that they

could reside together. Accordingly, counsel filed a timely motion to modify

Appellant’s sentence on April 11, 2014. The court conducted a hearing, and

Appellant’s wife testified.     She asked that the no-contact order be lifted,

indicated    that   she   opposed   his    prosecution,   and   claimed   that   she

exaggerated the incident. The trial court, however, declined to remove the

no-contact provision.

        This appeal ensued. The trial court directed Appellant to file and serve

a concise statement of errors complained of on appeal. Appellant complied,

and the trial court authored its opinion.       The matter is now ready for this

Court’s review. Appellant’s sole issue on appeal is, “Did the [c]ourt err by

denying Daniel Searle’s [m]otion to [m]odify [s]entence where he asked that

no contact provisions re: his wife be removed, and when testimony was

offered at a hearing that such a result was requested by not only the

Defendant but also his wife?” Appellant’s brief at 4.




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      Appellant’s appeal is from the discretionary aspects of his sentence. To

adequately preserve a discretionary sentencing claim, the defendant must

present the issue in either a post-sentence motion, or raise the claim during

the sentencing proceedings. Commonwealth v. Cartrette, 83 A.3d 1030,

1042 (Pa.Super. 2013) (en banc). Further, the defendant must “preserve the

issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a

Pa.R.A.P. 2119(f) statement.” Id. Importantly, “There is no absolute right

to appeal when challenging the discretionary aspect of a sentence.”        Id.

“[A]n appeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Id.

      Appellant preserved his issue in his motion to modify his sentence and

his Pa.R.A.P. 1925(b) statement.       However, he has failed to include a

Pa.R.A.P. 2119(f) statement in his brief, despite the trial court indicating in

its opinion that his issue pertained to the discretionary aspects of his

sentence. Nonetheless, the Commonwealth has not objected to the absence

of a Pa.R.A.P. 2119(f) statement. Accordingly, we do not find waiver on that

basis. See Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super. 2005).

Further, we agree with both the Commonwealth and Appellant that his issue

does present a substantial question for our review. See Commonwealth v.

Koren, 646 A.2d 1205 (Pa.Super. 1994).           Nevertheless, we find that

Appellant is entitled to no relief.


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      Appellant argues that because his wife is not a minor nor mentally

challenged and did not request court protection, the no-contact order was an

abuse of discretion.    The Commonwealth responds that the no-contact

condition is reasonable and necessary for Appellant’s rehabilitation since he

has been convicted of abusing his wife in the past. In the Commonwealth’s

view, the trial court’s order “is in accord with the protection of the victim,

the gravity of the offense (attempted strangulation), and the rehabilitative

needs of the defendant.” Commonwealth’s brief at 4. We agree.

      Victims do not pursue charges in this Commonwealth. Rather, in order

to protect not only a victim, but the community, a prosecution is instituted

by the government. Accordingly, a victim of spousal abuse does not decide

whether to prosecute.    Spousal abuse is a serious problem, and a crime.

That Appellant’s wife wishes to remove the no-contact provision does not

ipso facto result in the court erring in declining to remove the sentencing

condition.

      Here, the court reasoned that Appellant was convicted of assaulting his

wife and “admitted to physically abusing her on at least two prior occasions.”

Trial Court Opinion, 6/3/14, at 5.   It opined that the no-contact condition

was needed to guarantee the victim’s safety and was consistent with public

protection.   The sentencing court noted that removing the provision could

create “a potentially dangerous environment.”        Id.    It further found

Appellant’s wife’s testimony at the sentence modification hearing wholly


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incredible. We find the court’s statement that it “has an obligation to afford

[the victim] protection from her abuser even when she is unable or unwilling

to recognize the danger he poses[,]” to be sound. Id. at 6.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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