J-S84033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTINA LEACH                            :
                                               :
                       Appellant               :   No. 862 MDA 2017

             Appeal from the Judgment of Sentence March 28, 2017
              In the Court of Common Pleas of Cumberland County
              Criminal Division at No(s): CP-21-CR-0002360-2015


BEFORE: SHOGAN, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 26, 2018

        Christina Leach appeals from the judgment of sentence imposed March

28, 2017, in the Cumberland County Court of Common Pleas. The trial court

sentenced Leach to the statutory maximum term of three and one-half to

seven years’ imprisonment following her jury conviction of one count of theft

by unlawful taking.1 On appeal, Leach challenges the discretionary aspects of

her sentence. For the reasons below, we affirm.

        The facts underlying Leach’s arrest and conviction are summarized by

the trial court as follows:

              On May 23, 2015, Officer Christopher Butler responded to a
        report of a burn victim at the Turkey Hill at 7040 Wertzville Road
        in Cumberland County, Pennsylvania. The victim was conscious
        at the time Officer Butler arrived and when asked what had
        happened, the victim, Anthony Sferlazza, stated that a female
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1   See 18 Pa.C.S. § 3921(a).
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        friend had set him on fire. According to Mr. Sferlazza, the female
        friend, identified as “Christina,” had offered to give him a
        massage. She tied him face down to the bed and poured a liquid
        on him, stating that he would feel cold but then really hot. She
        then allegedly lit him on fire. Mr. Sferlazza managed to free
        himself from the bed but was unable to open the door because
        Christina was holding the door shut. Mr. Sferlazza then jumped
        out of the second story window of the bedroom and drove a spare
        vehicle to the Turkey Hill.[2] He gave the officer a cell phone he
        stated belonged to Christina, and indicated that Christina had
        stolen his white Chevrolet Express 1500 van.           The officer
        eventually confirmed that “Christina” was Christina Leach, and a
        warrant was issued for her arrest.

              [Leach] was subsequently arrested the same day around
        9:30 p.m. in Harrisburg City driving the victim’s van. Evidence
        found inside the van, as well as bank surveillance video, indicated
        that she had eaten dinner at a McDonald’s and had attempted to
        use the victim’s ATM card to withdraw money from his account.

              The victim suffered extensive burns over one third of his
        body, most of which consisted of third degree burns, the most
        serious of all burns. He spent over forty days in a medically
        induced coma and still undergoes treatment for his injuries.

Trial Court Opinion, 7/5/2017, at 1-2.

        Leach was charged with attempted murder, aggravated assault, arson,

and theft by unlawful taking.3 The case proceeded to a jury trial. On January

27, 2017, the jury found Leach guilty of theft by unlawful taking, and not

guilty of attempted murder, aggravated assault, and arson. On March 28,


____________________________________________


2 The notes of testimony from Leach’s jury trial are not included in the certified
record on appeal. However, we note that Leach explains in her brief that after
the victim jumped out the window, he went back inside the house to retrieve
his dog and extinguish the fire before fleeing to the convenience store. See
Leach’s Brief at 7-8.

3   See 18 Pa.C.S. §§ 901/2502, 2702(a)(1), 3301, and 3921, respectively.


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2017, the trial court sentenced Leach to the statutory maximum term for theft,

three and one-half to seven years’ imprisonment. Leach filed a timely motion

seeking reconsideration of her sentence, asserting the trial court’s sentence

reflected its “displeasure and disbelief regarding the not guilty verdicts” and

focused primarily on “sympathy for the complainant.”     Motion to Reconsider

Sentence, 4/7/2017, at ¶ 5. The court denied the motion by order entered

April 25, 2017. This timely appeal followed.4

       Leach’s sole issue on appeal is a challenge to the discretionary aspects

of her sentence.      Specifically, she argues the court imposed an excessive

sentence, “motivated by emotion resulting in partiality and bias[,]” which was

focused on the charges for which she was found not guilty. Leach’s Brief at

11. Leach contends the trial court “completely disregarded the evidence that

Ms. Leach feared for her own life, that she had no vehicle of her own to leave

the property[,] and that Mr. Sferlazza possessed her cell phone.” Id. at 16.

