J-S38035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES EDWARD SAMUELS

                        Appellant                   No. 2295 EDA 2015


           Appeal from the Judgment of Sentence April 9, 2010
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005668-2008
                                       CP-51-CR-0005669-2008
                                       CP-51-CR-0005670-2008


BEFORE: FORD ELLIOTT, P.J.E., OLSON, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED MAY 06, 2016

     The sole issue in this timely appeal is whether the trial court abused its

discretion in imposing a sentence of 42½ - 85 years’ imprisonment for

Appellant’s multiple sexual assaults of his three young sisters-in-law (A.F.,

D.M., and T.F.) over a seven year period. We affirm.

     Appellant was charged with sexual offenses in three cases (one for

each victim) which were consolidated for trial. On October 9, 2009, a jury

convicted Appellant of two counts of rape, two counts of sexual assault, one

count of involuntary deviate sexual intercourse (“IDSI”), one count of

attempted rape, one count of unlawful restraint, three counts of endangering
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the welfare of a child and three counts of corruption of minors. 1             The

evidence giving rise to these convictions was as follows:

        At trial, the Commonwealth presented the testimony of [A.F.].
        [A.F.] testified that when she was six or seven years old,2 she
        was living with her older sister, [C.M.], and [C.M.]’s husband –
        Appellant – at 729 Folsom Street in Philadelphia. [A.F.] testified
        that, one day when she was getting out of the bath, Appellant
        knocked on the door and walked into the bathroom. Appellant
        picked her up, put her on the bathroom sink, and penetrated her
        vagina with his penis. Before leaving the bathroom, Appellant
        told [A.F.] not to say anything. [A.F.] testified that she was too
        scared to tell anyone what happened.

        Unfortunately, this was not the only time Appellant sexually
        abused her. [A.F.] testified that when she was eight or nine
        years old, she went with her mother and sister, [D.M.], to visit
        [C.M.] at her home in West Philadelphia. There, [A.F.], [D.M.],
        and [C.M.]’s children were reprimanded by Appellant for walking
        outside in the neighborhood. Appellant took the children one by
        one into the bedroom and beat them. When he got to [A.F.],
        however, Appellant told her that he was not going to beat her.
        He then pulled down [A.F.]’s pants and penetrated her anally
        with his penis. [A.F.] testified that she did not yell or fight back
        during the assault or tell anyone what happened because she
        was scared. [A.F.] testified that Appellant penetrated her anally
        again approximately one year later, when she was ten years old.
        She testified that she was visiting her sister’s house in the
        summertime when she went upstairs to get some lotion from
        [C.M.]’s bedroom.        When she got to the bedroom, she
        encountered Appellant, who pulled her into the room, and told
        her to be quiet. Appellant then put [A.F.] on the bed, leaned her
        over, pulled down her pants and penetrated her anally with his
        penis. [A.F.] testified that she screamed and Appellant stopped.

____________________________________________


1
  18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3123(a)(1), 901(a), 2902(a)(1),
4304(a)(1) and 6301(a)(1), respectively.
2
    A.F. was nineteen years old at the time of trial.



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        She then left the room. [A.F.] testified that during each of these
        encounters, Appellant touched her breasts with his hands.

        [A.F.] testified that she kept these incidents bottled up inside
        until she was 14 or 15 years old, when she told her best friend,
        [S.F.]. [S.F.] advised [A.F.] to speak with a therapist about
        these incidents, which [A.F.] eventually did. [A.F.] testified that,
        after speaking with her therapist, her mother found out what
        Appellant did to her, and a family meeting was held at [C.M.]’s
        house. There, Appellant was confronted about these, and other
        incidents of sexual abuse (involving [A.F.]’s sisters and cousins),
        and [A.F.]’s aunt, [R.M.], summoned the police to the home.

