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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                        Appellant         :
                                          :
                   v.                     :          No. 1222 MDA 2017
                                          :
TIMOTHY SCOTT SMITH                       :


           Appeal from the Judgment of Sentence, April 24, 2017,
               in the Court of Common Pleas of Berks County
             Criminal Division at No. CP-06-CR-0005596-2013


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 12, 2018

      The Commonwealth of Pennsylvania appeals from the April 24, 2017

judgment of sentence entered in the Court of Common Pleas of Berks

County after a jury convicted appellee, Timothy Scott Smith, of one count of

indecent assault.1 The trial court imposed a sentence of guilt without further

penalty. We affirm.

      The trial court set forth the following factual history:

            On September 20, 2009, [J.K.], then twenty-one
            years old, was invited by his father and
            step mother [sic] to join them at the home of
            [appellee], who was forty-nine years old at the time.
            [J.K.] arrived around ten o’clock in the evening.
            They drank in the finished basement, which had a

1 18 Pa.C.S.A. § 3126(a)(1). We note that the record reflects that the jury
was unable to reach a unanimous verdict on one count of aggravated
indecent assault in violation of 18 Pa.C.S.A. § 3125(a)(1). (Notes of
testimony, 12/15/16 at 377.)
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            bar, pool table, bathroom, and a bed or cot. [J.K.]
            testified he drank only two or three beers and had
            not been drinking earlier in the evening. Beyond this
            point, a clear, definite rendition of the facts is
            difficult because the evidence contained numerous
            inconsistencies. Around midnight, [J.K.]’s father and
            step-mother [sic] left, while [J.K.] stayed at
            [appellee’s] house. He testified that his father and
            step-mother [sic] had left and even that they told
            him he should stay there. His step-mother [sic],
            however, testified that she asked if he wanted to
            come home with her but he wanted to stay. [J.K.]
            also testified that he stayed because he never drives
            if he has had even one drink, but on
            cross-examination admitted to having a D.U.I.

                  [J.K.] dozed off on the extra bed in the
            basement for ten minutes and then felt [appellee]
            rubbing and groping him. Cross-examination elicited
            that his testimony on direct at trial differed from
            previous written statements as to what happened at
            that point. [J.K.] testified that [appellee] touched
            his penis and inserted fingers into his anus; his
            written statement a few hours after the incident says
            [appellee] touched his private areas and butt cheeks,
            and makes no mention of fingers penetrating his
            anus. [Other portions of J.K.’s trial testimony were
            inconsistent with his prior statements.]

Trial court opinion, 10/3/17 at 1-2.

      As stated, following appellee’s conviction of indecent assault, the trial

court imposed a sentence of guilt without further penalty on April 24, 2017.

The record reflects that on April 26, 2017, the Commonwealth filed a timely

motion for reconsideration of sentence.      On May 3, 2017, appellee filed a

motion for post-sentence relief in the form of a vacated sentence, arrest of

judgment, and/or a new trial on the indecent assault conviction. On July 6,

2017, the trial court denied both motions. The Commonwealth filed a timely


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notice of appeal on August 7, 2017.2     On August 15, 2017, the trial court

ordered the Commonwealth to file a concise statement of errors complained

of on appeal in accordance with Pa.R.A.P. 1925(b).        The Commonwealth

timely complied. Subsequently, the trial court filed its Rule 1925(a) opinion.

      The Commonwealth raises the following issue for our review:

             Whether the [trial] court abused its discretion by
             imposing a sentence of no penalty after [appellee]
             indecently assaulted the victim, especially where
             [appellee] refused to accept responsibility for his
             crime and trial testimony established he previously
             committed a similar bad act?

Commonwealth’s brief at 4.

      The Commonwealth challenges the discretionary aspects of appellee’s

sentence.3

             [T]he proper standard of review when considering
             whether      to    affirm   the   sentencing   court’s
             determination is an abuse of discretion. . . . [A]n
             abuse of discretion is more than a mere error of
             judgment; thus, a sentencing court will not have
             abused its discretion unless the record discloses that
             the     judgment        exercised   was     manifestly
             unreasonable, or the result of partiality, prejudice,
             bias or ill-will. In more expansive terms, our Court
             recently offered: An abuse of discretion may not be
             found merely because an appellate court might have
             reached a different conclusion, but requires a result

2 Where, as here, a “defendant has filed a post-sentence motion, the
Commonwealth’s notice of appeal shall be filed within 30 days of the entry of
the orders disposing of the Commonwealth’s and the defendant’s motions.”
Pa.R.Crim.P. 721(B)(2)(b)(i).

3 The Sentencing Code permits a criminal defendant or the Commonwealth
to file a petition for allowance of appeal of the discretionary aspects of
sentence to this court. 42 Pa.C.S.A. § 9781(b).


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            of   manifest     unreasonableness,       or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of [a] sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e 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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, the Commonwealth filed a timely notice of appeal and properly

preserved its sentencing challenge by filing a timely motion to reconsider

sentence    within    10    days    of      imposition   of   sentence.   See


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Pa.R.Crim.P. 721(B)(1)      (requiring   that   “a   motion   for   modification   of

sentence[4] shall be filed no later than 10 days after imposition of

sentence”).    The Commonwealth also included the requisite Rule 2119(f)

statement within its brief.      We must, therefore, determine whether the

Commonwealth raises a substantial question for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003) (citation omitted). 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.” Sierra, 752 A.2d at 912-13. The

Commonwealth presents a substantial question when it contends that a

sentence is excessively lenient and unreasonably deviates from the

sentencing guideline range.      Commonwealth v. Celestin, 825 A.2d 670,

676 (Pa.Super. 2003) (citation omitted).

      Here, the Commonwealth fails to raise a substantial question for our

review.   Although the Commonwealth contends that the sentence was

excessively lenient, there was no deviation from the sentencing guidelines


4 We note that the        Commonwealth titled its motion as a “motion to
reconsider sentence,”      but it requested that the trial court modify the
sentence and “impose      an appropriate sentence of incarceration, or of some
period of probation . .   . .” (Commonwealth’s motion to reconsider sentence,
4/26/17 at 6.)


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range. Indeed, the standard guidelines range was restorative sanctions to

three months’ incarceration.     Restorative sanctions “suggests use of the

least restrictive, non-confinement sentencing alternatives” and includes a

determination of guilt without further penalty pursuant to 42 Pa.C.S.A.

§ 9753.     See 204 Pa.Code 303.16(a).        Therefore, because the sentence

imposed was within the sentencing guidelines range, we must vacate only if

the case “involves circumstances where the application of the guidelines

would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).

      The   record   reflects   that   the   trial   court   reviewed   appellee’s

pre-sentence investigation (“PSI”) report. (Notes of testimony, 4/24/17 at

9.)   “Where the sentencing judge had the benefit of a [PSI], it will be

presumed that [the sentencing court] was aware of relevant information

regarding [defendant’s] character and weighed those considerations along

with the mitigating statutory factors.” Commonwealth v. Fullin, 892 A.2d

843, 849-850 (Pa.Super. 2006), quoting Commonwealth v. L.N., 787 A.2d

1064 (Pa.Super. 2001).      See also Commonwealth v. Devers, 546 A.2d

12, 18 (Pa. 1988) (“It would be foolish, indeed, to take the position that if a

court is in possession of the facts, it will fail to apply them to the case at

hand”). Therefore, the combination of a standard range sentence and a PSI

defeats the Commonwealth’s claim. See Moury, 992 A.2d at 171 (sentence

not unreasonable where trial court had the benefit of a PSI and imposed a

standard range sentence).



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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/12/2018




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