J-S26003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM ALBERT KRUPITZER                   :
                                               :
                       Appellant               :   No. 460 WDA 2019

       Appeal from the Judgment of Sentence Entered September 10, 2018
      In the Court of Common Pleas of Venango County Criminal Division at
                        No(s): CP-61-CR-0000317-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                 FILED JUNE 18, 2020

        William Albert Krupitzer (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to one count of involuntary deviate

sexual intercourse with a child (IDSI) and two counts of indecent assault.1 We

affirm.

        Appellant’s convictions arose from his repeated sexual abuse of three

minor children over a period of several years.             In March 2018, the

Pennsylvania State Police (PSP) became aware of Appellant’s crimes when one

of the children, L.A.W., who was 23 years old at the time, reported that

Appellant had sexually abused him on multiple occasions when he was 9-10


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*   Retired Senior Judge assigned to the Superior Court.

1   See 18 Pa.C.S.A. §§ 3123(b), 3126(a)(7) and (a)(8).
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years old. One week later, L.A.W.’s sister, K.J.E., who was 30 years old at

the time, informed the PSP that Appellant had sexually abused her when she

was 15 years old. Approximately 6 weeks later, the PSP learned that another

victim, who was 10 years old at the time, told a forensic interviewer that

Appellant had sexually abused her more recently, and on more than one

occasion.

       The Commonwealth charged Appellant with 47 counts related to the

sexual assaults. On June 14, 2018, Appellant entered a negotiated guilty plea

to one count of IDSI and two counts of indecent assault; the Commonwealth

nolle prossed the remaining charges.             Prior to sentencing, the trial court

ordered the preparation of a pre-sentence investigation report (PSI).

       On September 10, 2018, the trial court sentenced Appellant, who was

80 years old at the time, to an aggregate term of 195 to 588 months in prison.2

Notably, the court ordered the respective sentences imposed on Appellant’s

three convictions to run consecutively. Also, the sentences were within the

respective standard ranges of the sentencing guidelines.

       Appellant filed a timely motion for reconsideration, asserting that the

sentence was manifestly harsh and unreasonable given his individualized



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2 Appellant exercised his right to allocution, and expressed remorse for his
crimes. Additionally, the sentencing court considered, inter alia, the PSI and
victim impact statements.



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circumstances; in addition he filed a timely notice of appeal.3 Both Appellant

and the trial court have complied with Pennsylvania Rule of Appellate

Procedure 1925.

       Appellant presents one issue for our review:

       Whether the sentenc[ing] court erred and/or abused its discretion
       when it imposed a sentence without giving due consideration to
       all the relevant factors under 42 Pa.C.S.A. section 9721(b);
       chiefly, the court failed to consider the rehabilitative
       needs/mitigating circumstances of [Appellant,] so that he can
       have a meaningful opportunity for release, including attending
       treatment during his parole. By imposing a sentence that is
       essentially a life sentence, the sentence is contrary to the
       fundamental norms which underlie the sentencing process and
       guidelines[.]

Appellant’s Brief at 4.

       Appellant challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal.4 See Commonwealth v. Hill, 66



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3 Because there was a breakdown in the operation of the Venango County
Clerk of Courts in failing to enter an order, despite direction by the trial court
denying Appellant’s motion for reconsideration by operation of law, Appellant’s
appeal is timely. See Commonwealth v. Braykovich, 664 A.2d 133, 137-
38 (Pa. Super. 1995) (holding that a defendant’s notice of appeal was timely
where there was a breakdown in the process of the court because the clerk
of courts failed to enter an order denying defendant’s post-sentence motion
by operation of law, as required by the Pennsylvania Rules of Criminal
Procedure).

4 Although Appellant entered a negotiated guilty plea, he is nevertheless
permitted to challenge the discretionary aspects of his sentence. See
Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017)
(explaining that where, as here, a plea agreement contains no bargain for a
specific or stated term of sentence, the defendant will not be precluded from
appealing the discretionary aspects of his sentence)).

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A.3d 359, 363 (Pa. Super. 2013). Rather, where the appellant has preserved

the sentencing challenge for appellate review by raising it in a post-sentence

motion, he or she must (1) include in his or her brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2)

show that there is a substantial question that the sentence is not appropriate

under the Sentencing Code. Hill, 66 A.3d at 363-64.

      Here, Appellant included a Rule 2119(f) Statement in his brief.      See

Appellant’s Brief at 8-9. We therefore examine the Rule 2119(f) Statement

to determine whether a substantial question exists. Appellant asserts:

      [T]he sentence imposed was unreasonably harsh and manifestly
      excessive. [] Appellant believes the sentenc[ing] court did not
      consider his rehabilitative needs or mitigating circumstances,
      namely that the sentence imposed effectively constitutes a life
      sentence given Appellant’s advanced age, that he has not had the
      opportunity to take advantage of treatment, the fact that he had
      a prior record score of zero, and is amenable to treatment under
      supervision.

Appellant’s Brief at 9; see also id. at 13 (asserting that Appellant will not be

eligible for parole until he is 96 years old, and “at his advanced age, he does

not represent a danger to society.”).

             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.


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Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).

      Instantly, Appellant’s claim fails to present a substantial question for our

review.   See, e.g., Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.

