J-S17022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 TERRELL IRSHAD COLON                   :
                                        :   No. 1718 EDA 2017
                      Appellant         :

            Appeal from the Judgment of Sentence May 23, 2017
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002285-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.:                          FILED APRIL 06, 2018

     Terrell Irshad Colon appeals from the judgment of sentence entered in

the Court of Common Pleas of Monroe County. After our review, we affirm.

     At approximately 1:00 a.m. on May 5, 2015, the victim, S.O., who was

twelve years old, was awakened by his mother and struck twice with a belt.

At the time, S.O.’s mother was eight months pregnant.       Colon, mother’s

boyfriend, came into S.O.’s room, took the belt from mother, and proceeded

to beat S.O., striking him at least 20 times and causing injuries, including

lacerations, puncture wounds and bruising, all over his body. At school that

day, S.O. was crying in math class and his friend encouraged him to go to the

school nurse.      After examining S.O., the school nurse contacted Monroe

County Children and Youth, ChildLine, and the local police department. At
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trial, S.O. testified that he was beaten, first by his mother and then by her

boyfriend, because he ate cookie dough. N.T. Jury Trial, 2/21/17, at 36.

       Following an investigation, Colon was tried on charges of endangering

the welfare of a child (EWOC), 18 Pa.C.S.A. § 4304(a)(1), and simple assault,

18 Pa.C.S.A. §2701(a).1 A jury convicted Colon of EWOC; the jury was unable

to reach a unanimous verdict on the simple assault charge.

       The court ordered a presentence investigation report (PSI) and

subsequently sentenced Colon to one to three years’ imprisonment, an

aggravated-range sentence. Post-sentence motions were filed and denied.

This appeal followed.

       Colon raises two issues for our review:

          1. Whether the trial court erred in denying the defendant’s
             motion for mistrial after the jury foreperson indicated that
             the jury was unable to reach a unanimous verdict and jurors
             vacillated [on] a unanimous verdict?

          2. Whether the trial court erred or committed an abuse of
             discretion in imposing a sentence in a state correctional
             institution, for one to three years, for endangering the
             welfare of children?

Appellant’s Brief, at 4.

       The standard of review for determining whether a mistrial should have

been granted is well-settled:



____________________________________________



1S.O.’s mother was also charged; she entered a guilty plea to simple assault
(M2), and was placed on probation for one year.

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      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
      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.

      An abuse of discretion is more than an error in judgment. On
      appeal, the trial court will not be found to have abused its
      discretion unless the record discloses that the judgment exercised
      by the trial court was manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill-will.

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

footnote, internal citations, and quotation marks omitted).

      Colon argues that the initial confusion of one of the juror’s during polling

deprived him of his right to a unanimous verdict. After review of the record,

we find this claim meritless.

      Trial commenced in this case on February 22, 2017. The next day, at

10:16 a.m., the jury began deliberations.        At 4:00 p.m., the Honorable

Jonathan Mark informed counsel that the jury had indicated to the tipstaff that

a verdict had been reached and they were getting ready to come into the

courtroom, but then “one of the jurors reported to the tipstaves that the

[juror] had changed his or her mind and so there appears not to be a

unanimous verdict.” N.T. Jury Trial, 2/22/17 (daytime), at 78.

      Defense counsel made a motion for mistrial, which the court held in

abeyance pending hearing from the jury. Id. at 78-79. The jury foreperson

confirmed the situation, but indicated that the jury had a unanimous verdict


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on one of the charges.      Id. at 80.    The judge asked the jury to continue

deliberations. Id. at 81.   Since the jury indicated it had a unanimous verdict

on one of the charges, the court denied the motion for mistrial, without

prejudice. Id. at 86.

      One hour later, the jury came back. The foreperson announced a verdict

of guilty on the EWOC charge, and stated it was deadlocked on the simple

assault charge. N.T. Jury Trial, 2/22/17 (evening), at 8. The court polled the

jurors individually, and each one indicated the jury was deadlocked on the

simple assault charge but unanimous on the EWOC charge. However, Juror

No. 5 twice indicated he did not agree with the EWOC verdict. See id. at 9-

10. Each time, however, after initially indicating “no,” he stated, “All right.

Yes.” Id. Thereafter, sensing equivocation and confusion, the court further

questioned Juror No. 5:

      THE COURT:         So remember when I instructed each and every
      one of you that you have to decide this case for yourself, and then
      you have to have some discussion. And then you can only have
      a verdict of guilty or not guilty if you all agree, so 12 of you have
      to agree. So that’s all I’m going to ask you now.

