J-A08017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 LAUREL MICHELLE SCHLEMMER               :
                                         :
                    Appellant            :   No. 269 WDA 2018

        Appeal from the Judgment of Sentence September 13, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0008490-2015


BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                  FILED NOVEMBER 12, 2019

      Laurel Michelle Schlemmer appeals from the judgment of sentence the

Court of Common Pleas of Allegheny County imposed on September 13, 2017.

Schlemmer challenges the discretionary aspects of her sentence. Upon review,

we affirm.

      The trial court summarized the factual and procedural background of the

instant appeal as follows:

      The charges arose out of the tragic death of [Schlemmer]’s two
      sons, Luke and Daniel, who were ages three (3) and six (6),
      respectively, on the date they died. It was not disputed at trial
      that [Schlemmer] drowned her two sons in the family bathtub.
      The evidence also revealed that approximately a year earlier,
      [Schlemmer] attempted to kill her sons when she bound them in
      twine, placed them in her driveway, and ran over them three (3)
      times with the family minivan. They survived and she claimed
      that the incident was an accident. Her son Luke had a broken jaw,
      broken . . . ankle and a lacerated liver while Daniel had a broken
      pelvis. Inexplicably, no criminal charges were filed and no action
      was taken by the Department of Children, Youth and Families.
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Trial Court Opinion (“TCO”), 8/30/18, at 3-4.

      Following a non-jury trial, [the trial court] adjudged her guilty but
      mentally ill of two counts of murder in the third degree; two counts
      of endangering the welfare of children; and tampering with
      physical evidence. She was sentenced on [September] 13, [2017]
      to not less than fifteen (15) nor more than forty (40) years’
      imprisonment at each count of third degree murder, with the
      sentences ordered to run consecutive to one another.               An
      additional sentence of not less than two-and-one-half (2½) nor
      more than five (5) years was imposed at each of the endangering
      the welfare of children counts, which were ordered to run
      concurrently with one another and with the other sentences
      imposed. No further penalty was imposed on the remaining count.

Id. at 2-3. After the trial court denied Schlemmer’s post-sentence motion,

Schlemmer filed the instant appeal.

      On appeal, Schlemmer raises one issue:

      Did the court abuse its discretion in imposing consecutive terms
      of imprisonment resulting in a manifestly excessive and
      unreasonable aggregate sentence of thirty (30) to eighty (80)
      years’ imprisonment for the instant offenses insofar as the
      sentence imposed does not reflect full consideration of all of the
      Sentencing Code factors, but is based solely on the seriousness of
      the offenses, and is not in accord with the proper exercise of
      discretion in imposing what the court itself referred to as a “de
      facto” life sentence?

Schlemmer’s Br. at 5. For the reasons explained below, we disagree with

Schlemmer. Accordingly, we affirm the judgment of sentence.

      Our standard of review for challenges to the discretionary aspects of a

sentence is well settled. We apply an abuse of discretion standard. See

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super. 2015).

Additionally, because challenges to the discretionary aspects do not entitle an



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appellant to appellate review as of right, an appellant challenging the

discretionary aspects of her sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine whether: 1) the appellant has filed a

timely notice of appeal; (2) the issue was properly preserved at sentencing or

in a motion to reconsider and modify sentence; (3) the appellant’s brief has a

fatal defect; and (4) there is a substantial question that the sentence appealed

from is not appropriate under the Sentencing Code. See Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa.Super. 2010).

      Schlemmer has met the first three requirements of the above test.

Therefore, we must determine whether Schlemmer raised a substantial

question. Whether a particular issue constitutes a substantial question

regarding the appropriateness of sentence is a question to be evaluated on a

case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811

(Pa.Super. 2001).

      Schlemmer argues that the consecutive sentence imposed by the trial

court is “manifestly excessive and unreasonable since the court focused

exclusively on the nature and circumstances of the crime and failed to consider

the rehabilitative needs of or history, character and condition of Mrs.

