J-S57039-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

DEONTE SATCHELL

                            Appellee                 No. 610 EDA 2014


             Appeal from the Judgment of Sentence July 12, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004850-2011


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 09, 2015

        The Commonwealth appeals from the July 12, 2013 judgment of

sentence, imposing an aggregate term of time served, i.e. 167 days’, to two

years less one day’s incarceration plus seven years’ probation on Appellee,

Deonte Satchell, following his conviction by a jury for rape, involuntary

deviate sexual intercourse (IDSI), and simple assault.1 After careful review,

we affirm.

        The trial court provided the following summary of the facts of this

case.

                    [Appellee] was charged with rape and related
              offenses following an incident that occurred on June
              20, 2011.     The victim and [Appellee] were/are
              boyfriend and girlfriend. This incident occurred at
____________________________________________
1
    18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), and 2701(a)(1), respectively.
J-S57039-14


          the Barkley Square Apartments, located at 1600
          Garrett Road in Upper Darby. Prior to this incident,
          [Appellee] and [the] victim had been dating for more
          than a year. The two had been living together for
          several months before this incident. During their
          relationship, the victim had become pregnant by
          [Appellee] with a set of twins, but had suffered a
          miscarriage twenty-one weeks into her pregnancy.
          This miscarriage occurred on January 26, 2011,
          approximately five (5) months before the crime.
          Both the [Appellee] and victim had a difficult time
          dealing with the miscarriage.

                On the night before this incident, [Appellee]
          and victim argued and victim told [Appellee] that she
          wanted to break up with him. This was because she
          believed that [Appellee] was being unfaithful.
          [Appellee] also believed that the victim was being
          unfaithful. The two wanted to examine each other’s
          cell phones for text messages containing any
          evidence of their alleged infidelity.

                 On the night of June 20, 2011, [Appellee] and
          victim continued to argue and each accused the
          other of infidelity. They were also arguing about
          cooking, and [Appellee] was planning to leave the
          apartment. Before he did so, [Appellee] asked the
          victim if she would “give him some.” She did not
          realize that [Appellee] was referring to sex, and
          thought that he was referring to food. She explained
          that she wasn’t feeling too well and didn’t feel like
          cooking, so she replied “no.” [Appellee] became
          angry at her refusal, turned around, and approached
          her, saying that he “wanted it now.” In fear, she
          backed into a sliding-glass door. [Appellee] then
          grabbed her arms and began to drag her into the
          bedroom, a distance of “10 [to] 15 feet.” [Appellee]
          also smacked her wrists.       The victim continued
          yelling and saying “no,” and [Appellee] repeatedly
          said that he “wanted it now.” In vain, she tried to
          pull herself away from [Appellee].

                After [Appellee] got her into the bedroom, he
          forced her to perform oral sex on him. [Appellee]

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            raised his hand and yelled at her. She did not want
            to perform oral sex on [Appellee], and only did so
            because of his anger and also out of fear that he
            would hit her.    [Appellee’s] penis did enter her
            mouth.

                  At some point, [Appellee] told the victim to get
            on the bed. During this time, she told [Appellee] to
            stop. When [Appellee] asked her to take off her
            pants, she refused. [Appellee] then pulled off her
            pants. [Appellee] then vaginally penetrated her with
            his penis. She did not want to have intercourse with
            [Appellee].

                   [Appellee] told her that he “want[ed] to get
            [her] pregnant again.” [Appellee] continued having
            intercourse with the victim until he ejaculated. Soon
            after, [Appellee] said that “he didn’t want to do this
            anymore.” [Appellee] then left the victim alone in
            the room. Later, [Appellee] told her that he loved
            her and told her to stop crying. [Appellee] then tried
            to give her a hug. No weapons were used at any
            time by either person.

                  The victim called 911 from the apartment. She
            then went to Delaware County Memorial Hospital. At
            the hospital, she was examined by a Sexual Assault
            Nurse Examiner. She also gave a statement to a
            detective while at the hospital.