      So first, you personally, do you agree that the Commonwealth
      proved beyond a reasonable doubt [] the charge of endangering
      the welfare of a child?

      JUROR NO. 5:        Yes.

      THE COURT:          Do you agree that the other 11 jurors also found
      that, so that all 12 of you find the defendant guilty of that charge?

      JUROR NO. 5:        Yes.




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      THE COURT:         And then do you also agree, for yourself and for
      the jury, that there is no verdict on simple assault because the 12
      of you can’t agree on that?

      JUROR NO. 5:       Yes.

Id. at 11.

      At this point, defense counsel requested further interrogation of Juror

No. 5, seeking clarification for the record.   The court continued:

      THE COURT:       Okay. Then no one wants to put words in your
      mouth, right? These have to be your words from your heart and
      your mind. So why when I first asked you if you agreed with the
      verdict as announced did you indicate no?

      JUROR NO. 5:       I wasn’t initially sure what you were talking
      about.

      THE COURT:         Okay. And is there any confusion in your mind
      now?

      JUROR NO. 5:       No.

N.T. Jury Trial, 2/22/17 (evening), at 12-13.       The court then questioned

defense counsel and the assistant district attorney, asking if either attorney

had any further questions for Juror No. 5. Both responded that they did not.

Defense counsel did, however, renew his motion for mistrial. Id. at 13. The

court granted the mistrial with respect to the simple assault charge, and

denied it with respect to the EWOC charge. Id. at 13-14, 19.

      In Commonwealth v. Jackson, 324 A.23d 350 (Pa. 1974), the

Pennsylvania Supreme Court reiterated that when a jury is polled, it is the

court’s duty to determine, before the verdict is accepted and recorded,

whether the answers of each juror indicate his concordance with the



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announced verdict. If the answer of any juror is unclear, or if it is questioned,

the court may further interrogate that juror before determining whether to

accept the verdict.   Id. at 353, citing Commonwealth ex rel. Ryan v.

Banmiller, 162 A.2d 354 (Pa. 1960). Where, as here, “an evasive answer of

a juror leaves doubt as to whether he has assented to the verdict, but his

answers indicate neither involuntariness nor coercion, a subsequent answer

or further interrogation which indicates clear and unequivocal assent will cure

any possible defect.” Jackson, 324 A.2d at 353 (emphasis added).

      Here, the record indicates that the jury unanimously agreed upon a

guilty verdict on the EWOC charge. The court complied with Jackson; the

court’s careful polling of the jury, its further interrogation of Juror No. 5 and

Juror No. 5’s clarification cured any possible defect. The trial court properly

determined that the jury had performed its function in accordance with the

law and had reached a unanimous verdict. We find no abuse of discretion.

Tejeda, supra. Under these circumstances, Colon’s contention that he was

entitled to a mistrial because there was no unanimous verdict is without merit.

      Next, Colon claims his sentence of one to three years’ imprisonment, an

aggravated-range sentence, was excessive and an abuse of discretion.           A

claim of excessiveness presents a challenge to the discretionary aspects of

sentencing. See Commonwealth v. Mouzon, 812 A.2d 617, 625 (Pa. 2002).

An appellant is not entitled to review of the discretionary aspects of sentencing

unless he or she satisfies a four-part test:




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       (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.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

       Here, Colon has filed a timely notice of appeal, preserved his claims in

a post-sentence motion, and his brief is without a fatal defect. Thus, we must

consider whether Colon raises a substantial question.

