J-A11002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
 JAMES LEWIS GUTHRIE, JR.                    :
                                             :
                    Appellant                :    No. 1625 MDA 2018

        Appeal from the Judgment of Sentence Entered May 7, 2018
    In the Court of Common Pleas of Clinton County Criminal Division at
                      No(s): CP-18-CR-0000505-2017


BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY BOWES, J.:                                 FILED JUNE 25, 2019

      James Lewis Guthrie, Jr. appeals from the judgment of sentence of

thirty-three months to twelve years of incarceration imposed by the trial court

following his guilty plea to one count each of stalking, and dissemination of

obscene materials, and four counts of unlawful contact with a minor.           We

affirm.

      From    September   15,   2016,   to       September   7,   2017,   Appellant

electronically transmitted multiple obscene images to the seventeen-year-old

victim consisting of a photo of her likeness.        The images included semen

covered photographs of the victim, a male having anal sex with a female that

had the victim’s head photoshopped onto it, and videos of a male

masturbating onto the victim’s picture. N.T. Guilty Plea, 4/30/18, at 6-7; see

also N.T. Sentencing, 5/7/18, at 20. Over this period of time, Appellant also
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repeatedly sent messages to the victim indicating that he was watching her,

describing what she was wearing, and requesting sexual acts.      N.T. Guilty

Plea, 4/30/18, at 8.

       On April 30, 2018, Appellant entered into a hybrid guilty plea to the

aforementioned charges.1          The Commonwealth withdrew four counts of

unlawful contact with a minor, eight counts of criminal use of a communication

facility, seven counts of disseminating obscene materials, and eight counts of

cyber harassment of a child. Although Appellant could have received up to

forty years of imprisonment, the Commonwealth agreed to cap the

incarceration at twelve months for each of the four counts of unlawful contact

with a minor, three months for stalking, and nine months for the dissemination

of obscene materials. Id. at 2-3. There was no agreement as to the minimum

sentences Appellant would receive or whether the sentences would be run

concurrently or consecutively to each other. At the close of the hearing, the

trial court judge noted that a presentence investigation had been completed

and that he would utilize it when fashioning Appellant’s sentence. Id. at 14.


____________________________________________


1  Since Appellant’s plea agreement did not include a specific term of
imprisonment, but did place limitations on his sentence it is a hybrid plea
agreement. See Commonwealth v. Dalberto, 648 A.2d 16, 21 (Pa.Super.
1994). This means that Appellant can appeal the discretionary aspects of his
sentence, which were not agreed upon during the negotiation process. Id.
To the extent that Appellant is challenging the discretionary aspects of his
sentence, we find that he has raised a substantial question.              See
Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa.Super. 2006) (finding that
a contention that the court considered impermissible sentencing factors raises
a substantial question).

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      On May 7, 2018, Appellant appeared for sentencing. At the hearing,

Appellant lodged an objection to the reading into the record of the victim’s

impact statement by her mother after it had already been admitted and the

trial court had reviewed it.   In addition, he objected to references in the

victim’s impact statement to “seven years of harassment” by Appellant, and

to the trial court’s refusal to permit him to cross-examine the victim’s mother.

N.T. Sentencing, 5/7/18, at 6-7, 13, 17. All of the objections were overruled.

Id. At the conclusion of the hearing, Appellant was sentenced consistent with

the terms of the plea agreement to an aggregate sentence of thirty-three

months to twelve years of incarceration.

      Appellant filed a timely post-sentence motion, in which he sought

modification of his sentence based on improper remarks contained in the

victim’s impact statement, the trial court’s decision to allow the victim’s

mother to submit and read aloud her impact statement, and the denial of

Appellant’s request to cross-examine the victim’s mother. After a hearing,

the trial court denied the motion. Appellant filed a timely notice of appeal and

complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) concise

statement of matters complained of on appeal.       The trial court’s Pa.R.A.P.

1925(a) opinion followed.

      Appellant raises the following issues for our review:

      A.    Whether the trial court committed an error of law/abuse of
            discretion in denying defense counsel the opportunity to
            cross-examine the victim’s mother at the sentencing


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              hearing in this       matter     following questioning by   the
              Commonwealth?

       B.     Whether the trial court committed an error of law/abuse of
              discretion in allowing the victim to submit a victim impact
              statement to the lower court outlining incidents that took
              place over “seven long years” when the charges at issue in
              this matter stem from a period from September 15, 2016[,]
              through September 7, 2017?

       C.     Whether the trial court committed an error of law/abuse of
              discretion in allowing the victim’s mother to read the victim
              impact statement into the record over the objection of
              defense counsel, based upon the overreaching nature of the
              victim impact statement and the fact that all parties in this
              matter had had written copies of the victim impact
              statement in their possession for weeks prior to the
              sentencing hearing?2

Appellant’s brief at 6 (unnecessary capitalization omitted).

       In his first issue, Appellant alleges that he was denied due process under

the confrontation clause of the Pennsylvania and United States Constitutions

when he was not allowed to cross-examine the victim’s mother at the

sentencing hearing. Appellant’s brief at 10. Appellant argues that because

the prosecutor asked the victim’s mother “if she would like to make a

statement to the Court” before she delivered her oral impact statement,

anything she said after that point was no longer a victim impact statement

and should have been subject to cross-examination. Id. at 11. We disagree

with Appellant’s characterization.