Trial Court Opinion, 3/10/14, at 1-3 (citations and footnotes omitted).

      Appellee was arrested on June 21, 2011, and charged with the

aforementioned crimes and related offenses. The trial court notes that the

prosecution proceeded despite the contrary wishes of the victim.

            [The victim] immediately began to have doubts
            about reporting what had happened.            Several
            months after the incident, the victim said that she
            still cared for [Appellee]. She did not want the case
            to be prosecuted, and she did not want [Appellee] to
            go to prison. She testified that she was told that,

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              because she had called 911, the case had to be
              prosecuted. Consistent with her express wishes, she
              did not appear at the first two scheduled definite
              trials [sic] dates for [Appellee], and only appeared
              the third time because a warrant was issued for her
              arrest.

Id. at 3-4.

      At the conclusion of a two-day jury trial held February 20-21, 2013,

Appellee was convicted of rape, IDSI, and simple assault.               Sentencing

hearings were held on May 24, 2013, and July 12, 2013, at which latter date

Appellee was sentenced to an aggregate term of 167 days’ to two years less

one day’s incarceration plus seven years’ consecutive probation.          Appellee

was not determined to be a sexually violent predator but is required to

register for life under the Sexual Offender Registration and Notification Act,

42 Pa.C.S.A. § 9799.15(a)(3).

              Prior to sentencing [Appellee], the victim testified on
              [Appellee’s] behalf. Before imposing its sentence,
              the [trial] court considered his psychosexual
              evaluation, presentence investigation, and Megan’s
              Law evaluation. The [trial] court considered the
              nature and seriousness of the crime, [Appellee’s]
              age, his family status, his vocation, his employment
              status, statements from the Commonwealth,
              statements from defense counsel and witnesses,
              [Appellee’s]   allocution,   and     the    sentencing
              guidelines.

Trial Court Opinion at 4 (citations omitted).          On July 16, 2013, the

Commonwealth filed a motion for reconsideration and modification of




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sentence.2      The trial court denied the Commonwealth’s motion on October

4, 2013. Thereafter, the Commonwealth filed a timely notice of appeal on

November 4, 2013.

       On appeal, the Commonwealth raises the following question for our

review.

              Did the sentencing judge abuse his discretion by
              imposing a sentence that was such an extreme
              departure below even the mitigated range of the
              Sentencing Guidelines that it was manifestly
              unreasonable not only because it was not consistent
              with the seriousness or gravity of the offenses
              committed, but also because the court’s reasons for
              going so far outside of the Guidelines did not justify
              such a radical departure[?]

Commonwealth’s Brief at 5.

       The Commonwealth’s issue implicates the discretionary aspects of the

sentence imposed by the trial court in this case.         We acknowledge the

following criteria guiding our review of this question.

                    The right to appellate review of the
              discretionary aspects of a sentence is not absolute,
              and must be considered a petition for permission to
              appeal. An appellant must satisfy a four-part test to
              invoke this Court’s jurisdiction when challenging the
              discretionary aspects of a sentence.

                   [W]e conduct a four-part analysis to
              determine: (1) whether appellant has filed a timely
____________________________________________
2
  Appellee did not file any post-sentence motion but did file a pro se notice
of appeal on July 19, 2013. That appeal was dismissed on March 5, 2014,
for failure to file a docketing statement in accordance with Pennsylvania Rule
of Appellate Procedure 3517. Commonwealth v. Satchell, 3127 EDA 2013
(Pa. Super. 2014)


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             notice of appeal; (2) whether the issue was properly
             preserved at sentencing or in a motion to reconsider
             and modify sentence; (3) whether appellant’s brief
             has a fatal defect; and (4) whether there is a
             substantial question that the sentence appealed from
             is not appropriate under the Sentencing Code.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.

2014) (citations omitted), appeal denied, 104 A.3d 1 (Pa. 2014).