Schlemmer.” Schlemmer’s Br. at 11. She also maintains that the trial court

relied on improper factors such as her mental health. See id. at 12. Each of

these claims raises a substantial question. See Commonwealth v.

Downing, 990 A.2d 788, 792 (Pa.Super. 2010) (concluding claim that trial


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court relied on improper factors raises a substantial question); see also

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc)

(stating this Court has held that claim of excessiveness along with claim that

court failed to consider mitigating factors raises a substantial question);

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (finding

substantial question raised where defendant claimed sentence was excessive

based on mitigating factors that court allegedly did not consider). We

therefore address the merits of her claims which we conclude warrant

Schlemmer no relief.

      The trial court explained the reasons for imposing consecutive sentences

as follows:

      Consecutive sentences were warranted . . . because [Schlemmer]
      killed two children. Moreover, she killed them by drowning them
      one at a time. Her crime involved her planning the killings. Two
      separate, heinous and callous acts were required. She had to take
      the time to drown one child and, after witnessing his struggle to
      live and seeing the life fade from his eyes, take the other son and
      do the same thing to him. Each act required separate punishment.
      To make the sentence for the second killing concurrent would have
      diminished the seriousness of that offense and lessened the value
      of the life taken. . . . To impose anything but consecutive
      sentences would have afforded [Schlemmer] a [“volume
      discount”].

TCO at 9-10. The trial court did not abuse its discretion in imposing

consecutive sentences. See Moury, 992 A.2d at 171 (“the court has discretion

to impose sentences consecutively”).




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      Similarly, we perceive no abuse of discretion in the sentencing court’s

treatment   of   Schlemmer’s    mitigating   circumstances.   The   mitigating

circumstances mentioned above were brought to the trial court’s attention at

the time of sentencing. Indeed, the trial court noted:

      [The trial court] considered [Schlemmer]’s mental health when
      imposing sentence. The nature and extent of her mental illness
      was the primary focus of the evidence presented at trial. [The
      trial court] considered the record from the trial, including the
      extensive testimony from two psychiatrists regarding her mental
      state, in formulating the sentence. [The trial court] also
      considered everything that was presented by the parties at
      sentencing as well as that which was set forth in the pre-sentence
      report.

TCO at 8. Thus, the record shows that the sentencing court was fully aware

of the above circumstances, but decided not to weigh them as Schlemmer

desired. See N.T. Sentencing, 9/13/17, at 22-25.

      Schlemmer, in essence, is asking us to reweigh the mitigating

circumstances and substitute our judgment for that of the sentencing court.

That we cannot do. See, e.g., Commonwealth v. Brown, 741 A.2d 726,

735 (Pa.Super. 1999) (en banc) (“[W]hen reviewing sentencing matters, we

must accord the 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”) (citation omitted).1

1As noted above, Schlemmer raised additional mitigating circumstances which
the sentencing court did not consider or did not consider adequately, including
the implications of imposing a long sentence, in light of Schlemmer’s age.

The record shows that the trial court was fully aware of the implications of
imposing consecutive sentences. See TCO at 10 (“the sentence imposed was
a de facto life sentence but that sentence was warranted for the taking of two

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      Accordingly, we conclude that the trial court did not abuse its discretion

in fashioning Schlemmer’s sentence.

      Judgment of sentence affirmed.

President Judge Panella joins the Memorandum.

Judge Stabile files a Concurring/Dissenting Memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2019




innocent lives”) (internal quotation marks omitted). As also noted by the trial
court, Schlemmer is not entitled to the imposition of the minimum possible
confinement or a “volume discount.” Id.; see Commonwealth v. Walls, 926
A.2d 957, 965 (Pa. 2007); Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995).

Schlemmer argued that the sentencing court treated Schlemmer’s mental
condition as an aggravating circumstance as opposed to a mitigating
circumstance. The allegation is devoid of support in the record, nor did
Schlemmer point to anything in the record supporting the claim. Schlemmer
also alleged that the sentencing court abused its discretion for not believing
her sincere expression of remorse. The claim is without merit. Credibility
determinations are for the trial court. We do not reassess or reweigh these
matters.

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