J-S44025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ZACHARY SCOTT MCPHAIL,

                        Appellant                   No. 882 EDA 2016


          Appeal from the Judgment of Sentence March 4, 2016
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005380-2014


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                             FILED JULY 31, 2017

     Appellant, Zachary Scott McPhail, appeals from the judgment of

sentence entered on March 4, 2016, in the Philadelphia County Court of

Common Pleas. We affirm.

     The trial court provided the following procedural history:

           [Appellant] was arrested December 31, 2013. On May 28,
     2014, [Appellant] was formally charged with inter-alia:        1)
     Involuntary Deviate Sexual Intercourse with a Child pursuant to
     18 Pa.C.S.A. §3123(b); 2) Unlawful Restraint pursuant to 18
     Pa.C.S.A. §2902(a)(1); 3) Incest of a Minor under 13 Years of
     Age pursuant to 18 Pa.C.S.A. §4302(b)(1); 4) Corruption of
     Minors pursuant to 18 Pa.C.S.A. §6301(a)(1)(i); 5) Indecent
     Assault of a Child under 13 Years of Age pursuant to 18
     Pa.C.S.A. §3126(a)(7); and 6) Endangering the Welfare of a
     Child pursuant to 18 Pa.C.S.A. §4304(a)(1). On January 8,
     2016, at the conclusion of his jury trial, [Appellant] was only
     found guilty of the charge of Endangering the Welfare of a Child.
     [Appellant] was found not guilty of all other charges.       On
     March 4, 2016, [Appellant] was sentenced to a period of
     confinement in a state correctional institution for 2 years 6
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     months to 5 years on the charge of Endangering the Welfare of a
     Child.

           On March 11, 2016, [Appellant] timely filed [a] post-
     sentence motion for reconsideration of sentence pursuant to
     Pa.R.Crim.P. 720(B)(1)(a). On March 14, 2016, [Appellant’s]
     motion was denied without a hearing.

           On March 21, 2016, [Appellant] timely filed the instant
     appeal. . . . The Court ordered [Appellant] to file his Statement
     of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
     on March 23, 2016. On April 13, 2016, [Appellant] filed his
     Statement of Errors Complained of on Appeal and
     contemporaneously filed a Request for Extension of Time to file
     his 1925(b) to obtain the Notes of Testimony from sentencing.
     The Court granted [Appellant’s] extension. On June 15, 2016,
     the Notes of Testimony from the March 4, 2016 sentencing
     hearing became available. On July 7, 2016, [Appellant] filed an
     amended Statement of Errors Complained of on Appeal.

Trial Court Opinion, 8/30/16, at 1–2.

     Appellant raises the following issue on appeal:

           Did not the lower court impose an excessive and
     unreasonable sentence, contrary to the fundamental norms that
     underlie the sentencing process and to specific provisions of the
     Sentencing Code, including 42 Pa.C.S. §9721(b), when it
     imposed a sentence beyond the aggravated range of the
     sentencing guidelines (in fact, the maximum statutory sentence)
     for the charge of endangering the welfare of children (hereafter,
     EWOC), the sole offense of which [Appellant] was convicted; in
     particular, did not the lower court err by justifying its sentence
     upon [Appellant’s] prior record, when that record was already
     take [sic] into account by [Appellant’s] prior record score, and
     did not the lower court err by justifying its sentence upon its
     improper conclusion that the jury convicted [Appellant] of EWOC
     because it found that [Appellant] committed sexual offenses?

Appellant’s Brief at 3. Appellant’s issue is a challenge to the discretionary

aspects of his sentence.




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      When an appellant challenges the discretionary aspects of his sentence

there is no automatic appeal; rather, the appeal will be considered a petition

for allowance of appeal.   Commonwealth v. W.H.M., 932 A.2d 155, 162

(Pa. Super. 2007). Furthermore, as this Court noted in Commonwealth v.

Moury, 992 A.2d 162 (Pa. Super. 2010):

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

            [W]e conduct a four-part analysis to determine: (1)
            whether [the] 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 [the] 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.A. §9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

            A substantial question requires a demonstration that “the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.”
      Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
      2005). This Court’s inquiry “must focus on the reasons for which
      the appeal is sought, in contrast to the facts underlying the
      appeal, which are necessary only to decide the appeal on the
      merits.” Id. Whether a substantial question has been raised is
      determined on a case-by-case basis; the fact that a sentence is
      within the statutory limits does not mean a substantial question
      cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
      (Pa. Super. 2003). However, a bald assertion that a sentence is
      excessive does not by itself raise a substantial question justifying
      this Court’s review of the merits of the underlying claim. Id.