____________________________________________


2 While contained in his statement of issues, Appellant has provided no
argument regarding this issue in his brief. Therefore, it is waived.

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      The admissibility of evidence, including victim impact evidence, rests

within the sound discretion of the trial court. Commonwealth v. Bryant, 67

A.3d 716, 726 (Pa. 2013). The conduct of a sentencing hearing differs from

the trial of the case. Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa.

Super. 1999). To determine an appropriate penalty, the sentencing court may

consider any evidence it deems relevant. Id. While due process rights apply,

the sentencing court is neither bound by the same rules of evidence nor

criminal procedure as it is in a criminal trial. Commonwealth v. King, 182

A.3d 449, 455 (Pa.Super. 2018).

      A court is required to impose sentences “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.” 42 Pa.C.S. § 9721(b). To that end, a victim may:

      offer prior comment on the sentencing of a defendant . . . to
      include the submission of a written and oral victim impact
      statement detailing the physical, psychological and economic
      effects of the crime on the victim and the victim’s family. The
      written statement shall be included in any predisposition or
      presentence report submitted to the court.         Victim-impact
      statements shall be considered by a court when determining the
      . . . sentence of an adult.

Commonwealth v. King, 182 A.3d 449, 455 (Pa.Super. 2018) (quoting 18

P.S. § 11.201(5)). A parent of a child who is a direct victim is also considered

a victim. See 18 P.S. § 11.103.

      A review of the sentencing transcript reveals that the victim’s mother

provided an oral impact statement after the prosecutor asked: “would you

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like to make a statement to the [c]ourt as to how this has affected you?” N.T.

Sentencing, 5/7/18, at 11. Without any further direction, the victim’s mother

detailed her observations of the victim’s “suffer[ing]” and gave examples of

specific obstacles the victim has had to overcome due to Appellant’s actions.

Id. at 12-13.     The statement was concise and solely focused on how

Appellant’s actions had negatively affected the victim and their family. Id.

      In order to fully appreciate the gravity of a crime, human elements must

be considered.   We have previously emphasized that crime victims in this

Commonwealth have the “right to breathe life with all its emotion into their

victim impact statements.” Commonwealth v. Penrod, 578 A.2d 486, 491

(Pa.Super. 1989). The statement of the victim’s mother served to fulfill this

purpose, personalizing the victim and illustrating the human consequences

that have resulted from Appellant’s actions for the court’s consideration. We

decline to reframe this oral victim impact statement as testimony, solely

because the Commonwealth provided a guiding prompt. Appellant has offered

no legal authority compelling such a result. Without any, we decline to reach

a conclusion that could have a chilling effect on the willingness of future

victims to provide the court with oral impact statements, an important tool

that a sentencing court regularly utilizes.

      Next, Appellant attacks the trial court’s admission of the victim’s impact

statement because the victim referred to “seven long years” of harassment,

while Appellant only pled guilty to actions that occurred over the course of one


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year. Appellant’s brief at 11. He alleges that he is entitled to a new sentencing

hearing on this basis. Id. at 13. We disagree.

      At the sentencing hearing, the victim’s mother read a statement wherein

the victim stated that Appellant had “harassed” her for seven years and that

she felt he should be incarcerated for an equal amount of time.             N.T.

Sentencing, 5/7/18, at 17. Immediately following the statement, Appellant’s

attorney pointed out the fact that Appellant was only charged and convicted

of behavior that occurred over one year.       Id. at 17-18.     The trial court

responded:

      The [c]ourt has the same concern as the [d]efense [c]ounsel
      [h]as lodged numerous times about this going on for seven years.
      I’m truly sorry if it did go on for seven years and the police were
      not able to help. I would hope the District Attorney’s Office in
      hearing what’s been said today will discuss this at law
      enforcement meetings and make sure that if it did, in fact, go on
      for seven years, that there’s some way of local officers saying,
      hey, I don’t know what to do here; I need some help, other than
      just letting it go on.

Id. at 19 (emphasis added).

      Based on our review of the record, it is clear that the sentencing court

did not punish Appellant based upon a determination that he was guilty of

uncharged criminal conduct.      We have previously recognized that victim

impact statements may contain harsh statements regarding the defendant,

some of which may be properly classified as irrelevant or inflammatory.

Penrod, supra at 491. However, it is presumed that a trial court, sitting as




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fact-finder, will disregard prejudicial evidence. Commonwealth v. Fears, 86

A.3d 795, 820 (Pa. 2014).

      In its opinion, the trial court reiterated that the charges at issue occurred

during a one-year period and that it did not consider any allegations of

uncharged criminal conduct when it fashioned Appellant’s sentence.            Trial

Court Opinion, 10/9/18, at 2.     Furthermore, Appellant received a standard

range sentence for someone with a zero prior record score, while he had a

prior record score of one. N.T. Sentencing, 5/7/18, at 19. Also, the fact that

the sentencing court reviewed the presentence investigation report prepared

for sentencing leads to the presumption “that the court properly considered

and weighed all relevant factors in fashioning the defendant’s sentence.”

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.Super. 2013). Accordingly,

we find no abuse of the trial court’s sound discretion in sentencing.

      Judgement of sentence affirmed.

      Judge Stabile joins the memorandum.

      Judge Olson concurs in result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/25/2019



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