J-S06015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KRZYSZTOF MOZDZONEK                      :
                                          :
                    Appellant             :   No. 1571 EDA 2018

          Appeal from the Judgment of Sentence January 12, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0007752-2016


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 27, 2019

      Krzysztof Mozdzonek appeals from the judgment of sentence of ten to

twenty years of incarceration with a consecutive seven years of probation,

imposed following his convictions for involuntary deviate sexual intercourse

(“IDSI”), IDSI with a minor under sixteen, unlawful contact with a minor for

purposes of IDSI, unlawful contact with a minor under sixteen, corruption of

minors, and endangering the welfare of a child. We affirm.

      In November of 2013, when A.J. was fifteen, A.J. attended a Polish home

party with other Polish boy scouts and his scout leader, Appellant. N.T. Trial

11/8/17, at 38-41. Appellant supplied him with alcohol and A.J. “blacked out.”

Id. at 44, 57. The next morning, A.J. noticed that his penis seemed “different”

and smelled of semen. Id. at 46. A few weeks later, Appellant offered A.J.

marijuana.    Id. a 47.   While A.J. was “paralyzed” by the effects of the
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marijuana, Appellant forcibly performed oral sex on him until he ejaculated.

Id. at 51-52. Appellant then admitted to previously assaulting A.J. at the

party. Id. 53.

     After this assault, there were ten to twenty more instances of Appellant

performing oral sex on A.J. Id. at 54. Many times A.J. would attempt to

physically and verbally resist, but Appellant continued to perform oral sex on

him. Id. at 95. Appellant bought A.J. gifts and provided financial support

while continuing to assault A.J. Id. at 63, 66-68. 72-73. When A.J. resisted

Appellant’s attempts to have oral sex with him, Appellant would punish A.J.

by taking away a “privilege.” Id. at 96.

     Finally, when A.J. was sixteen and “just couldn’t take it anymore,” he

told his brother, and a few days later his mother. Id. at 81, 88-89. A.J.’s

mother contacted the police in May of 2016.      Appellant then spoke to his

school counselor, the police, and a specialist at the Philadelphia Children’s

Alliance. Id. at 183-84; N.T. Trial, 11/9/17, at 14, 17, 19, 25. On June 7,

2016, detectives arrested Appellant for these offenses. Id. at 42.

     Appellant proceeded to a jury trial and, on November 9, 2017, was found

guilty of the above-referenced offenses. On January 2, 2018, the trial court

imposed four concurrent terms of ten to twenty years of incarceration for IDSI

forcible compulsion, unlawful contact of a minor, IDSI with a minor under

sixteen, and unlawful contact with a minor under sixteen, followed by seven

years of probation for endangering the welfare of a child.     The court also


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ordered Appellant to serve five years of probation for corruption of minors,

but ran it consecutive to the imprisonment and concurrent to the probation

already imposed. In total, Appellant’s aggregate sentence was ten to twenty

years of incarceration with a consecutive seven years of probation.

      Appellant filed a motion to reconsider his sentence, which was denied.

Appellant timely appealed, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.      Appellant presents the following issue for our

consideration:

      Was the sentence excessive and did the trial court abuse its
      discretion when it imposed a sentence that was nearly double the
      aggravated guidelines range, and where the sentence was
      significantly greater than what was needed to protect the public
      and did not truly take into consideration many mitigating factors,
      such as Appellant’s tremendous community and family support,
      no prior record, extensive work history and positive position in his
      community and remorse at sentencing, among other factors?

Appellant’s brief at 4.

      Appellant challenges the discretionary aspects of his sentence. As such,

the following principles apply to our consideration of whether review of the

merits of his claim is warranted.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal

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            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a motion for reconsideration of his sentence and a timely

notice of appeal. Appellant’s brief contains a statement of reasons relied upon

for his challenge to the discretionary aspects of his sentence as required by

Pa.R.A.P. 2119(f).     In his statement, Appellant claims that a substantial

question is presented by the fact that the trial court imposed a sentence that

was “approximately twice above the aggravated range that is recommended

by the Sentencing Guidelines” and failed to consider Appellant’s past as a

positive force in the Philadelphia area Polish community, lack of a prior record,

and community and family support. Appellant’s brief at 9.

      We find that this claim raises a substantial question as it challenges the

adequacy of the reasons given by the trial court for its sentencing choice. See

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)

(concluding substantial question raised by allegation that sentencing court

imposed aggravated-range sentence without considering mitigating factors).

Accordingly, we now turn our attention to Appellant’s challenge to his

sentence.

      The following principles apply to our substantive review of Appellant’s

claim.   “When reviewing sentencing matters, this Court must accord the


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sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).        “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Rather,

we review the trial court’s determination for an abuse of discretion.

      In this context, an abuse of discretion is not shown merely by an
      error in judgment. Rather, the appellant must establish, by
      reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      A trial court’s sentence “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. § 9721(b). “When imposing sentence, a

court is required to consider the particular circumstances of the offense and

the character of the defendant. In considering these factors, the court should

refer to the defendant’s prior criminal record, age, personal characteristics

and potential for rehabilitation.”   Antidormi, supra at 761 (citations and

quotation marks omitted). Finally, when the trial court has been informed by

a pre-sentence report, it is presumed that the court acted reasonably.