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Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). Whether

the issue raised on appeal constitutes a substantial question is a matter

evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d

808, 811 (Pa. Super. 2001).

     Appellant has satisfied the first three elements of the four-part test

from Moury. Appellant filed a timely notice of appeal, a timely motion to

reconsider sentence, and he included a statement of reasons for the

allowance of appeal in his brief.   Appellant’s Brief at 11.   Accordingly, we

address whether Appellant raised a substantial question.

     Appellant asserted three instances in which the trial court abused its

discretion: 1) the trial court double-counted factors that were already

incorporated in the Sentencing Guidelines; 2) the trial court relied on

impermissible factors when it imposed Appellant’s sentence; and 3) the

sentence was disproportionate to Appellant’s conduct and was not justified.

Appellant’s Brief at 12–13.   We conclude that Appellant raised substantial

questions with each of his claims. See Commonwealth v. Robinson, 931

A.2d 15, 27 (Pa. Super. 2007) (a claim that the trial court impermissibly

double-counted factors already incorporated in the sentencing guidelines

raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54,

56–57 (Pa. Super. 2003) (a claim that the trial court relied on impermissible

factors raises a substantial question); and Commonwealth v. Parlante,

823 A.2d 927, 930 (Pa. Super. 2003) (a claim that the trial court


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disproportionately sentenced the defendant without providing a justification

raises a substantial question).

      It should be noted that “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.” Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is

not shown merely by an error in judgement; rather, an appellant must

establish that the trial court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias, or ill will, or reached a

manifestly unreasonable decision. Id.

            When imposing a sentence, the sentencing court is
      required to consider the sentence ranges set forth in the
      Sentencing Guidelines, but it [is] not bound by the Sentencing
      Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d
      1111, 1118 (2007) (“It is well established that the Sentencing
      Guidelines are purely advisory in nature.”); Commonwealth v.
      Walls, 926 A.2d 957, 965 (referring to the Sentencing
      Guidelines as “advisory guideposts” which “recommend ... rather
      than require a particular sentence”). The court may deviate
      from the recommended guidelines; they are “merely one factor
      among many that the court must consider in imposing a
      sentence.” Yuhasz, 923 A.2d at 1118. A court may depart
      from the guidelines “if necessary, to fashion a sentence which
      takes into account the protection of the public, the rehabilitative
      needs of the defendant, and the gravity of the particular
      offense as it relates to the impact on the life of the victim
      and the community.” Commonwealth v. Eby, 784 A.2d 204,
      206 (Pa.Super.2001). When a court chooses to depart from the
      guidelines however, it must “demonstrate on the record, as a
      proper starting point, his awareness of the sentencing
      guidelines.” Eby, 784 A.2d at 206. Further, the court must
      “provide a contemporaneous written statement of the reason or
      reasons for the deviation from the guidelines.” 42 Pa.C.S.A.
      § 9721(b).

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Sheller, 961 A.2d at 190 (emphasis added).

      With respect to the first part of Appellant’s argument concerning

double-counting factors identified in the Sentencing Guidelines, specifically

his criminal history, we note that as a general rule, courts are not permitted

to double-count factors already included in the Sentencing Guidelines.

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000).

Nevertheless, this Court had held that

      “[w]hen imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.”     Commonwealth v. Griffin, 804 A.2d 1, 10
      (Pa.Super.2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
      (2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
      L.Ed.2d 902 (2005). “In particular, the court should refer to the
      defendant’s     prior  criminal   record,   his    age,   personal
      characteristics and his potential for rehabilitation.” Id. Where
      the sentencing court had the benefit of a presentence
      investigation report (“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.” Commonwealth v. Devers, 519
      Pa. 88, 101-02, 546 A.2d 12, 18 (1988).

Moury, 992 A.2d at 171.

      Instantly, at sentencing, the trial court determined that Appellant

possessed a prior record score of five and an offense gravity score of five.