     Instantly, the Commonwealth’s appeal is timely filed, and its issue is

preserved in its motion for reconsideration and modification of sentence.

Furthermore, the Commonwealth has included in its appellate brief a

statement of the reasons relied on for appeal of the discretionary aspects of

the instant sentence pursuant to Pennsylvania Rule of Appellate Procedure

2119(f).    We therefore proceed to determine if the Commonwealth has

advanced a substantial question permitting review.

             The determination of what constitutes a substantial
             question must be evaluated on a case-by-case basis.
             A substantial question exists only when the appellant
             advances a colorable argument that the sentencing
             judge’s actions 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal

quotation marks and citations omitted), appeal denied, 63 A.3d 774 (Pa.

2013).     “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.      Our inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying


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the appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (internal

quotation marks and citations omitted; emphasis in original).

      In its Rule 2119(f) statement, the Commonwealth “submits that the

trial judge abused his discretion by imposing an excessively lenient sentence

outside of the Sentencing Code.” Commonwealth’s Brief at 11. It further

claims the “sentence was not consistent with the seriousness and gravity of

the felony offenses,” and the trial court “inappropriately relied upon factors

already integrated in the formulation of the Sentencing Guidelines for the

standard range, typical case of the same offense.”          Id. At 12.    The

Commonwealth also asserts the trial “court also improperly gave defendant

consideration for factors that, if they had existed, would have placed

defendant into a higher sentencing guideline range.” Id. These contentions

raise a substantial question permitting our review.        Commonwealth v.

Daniel, 30 A.3d 494, 497 (Pa. Super. 2011) (holding the Commonwealth’s

allegations, inter alia, that a sentence “was unreasonably lenient, was

dependent upon improper factors…, [and] disregarded the serious nature of

the offenses,” posed a substantial question for review).        We therefore

proceed to a consideration of the merits of the Commonwealth’s appeal.

      When reviewing the discretionary aspects of a sentence imposed by a

trial court, we are heedful of the following principles.    “The imposition of

sentence is vested in the discretion of the trial court, and should not be


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disturbed on appeal for a mere error of judgment but only for an abuse of

discretion and a showing that a sentence was manifestly unreasonable.”

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013), appeal

denied, 83 A.3d 415 (Pa. 2014) (citation omitted). “The proper standard of

review for an appellate court is to focus on the pertinent statutory provisions

in the Sentencing Code, specifically 42 Pa.C.S. § 9781(c) and (d), and 42

Pa.C.S. § 9721(b).” Id. at 741 (citation omitted).

      Section 9781 provides in pertinent part as follows.

            § 9781. Appellate review of sentence

                                      …

            (c) Determination on appeal.--The appellate court
            shall vacate the sentence and remand the case to
            the sentencing court with instructions if it finds:

                                          …

                  (3) the sentencing court sentenced outside the
                  sentencing guidelines and the sentence is
                  unreasonable.

            In all other cases the appellate court shall affirm the
            sentence imposed by the sentencing court.

            (d) Review of record.--In reviewing the record the
            appellate court shall have regard for:

                  (1) The nature and circumstances 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.


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                    (3) The findings upon which the sentence was
                    based.

                    (4) The guidelines       promulgated    by   the
                    commission.

42 Pa.C.S.A. § 9781.       “Thus, the statutory unreasonableness inquiry is a

component of the jurisprudential standard of review for an abuse of

discretion.”     Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa. Super.

2007) (citation omitted).

      Section 9721 provides in pertinent part as follows.

               § 9721. Sentencing generally

                                        …

               (b) General standards.--In selecting from the
               alternatives set forth in subsection (a), 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. The court shall
               also consider any guidelines for sentencing and
               resentencing      adopted    by    the    Pennsylvania
               Commission on Sentencing…. …            In every case
               where the court imposes a sentence or resentence
               outside the guidelines adopted by the Pennsylvania
               Commission on Sentencing …, the court shall provide
               a contemporaneous written statement of the reason
               or reasons for the deviation from the guidelines to
               the commission….        Failure to comply shall be
               grounds for vacating the sentence or resentence and
               resentencing the defendant.

