J-A01039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAWN D. LITTLE,

                            Appellant                No. 713 WDA 2014


       Appeal from the Judgment of Sentence entered January 10, 2014,
                in the Court of Common Pleas of Warren County,
             Criminal Division, at No(s): CP-62-CR-0000512-2012


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED FEBRUARY 03, 2015

        Shawn D. Little (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of two counts of driving under the

influence of alcohol, one count of operating a vehicle without headlights, and

two counts of endangering the welfare of children.1 We affirm in part and

vacate in part.

        The pertinent facts and procedural history are as follows: On August

26, 2012, at approximately 8:15 p.m., Eva Stroup of Conewango Township,

Pennsylvania, telephoned the Conewango Township Police Department to

inform them that she believed her ex-husband, who had physical custody of

the couple’s two children, was under the influence of alcohol in violation of a

____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1), 4304(a) and 18 Pa.C.S.A 4304.
J-A01039-15



custody order.   N.T., 12/12/13, at 31.         Officer Charles Anderson of the

Conewango Township Police Department advised Ms. Stroup that if she

believed Appellant was violating the terms of the custody order, she would

have to seek relief in court. Id. at 33. Approximately half an hour later,

Officer   Anderson   was   patrolling   in    Conewango     Township   when,    at

approximately 8:53 p.m., he observed Appellant’s vehicle with one of its

driver’s side headlamps not illuminated. Affidavit of Probable Cause, 9/5/12.

The officer conducted a traffic stop and upon requesting Appellant’s

identification, observed that Appellant had a limited driver’s license

prohibiting him from operating any vehicle that was not equipped with an

ignition interlock device, and detected an odor of alcohol emanating from

Appellant’s breath and noted that his eyes were watery.              Id.   Officer

Anderson administered a field sobriety test, after which he arrested

Appellant and transported him to Warren General Hospital for a blood

alcohol test. Id. at 39. Appellant refused to submit to chemical testing and

was transported to the police station, where he was charged with the

aforementioned crimes.

      A jury trial commenced on December 12, 2013, at the conclusion of

which the jury rendered its guilty verdicts. Following a hearing on January

10, 2014, the trial court sentenced Appellant to an aggregate term of

imprisonment of 49½ to 123 months.            The trial court additionally ordered

that Appellant have no contact with his two children. Appellant filed a timely

post-sentence motion, which the trial court denied on March 21, 2014. This

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appeal followed.       Both Appellant and the trial court have complied with

Pa.R.A.P. 1925.2

    Appellant presents the following issues for our review:

    1. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT
       OF SENTENCE UPON GUILTY VERDICTS FOR DRIVING UNDER
       THE INFLUENCE OF ALCOHOL WHEN INSUFFICIENT EVIDENCE
       WAS PRESENTED TO ESTABLISH THAT [APPELLANT] WAS
       INCAPABLE OF SAFELY DRIVING A MOTOR VEHICLE?

    2. WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT
       OF SENTENCE, AND DENYING [APPELLANT’S] POST-SENTENCE
       MOTION, UPON GUILTY VERDICTS FOR ENDANGERING THE
       WELFARE OF CHILDREN WHEN INSUFFICIENT EVIDENCE WAS
____________________________________________


2
  On July 14, 2014, Appellant filed with this Court a “Motion for Remand
and/or for Consideration of After-Discovered Evidence.” In his motion,
Appellant asserts that between October 2008 and May 2014, all blood
alcohol tests in Warren County were subject to faulty testing procedures
because the laboratory failed to apply the serum-to-whole blood ratio to the
result, which resulted in numerous false positive tests and DUI arrests. See
Commonwealth v. Brugger, 88 A.3d 1026, 1029 (Pa. Super. 2014)
(“where blood alcohol testing is performed on only a portion of whole blood,
such as plasma, serum, or a supernatant sample, it requires conversion to
establish the correlative whole blood test results.”). Appellant argues that
the arresting officer’s determination that Appellant was intoxicated was
somehow based on information garnered from the faulty blood tests, and
was therefore tainted. Appellant requests remand for the trial court to
consider this evidence.

