J-S72042-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
              Appellee                    :
                                          :
      v.                                  :
                                          :
DANIEL C. CROOM,                          :
                                          :
              Appellant                   :     No. 506 MDA 2016


           Appeal from the Judgment of Sentence February 23, 2016
                in the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001238-2015

BEFORE:      GANTMAN, P.J.,DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED DECEMBER 09, 2016

      Daniel C. Croom (Appellant) appeals from the judgment of sentence

entered on February 23, 2016, after he was found guilty of endangering the

welfare of children (EWOC), two counts of simple assault, and two counts of

conspiracy.1 We affirm.

      The pertinent factual history of this case was summarized by the trial

court as follows.

             On September 14, 2014 at 12:38[p.m.], Officer [Michael
      Sansosti] responded to a call from 500 South 15 th Street in the
      city of Reading. Arriving at the residence, Officer [Sansosti] met
      [D.D.], an eleven-year old boy, and his aunt, Marlene Thomas.
      Prior to arriving at his aunt’s house, [D.D.] fled his mother
      [(Mother)] and Appellant’s residence in significant fear. Before
      speaking with [D.D.], the officer was handed a letter written by
      [him.] The letter said:


1
 Specifically, Appellant was convicted of conspiracy to commit EWOC and
conspiracy to commit simple assault.
*Retired Senior Judge assigned to the Superior Court.
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           Here is my statement[.] I am having abusive issues
           in this house[.] I can’t take it anymore[.] I’ve been
           beaten until my butt was raw[.] I have internal
           bruising on my chest[,] neck[,] and I am supposed
           to be at school today but I am not[.] I am not
           sick[,] I do not have any appointment[,] it is just
           that [M]other and [Appellant] are trying to cover up
           the situation[.] I have been choked by [M]other[.]
           I’ve been punched in the head while I was asleep by
           [Appellant.] He threated to knock me out[.] He also
           threated to punch me in my temple[.] I will be
           running away goodbye I need out of this house.

            After reviewing the letter, Officer [Sansosti] asked “[D.D.
     what he] meant by things… in the letter.” [D.D.] responded that
     he had been beaten by Appellant, [M]other’s boyfriend, that
     morning and on other occasions. Also, [D.D.] mentioned to the
     officer that he had recently been hit in the chest by Appellant
     with an open palm. Appellant doled out this abuse because
     [D.D.] felt ill, [threw] up in a sink, and clogged the sink.
     Following his conversation with [D.D.], Officer [Sansosti] took
     several pictures of the child’s old and new scars and bruises.
     Officer [Sansosti] recommended that the child be taken to
     receive medical attention.

            At the hospital, Dr. Frank Moyes observed contusions
     located under [D.D’s] right eye, his chest, his right backside, and
     his right thigh. None of these injuries needed further treatment.
     While the extent of injuries at the hospital was limited to
     contusions, [D.D.] reported to several individuals and stated [to
     the trial court] that he had been subjected to many instances of
     abuse by [Appellant] and, on occasion, to the physical abuse
     perpetrated by [] Mother and Appellant.

            Appellant independently abused [D.D.] on many instances.
     … First, in one instance, Appellant slapped [D.D.] so hard that
     his head felt dizzy. Here, the proffered justification was [D.D.]
     had been accused of peeing in his brother’s mouth. Second, on
     another occasion, Appellant slammed [D.D.’s] head into a work
     bench, cutting [D.D.’s] head and leaving a scar. The justification
     for this assault, given by [D.D.], was that he had hit his brother
     in the face. On a third occasion, for an unexplained reason,
     [D.D.] was told to lean against a work bench and he was struck
     three times by Appellant. In protestation, [D.D.] began to

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        struggle and resist further punishment. Then, in response,
        Appellant flipped [D.D.] on his back and beat [his] buttocks. On
        a fourth occasion, Appellant hit [D.D.] with a closed fist seven
        times in the head. [D.D.] did not remember the provocation for
        this assault.