                                         …

42 Pa.C.S.A. § 9721(b).


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              Generally, our review of a sentence [for abuse of
              discretion] is limited [] to whether the sentencing
              court explicitly or implicitly considered the section
              9721(b) factors, and we may not re-weigh the
              significance placed on each factor by the sentencing
              judge. Given such a deferential standard of review,
              our Supreme Court recognized that rejection of a
              sentencing court’s imposition of sentence on
              unreasonableness grounds would occur infrequently.

Williams, supra at 742 (internal quotation marks and citations omitted.)

see also Commonwealth v. Jones, 565 A.2d 732, 734 (Pa. 1989) (holding

that respecting the sentencing “equation, reasonable men can obviously

differ and thus the law has seized upon the wise decision to give great

deference to the trial judge’s decision in this area”). “[T]he 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. Zirkle, --- A.3d ---, 2014 WL 7212598 at *4 (Pa.

Super. 2014) citing, Hoch, supra at 517–518.3

              In fashioning a sentence, the trial court must impose
              a term of confinement consistent with the protection
              of the public, the gravity of the offense as it relates
              to the impact of the victim and to the community,
              and the rehabilitative needs of the defendant….
____________________________________________
3
  With respect to its contention that the trial court abused its discretion, the
Commonwealth acknowledges the trial court was “well-intentioned,” and
gave “plenty of reasons” for the sentence. Commonwealth’s Brief at 9. We
are focused, therefore, not on whether the trial court acted for reasons of
“partiality, prejudice, bias or ill will.” See Zirkle, supra Rather, we are
focused on the Commonwealth’s claim that the resulting sentence is
manifestly unreasonable even in light of the trial court’s reasons. See Id.


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           Although the trial court must consider the
           Sentencing Guidelines, the court is not obligated to
           impose a sentence deemed appropriate under the
           Sentencing Guidelines. At the same time, the trial
           court cannot justly sentence a defendant unless it
           possesses sufficient and accurate information about
           the circumstances of the offense and the character of
           the defendant to formulate its judgment.           In
           imposing a defendant’s sentence, the trial court must
           state the reasons for the sentence on the record. As
           long as the trial court’s reasons demonstrate
           that it weighed the Sentencing Guidelines with
           the facts of the crime and the defendant’s
           character in a meaningful fashion, the court’s
           sentence should not be disturbed.

Commonwealth v. Anderson, 830 A.2d 1013, 1018-1019 (Pa. Super.

2003) (emphasis added), quoting Commonwealth v. Begley, 780 A.2d

605, 642-643 (Pa. 2001); see also Commonwealth v. Crump, 995 A.2d

1280, 1283 (Pa. Super. 2010) (holding where “the record as a whole reflects

that the trial court considered the facts of the crime and character of

Appellant in making its determination, we cannot re-weigh the sentencing

factors to achieve a different result”), appeal denied, 13 A.3d 475 (Pa.

2010).   “Even with the advent of the sentencing guidelines, the power of

sentencing is a function to be performed by the sentencing court.    Thus,

rather than cabin the exercise of a sentencing court’s discretion, the

guidelines merely inform the sentencing decision.”     Commonwealth v.

Walls, 926 A.2d 957, 961-962 (Pa. 2007) (citations and footnote omitted).

     Instantly, the Commonwealth claims the trial court’s reference to the

particular circumstances of this case as distinguishing it from other rape


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cases “mistakenly removed this case from the heartland (to borrow a federal

term) of the typical domestic rape case embodying the conduct that the

guideline   range    describes.”      Commonwealth’s      Brief     at   15.    The

Commonwealth asserts that, “[a]lmost every case of domestic violence or

domestic    sexual   assault    involves   the   same   dynamic.”        Id.   “The

Commonwealth submits that the case at bar was typical of the domestic

rapes that are encompassed in the Sentencing Guidelines.” Id.            “Moreover,

a number of factors relied upon by the court are neither valid nor have any

legal efficacy to differentiate this case from the typical conduct associated

with a domestic Rape/Involuntary deviate sexual intercourse prosecution.”