Super. 2018) (holding that defendant did not present a substantial question

where     the   court   ordered   the   separate   sentences    –   imposed    on

defendant/psychiatrist’s numerous convictions for exploiting multiple female

patients for his sexual gratification – to run consecutively versus concurrently,

and rejecting defendant’s claim that the court imposed an excessive, de facto

life sentence); Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super.

2010) (stating that the imposition of consecutive, rather than concurrent,

sentences is within the sound discretion of the sentencing court, and may raise

a substantial question in only the most extreme circumstances); see also

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (noting

that a defendant is not entitled to a “volume discount” for his crimes by having

all of his sentences run concurrently).




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       However, even if Appellant had presented a substantial question, 5 the

trial court acted well within its discretion in imposing a just and reasonable

sentence under the circumstances, and considered and addressed all pertinent

sentencing factors.

       “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. Barnes, 167 A.3d 110, 122 n.9 (Pa.

Super. 2017) (en banc) (citation omitted). The Sentencing Code sets forth

the considerations a trial court must take into account when formulating a

sentence, providing that “the court shall follow the general principle that the

sentence imposed should call for confinement that is 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 the defendant.” 42 Pa.C.S.A. § 9721(b).

       It is well settled that when a sentencing court is informed by a PSI, “it

is presumed that the court is aware of all appropriate sentencing factors and

considerations, and where the court has been so informed, its discretion



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5  See, e.g., Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super.
2013) (claim that a sentencing court failed to consider defendant’s
rehabilitative needs in imposing a manifestly excessive, de facto life sentence,
may present a substantial question); see also Commonwealth v. Mouzon,
812 A.2d 617, 627-28 (Pa. 2002) (plurality) (stating that a claim of
excessiveness may raise a substantial question even if the sentence imposed
is within the guidelines).

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should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (citation omitted). The Ventura Court further explained:

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a [PSI], it will be presumed that he or she was aware of
      the relevant information regarding the defendant’s character and
      weighed those considerations along with mitigating statutory
      factors. Additionally, the sentencing court must state its reasons
      for the sentence on the record. The sentencing judge can satisfy
      the requirement that reasons for imposing sentence be placed on
      the record by indicating that he or she has been informed by the
      [PSI]; thus properly considering and weighing all relevant factors.

Id. (citation omitted).

      Because the sentencing court in this case reviewed and referenced

Appellant’s PSI prior to imposing the sentence, it is presumed that the court

considered, inter alia, Appellant’s age, lack of criminal history, rehabilitative

needs, and any mitigating circumstances.       See id.   Additionally, the court

stated sufficient reasons on the record for the sentence imposed.           See

generally N.T., 9/10/18, at 29-30.

      We discern no abuse of discretion by the trial court and conclude that

Appellant’s   standard-range     sentences    were    neither   excessive    nor

unreasonable, where he abused his position of trust and authority to

repeatedly sexually abuse three minor children over a period of many years.

See, e.g., Moury, 992 A.2d at 171 (stating that “where a sentence is within

the standard range of the guidelines, Pennsylvania law views the sentence as


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appropriate under the Sentencing Code.”); see also Radecki, 180 A.3d at

470 (noting “although Pennsylvania’s system stands for individualized

sentencing, the court is not required to impose the ‘minimum possible’

confinement.” (citation omitted)).    In addition, the court did not abuse its

discretion in determining that consecutive sentences were warranted in light

of, inter alia, the heinousness of Appellant’s crimes and the impact they had

upon the victims. See Moury, 992 A.2d at 171-72.

      In its opinion, the trial court explained:

      [The] facts show this [c]ourt that [] Appellant poses a serious risk
      to the public. Moreover, the factual bases established for the
      separate criminal offenses, combined with the victim impact
      statements this [c]ourt received and considered during the
      sentencing hearing, shows the devastating and long-lasting
      impact Appellant’s criminal acts have had, and will continue to
      have, on the victims in this case, the family of the victims, and
      the community-at-large.

Trial Court Opinion, 10/9/19, at 11; see also id. at 12 (trial court stating it

considered Appellant’s expression of remorse and his accountability for his

crimes).

      The trial court went on to refute Appellant’s claim that the court failed

to consider mitigating circumstances and imposed a de facto life sentence:

      While [the court] considered the fact that Appellant had a prior
      record score of zero and was in his seventies at the time of
      sentencing, [the court] also considered why [] Appellant had a
      zero prior record score …. [T]he sexual abuse he subjected [the
      victims to] over the course of more than a decade was not
      discovered by law enforcement until 2018, when Appellant was of
      such an age. [The court] also considered the fact that despite his
      age, [] Appellant had committed [criminal] acts against [the] 10-


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       year-old [victim] as recently as six weeks before the [PSP]
       received L.A.W.’s report in 2018.

       [] Appellant, who appeared in good health at the sentencing
       hearing, will have a meaningful opportunity for release, as [the
       court] did not impose a life sentence on him. Rather, [the court]
       imposed consecutive, standard range sentence[s] on [] Appellant
       on the three offenses he perpetrated against three different
       victims.

Id.

       The trial court’s reasoning is supported by both the law and the record.6

Accordingly, Appellant’s sentencing issue lacks merit.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2020




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6 Additionally, Appellant emphasizes his desire to participate in sex offender
treatment once he is paroled, but disregards the fact that the Department of
Corrections provides sex offender treatment to incarcerated individuals.

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