               Furthermore, Appellant and [Mother] jointly assaulted
        [D.D.] on numerous occasions. On one such occasion, Appellant
        and [Mother] dipped a belt in water and then proceeded to whip
        [D.D.] with it. On another occasion, Appellant and [Mother] had
        discussed how to beat [D.D.] and simulated such actions on his
        sister.   At apparently no provocation, Appellant then asked
        [D.D.] to pull his pants down and proceeded to spank [D.D.] five
        times. Moreover, even when Appellant perceived that [Mother]
        was being [abusive,] when she threw a spoon at [D.D.’s] neck
        cutting him, [Appellant] only questioned her actions.

              At trial, Amy Prosser, a former social worker and friend of
        [D.D., corroborated] many of these instances of abuse. When
        appropriate, she had reported many of these instances to
        Children and Youth Services. Finally, a social worker took the
        stand and also [corroborated] that [D.D.] had told her about
        many of the aforementioned assaults.

Trial    Court   Opinion,   5/31/2016,    at   3-4   (citations   and   unnecessary

capitalization omitted).

        Appellant was found guilty of the above-mentioned crimes following a

jury trial on February 23, 2016. That same day, Appellant was sentenced to

an aggregate term of four to thirteen years’ incarceration with credit for time

served, followed by ten years’ probation.            Appellant timely filed post-

sentence motions challenging the sufficiency and weight of the evidence, as

well as the discretionary aspects of his sentence.            On March 3, 2016,

Appellant’s motion was denied. This appeal followed.2

2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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              Appellant raises the following claims for our review.

      1. Whether the evidence presented is insufficient to sustain a
         finding of guilt against [] Appellant for the crimes of [EWOC],
         and    conspiracy     to    [commit     EWOC]     because   the
         Commonwealth failed to prove beyond a reasonable doubt
         that Appellant violated his duty of care to [D.D.], and
         conspired with [Mother] to violate this duty of care?

      2. Whether the verdict of guilty against Appellant for [EWOC],
         conspiracy to [commit EWOC], simple assault[,] and
         conspiracy to commit simple assault is contrary to the weight
         of the evidence presented, where the testimony provided by
         the juvenile was not credible, inconsistent[,] and contradicted
         by the testimony of other witnesses?

      3. Whether the trial court abused its discretion by sentencing
         Appellant to a term of [four to thirteen years of incarceration]
         in a state correctional institution followed by ten [] years of
         probation,    and   prohibiting    [Appellant]   from    having
         unsupervised contact with his own children, which was
         manifestly excessive, inflicts a punishment too severe under
         the facts of the case, and fails to consider the rehabilitative
         needs of [Appellant?]

Appellant’s    Brief   at   13-14   (suggested    answers    and      unnecessary

capitalization omitted).

      We begin with Appellant’s challenge to the sufficiency of the evidence,

mindful of our standard of review.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no

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     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] of fact while passing upon the credibility of witnesses
     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

     Further, in viewing the evidence in the light most favorable to
     the Commonwealth as the verdict winner, the court must give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     [T]o support a conviction under the EWOC statute, the
     Commonwealth must establish each of the following elements:
     (1) the accused is aware of his/her duty to protect the child; (2)
     the accused is aware that the child is in circumstances that could
     threaten the child’s physical or psychological welfare; and (3)
     the accused has either failed to act or has taken action so lame
     or meager that such actions cannot reasonably be expected to
     protect the child’s welfare.

Commonwealth v. Wallace, 817 A.2d 485, 490–91 (Pa. Super. 2002)

(internal quotation marks omitted).

     Appellant   avers   the   Commonwealth    failed   to   present   sufficient

evidence that he had committed or conspired to endanger the welfare of a

D.D. Appellant’s Brief at 22-23. Specifically, Appellant contends that “the

evidence presented at trial was insufficient to prove beyond a reasonable

doubt that [Appellant] violated a duty of care owed to [D.D.].” Id. at 24. In

support, Appellant argues that in order to violate his duty of care he “must


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be aware that the circumstances could threaten the child’s psychological

welfare.”   Id.   Here, Appellant claims that there was no need for medical

emergency services or evidence presented that the bruises seen on D.D.’s

body were the result of abuse by Appellant.          Id at 25.     Furthermore,

Appellant avers the testimony by third parties indicated that these incidents,

which Appellant contends were described to them by D.D., as nothing “more

than smacks on the back of his head… stemmed from behavioral issues

[D.D.] was experiencing.”    Id. Likewise, Appellant contends there was no

evidence that Appellant and Mother conspired to endanger D.D. Id.