       In his motion for remand, Appellant offers no support other than his
bald assertion that all of the blood test results in Warren County were faulty.
More importantly, we fail to see how faulty blood alcohol tests would have
impacted this case, given that Appellant refused to submit to chemical
testing. We are unpersuaded by Appellant’s assertion that the arresting
officer’s determination that Appellant was intoxicated was somehow tainted
by unverified, unrelated faulty lab testing procedures in Warren County.
Accordingly, we deny Appellant’s motion for remand and/or consideration of
after discovered evidence.



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      PRESENTED TO ESTABLISH THAT [APPELLANT] KNOWINGLY
      ENDANGERED THE WELFARE OF HIS CHILDREN?

   3. WHETHER THE TRIAL COURT ERRED IN IMPOSING A CONDITION
      ON [APPELLANT’S] SENTENCE THAT HE NOT BE PERMITTED TO
      HAVE CONTACT WITH HIS CHILDREN WHEN THE COURT DOES
      NOT POSSESS STATUTORY AUTHORITY TO IMPOSE PAROLE
      CONDITIONS ON [APPELLANT’S] SENTENCE TO A MAXIMUM OF
      TWO OR MORE YEARS AND/OR WHEN IT REFUSED TO MODIFY
      [APPELLANT’S] SENTENCE SUCH THAT HE WOULD BE ABLE TO
      HAVE SUPERVISED OR WRITTEN CONTACT WITH HIS CHILDREN
      WHEN THE INTEREST OF PROTECTING THE ALLEGED VICTIM IS
      ADEQUATELY SERVED BY NOT ALLOWING UNSUPERVISED
      CONTACT WITH THE MINOR CHILDREN AND WHEN SUCH
      CONDITION IS UNDULY RESTRICTIVE?

Appellant’s Brief at 5.

      In his first issue, Appellant argues that the evidence was insufficient to

support his convictions for driving under the influence under 75 Pa.C.S.A. §

3802(a)(1). Appellant’s Brief at 13-15.

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in the light most favorable to
      the Commonwealth as verdict-winner, are sufficient to establish
      all elements of the offense beyond a reasonable doubt. We may
      not weigh the evidence or substitute our judgment for that of the
      fact-finder. Additionally, the 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. When evaluating the credibility and weight of
      the evidence, the fact-finder is free to believe all, part or none of
      the evidence. For purposes of our review under these principles,
      we must review the entire record and consider all of the
      evidence introduced.

Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).




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      Appellant claims that Officer Anderson failed to provide sufficient

testimony upon which the jury could have concluded that Appellant’s ability

to safely drive was impaired.           Appellant’s Brief at 13-15.       Specifically,

Appellant argues that at trial, Officer Anderson testified that Appellant

passed the one-leg stand test while standing on his left leg, that the officer

did not recall that Appellant slurred his words when he spoke, and that the

officer testified that Appellant did not stagger or stumble as he walked, and

moreover, he did not observe Appellant commit any moving violations such

as swerving or crossing the lines on the roadway.                  Id.    Accordingly,

Appellant argues that the evidence was insufficient to support his convictions

for driving under the influence-general impairment. We disagree.

      75 Pa.C.S.A. § 3802 provides:

      (a) General impairment.--

      (1)   An individual may not drive, operate or be in actual
            physical control of the movement of a vehicle after
            imbibing a sufficient amount of alcohol such that the
            individual is rendered incapable of safely driving, operating
            or being in actual physical control of the movement of the
            vehicle.

75 Pa.C.S.A. § 3802

      “In order to      be found guilty of DUI—general impairment, an

individual's alcohol consumption must substantially impair his or her ability

to safely operate a vehicle.        Evidence of erratic driving is not a necessary

precursor   to   a   finding   of    guilt    under   the   relevant   statute.   The

Commonwealth may prove that a person is incapable of safe driving through

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the failure of a field sobriety test.”    Commonwealth v. Mobley, 14 A.3d

887, 890 (Pa. Super. 2011) (citations omitted).

            [S]ubsection 3802(a)(1) is an ‘at the time of driving’
      offense, requiring that the Commonwealth prove the following
      elements: the accused was driving, operating, or in actual
      physical control of the movement of a vehicle during the time
      when he or she was rendered incapable of safely doing so due to
      the consumption of alcohol.