       Generally, to establish a substantial question, an appellant must prove

the sentencing court deviated from a specific provision of the Sentencing Code

or violated fundamental norms of the sentencing process. Commonwealth

v. Miller, 835 A.2d 377, 380 (Pa. Super. 2003).          In his Rule 2119(f)

statement, Colon states that his sentence, at the top of the aggravated range,2

was excessive because it focused only on the nature of the offense, relied on

impermissible factors, and did not consider the character of the defendant,

that he had no prior juvenile or adult arrests, that he was the primary

____________________________________________


2 The crime of EWOC, a misdemeanor of the first degree, see 18 Pa.C.S.A. §
4304(b)(1)(i), has an offense gravity score of 5. Colon has a prior record
score of 0. The standard range guideline sentence calls for a minimum
sentence of restorative sanctions – 9 months, and an aggravated range
sentence calls for a minimum of 3-12 months. Colon’s sentence of one to
three years’ imprisonment places his sentence at the top of the aggravated
range.

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caregiver of his two children, ages 2 and ten months, that he had a college

degree and was self-employed, and that he tested negative for use of any

controlled substance. Such a claim of excessiveness is considered a

substantial question, even if the sentence falls within the statutory limits and

the sentencing guidelines, as it does in the case at bar. Commonwealth v.

Simpson, 829 A.2d 334, 337 (Pa. Super. 2003).              To the extent Colon

complains that the court imposed an aggravated-range or manifestly

excessive   sentence    without   considering    mitigating   circumstances,    a

substantial question exists. See Commonwealth v. Dodge, 77 A.3d 1263,

1272–73 (Pa. Super. 2013) (en banc) (“The substantial question . . . is an

‘excessive sentence claim in conjunction with an assertion that the court did

not consider mitigating factors.’”). Similarly, insofar as Colon claims that the

court imposed an aggravated-range sentence based on impermissible factors,

a substantial question exists.    See Stewart, 867 A.2d at 592 (“Based on

[a]ppellant’s assertion that the sentencing court considered improper factors

in placing the sentence in the aggravated range, we conclude that [a]ppellant

presents a substantial question on appeal.”).      As such, we will review the

merits of Colon’s sentencing claim.

      In determining a proper sentence, the court shall impose a sentence

that is consistent with protecting the public, the gravity of the impact the

offense has on the life of the victim and the public, and the rehabilitative needs

of the defendant. 42 Pa.C.S. § 9721(b). See Commonwealth v. Galletta,

864 A.2d 532 (Pa. Super. 2004). “In every case in which the court imposes

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a sentence for a felony or misdemeanor, . . . the court shall make as a part of

the record, and disclose in open court at the time of sentencing, a statement

of the reason or reasons for the sentence imposed.” 42 Pa.C.S. § 9721(b).3

When determining whether an aggravated range sentence should be imposed,

the sentencing court may consider any legal factor.       Commonwealth v.

Stewart, 867 A.2d 589, 592–93 (Pa. Super. 2005) citing Commonwealth v.

Duffy, 491 A.2d 230, 233 (1985). A court is justified in considering the tender

age of the victim, his injuries, and the long term effects of those injuries as

legal factors supporting an aggravated range sentence. Commonwealth v.

Burns, 765 A.2d 1144, 1151 (Pa. Super. 2000). “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 manifest abuse of discretion.” Commonwealth

v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009).4

____________________________________________


3  Section 9721(b) further states: “In every case where the court imposes a
sentence outside the sentencing guidelines . . . the court shall provide a
contemporaneous written statement of the reason or reasons for the deviation
from the guidelines.” 42 Pa.C.S.A. § 9721(b). Here, the court sentenced
within the guidelines, albeit within the aggravated range. “The sentencing
court is not required to state its reasons for sentencing within one guideline
range over another.” Commonwealth v. Wright, 600 A.2d 1289 (Pa. Super.
1991).

4 We note that the Commonwealth, at sentencing, sought a sentence of six
months to twenty-four months, less one day, in the county correctional
facility. N.T. Sentencing, 5/23/17, at 11.