        [A.F.]’s sister, [D.M.], also testified at trial. [D.M.] testified that,
        during a family visit to [C.M.]’s house on Folsom Street when
        she was six or seven years old,3 Appellant told her he had
        something to tell her. Appellant took her into the bedroom, put
        her on the bed, and put his penis in her vagina. [D.M.] testified
        that, right after this happened, she went to use the bathroom
        but ‘couldn’t go’. [D.M.] also testified that, when she was 10, 11
        & 12 years of age, Appellant would come into her bedroom
        whenever she slept over at [C.M.]’s house, and ‘feel on [her]
        and stuff’ while she was asleep; his fondling would jar her
        awake, whereupon Appellant would leave the room. [D.M.]
        testified that Appellant did this to her ‘a lot of times’. [D.M.]
        testified that she did not tell anyone about these incidents until
        telling her therapist a year or two prior to trial. Thereafter,
        [D.M.] revealed these incidents to her family at the meeting held
        at [C.M.]’s house on March 1, 2008.

        [T.F.], [D.M.] and [A.F.]’s older sister, also testified at trial.
        [T.F.] testified that when she was 14 or 15,4 she was getting
        dressed for work when Appellant came into her room and
        assaulted her; he grabbed her by the neck, pinned her against
        the wall with one hand, and with his other hand, Appellant
        unbuttoned her jeans and tried to pull them off. [T.F.] fought
        back and screamed, which alerted her cousins – Appellant’s
        children – who came to her rescue. Appellant then ran out of the
____________________________________________


3
    D.M. was sixteen years old at the time of trial.
4
    T.F. was twenty-six years old at the time of trial.



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      room. [T.F.] contacted her father, who escorted her out of the
      premises. She moved her belongings out of the residence within
      the ensuing two weeks. [T.F.] revealed the above incidents to
      her family members upon learning about Appellant’s assaults of
      [A.F.]. Like her younger sisters, [T.F.] reported the incident to
      police at the family meeting on March 1, 2008; immediately
      thereafter, she and the other victims were transported to the
      Special Victim’s Unit, where they gave formal statements to
      detectives.

Pa.R.A.P. 1925(a) Opinion, 12/2/11, at 2-5 (internal citations omitted;

footnotes in original).

      At sentencing on April 9, 2010, the trial court reviewed a pre-sentence

investigation report (“PSI”), an assessment of the Sexual Offenders

Assessment Board, and the Sentencing Guidelines.      Appellant had a prior

record score of 5, making his standard range sentences as follows:

      1. Rape of a person less than 13 years old (2 counts)          –
         Guidelines: 84–102 months; Maximum: 20 Years

      2. Attempted Rape (1 count) – Guidelines: 72–90 months;
         Maximum: 20 Years

      3. IDSI (1 count) – Guidelines: 84–102 Months; Maximum: 20
         Years

      4. Sexual Assault (2 Counts) – Guidelines: 72–90 months;
         Maximum: 10 Years

      5. Endangering the Welfare of a Child (3 Counts) – Guidelines:
         21– 27 months; Maximum: 7 Years

      6. Corrupting the Morals of a Minor (3 Counts) – Guidelines: 12–
         18 months; Maximum: 5 Years

      7. Unlawful Restraint (1 Count) – Guidelines: 6–16 months;
         Maximum: 5 Years




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N.T., 4/9/10, 4–8.    If aggregated, the Guidelines recommended a total

minimum sentence of approximately 48-60 years. The statutory maximum,

again assuming consecutive aggregate sentences, totaled 141 years.

      The trial court then heard argument from defense counsel, provided

Appellant an opportunity to speak, and reviewed his lengthy criminal record

within the PSI.   As an adult, Appellant had 17 arrests, 11 convictions, 8

commitments, 9 violations of probation and 5 revocations. The report noted

Appellant became more sophisticated over time, moving from disorderly

conduct and stealing cars to robbery and possession of drugs with intent to

deliver. N.T., 4/9/10, at 9–15.

      Prior to imposing sentence, the trial court observed that Appellant

“preyed upon six, seven year old girls” and engaged in “opportunistic

behavior” and “a continuing course of sexual terrorism” against his own

family.   N.T., 4/9/10, at 15.    It noted that Appellant may theoretically be

rehabilitated in the distant future, but that such prospects were dubious

without major, long-term adjustments. Id. at 17.