             With respect to the type, quantum, and quality of evidence
      required to prove a general impairment violation under Section
      3802(a)(1), ... Section 3802(a)(1) ... is a general provision and
      provides no specific restraint upon the Commonwealth in the
      manner in which it may prove that an accused operated a
      vehicle under the influence of alcohol to a degree which rendered
      him incapable of safe driving. ... The types of evidence that the
      Commonwealth may proffer in a subsection 3802(a)(1)
      prosecution include but are not limited to, the following: the
      offender's actions and behavior, including manner of driving and
      ability to pass field sobriety tests; demeanor, including toward
      the investigating officer; physical appearance, particularly
      bloodshot eyes and other physical signs of intoxication; odor of
      alcohol, and slurred speech. Blood alcohol level may be added
      to this list, although it is not necessary and the two hour time
      limit for measuring blood alcohol level does not apply. Blood
      alcohol level is admissible in a subsection 3801(a)(1) case only
      insofar as it is relevant to and probative of the accused's ability
      to drive safely at the time he or she was driving. The weight to
      be assigned these various types of evidence presents a question
      for the fact-finder, who may rely on his or her experience,
      common sense, and/or expert testimony. Regardless of the type
      of evidence that the Commonwealth proffers to support its case,
      the focus of subsection 3802(a)(1) remains on the inability of
      the individual to drive safely due to consumption of alcohol-not
      on a particular blood alcohol level.

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013) quoting

Commonwealth v. Segida, 114–116, 985 A.2d 871, 879 (Pa. 2009).




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      Here, in finding     the   evidence   sufficient   to   support Appellant’s

convictions, the trial court explained:

            [Appellant’s] own testimony at the trial indicated he had
      been drinking at least two “Busch Pounders” on the day in
      question.     [Appellant] also admitted that he refused blood
      alcohol content (BAC) testing at the hospital in part because he
      knew that drinking alcohol was a violation of [his] custody
      order. ... Based on [Appellant’s] admissions alone, the jury was
      capable of finding [Appellant] in violation of the DUI statute;
      however there was additional testimony at trial that [Appellant
      and Ms. Stroup] had spoken via telephone earlier in the day and
      that [Appellant] seemed to be slurring his words during the
      conversation as if he had been drinking. The arresting officer in
      the case, Patrolman Anderson, testified that when he initiated
      the traffic stop and first encountered [Appellant], he could smell
      an odor of alcohol coming from [Appellant’s] breath and could
      see that [Appellant’s] eyes were watering, two indicia of
      intoxication. Patrolman Anderson explained that he proceeded
      to administer standard field sobriety tests during which
      [Appellant] exhibited additional indicia of intoxication. Finally,
      Patrolman Anderson testified that it was his opinion based on
      his education, experience and training that [Appellant] was
      impaired to the extent it rendered him incapable of safe driving.
      Additionally, Patrolman Anderson testified that [Appellant]
      refused BAC testing at the hospital. In fact, according to
      Patrolman Anderson’s testimony, while [Appellant] was being
      processed at the police station, [Appellant] admitted to drinking
      three Busch beers that day. Also, [Appellant] lied initially to
      Patrolman Anderson and indicated that he was not driving the
      vehicle. Based on these facts, the jury had ample evidence to
      convict [Appellant] of DUI – General Impairment, and DUI –
      Refusal, Count 1 and Count 2, respectively.

Trial Court Opinion, 5/30/14, at 3-4 (citations to notes of testimony

omitted).

      We agree with the trial court that the record evidence was sufficient

for a jury to believe that Appellant had consumed a sufficient amount of

alcohol to render him incapable of safe driving pursuant to 75 Pa.C.S.A. §

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J-A01039-15


3802(a)(1). Although Appellant argues that the evidence was insufficient to

demonstrate that his ability to drive safely was impaired, this assertion is

belied by the record. Officer Anderson testified that when he effectuated the

traffic stop and approached Appellant, he “could smell an odor of alcohol,

intoxicating beverage coming from the vehicle,” which prompted him to ask

Appellant to submit to a series of field sobriety tests. N.T., 12/12/13, at 35.