      In its 1925(a) opinion, the trial court offered the following analysis:

             First, the record shows that a duty of care existed between
      Appellant and [D.D.].       The evidence at trial showed that
      Appellant was the boyfriend of [Mother,] Appellant lived in the
      house with [D.D.], and Appellant was routinely assigned
      [disciplinary functions by Mother]. As such, [Appellant] took on
      the role of a guardian and the accompanying duties. Second,
      [D.D.] was under eighteen at the time, in fact he was around
      eleven years old. Third, the Commonwealth has presented
      sufficient evidence that Appellant’s duty of care was violated.
      Here, Appellant routinely physically abused [D.D.]. For example,
      testimony was presented that Appellant hit [D.D.] in the head,
      slapped [D.D.] in the head and chest, beat [D.D.] with a belt,
      slammed [D.D.’s] head into a work bench, and arbitrar[ily]
      spanked [D.D.]. [Corroborating] some of this testimony were
      pictures of contusions and scars on [D.D.], as well as medical
      testimony about some recent bruises. In addition to his own
      physical abuse of [D.D.], Appellant also failed to react to the
      physical abuse when perpetrated by [Mother]. At trial, [D.D.]
      testified that on one occasion a spoon had been tossed at him by
      [Mother] cutting his neck. Appellant permitted the abuse to
      occur and only question[ed] those actions. He did not remove
      [D.D.] from the abusive situation or provide any further support
      to [D.D.].


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                                      ***

             The Commonwealth introduced evidence that Appellant
       and [Mother] had on occasion discussed how to beat [D.D.].
       More importantly, on several occasions, Appellant acted at the
       [behest] of [Mother] to carry out the abuse on [D.D.] Finally, in
       one instance of particularly cruel abuse, Appellant and [Mother],
       together, dipped a belt in water and then proceeded [to whip
       D.D.] with it. A reasonable jury could easily conclude that
       Appellant and [Mother conspired to endanger the welfare of
       D.D.].

Trial Court Opinion, 5/31/2016, at 6-7.

       In reviewing the evidence in light most favorable to the prevailing

party, we agree with the trial court that a reasonable jury could conclude

that Appellant both committed and conspired to endanger the welfare of

D.D.     Specifically, we find the evidence of abuse presented by the

Commonwealth could support the conclusions that: (1) Appellant was aware

that actions were a threat to D.D.’s physical and psychological well-being

and, (2) Appellant’s actions and inactions, both personally and in concert

with Mother failed to protect D.D.’s welfare.    See Wallace, 817 A.2d at

491–92 (“The language of the statute requires that the Commonwealth

prove that the accused ‘endangers the welfare of the child.’ ‘Endanger’ is

defined as ‘put[ting] (someone or something) at risk or in danger.’ ‘Risk’ is

defined as ‘a situation involving exposure to danger.’ But the statute does

not require the actual infliction of physical injury. Nor does it state a

requirement that the child or children be in imminent threat of

physical harm. Rather it is the awareness by the accused that his


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violation of his duty of care, protection and support is ‘practically

certain’ to result in the endangerment to his children’s welfare,

which is proscribed by the statute.”) (citations omitted; emphasis

added).

      Conversely, we cannot agree with Appellant that the evidence

presented was so unreliable or speculative as to preclude a finding of guilt.

See   Commonwealth v. Hughes, 908 A.2d 924, 928 (Pa. Super. 2006)

(“[T]he evidence at trial need not preclude every possibility of innocence,

and the fact-finder is free to resolve any doubts regarding a defendant’s guilt

unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances”).

Accordingly, Appellant’s sufficiency challenge fails.

      Appellant next claims that the verdict was against the weight of the

evidence.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

            However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The

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      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion.

Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa.

2000) (internal citations omitted).

      Appellant’s argument that the verdict is against the weight of the

evidence is based upon the “inconsistent, unclear, incredible” testimony that

was “contradicted” by several others who testified. Appellant’s Brief at 28.

      Appellant’s attack on the inconsistencies in the evidence is meritless.

