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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

MARY C. RADER

                         Appellant                  No. 726 WDA 2015


           Appeal from the Judgment of Sentence March 26, 2015
              In the Court of Common Pleas of Mercer County
            Criminal Division at No(s): CP-43-CR-0001181-2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                            FILED JULY 13, 2016

      Appellant, Mary C. Rader, appeals from the judgment of sentence

imposed after she entered a negotiated guilty plea to one count of

aggravated assault of a victim less than 13 years of age, whereby she

admitted to recklessly starving her seven-year-old son to the point where he

weighed 25 pounds and was within a month of dying from malnourishment.

Rader contends that the trial court abused its discretion in imposing an

excessive sentence that failed to address her rehabilitative needs. After

careful review, we conclude that the trial court adequately considered all of

the attendant circumstances and fashioned an appropriate sentence. We

therefore affirm.

      The certified record reveals the following factual background. Rader,

who was 28 at the time of her arrest, lived with her mother, father, and five
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children. On June 6, 2014, Mercer County Children and Youth Services

(“CYS”) intervened and removed Rader’s seven-year-old son from her

residence due to severe malnourishment and transported him to Children’s

Hospital in Pittsburgh. At Children’s Hospital, Rader’s son was diagnosed as

“nearly skeletal.” He had the weight of an average two-year-old.

      Rader, her mother, and her father were all charged with various

crimes regarding their care of Rader’s son. Pursuant to a plea agreement

with the Commonwealth, Rader and her mother each pled guilty to

aggravated assault of a person under 13 years of age by a person over 18

years of age. In Rader’s mother’s case, the Commonwealth incorporated a

sentence of five to ten years of imprisonment into the plea agreement. In

contrast, the Commonwealth was willing to defer to the discretion of the trial

court regarding Rader’s sentence, in explicit consideration of a psychological

profile performed while Rader was imprisoned.

      CYS   requested   the   profile   to    evaluate   the   appropriateness   of

placement goals for Rader’s children. The profile indicated that Rader

suffered from dependent personality disorder (“DPD”). A person with DPD

suffers from a self-perception of incompetence in the absence of care and

assistance of others, which leads to submissive behavior and a strong fear of

separation from caregivers. The profile indicated that Rader was dependent

primarily upon her mother. This is consistent with her mother’s guilty plea,




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wherein her mother agreed that she was the primary decision maker in the

household.

      At the close of the sentencing hearing, the trial court sentenced Rader

to 66-180 months of imprisonment. Rader filed a motion to modify sentence,

which the trial court denied. This timely appeal followed.

      On appeal, Rader argues that the trial court imposed an excessive

sentence that failed to address her rehabilitative needs. Rader acknowledges

that this is a challenge to the discretionary aspects of her sentence. See

Appellant’s Brief, at 3. “A challenge to the discretionary aspects of a

sentence must be considered a petition for permission to appeal, as the right

to pursue such a claim is not absolute.” Commonwealth v. Hoch, 936 A.2d

515, 518 (Pa. Super. 2007) (citation omitted).

      Before this Court may reach the merits of a challenge to the
      discretionary aspects of a sentence, we must engage in a four
      part analysis to determine: (1) whether the appeal is timely; (2)
      whether Appellant preserved his issue; (3) whether Appellant’s
      brief includes a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of
      sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise
      statement raises a substantial question that the sentence is
      appropriate under the sentencing code….[I]f the appeal satisfies
      each of these four requirements, we will then proceed to decide
      the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citation

omitted; brackets in original).

      Here, Rader preserved her claims by including them in her post-

sentence motion. Moreover, Rader’s brief contains the required Rule 2119(f)


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statement. We must now determine whether Rader has presented a

substantial question for our review.

      A “substantial question” as to the inappropriateness of a sentence

under the Sentencing Code 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal

quotations and citations omitted). “[W]e cannot look beyond the statement

of questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation

omitted).