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       Here, the sentencing court noted that it had reviewed the PSI, that it

had considered Colon’s educational level5 and was aware of the fact that Colon

had completed anger management counseling. N.T. Sentencing, 5/23/17, at

12. The court also stated that it considered the sentencing guidelines. The

court, choosing to impose an aggravated-range sentence, stated the following

on the record:

          [W]hat happened here was a twelve year old child was
          severely beaten with a belt and, I think [the assistant
          district attorney] was being kind when he was describing it
          with the other words. [S.O.] had out and out puncture
          wounds from the portion of the belt buckle that goes
          through the loops.       As you heard me say before, in
          preparation [for] this morning I looked through the photos;
          they’re all of record, they’re part of the file, they’re part of
          the trial evidence. I also looked at the chart that the
          Children’s Advocacy Center doctor prepared on which she
          marked all of the parts of the body where there were bruises
          and where there were marks. . . . This is shocking. This is
          something that is unsettling and if nothing else in today’s
          world where people have lost confidence to some extent in
          the government, in the ability of the courts to either be fair
          or protect them[,] one thing I think is clear is that in all
          senses we take crimes against children, those who cannot
          protect themselves especially against much larger adults –
          . . . physical abuse, sexual abuse, even emotional and
          mental abuse – we take those things very seriously and
          society needs to take those seriously and this court does as
          well. This was a very serious case. The fact that this went
          to the extreme that it did to me is an aggravating factor and
          it also certainly warrants consideration beyond whatever the
          standard guidelines are[.] . . . I do note and accept the fact
          [] that you did in fact finish anger management counseling
          and the parenting classes; but I want to say this in a way
          that can be as clear as it can from a two-dimensional record.
____________________________________________


5 Colon has a Bachelor of Arts degree in in Justice Studies with an emphasis
in Child Advocacy in the Justice System from Montclair State University.

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         From everything that you’ve said and done and by being
         able to watch you in the courtroom, to me all that did was
         check off boxes in a Children and Youth case so that you
         could get them out of your lives and make sure that you had
         your children. I don’t see any real personal internalization
         of the things that you supposedly learned in those classes
         and it’s pretty clear to me that by your statements and your
         action that you will do and say anything to get Children and
         Youth out of your lives. In one sense people could look at
         what you did at the time when your girlfriend, the mother
         of now two of your children, was pregnant, as noble. I don’t
         think it was noble. Again, I view what happened here as
         people attempting to play the system in a case where a
         young man was beaten. So I don’t accept . . . the other
         view of this case . . . that you did the right thing or you
         didn’t do the right thing because you didn’t interfere. You
         didn’t do the right thing because you beat a child. . . I think
         this case deserves substantial accountability. . . . So
         because you have not really acknowledged what you’ve
         done and because you have given so many versions of
         events and to me have perfunctorily addressed these issues
         in terms of the counseling in a pro forma fashion I’m not
         sure if your rehabilitative prospects are significant. . . . This
         isn’t a moment of rage. This was intentional conduct that
         lasted for a significant period of time and caused significant
         injuries. . . . [A]s you can imagine this is going to have a
         lasting impact on him for the rest of his life[.]. . . So for all
         those reasons I think a substantial sentence is warranted in
         this matter[.]

Id. at 15-20.

      The sentencing has articulated quite clearly on the record its reasons for

the aggravated-range sentence. We accord great weight to the sentencing

court’s decision, as it is in a better position to view the defendant’s character,

displays of remorse, defiance or indifference, and the overall effect and nature

of the crime. Commonwealth v. Hanson, 856 A.2d 1254, 1260 (Pa. Super.

2004). Colon’s assertion that the trial court did not consider mitigating factors



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is more accurately an assertion that the court did not accord the factors the

weight that he wished. See Commonwealth v. Proctor, 156 A.3d 261, 274

(Pa. Super. 2017); Commonwealth v. Raven, 97 A.3d 1244, 1255 (Pa.

Super. 2014).     Here, the court considered Colon’s history, his lack of a

criminal record, and his education level, but chose to assign less weight to

those factors and more weight to the severity of the victim’s injuries, the

nature of the offense and its impact on the victim.

      Moreover, where the sentencing judge has the benefit of a PSI, “it will

be presumed that he or she was aware of the relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Finnecy, 135 A.3d 1028,

1038 (Pa. Super. 2016); see also Commonwealth v. Radecki, 2018 PA

Super 38, 2018 WL 989152 (filed February 21, 2018) (where sentencing court

had benefit of presentence investigation report, appellate court can assume

sentencing court was aware of relevant information regarding defendant’s

character and weighed those considerations along with mitigating statutory

factors).

      We conclude, that the court did not abuse its discretion in imposing an

aggravated-range sentence.     Bowen, supra.          We, therefore, affirm the

judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/18




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