His attempt to persuade this Court that the verdict was against the weight of

the evidence based solely on D.D.’s testimony and how it varied and

conflicted with other testimony presented is unavailing.          Reconciling

inconsistencies in the testimony was within the province of the fact-finder.

See Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (“A

motion alleging the verdict was against the weight of the evidence should

not be granted where it merely identifies contradictory evidence presented

by the Commonwealth and the defendant.”).

      Furthermore, Appellant’s weight claim dismisses the plethora of

evidence presented to support D.D.’s testimony that he was abused by

Appellant and Mother. The trial court found that “Appellant’s assertion of a

lack of credibility mischaracterizes [D.D.’s] testimony, as the physical

evidence of his injuries corroborated his testimony.”    Trial Court Opinion,

5/31/2016, at 9.    Dr. Frank Moyes testified these injuries include “some


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abrasions and some contusions. The contusions were located over his right

eye [on D.D.’s] left side, his chest, and on his right back side[, and] his right

thigh.” N.T., 2/22/2016, at 42. D.D. also presented with an abrasion and

contusion on his left arm.    Id.   Additionally, Amy Prosser and Katie High

both testified that D.D. had reported several incidents of abuse to them,

corroborating D.D.’s testimony that he was being abused by Appellant and

Mother.

      Here, the jury had the opportunity to hear all evidence presented and

assess the credibility of those who testified.      This included listening to

defense counsel speak at length during closing about the inconsistences in

the testimony presented. Despite this, it is evident by the jury’s verdict that

they found that not only was D.D. credible, but that his testimony, in

conjunction with the additional testimony and evidence presented supported

the finding that Appellant inflicted and conspired to inflict physically abuse

upon D.D.    For the foregoing reasons, Appellant has failed to convince us

that the trial court abused its discretion in holding that the verdict was not

against the weight of the evidence.

      Appellant’s final issue challenges the discretionary aspects of his

sentence.

      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,

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       exercised its judgment for reasons of partiality, prejudice, bias
       or ill will, or arrived at a manifestly unreasonable decision.

                                     ***

             When imposing sentence, a court is required to consider
       the particular circumstances of the offense and the character of
       the defendant. In considering these factors, the court should
       refer to the defendant’s prior criminal record, age, personal
       characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

       An appellant is not entitled to the review of challenges to the
       discretionary aspects of a sentence as of right. Rather, an
       appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction. We determine whether the
       appellant has invoked our jurisdiction by considering the
       following four factors:

            (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, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

       The record reflects that Appellant timely filed a notice of appeal and

that   Appellant   preserved   the   issue    by   timely   filing   a   motion   for

reconsideration of his sentence.     Moreover, Appellant has included in his




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brief a statement pursuant to Pa.R.A.P 2119(f).       We now turn to consider

whether Appellant has presented substantial questions for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.        Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      In his 2119(f) statement, Appellant avers “the sentencing court

ignored Appellant’s request to consider a county imprisonment sentence.

Furthermore, the sentencing court did not consider the requisite sentencing

factors, namely the rehabilitative needs of the [Appellant], his remorse

displayed during allocution and the fact that he was gainfully employed.”

Appellant’s Brief at 13.     Appellant also argues the trial court erred by

prohibiting him from having unsupervised contact with his other minor

children,   especially   since   “there   was   no   evidence   presented   that

[Appellant’s] other three children suffered any abuse[.]” Appellant’s Brief at

30-31.

      This Court has also held that an excessive sentence claim—in
      conjunction with an assertion that the court failed to consider
      mitigating factors—raises a substantial question. Additionally:


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              In determining whether a substantial question exists,
              this Court does not examine the merits of whether
              the sentence is actually excessive. Rather, we look
              to whether the appellant has forwarded a plausible
              argument that the sentence, when it is within the
              guideline   ranges,     is   clearly  unreasonable.
              Concomitantly,      the     substantial     question
              determination does not require the court to decide
              the merits of whether the sentence is clearly
              unreasonable.

Commonwealth           v. Swope, 123 A.3d 333, 339–40 (Pa. Super. 2015)

(internal quotations and citations removed).       Thus, we conclude Appellant

has raised a substantial question and proceed to review the merits of the

issue.