      In her Rule 2119(f) statement, Rader asserts that the sentence

imposed “wholly fails to consider her unique rehabilitative needs and that

the sentence so deviated from the fundamental norms of the sentencing

process to be manifestly unfair, excessive and unduly severe.” Appellant’s

Brief, at 3. She proceeds to cite Commonwealth v. Flowers, 950 A.2d

330, 311 (Pa. Super. 2008), and Commonwealth v. Kelly, 33 A.3d 638,

640 (Pa. Super. 2011), to support her argument that she has raised a

substantial question. However, neither Kelly nor Flowers address the claim

made by Rader; both cases deal with the trial court’s failure to order a pre-


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sentence investigation before imposing sentence. Here, the trial court had

not only a pre-sentence investigation, but also a full psychological profile.

Kelly and Flowers do not support a conclusion that Rader has raised a

substantial question.

       It therefore appears that Rader has raised a bald excessiveness claim.

The Commonwealth argues that as such, she has per se failed to raise a

substantial question. However the Supreme Court of Pennsylvania has

explicitly rejected this bright-line approach and the previous case law that

had supported it. See Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.

2002) (finding that Superior Court erred in holding that the excessiveness of

a sentence within statutory limits does not raise a substantial question). 1

       More recently, this Court has provided a further framework for

evaluating whether excessiveness claims raise a substantial question. A

panel of this Court has cautioned appellants that simple citations to broad
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1
  Mouzon does not have an opinion that garnered the support of a majority
of Justices. The lead opinion received the explicit support of three Justices,
with two concurring in result only. As usual, it is impossible to decipher what
portion of the lead opinion these concurrences did not endorse. However,
the two dissenting Justices agreed with the lead opinion that mere
excessiveness claims could raise substantial questions. See Mouzon, at 628
(Castille, J., dissenting) (“I also agree with the lead opinion that a claim that
a sentence is excessive … is not categorically barred from appellate review
under the Sentencing Code.”); Id., at 630 (Eakin, J., dissenting) (“while my
colleagues offer an analysis with which I cannot disagree, I believe there is a
misapprehension of the Superior Court’s decision”). The dissents conclude
that the Superior Court did not err as we did not utilize a categorical ban,
but rather we merely found the Rule 2119(f) statement filed by Mouzon to
be insufficiently specific. See id.



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authorities “may not be sufficient where the facts of the case do not warrant

the conclusion that there is a plausible argument that the sentence is prima

facie excessive based on the criminal conduct involved.” Commonwealth v.

Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013).2 Another panel of this Court

has held that an excessive sentence claim, in conjunction with a claim that

the trial court failed to properly consider mitigating factors, raises a

substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2014), appeal denied 105 A.3d 736 (Pa. 2014). Here, Rader has

argued that the sentence was excessive, and that the trial court failed to

adequately consider her rehabilitative needs. Pursuant to Raven, she has

raised a substantial question, and we proceed to address the substance of

her argument.

       Rader contends that the trial court erred in imposing a longer sentence

based upon the psychological profile, which she argues was mitigating

evidence. The trial court’s review of the psychological report led it to

conclude that it was not purely mitigating, but rather a “two-edged sword.”

N.T., Sentencing, 3/26/15, at 67. The report indicated that Rader’s “use of

denial as a primary coping mechanism makes it more difficult to benefit from

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2
  Judge Wecht dissented from the majority’s analysis of the substance of
Dodge’s challenge to the discretionary aspects of the sentence imposed, but
agreed that Dodge had raised a substantial question. See id., at 1278. It is
unclear whether Judge, now Justice, Wecht agreed with the above quoted
passage.



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rehabilitative efforts.” Id., at 65. Furthermore, the trial court observed that

the profile concluded that “there is an increased need to protect children

from you because of this disorder, and that is just not talking about your

own children. It is any children, as it says in the report.” Id.,at 66.

      After reviewing the psychological profile, we conclude that the trial

court’s description is accurate as to its contents. We therefore cannot find

any fault with the trial court’s reasoning that the profile contained both

mitigating and aggravating factors. While Rader has been diagnosed as

suffering a psychological disorder that mitigates, to some extent, her

culpability for her actions in this case, it is also true that the nature of the

disorder augurs for a long and difficult rehabilitation, and further, that until

rehabilitated, children must be protected from her. Thus, the trial court’s

decision to impose a longer sentence due to this diagnosis is not

unreasonable, and does not constitute an abuse of its discretion. Rader’s

sole issue on appeal therefore merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2016




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