Officer Anderson testified that during the walk and turn balancing test,

Appellant “stepp[ed] off the line between steps, missed heel-to-toe between

steps” and although instructed to keep his arms to the side, “he did use his

arms to balance his walking portion of the test.”       Id. at 37.    The officer

testified that while the balancing test was “not essentially a pass or fail” test,

but was intended to present some clues as to Appellant’s state of

intoxication, “if it had to be rated pass or fail, [Appellant] would have failed

that portion.” Id.

      Officer Anderson next testified that he had Appellant perform the “one

leg stand test”, where he instructed Appellant to stand on one leg, and lift

the other leg six inches off the ground and point that foot out while

counting. Id. at 37-38. Officer Anderson testified that Appellant stood on

his right leg but “put his [left] foot down on count one, brought his foot back

up and was hopping around.” Id. Appellant then informed the officer that

he had some problems with his right leg, and asked to perform the test

while standing on his left leg, after which “he did complete the test while


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J-A01039-15


using his right leg standing on his left leg”, although “he did not have the leg

fully extended which is part of the instruction.”       Id.   Officer Anderson

additionally reiterated that Appellant had “watery eyes” and an odor of

alcohol emanating from him, and that Appellant admitted to drinking three

beers. Id. at 38-40. Officer Anderson testified that in his experience, he

believed Appellant was impaired to the extent that rendered him incapable

of safe driving. Id. at 39. Upon review, we find no error in the trial court’s

determination that the evidence, when viewed in the light most favorable to

the Commonwealth as verdict-winner, was sufficient to sustain Appellant’s

convictions for driving under the influence.

      Appellant next argues that the evidence was insufficient to sustain his

convictions for endangering the welfare of children pursuant to 18 Pa.C.S.A.

§ 4304, which provides:

            A parent, guardian or other person supervising the
      welfare of a child under 18 years of age, or a person that
      employs or supervises such a person, commits an offense if he
      knowingly endangers the welfare of the child by violating a duty
      of care, protection or support.

      Our courts have explained that “statutes pertaining to juveniles such

as this one are basically protective in nature and thus are necessarily drawn

to cover a broad range of conduct in order to safeguard the welfare and

security of our children. Whether particular conduct falls within the purview

of the statute is to be determined within the context of the common sense of




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the community.” Commonwealth v. Retkofsky, 860 A.2d 1098, 1099 (Pa.

Super. 2004) (citations and internal quotations omitted).

      The accused must act “knowingly” to be convicted of
      endangering the welfare of a child. 18 Pa.C.S.A. § 4304. We
      have employed a three-prong standard to determine whether
      the Commonwealth's evidence is sufficient to prove this intent
      element: 1) the accused must be aware of his or her duty to
      protect the child; 2) the accused must be “aware that the child
      is in circumstances that could threaten the child's physical or
      psychological welfare;” and 3) the accused either must have
      failed to act or must have taken “action so lame or meager that
      such actions cannot reasonably be expected to protect the
      child's welfare.”


Retkofsky, 860 A.2d at 1099-110.

      Here, Appellant argues that the evidence was insufficient to sustain his

convictions for endangering the welfare of his children because he did not

believe that he was intoxicated, and thus did not “knowingly” endanger his

children’s welfare. Appellant’s Brief at 15-18. Upon review, we agree with

the trial court that the Commonwealth presented sufficient evidence to

sustain Appellant’s convictions. As the trial court explained:

      [Appellant] had his two children, ages five (5) years old and
      three (3) years old in the back seat of his vehicle at the time he
      was arrested for DUI. Patrolman Anderson testified that there
      was no question in his mind that the children were in
      [Appellant’s] vehicle while [Appellant] was operating it. Again,
      [Appellant] had admitted drinking on the day in question and
      ultimately admitted driving the car as well.          Additionally,
      [Appellant] was aware of a custody order which prohibited him
      from drinking alcohol while he had custody of the children.
      [Appellant] did proffer an explanation for his watery eyes to the
      jury when he explained that he had been working on a car’s
      brakes earlier in the day and rust from the car had fallen in his
      eyes during the repair. Ultimately, the jury found [Appellant]