         The trial court set forth the following reasoning at Appellant’s

sentencing hearing:

                I have taken into account many things. I have reviewed
         the [pre-sentencing investigation report (PSI)], of course. I
         have taken into account the testimony that I heard in not only
         the trial these last two days, but in previous proceedings. I’ve
         taken into account, most important of all, the jury’s verdict. The
         jury’s verdict is the most important aspect of these proceedings
         and the jury has spoken and determined that [Appellant] was
         guilty of significant offenses here and rejected the notion that
         whatever was done to [D.D.] was legitimate disciplinary action.
         The conclusion is not surprising, giving [sic] the extent of
         bruising visible on the photographs that were in evidence here.

               [Appellant’s] record is one largely based on violent acts.
         It’s very disturbing. And one of the things that was most
         disturbing to me, upon hearing the testimony of the last two
         days, which was really underscored today with the testimony of
         Ms. High, and that is, it doesn’t appear that [Appellant]
         assaulted his own children who I believe he shares with
         [Mother], but brutalized a child that she had, the victim in this
         case [D.D.] with someone other than [Appellant].           That’s


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        profoundly disturbing to me and influences the long-term
        sentence.

              I’ve taken into account the provisions of the sentencing
        code, I’ve taken into account the provisions of the sentencing
        guidelines, the recommendations of both parties, and I’ve taken
        into account [Appellant’s] allocution, although I have to say that
        I was not overwhelmed with a [sense] of sincerity from
        [Appellant], other than the circumstances under which he
        stands.

N.T., 2/23/2016, at 144-145. Here, before sentencing, the court heard the

applicable guidelines and recommendations for sentencing. The sentencing

court then proceeded to provide a summary of what the court considered

when fashioning Appellant’s sentence.          Contrary to Appellant’s assertions,

the sentencing court, on the record, relayed that it had considered

Appellant’s recommendations (for a county prison sentence), allocution, and

PSI.3

        Appellant also claims the trial court’s “speculation that [D.D.] was the

subject of abuse because he was not [Appellant’s] biological child is not

supported by the record and inappropriate extra judiciary consideration.”

Appellant’s Brief at 30.    We find Appellant’s assessment of the sentencing

court’s “speculation” unsupported by the record. Specifically, the sentencing

transcript reveals that the trial court did not find that the reason D.D. was

3
  Furthermore, “[w]here the sentencing court had the benefit of a [PSI], we
can assume the sentencing court ‘was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.’” Griffin, 65 A.3d at 937 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).


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abused was because he was not Appellant’s biological child, only that it

appeared Appellant did not mistreat his own biological children and only

abused D.D. See N.T., 2/23/2016, at 145.

         Lastly, Appellant claims the sentencing court erred by permitting only

supervised visitation with his children. Specifically, Appellant avers “there is

no evidence presented that [his] other three children suffered any abuse and

in fact, when questioned by CYS, they all stated they were not afraid of their

parents and reported a good relationship with [Appellant].” Appellant’s Brief

at 30.

         It is well-settled that when imposing probation, a sentencing court

may require a defendant “[t]o satisfy any other conditions reasonably

related to the rehabilitation of the defendant and not unduly restrictive of his

liberty or incompatible with his freedom of conscience.” 42 Pa.C.S. §

9754(c)(13). Appellant baldly asserts that the sentencing court wrongly

imposed supervised visitation with his children without any accompanying

case law to support his argument.       We decline to make his argument for

him. Thus, Appellant has failed to convince us that the trial court abused its

discretion in ordering visitation with his biological children to be supervised.

See Commonwealth v. Dewey, 57 A.3d 1267, 1270 (Pa. Super. 2012)

(holding the trial court’s imposition of supervised visitation with his minor

daughter after he pled guilty of corruption of minors was “reasonably related

to his rehabilitation and not unduly restrictive of his liberty as required under


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42 [Pa.C.S.] § 9754(c)(13)”); Commonwealth v. Reggie, 399 A.2d 1125,

1126 (Pa. Super. 1979) (approving a condition of probation requiring a

defendant “to keep away from juveniles and young adults”).

     For the foregoing reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2016




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