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017).

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       Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we

find (1) that the court intended to sentence within the guidelines, but “applied

the guidelines erroneously;” (2) a sentence was imposed within the guidelines,

“but the case involves circumstances where the application of the guidelines

would be clearly unreasonable;” or (3) “the sentencing court sentenced

outside the sentencing guidelines and the sentence is unreasonable.”         42

Pa.C.S. § 9781(c).        The instant sentence is outside the guidelines and

therefore must be affirmed unless it is unreasonable. While reasonableness

is not defined in the statute, it “commonly connotes a decision that is

‘irrational’ or ‘not guided by sound judgment.’” Commonwealth v. Walls,

926 A.2d 957, 963 (Pa. 2007).

       Appellant argues that his sentence was excessive because it was greater

than necessary to protect the public and did not adequately consider various

mitigating factors. Specifically, Appellant alleges that the trial court did not

consider his rehabilitative needs, community and familial support, traumatic

upbringing, lack of a prior criminal record, and his remorse. Appellant’s brief

at 10-11.

       Appellant fails to establish that the instant sentence was unreasonable.

The certified record demonstrates that the trial court validly relied on several

factors in electing to impose a sentence above the guidelines,1 all of which


____________________________________________


1The parties agree that Appellant’s sentences for IDSI and unlawful contact
with a minor were above the guidelines. Commonwealth’s brief at 8.

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demonstrated that the court followed the general principles outlined in

§ 9721(b), i.e., that the sentence be consistent with the protection of the

public, gravity of the offense as it relates to the victim and community, and

the rehabilitative needs of the offender.

        In fashioning the judgment of sentence, the trial court deemed it highly

relevant that Appellant utilized his position as a boy scout leader to victimize

A.J. It listened to A.J.’s mother as she explained the effects that the prolonged

sexual assaults had on her son and their family. Trial Court Opinion, 8/14/18,

at 7.    The trial court was also strongly influenced by Appellant’s lack of

remorse at sentencing, especially given the fact that Appellant had admitted

to committing these crimes. Id. at 8-9. Also, the court’s review of the pre-

sentence investigation (“PSI”) report, revealed that Appellant’s probation

officer found that Appellant lacked remorse. Id. at 8.

        Importantly, this is not where the court’s analysis concluded. It also

considered all of the mitigating circumstances Appellant presented, including

his age, difficult upbringing, lack of prior record, and community support. Id.

at 9. In addition, the court considered the information that Appellant provided

in his rather “lengthy autobiographical statement,” which detailed the

foregoing circumstances. Id. at 9.

        Our review confirms that the trial court considered Appellant’s

mitigating factors, and determined that they were entitled to little or no weight




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under the circumstances.      We have no license to reweigh the mitigating

circumstances against the aforementioned factors. Macias, supra, at 778.

      Nor did the trial court fail to place on the record its reasons for imposing

a sentence above the guidelines. This court offered the following explanation

for its decision:

      Sir, I listened to your allocution speech that went on for at least
      45 minutes. And I was saddened that the only tear you shed was
      for yourself at missing your father and his one visit to the
      orphanage. None for [A.J.]. [A.J.] had – he was a mere mention
      or a blurb in your soliloquy that you went on about. Your life was
      tough. No one is arguing that. But now you made [A.J.]’s
      childhood a living nightmare. And you’re not taking responsibility
      for that. I remember when he testified in this trial and how
      traumatized he was, and still is, about the years of abuse that
      occurred under your hands. You, his boy scout troop leader,
      betrayed that trust that his family put in you. His father worked
      out of town often, and he looked at you as a father figure. What
      I heard today is a person who is very self-absorbed. You made
      this whole incident about you and not this vulnerable young man.
      You heard that [A.J.] needs therapy. You’ve seen him and how
      traumatized he is. But I didn’t see you shed a tear, not a tear, for
      that. And I do incorporate the District Attorney’s argument in this
      sentencing. I do agree, and we highlighted a lot of the same
      matters from the report generated for this hearing . . . And I also
      want to state for the record, too, that I was actually inclined to
      give you a higher sentence than what was recommended by the
      Assistant District Attorney. But I take into account all the
      mitigation and argument that your lawyer put forth for you today,
      including your community activities and everything else. And
      that’s why I gave you that sentence.

Id. at 9-10 (citing to N.T. (sentencing), 1/12/18, at 37, 38, 41).

      The record establishes that the trial court took into account the relevant

factors and explained the reasons for its sentence. It found that Appellant

utilized his position of trust and responsibility in order to abuse a minor victim


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over an extended period of time. Afterward, he showed little remorse for his

actions, which had devastated a family and “split [a] formerly ‘tight-knit’

Polish community in two.” Trial Court Opinion, 8/14/18, at 8. Accordingly,

the trial court acted well within its discretion when it sentenced Appellant

above the guidelines.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/19




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