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      had been driving under the influence with his two children in the
      backseat of this car.      [Appellant] also initially lied to the
      investigating officer about the fact that he was driving the
      vehicle. [Appellant] also testified that he was unsure if the
      brakes on the vehicle had been completely repaired. Given
      these facts, it was reasonable for the jury to conclude
      [Appellant] knew he was acting wrongly. When [Appellant]
      drove a vehicle under the influence of alcohol with his five-year-
      old and three-year-old in the backseat of the vehicle, he was a
      parent supervising the welfare of the children in his backseat and
      yet knowingly violating a duty of care, protection or support. It
      is of paramount importance to protect the safety and welfare of
      children and common sense societal standards would dictate that
      drinking and driving with two children in the backseat is a
      violation of that duty to protect. Therefore, the jury had ample
      evidence to convict [Appellant] of Counts 5 and 6, Endangering
      the Welfare of Children.


Trial Court Opinion, 5/30/14, at 5 (citations to notes of testimony omitted).

      We find no error in the trial court’s determination that the evidence

was sufficient to demonstrate that Appellant knew that he had consumed

alcohol, and nevertheless proceeded to drive his children.           Although

Appellant argues that he did not “knowingly” endanger his children’s welfare

because he did not believe he was intoxicated, the testimony of Officer

Anderson indicated that Appellant, who admitted to drinking at least two or

three beers, and inter alia, drank those beers in violation of a custody order,

had in fact consumed enough alcohol to impair his ability to drive safely.

See Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992)

(“The Commonwealth is not required to prove mens rea by direct

evidence[;] [f]requently such evidence is not available [and in] such cases,

the Commonwealth may rely on circumstantial evidence.”).               Viewing



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Appellant’s conduct and the circumstantial evidence “within the context of

the common sense of the community,” we conclude that the Commonwealth

presented sufficient evidence to demonstrate that Appellant knowingly

endangered the welfare of his children. Retkofsky, 860 A.2d at 1099.

      In his third issue, Appellant argues that the trial court erred when it

imposed a condition on Appellant’s sentence precluding him from having any

contact with his children. Appellant’s Brief at 19-22; N.T., 1/10/14 at 16;

Trial Court Order, 1/10/14. Appellant asserts that the trial court lacked the

statutory authority to impose such a condition, and accordingly claims the

condition is illegal.   Additionally, Appellant challenges the discretionary

aspects of his sentence, arguing that the sentencing provision precluding

him from having contact with his children was unduly harsh and restrictive.

Appellant’s Brief at 19-20.

      Appellant argues that his sentence was illegal because the Court of

Common Pleas of Warren County lacked jurisdiction to impose a “no contact”

condition on a defendant sentenced to a maximum of two or more years of

imprisonment.    Specifically, Appellant argues that in precluding him from

having contact with his children, the trial court effectively instituted a

condition on his potential future parole, which the trial court lacked authority

to impose, and that such a condition was therefore illegal.

      We agree with Appellant that to the extent the trial court order

precluding him from having contact with his children would constitute a




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condition of parole, the trial court lacked the authority to impose such a

condition.

      Under Pennsylvania law, the authority to parole convicted
      offenders is split between the common pleas courts and the
      Pennsylvania Board of Probation and Parole (Parole Board).
      When an offender is sentenced to a maximum term of
      imprisonment of less than two years, the common pleas court
      retains authority to grant and revoke parole; when the
      maximum term is two years or more, authority to grant and
      revoke parole is vested in the Parole Board. The common pleas
      court retains authority over parole matters relating to offenders
      sentenced to maximum terms of less than two years even when
      the offender is confined in a state rather than county correctional
      facility.

Commonwealth v. McDermott, 547 A.2d 1236, 1239-1240 (Pa. Super.

1988) (citations omitted).

      Because the trial court sentenced Appellant to a maximum term of

incarceration of two or more years, if Appellant at any time is granted

parole, he would be under the exclusive supervision of the Pennsylvania

Board of Probation and Parole and not the Court of Common Pleas. 61 P.S.

§ 331.17; Commonwealth v. Mears, 972 A.2d 1210, 1212 (Pa. Super.

