J-S16039-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY EUGENE SOLOMON,                       :
                                               :
                       Appellant               :      No. 1331 MDA 2018

          Appeal from the Judgment of Sentence Entered July 23, 2018
               in the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001063-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: APRIL 30, 2019

        Gary Eugene Solomon (“Solomon”) appeals from the judgment of

sentence imposed following his open guilty plea to two counts of cruelty to

animals.1 We affirm.

        In March 2017, the Lycoming County Humane Society received an

anonymous tip that a dog at Solomon’s address was not being fed or receiving

adequate care.       Humane Society police officer Shawn McMonigle (“Officer

McMonigle”) responded to Solomon’s home and found the deceased and frozen

body of a terrier-mix dog, lying in an outdoor chain link kennel with insufficient

shelter. Solomon informed Officer McMonigle that the dog had died seven

days ago, the date of a large snowstorm, and Solomon was waiting for the

ground to warm up before burying the dog’s body. Officer McMonigle observed

that the dog’s body was extremely emaciated, and that there was no food
____________________________________________


1   18 Pa.C.S.A. § 5511(a)(2.1), (c).
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visible in the kennel.     A necropsy revealed that the dog died from a

combination of starvation and hypothermia.

      On May 24, 2018, Solomon pled guilty to the above-described charges.

The trial court deferred sentencing and ordered a pre-sentence investigation

report (“PSI”).     Subsequently, the trial court sentenced Solomon to an

aggregate term of three months to two years, less one day, in prison.

Solomon filed a post-sentence Motion, requesting reconsideration of his

sentence, which the trial court denied. Solomon filed a timely Notice of Appeal

and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

      On appeal, Solomon raises the following question for our review: “Did

the trial court abuse its discretion when imposing an aggravated[-]range

sentence on [Solomon] without fully stating the reasons on the record in

reflection of consideration of an aggravated[-]range sentence?”             Brief for

Appellant at 7.

      Solomon     challenges    the   discretionary   aspects   of   his   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).         Prior to reaching the merits of a discretionary

sentencing issue,

      [this Court conducts] 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

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         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).

                                     ***

               The determination of what constitutes a substantial question
         must be evaluated on a case-by-case basis.          A substantial
         question 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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

         Here, Solomon filed a timely Notice of Appeal, raised his sentencing

claim in a post-sentence Motion, and included a Rule 2119(f) Statement in his

brief.     Further, Solomon’s claim that the sentencing court imposed an

aggravated-range sentence, without stating on the record the reasons

therefor, raises a substantial question. See Brief for Appellant at 10; see

also Commonwealth v. Booze, 853 A.2d 1263, 1278 (Pa. Super. 2008)

(stating that “an allegation that the court failed to state adequate reasons on

the record for imposing an aggravated-range sentence … raises a substantial

question for our review.”). Thus, we will review Solomon’s claim.

         Our standard of review is as follows:

         Sentencing is vested in the discretion of the trial court, and will
         not be disturbed absent a manifest abuse of that discretion. An
         abuse of discretion involves a sentence which was manifestly
         unreasonable, or which resulted from partiality, prejudice, bias, or
         ill will. It is more than just an error in judgment.




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Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

(citation omitted).

             The sentencing court is given broad discretion in
      determining whether a sentence is manifestly excessive because
      the sentencing judge is in the best position to measure factors
      such as the nature of the crime, the defendant’s character and the
      defendant’s display of remorse, defiance, or indifference. In order
      to find that a trial court imposed an unreasonable sentence, we
      must determine that the sentencing court imposed the sentence
      irrationally and that the court was not guided by sound judgment.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted).

            When imposing a 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.      It must be
      demonstrated that the court considered the statutory factors
      enunciated for determination of sentencing alternatives, and the
      sentencing guidelines. Additionally, the court must impose a
      sentence which 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 the community, and the rehabilitative needs of the
      defendant.

Id. (quotation marks and citations omitted); see also 42 Pa.C.S.A. § 9721(b).

Further, “where the trial court is informed by a [PSI], it is presumed that the

court is aware of all appropriate sentencing factors and considerations, and

that where the court has been so informed, its discretion should not be

disturbed.”   Downing, 990 A.2d at 794 (quotation marks and citations

omitted).




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         Here, the record reflects that the trial court considered the PSI, the

sentencing guidelines, the severity of Solomon’s crimes, Solomon’s lack of

remorse for his crimes, the mitigating and aggravating factors, the protection

of the public, and Solomon’s rehabilitative needs. See N.T., 7/23/18, at 2,

13; Trial Court Opinion, 10/8/18, at 2-3 (pages unnumbered). During the

sentencing hearing, the trial court noted that it was particularly concerned

with the severity of the dog’s mistreatment, and Solomon’s lack of remorse.

See id. at 13 (wherein the trial court stated that “I’m moved by this. And I

can’t get by how no one in the family could do anything for this poor dog.”);

Trial Court Opinion at 5 (unnumbered) (stating that Solomon “did not appear

to appreciate the seriousness of the crimes he committed or the impact on

others or the community.”).

         We agree with the court’s analysis, and additionally note the testimony

of Officer McMonigle.     At Solomon’s sentencing hearing, Officer McMonigle

testified that this was one of the worst animal cruelty cases he had ever seen.

See N.T., 8/22/18, at 3. Officer McMonigle stated that the dog’s stomach and

intestines were void of any food or waste, and the dog’s body had no fat

reserves remaining. Id. Pieces of wood were found between the dog’s teeth

and gums, evidencing the dog’s attempt to consume the doghouse to stay

alive.    Id. at 4.   Moreover, Officer McMonigle testified that at Solomon’s

preliminary hearing, Solomon asked if he could pay a fine for his offense, and

leave. Id. at 4-5.


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      We conclude that the trial court properly considered all the statutory

factors before sentencing Solomon.     See McClendon, supra.        Moreover,

because the trial court had the benefit of a PSI, it is presumed that the court

was aware of relevant information regarding Solomon’s character, and

weighed those considerations along with any mitigating factors.           See

Downing, supra; see also Commonwealth v. Fowler, 893 A.2d 758, 766

(Pa. Super. 2006) (rejecting the appellant’s claim that the sentencing court

had abused its discretion by imposing sentence without stating adequate

reasons on the record, and holding that “[s]ince the sentencing court had and

considered a [PSI], this fact alone was adequate to support the sentence[.]”).

Accordingly, Solomon’s discretionary sentencing challenge fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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