      Given all those considerations, the trial court sentenced Appellant to

the following consecutive terms of imprisonment:

      1. Rape of A.F.: 10–20 years

      2. Rape of D.M.: 10–20 years

      3. Attempted Rape of T.F.: 5–10 years

      4. IDSI (A.F.): 7–14 years

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J-S38035-16


        5. Endangering the Welfare of a Child (A.F.): 3 ½–7 years

        6. Endangering the Welfare of a Child (T.F.): 3 ½–7 years

        7. Endangering the Welfare of a Child (D.M.): 3 ½–7 years

N.T., 4/9/10, at 15–16.5 On Appellant’s remaining six convictions (including

two sexual assaults, three corruptions of minors, and one unlawful restrain

convictions), the court imposed no penalty. Appellant’s aggregate sentence

was 42½ - 85 years’ imprisonment.

        Appellant filed a timely direct appeal, and on July 10, 2012, this Court

affirmed in an unpublished memorandum at 1026 EDA 2010. On November

28, 2012, our Supreme Court denied Appellant’s petition for allowance of

appeal.

        On April 2, 2013, Appellant filed a timely petition for relief under the

Post Conviction Relief Act.6         On July 20, 2015, the trial court granted

Appellant leave to file a post-sentence motion nunc pro tunc, which

Appellant did the same day. On July 27, 2015, the court denied Appellant’s

____________________________________________


5
  The court did not state that it was imposing any sentence in accordance
with any statute requiring a mandatory minimum term.          Nor do the
sentencing orders in any case state that any sentence was a mandatory
minimum. Therefore, none of Appellant’s sentences implicate the holding in
Alleyne v. United States, -- U.S. --, 133 S.Ct. 2151 (2013), which
prohibits the court from imposing a mandatory minimum sentence based on
a fact which is not submitted to the jury or proven beyond a reasonable
doubt.
6
    42 Pa.C.S. § 9541 et seq.



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motion. On July 30, 2015, Appellant filed a timely notice of appeal. Both

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

     Appellant raised a single issue in his Pa.R.A.P. 1925(b) statement:

     The trial court imposed an aggregate sentence of 42½ to 85
     years. The trial court’s sentences for rape (two counts) and
     endangering the welfare of a child (three counts) were outside of
     the aggravated range of the Sentencing Guidelines. A review of
     the record in this case shows that the trial court’s aggregate
     sentence of 42½ to 85 years is unreasonable and manifestly
     excessive, not reflecting a proper consideration of the history,
     character and condition of [Appellant]. There is no evidence in
     this record with regard to [Appellant]’s background that would
     warrant an aggregate sentence of 42½ to 85 years. The trial
     court’s comments made at the time that sentence was imposed
     indicate that the sentence imposed was impermissibly based
     solely on the nature and circumstances of the crime.                In
     sentencing [Appellant], the trial court made reference to
     [Appellant]’s ‘blackness of heart’ and ‘blackness in his heart’,
     which are not proper sentencing factors. The trial court’s intent
     to incarcerate [Appellant] ‘... for the rest of your life’ is not
     permissible as it is vindictive and the trial court’s sentence
     amounts to a life sentence. [Appellant] was born on December
     10, 1970, was 39 years old at the time of sentencing and will not
     be eligible for parole until he is more than 81 years old.
     Moreover, when the trial court’s sentence exceeded the
     aggravated range of the Sentencing Guidelines for rape (two
     counts) and endangering the welfare of a child (three counts),
     the trial court failed to state its basis for doing so in violation of
     42 Pa.C.S. § 9721 and 204 Pa. Code §303.1(d). Additionally,
     the trial court failed to state any sufficient reasons for imposing
     sentence as required by Pa.R.Crim.P. 704(C)(2). The sentence
     imposed by the trial court is not 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 [Appellant] as required by 42 Pa.C.S. §
     9721(b). Clearly, the sentence imposed by the trial court is
     unreasonable as it is excessive and not reflective of [Appellant]’s
     character, history and condition and amounts to a life sentence.
     The allegations contained in [Appellant]’s post-sentence motion
     are adopted herein and made a part hereof.