2009) (holding that the Pennsylvania Board of Probation and Parole has

exclusive authority to determine parole when the offender is sentenced to a

maximum term of imprisonment of two or more years, and the trial court

was without jurisdiction to impose conditions on the appellant’s state

parole). Accordingly, any condition of parole will be under the jurisdiction of

the Pennsylvania Parole Board and the trial court is without jurisdiction to

impose conditions on that parole. To the extent the trial court purported to

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impose conditions on Appellant's state parole, that portion of Appellant's

sentence is vacated.       See Commonwealth v. Coulverson, 34 A.3d 135

(Pa. Super. 2011) (trial court exceeded its authority when it imposed on the

defendant a “no contact” restriction with any of the victims, their families, or

friends if defendant were ever released on parole; Board of Pardon and

Probation had exclusive authority to determine parole of offender sentenced

to a maximum term of imprisonment of two or more years, and thus any

condition the sentencing court purported to impose on defendant's state

parole was advisory only).

       Appellant additionally argues that the trial court’s "no contact" order

constituted an abuse of its sentencing discretion. Appellant’s Brief at 20-22.

Appellant in essence argues that the trial court failed to provide adequate

reasons for its directive that he have no contact with his children, and

asserts that the “no contact” provision was unduly restrictive and not

reasonably related to Appellant’s rehabilitation or the protection of the

victims or the public.3

____________________________________________


3
  Appellant has preserved his challenge to the discretionary aspects of his
sentence by raising his claim in a post-sentence motion and filing a timely
notice of appeal. Although Appellant failed to set forth in his brief a concise
statement of reasons relied upon for the allowance of his appeal pursuant to
Pa.R.A.P. 2119(f), the Commonwealth did not object to the omission. See
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010) (where
the Commonwealth has not objected to the absence of a Pa.R.A.P. 2119(f)
statement and a substantial question is obvious from the appellant’s brief,
we will not find waiver and will proceed to an examination of the merits).
(Footnote Continued Next Page)


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      “The matter of sentencing is vested within the sound discretion of the

trial court; we only reverse the court's determination upon an abuse of

discretion. To demonstrate that the trial court has abused its discretion, the

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.   Moreover, 42 Pa.C.S.A. § 9721(b) provides that the trial court

must disclose, on the record, its reasons for imposing the sentence.”

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004)

(citations and internal quotations omitted).

      Upon review of the record, we agree with Appellant that the trial court

failed to place on the record adequate reasons for its decision to preclude

Appellant from having contact with his children during his incarceration. Our

review of the sentencing transcript reveals that, at the sentencing hearing,

after the trial court had already entered its sentence verbally on the record,

the Assistant District Attorney, in the final moments before the conclusion of

the hearing, requested that Appellant be precluded from having any contact

                       _______________________
(Footnote Continued)

      Here, Appellant’s claim that the trial court failed to provide adequate
reasons on the record for the no contact provision of the sentence raises a
substantial question. See Commonwealth v. Fowler, 893 A.2d 758, 766
(Pa. Super. 2006) (“an allegation that the court failed to state adequate
reasons on the record for the sentence imposed presents a substantial
question”). We therefore address the merits of Appellant’s discretionary
claim.



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with his children. N.T., 1/10/14, at 15. The trial court immediately agreed

to enter a no contact provision, without any explanation.        Under these

circumstances, we agree with Appellant that the trial court failed to provide

adequate reasons on the record for its no contact provision as required by

42 Pa.C.S.A. § 9721(b).     Moreover, while protection of the victims is a

consideration at sentencing, Appellant was convicted of endangering his

children by driving them while under the influence of alcohol; while

incarcerated, however, Appellant poses no such a threat to his children’s

welfare given that he will be confined in prison without access to alcohol or a

vehicle.   In the absence of adequate reasons on the record for the trial

court’s imposition of a no contact provision, we conclude that the trial court

abused its discretion. Accordingly, we vacate that portion of the sentence

precluding Appellant from having contact with his children, and affirm the

remainder of the judgment of sentence.

       Judgment of sentence vacated in part and affirmed in part. Motion

for Remand and/or for Consideration of After-Discovered Evidence denied.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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