Rather, she maintains the court imposed the statutory maximum sentence as

“an emotional response to Mr. Sferlazza’s medical evidence, his emotionally-

charged testimony, and a reaction with complete disregard for the jury’s

verdict[.]” Id. at 16-17.




____________________________________________


4On June 2, 2017, the trial court ordered Leach to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Leach
complied with the court’s directive, and filed a concise statement on June 22,
2017.

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        When considering a challenge to the discretionary aspects of sentencing,

we must bear in mind:
        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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:

        [a] challenge to the discretionary aspects of sentencing is not
        automatically reviewable as a matter of right. Prior to reaching
        the merits of a discretionary sentencing issue:

            We conduct a four-part analysis to determine: (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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some

citations omitted), appeal denied, ___ A.3d ___, 2018 WL 319345 [579 MAL

2017] (Pa. 2018).

        In the present case, Leach complied with the procedural requirements

for this appeal by filing a timely post-sentence motion for modification of

sentence and subsequent notice of appeal, and by including in her appellate

brief   a    statement     of   reasons   relied   upon   for   appeal   pursuant   to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.




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2119(f). Therefore, we must determine whether she has raised a substantial

question justifying our review.5

       A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). A claim that the trial court relied upon an impermissible

factor in imposing an excessive sentence raises a substantial question for our

review. See Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super.

2003).

       Here, the trial court imposed a sentence outside of the sentencing

guidelines range. Accordingly, our review is guided by the following:

          [I]n exercising its discretion, the sentencing court may
          deviate 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 offenses as it relates to the impact
          on the life of the victim and the community, so long as he
          also states of record the factual basis and specific reasons
          which compelled him to deviate from the guideline range.
          The sentencing guidelines are merely advisory and the
          sentencing court may sentence a defendant outside of the
          guidelines so long as it places its reasons for the deviation
          on the record.
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5 We decline to find Leach waived this claim as suggested by the
Commonwealth. See Commonwealth’s Brief at 7-8. Rather, we find her Rule
2119(f) statement and the argument section of her brief sufficiently sets forth
her argument on appeal. See Leach’s Brief at 11-17.

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     Commonwealth v. Cunningham, 805 A.2d 566, 575
     (Pa.Super.2002) (citation omitted). The legislature has provided
     that an appellate court shall vacate a sentence and remand to the
     sentencing court if “the sentencing court sentenced outside the
     sentencing guidelines and the sentence is unreasonable.” 42
     Pa.C.S. § 9781(c)(3). That section also mandates that “in all
     other cases the appellate court shall affirm the sentence imposed
     by the sentencing court.” 42 Pa.C.S. § 9781(c). The factors that
     should be weighed when we review a sentence include:

        (1) The nature and circumstances of the offense and the
        history and characteristics of the defendant.

        (2) The opportunity of the sentencing court to observe the
        defendant, including any presentence investigation.

        (3) The findings upon which the sentence was based.

        (4) The guidelines promulgated by the commission.

     42 Pa.C.S. § 9781(d).

Commonwealth v. P.L.S., 894 A.2d 120, 129–130 (Pa. Super. 2006), appeal

denied sub nom, Commonwealth v. Schaffer, 906 A.2d 542 (Pa. 2006).

Furthermore, we note “[i]t is beyond peradventure that when a defendant has

been exonerated in the legal system, either by a jury or on constitutional

grounds, with respect to a criminal act, that act cannot be used to enhance a

sentence.” Id. at 130. Nevertheless, a trial court may consider the specific

facts surrounding the conviction that were developed at trial.           See

Commonwealth v. Druce, 796 A.2d 321, 336 (Pa. Super. 2002), aff’d, 848

A.2d 104 (Pa. 2004).