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[Citations to notes of testimony omitted].

      This appeal is a challenge to the discretionary aspects of Appellant’s

sentence. The imposition of sentence

      is vested within the sound discretion of the trial court, which,
      absent an abuse of that discretion, will not be disturbed on
      appeal. An abuse of discretion is more than an error in judgment
      — a sentencing court has not abused its discretion unless the
      record discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.
      In determining whether a sentence is manifestly excessive, the
      appellate court must give great weight to the sentencing court’s
      discretion, as he or she is in the best position to measure factors
      such as the nature of the crime, the Appellant’s character, and
      the Appellant’s display of remorse, defiance, or indifference.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa.Super.2014).

      “Challenges to the discretionary aspects of sentencing do not entitle a

petitioner to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super.2011). Before this Court can address such a discretionary

challenge, an appellant must comply with the following requirements:

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test: (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.

Allen, 24 A.3d at 1064.

      Here, Appellant satisfied the first three prongs of this test by filing a

timely appeal, preserving his claim of excessiveness in a post-sentence


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motion and providing a concise statement in his brief for allowance of appeal

with respect to the discretionary aspects of sentence. In addition, Appellant

raised a substantial question that his sentence was inappropriate under the

Sentencing Code. Specifically, he asserted that the court based its decision

to impose consecutive sentences, some of which exceeded the aggravated

range of the Sentencing Guidelines, by focusing exclusively on the

seriousness of his crimes.        See Commonwealth v. Lewis, 45 A.3d 405,

411 (Pa.Super.2012) (Appellant raised substantial question by alleging that

sentencing     court   focused     exclusively   on   seriousness   of   his   crime).

Therefore, we will address Appellant’s challenge to the discretionary aspects

of his sentence.

       We hold that the trial court properly exercised its discretion in

sentencing Appellant to his lengthy term of imprisonment.7

       The sentencing guidelines “are merely advisory,” Commonwealth v.

Tirado, 870 A.2d 362, 366 (Pa. Super. 2005), and merely inform the

sentencing decision without cabining the court’s exercise of discretion.

Commonwealth v. Walls, 926 A.2d 957, 962 (Pa.2007). A trial court may

sentence a defendant outside the guidelines “so long as it places its reasons

for the deviation on the record.” Commonwealth v. Hess, 745 A.2d 29, 31

n.4 (Pa.Super.2000); accord 42 Pa.C.S. § 9721(b). The purpose of this
____________________________________________


7
  We note that the Commonwealth’s brief does a commendable job in
explaining the appropriateness of Appellant’s sentence.



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requirement is to ensure that the defendant knows why the sentence was

imposed and to afford some basis for appellate review. Commonwealth v.

Royer, 476 A.2d 453, 457 (Pa.Super.1984).

      The court first reviewed the events underlying Appellant’s crimes. It

explained that Appellant was a “parental figure in [his victims’] lives” and

used this power to take “advantage on multiple, multiple occasions of their

vulnerability.” N.T., 04/09/2010, at 5. Appellant brought his victims under

his roof and then sexually brutalized them for years, a “continuing course of

sexual terrorism.” Id. at 15. The trial court also took into account the age

of the victims and the impact of these crimes: Appellant “preyed upon six,

seven year old girls” and repeatedly exhibited “opportunistic behavior.” Id.

The court also expressed dismay that Appellant exhibited no regard “to the

likelihood of devastation to [his victims’] lives.”   Id. at 5.   Indeed, each

victim “ha[d] to get on the stand, face you, face a jury full of strangers, and

talk about what is for most people unspeakable.” Id. at 14.