N.T., 3/4/16, at 7–8. The court proceeded to sentence Appellant to two and

one-half to five years of imprisonment for Endangering the Welfare of a

Child (“EWOC”). The trial court benefited from a presentence investigation,

N.T., 3/4/16, at 20; thus, we can presume that it considered all relevant

factors when imposing sentence.      Moury, 992 A.2d at 171.        From the

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presentence investigation report, the trial court gave particular consideration

to Appellant’s criminal history, which notably included statutory sexual

assault. N.T., 3/4/16, at 6, 20. Moreover, the trial court was compelled to

impose a sentence outside of the Sentencing Guidelines because this crime

was also of a sexual nature, and the court stated that Appellant’s prior

record score did not sufficiently integrate the serious crimes of his prior

record. Id. at 20. While Appellant minimizes the extent and severity of his

prior criminal behavior, Appellant’s Brief at 19, the trial court was under no

obligation to do likewise. The trial court properly weighed Appellant’s prior

record, the nature of those crimes, the nature of the instant offense,

Appellant’s recidivism, and the PSI report.    All of those considerations are

permissible beyond the factors enumerated in the Sentencing Guidelines;

thus, we cannot agree that the court double-counted any factors.

      Appellant next claims that the trial court relied on impermissible

factors when it imposed Appellant’s sentence.         Appellant’s Brief at 12.

Specifically, Appellant alleged that the trial court impermissibly inferred that

the jury convicted Appellant of EWOC for his sex acts against the victim

rather than the corporal punishment Appellant inflicted upon the victim.

Appellant’s Brief at 20. This claim is belied by the record. The trial court

explicitly instructed the jury that this case concerned Appellant assaulting

the victim sexually and nothing else. N.T., 3/4/16, at 18–19. Thus, the jury

was informed that the sexual nature of the assault on the victim was the


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behavior that endangered the victim’s welfare, not the corporal punishment.

Accordingly, there was no improper inference.

      Finally, Appellant alleges that the trial court abused its discretion by

failing   to   provide   adequate   justification    for   the   sentence   imposed.

Appellant’s Brief at 12. Section 9721(b) of the Sentencing Code requires the

trial court to include the reason or reasons for the sentence, particularly if it

is outside of the Sentencing Guidelines.            McNabb, 819 A.2d at 57–58.

Here, the Sentencing Guidelines provide a minimum sentence of twelve to

eighteen months, plus or minus three months, for Appellant’s EWOC

conviction. 204 Pa.Code § 303.16. However, the court imposed a sentence

of two and one-half to five years, nine months beyond the aggravated

minimum sentence suggested by the Sentencing Guidelines.               204 Pa.Code

§ 303.16.      Instantly, the trial court adequately described its rationale for

imposing a sentence outside of the Sentencing Guidelines.

            THE COURT: All right. I’ve reviewed the presentence
      report. I’ve listened to the arguments of counsel. I reviewed
      the notes of testimony, especially my charge to the jury. I think
      both sides, the DA and defense counsel, make good points.

            It was a compromised verdict. That’s what jurors are
      permitted to do. That’s why they have all those cases that say
      inconsistent verdicts are still valid verdicts.

            And I was correct when I told the jury that is a charge that
      can include a wide range of conduct, but I think I also made it
      clear to the jury that the allegation in this case was the sexual
      assault, that it wasn’t anything else. The allegation is here that
      the duty of care, protection or support means, among other
      things, you can’t put your penis in her rectum.


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            Right before I said that, I also said, in this case, the
      allegation is that he penetrated her rectum; that’s how he
      endangered her welfare.

           And they were told that they had to find that beyond a
      reasonable doubt. So I don’t think it’s a mystery what they
      meant when they found him guilty of this. It was a weak jury
      who couldn’t bring themselves to say guilty of other charges that
      sound more serious.

             This is not a Megan’s Law offense, right?

             MS. GILLUM: Correct.

           THE COURT:       I don’t know if anybody on the jury
      understood that. The foreman might’ve been well informed.

             I don’t know what they were thinking, but I do know that
      he doesn’t deserve a guilty, no further penalty sentence.
      There’s absolutely nothing in the presentence report or in his
      background that would justify that. The guideline range would
      allow me to give him a county jail sentence or a state prison
      sentence. The state prison sentence could be one-and-a-half to
      something and still be in the guidelines. However, I find that his
      prior record score understates the seriousness of his prior sexual
      assault. And this is a sexual assault. So on the one count, I
      sentence the defendant to two-and-a-half to five years in the
      state correctional institution. He is not RRRI eligible. He has to
      pay mandatory court costs. He’ll get credit for time served.

N.T., 3/4/16, at 18–20.

      After review, we discern no abuse of discretion. The trial court did not

double-count factors already included in the Sentencing Guidelines, it did not

rely on impermissible factors when sentencing Appellant, and it provided

justification for Appellant’s sentence.      Accordingly, we conclude that

Appellant is not entitled to relief.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/31/2017




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