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       Here, the trial court provided the following reasons during the

sentencing hearing for imposing a sentence outside of the guidelines range:6

             Okay. I want counsel and Ms. Leach to know that I have
       considered this sentence for the past two months since the trial.
       I have thought about it regularly and feel that I’ve reached the
       correct decision, and this is not – the sentence is not a punishment
       for what Ms. Leach wasn’t convicted of but for the crime for which
       she was convicted.

             Even accepting the jury’s verdict and giving her all
       reasonable inferences therefrom, the evidence is clear to me that
       she stole [the victim’s] vehicle and left him to die.

                                           ****

              The court recognizes that this sentence is an upward
       departure from the sentencing guidelines but feels that it is the
       only lawful sentence that can attempt to ensure protection of both
       the victim in this case as well as the public at large.

             [Leach] was convicted of this theft offense after she stole
       the victim’s car while he was on fire and burning alive in his home.
       In addition to stealing his car, she stole his cell phone and his
       wallet with no knowledge that he would otherwise be able to get
       help for his ongoing injuries.

             In addition the victim actually suffered horrific injuries
       burning over a third of his body and being forced into a medically-
       induced coma for over forty days. He still requires treatment
       today almost two years after the incident.

            It is only because the victim had the presence of mind and
       overwhelming urge to live that he was able to drive himself in his



____________________________________________


6 We note the trial court recognized the sentence imposed was an “upward
deviation from the sentencing guidelines,” which called for a standard range
sentence of 12 to 18 months’ imprisonment, and an aggravated range of 21
months’ incarceration. N.T., 3/28/2017, at 17. See also Sentencing
Guideline Form (indicating both Leach’s prior record score and the offense
gravity score were 5).


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        spare vehicle to a nearby gas station and ask for help before
        passing out from pain and injury.

              Meanwhile [Leach] had stolen his car and phone, stopped
        for food, and attempted to use his ATM card without calling for
        help for Mr. Sferlazza whom she left on fire in his burning home.
        Even when arrested, [Leach] never inquired into Mr. Sferlazza’s
        well–being.

               This Court has rarely seen such a strong case of callous
        indifference to the value of human life and is confident that the
        only appropriate sentence in this case is the maximum sentence
        allowed by law.     Any lesser sentence would depreciate the
        consequences of [Leach’s] actions.

N.T., 3/28/2017, at 16-18.

        In its opinion, the trial court further expounded that it found the

circumstances of Leach’s crime to be “significantly more horrific and the

consequences significantly more devastating than the ‘typical’ felony theft.”

Trial Court Opinion, 7/5/2017, at 4-5. The court explained:

        Although the jury found that the evidence did not support the
        Commonwealth’s position that [Leach] started the fire or
        attempted to kill the victim, their verdict did reflect that she stole
        his vehicle. The fact that he was on fire when she did so, and that
        he suffered tragic, painful, and disfiguring burns as a result, was
        undisputed at trial.

Id. at 5. Moreover, the trial court disputed Leach’s characterization of its

sentence as “an emotional response” simply because it had contemplated the

sentence since the trial had ended. Id.7 Indeed, the court noted its “lengthy

deliberation” period was necessary to “ensure that any sentence was not an

emotional reaction, but rather a thought-out and well-reasoned decision.” Id.

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7   See Leach’s Brief at 15-16.


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      Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we find no reason to disturb the sentence imposed by

the trial court. Although the court did sentence Leach to the maximum penalty

permitted by law, we do not find the sentence to be unreasonable under the

circumstances.    See 42 Pa.C.S. § 9781(c)(3).     The court provided ample

reasons for the sentence imposed, which were based on the facts surrounding

the theft, and not on the charges for which Leach was acquitted. Further, the

court explained how Leach’s crime was significantly different from a typical

theft case, thereby justifying a deviation from the guidelines. Bearing in mind

our standard of review, we find no abuse of discretion on the part of the trial

court. See Gonzalez, supra. Accordingly, Leach is entitled to no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/26/2018




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