      The court also reviewed a PSI which detailed Appellant’s history,

background, and any potentially mitigating circumstances.            The PSI

catalogued 11 convictions, 8 commitments and 5 revocations of probation,

and it highlighted Appellant’s escalating criminal behavior from disorderly

conduct and simple assault to robbery and possession of controlled

substances with intent to deliver. N.T., 4/9/10, at 14–15. The court also

observed Appellant in person during his four-day trial, during which he


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displayed no emotion or remorse and instead exhibited “extraordinary”

arrogance and indifference in the face of horrific accounts of his rapes and

other sexual assaults.   Id. at 14. Despite his criminal history and lack of

contrition, the trial court still took his rehabilitative prospects into account,

stating: “While you’re in jail you will have an opportunity to show what kind

of man you are. There are programs. There are therapies. There are

educational opportunities … [Y]our choice will speak volumes about the type

of man that you are to become over the next 30 to 40 years. Id. at 17.

      Next, the trial court demonstrated a measure of leniency in imposing a

guidelines range sentence for IDSI and a shorter-than-maximum sentence

for attempted rape.      The court also imposed no further penalty on six

counts, including (1) two counts of sexual assault, each carrying potential

guidelines sentences of 6 – 7½ years imprisonment; (2) three counts of

corrupting the morals of a minor, each carrying guidelines ranges of 1 – 1½

years’ imprisonment; and (3) one count of unlawful restraint with a

guidelines range of 6 - 16 months’ imprisonment. Had the court so chosen,

it could have imposed an additional, aggregate, guideline range, minimum

sentence of 15½ years’ to 20 years and 4 months’ imprisonment and an

aggregate statutory maximum of 35 years’ imprisonment.

      Simply put, the trial court tailored Appellant’s sentence to fit the

circumstances of this case, his history and background and the need to

protect the public and Appellant’s multiple victims.


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      This case is strikingly similar to Walls, in which our Supreme Court

held that the sentencing court properly considered the victim’s young age (7

years old) and the relationship with Walls - her grandfather and babysitter -

in imposing a 21–50 year aggregate term on one count each of rape, IDSI,

and incest.   Id., 926 A.2d at 966–68.        This aggregate included statutory

maximum, consecutive sentences of 10–20 years on convictions of rape and

IDSI. Id. at 959. The Supreme Court explained that the victims’ age and

Walls’ role as grandfather were legally permissible reasons for sentencing

him to the statutory maximum. Id. at 967. Similarly, in the present case,

the trial court properly considered the victims’ ages and Appellant’s position

of power as their brother-in-law, parental figure, and provider.      Appellant

raped 6-year-old A.F. just after she moved in with him.        He also serially

molested T.F. and attempted to rape her when she was living under his roof.

He also raped D.M. while she resided with him. Later, he continually preyed

on A.F., sodomizing her on two different occasions when she was 8 and 10

years old, respectively.   As in Walls, the trial court properly considered

these facts, which were not elements of the offense or subsumed within the

guidelines, when sentencing Appellant.

      Appellant claims in his brief that the trial court did not properly

consider his “history, character, and condition.” Appellant’s Brief, at 33. This

claim fails, because the trial court reviewed both a PSI and a sexually violent

predator evaluation which detailed his history, character, and background.


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See Walls, 926 A.2d at 967 n.7 (“[W]here pre-sentence report[] exist[s],

[an appellate court] shall continue to presume that the sentencing judge was

aware of the relevant information regarding the Appellant’s character and

weighed those considerations along with mitigating statutory factors”).

Appellant next maintains that the court improperly observed Appellant’s

“blackness    of   heart,”    which    was      “not    a    proper   sentencing   factor.”

Appellant’s   Brief,   at    34.      This     comment,       however,   was   merely    a

characterization of Appellant’s wanton behavior in raping “six, seven year old

girls” while acting as “a parental figure in their lives.” N.T., 4/9/10, at 5, 15.

As   Walls    emphasized,      such     reasons        are   wholly   proper   sentencing

considerations in the context of sexual crimes perpetuated against very

young children. Id., 926 A.2d at 967.

      Accordingly, Appellant’s challenge to the discretionary aspects of his

sentence is devoid of merit.

      Judgment of sentence affirmed.

      President Judge Emeritus Ford Elliott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016

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