Id. at 17-18.

      It is undisputed the trial court considered the sentencing guideline

recommendations in this case. Commonwealth’s Brief at 9. The trial court

notes that it “is in no way diminishing the seriousness of [Appellee’s] crimes”

by remarking on the particular circumstances of the case, especially the

personal history between Appellee and the victim, the victim’s support for

Appellee at sentencing, the mutual desire for potential reconciliation, and the

insights offered by the psycho-sexual evaluation of Appellee.            Trial Court

Opinion, 3/10/14, at 14.       In compliance with Section 9721, the trial court

assessed 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.” 42 Pa.C.S.A. § 9721(b) (emphasis added).


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         We disagree with the Commonwealth’s assertion that the trial court’s

considerations of the history and relationship between Appellee and the

victim made this a “lesser rape” than other scenarios mentioned by the trial

court.    Commonwealth’s Brief at 20.      Rather, the trial court was properly

assessing the seriousness of the offense in relation to the other statutory

sentencing concerns. For example, at the sentencing hearing, the trial court

admonished Appellee about the seriousness of his offense.                “Rape, by

definition, is a serious offense. You asked the [victim] for sex, and she said

no. Then you dragged her by her arms to your bed.” N.T., 7/12/13, at 9.

However, the trial court also noted the particular circumstances of the

offense, e.g. that the offense was in the nature of domestic violence in the

shadow of the personal tragedy of the victim’s earlier miscarriage.           Trial

Court Opinion, 3/10/14, at 13.          This was not meant to diminish the

seriousness of the offense as claimed by the Commonwealth, but to provide

context for weighing the seriousness of the offense against the other

sentencing considerations.

         Thus the trial court noted the attitude of the victim, who supported

leniency at sentencing.

              The victim testified that she does not want anything
              bad to happen to [Appellee]. She said the same
              thing prior to trial in a notarized letter to the Court.
              She wrote that she, “cares about his well being, and
              does not want to see his life ruined behind bars from
              never getting the help that was desperately needed.”
              She expressly wrote that she, “did not want
              [Appellee] to do any jail time.”

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N.T. 7/12/13, at 5.      The trial court also observed the sincerity and

intelligence of the victim, noting she was not experiencing “battered victims

syndrome” in which some individuals persist in self-destructive choices. Id.

at 7-8.

      The trial court also reviewed the numerous character witnesses

attesting to Appellee’s good character. “Going to the history and character

of [Appellee], … by the victim’s own statements, [Appellee] is a good person

who made a bad choice, in fact, a criminal choice. This -- his character was

corroborated by numerous sentencing witnesses.”          Id. at 10.    These

witnesses also indicated that Appellee has an extensive support network in

the community that even the Commonwealth conceded at the sentencing

hearing.

             [BY THE ASSISTANT DISTRICT ATTORNEY]

             He has a whole side of the courtroom here who are
             going to help him set up a parole plan.

                                      …

             I’m confident and more than anything else in this
             case that these people will be able to provide, these
             good people will be able to provide him a place once
             he’s paroled. I don’t think that should be a concern
             for the Court at all.

Id. at 54.

      The trial court, further commented on its own observations of

Appellee.


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              Now another factor, the [trial c]ourt had the
              opportunity to observe [Appellee]. And that’s a fact
              the [trial c]ourt must consider. The [trial c]ourt did
              observe [Appellee] at trial and sentencing. Though
              the Commonwealth argued at sentencing that he was
              – [Appellee] was feigning remorse, the [trial c]ourt
              feels otherwise.

Trial Court Opinion, 3/10/14, at 11. The Commonwealth, in its brief, now

“accepts that there is a basis for the [trial] court’s perspective on the

showing of remorse.” Commonwealth’s Brief at 17.

        Finally, the trial court noted the results of the psycho-sexual report of

Appellee prepared by Dr. Surbeck.              “[The trial] court has read many

evaluations by Dr. Surbeck, and has found that she favors extensive post-

sentence restrictions.       In the case sub judice, however, Dr. Surbeck’s

evaluation was to a certain extent favorable to [Appellee].”              Trial Court

Opinion, 3/10/14, at 18. The trial court particularly noted “[Appellee] can

receive counseling, as Dr. Surbeck said, on the street [], and I think -- he

can get the counseling he needs, the counseling, the victim[] believes that

he needs so much.” N.T., 7/12/13, at 9.

        Weighing all these legitimate and statutorily required factors, the trial

court concluded “that [Appellee] is [not] such a threat to community that

would     require   a   --   the   prolonged     incarceration   asked   for   by   the

Commonwealth, and that otherwise could not be addressed by the jeopardy

of a long prison sentence while he is on supervision, as a result of any future

violations.” Id. at 10-11.


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        That the Commonwealth, or indeed that this Court, might weigh those

considerations differently is no basis for a determination that the trial court

abused its discretion.   See Crump, supra; Walls, supra at 966 (holding

the trial court’s generalized statements about the nature of an offense did

not preclude a finding based on the record, as a whole, that the trial court

imposed the required individualized sentence).

        The Commonwealth also claims the trial court relied on factors that do

not support mitigation, as they are factors already subsumed in the

sentencing guidelines or are collateral consequences. Commonwealth’s Brief

at 9.     “Hence, the fact that a 24 year old man has no prior convictions

would not be a reason to go outside of the standard guidelines sentencing

range because it has already been counted in the defendant’s favor in

arriving at the applicable guidelines.” Id. at 17. “Clearly, the requirement

that defendant is a lifetime registrant provides no justification for an

extreme downward departure and imposition of a sentence outside of the

Sentencing Guidelines.”      Id. at 19.        “[Appellee] should not get double

consideration    regarding   his   lack   of   prior   convictions.”   Id.   “The

Commonwealth recognizes and respects the trial court’s broad discretion in

sentencing. However, this is not simply a case where the court weighed the

appropriate sentencing factors, but chose to emphasize certain factors more

heavily than others.” Id. at 21. We disagree.




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          We do not conclude the trial court “double counted” guideline

considerations when it departed from the guidelines.              Its mention of

Appellee’s prior record, the fact no weapon was employed, and the SORNA

consequences was, as noted above, to describe the particular circumstances

of the case. The Commonwealth parses individual comments made by the

trial court out of context to justify a reweighing of the sentencing factors

rather than viewing the trial court’s entire analysis in light of the whole

record.

      The fallacy of the Commonwealth’s arguments is in supposing that

each observation or consideration by the trial court was an attempt to

distinguish   and   or   mitigate   Appellee’s   crime,   where    most   of   the

considerations concerned the rehabilitative needs of Appellee and the impact

of the crime of the victim and the community in light of the particular

circumstances of the offense. See Trial Court Opinion, 3/10/14, 10-15. In

reviewing the reasonableness of the trial court’s sentence under the factors

of Section 9781(d), the circumstances of the offense and character of

Appellee, the opportunity of the trial court to observe Appellee and review all

relevant considerations, the trial court’s findings and the sentencing

guidelines, we discern no abuse of discretion by the trial court.              See

Anderson, supra; Crump, supra. Neither do we conclude the sentence is

manifestly unreasonable in light of the entire record, including the position of

the victim, the results of the psycho-sexual evaluation by Dr. Surbeck, the


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contrition displayed by Appellee, and the circumstances of the crime.

Accordingly, we affirm the trial court’s July 12, 2013 judgment of sentence.

     Judgment of sentence affirmed.

     Judge Donohue joins the memorandum.

     Judge Stabile files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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