J-S31040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KRISTOPHER NEWMAN                          :
                                               :
                       Appellant               :   No. 51 WDA 2019

           Appeal from the Judgment of Sentence Entered April 3, 2018
      In the Court of Common Pleas of Cambria County Criminal Division at
                        No(s): CP-11-CR-0000375-2016


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED SEPTEMBER 13, 2019

        Kristopher Newman (“Newman”) appeals from the judgment of sentence

imposed following his plea of nolo contendere for aggravated assault, simple

assault, and endangering welfare of children.1 Newman contends his sentence

was unduly harsh. We affirm.

        The trial court summarized the underlying facts as follows.

        The charges in this matter arose from incidents of child abuse
        directed at the four year old daughter of . . . Newman’s [former]
        girlfriend. The abuse included instances of physical and mental
        abuse, included tying the child’s hands and then securing her in a
        garbage bag as punishment for soiling herself. The record reflects
        that as a result of the physical abuse the child suffered injuries to
        her head, face, [and] body, and suffered swelling of her liver due
        to a blow to her stomach.




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1   18 Pa.C.S.A. §§ 2702(a)(8), 2701(a)(1), and 4304(a)(1), respectively.
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Trial Court Opinion, filed May 3, 2018, at 2. In exchange for Newman’s plea

of nolo contendere, the Commonwealth reduced the aggravated assault

charge from a first-degree felony to a second-degree felony. Following the

plea hearing, the court ordered a presentence investigation (“PSI”) report and

scheduled a sentencing hearing.

       At sentencing, the Commonwealth presented the testimony of the

victim’s father, who testified that his four-year-old daughter had sustained

life-threatening injuries, including an enlarged liver from being hit in the

abdomen. She also had scratches on her face, bruises on her face and head,

and missing hair. The victim’s father also testified that his daughter’s behavior

has changed: while she used to be very affectionate and carefree, she now

trembles at hearing Newman’s name, awakens terrified in the night, and

refuses to sleep in a room by herself. In addition to the victim’s father’s

testimony, the Commonwealth presented the video footage of an incident that

occurred when Newman left the courtroom following his plea hearing, in which

Newman accosted a cameraperson.2

       Newman exercised his right to allocution. Newman acknowledged that

he has problems controlling his temper. He asserted that he had already been

punished for the charges, as the legal proceedings caused him to lose his job,

his friends, and his relationships. He added that he had not seen his children

in three years, and had been harassed on social media and was assaulted by
____________________________________________


2The video was not included in the certified record, and no description of its
contents appears in the record.

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the victim’s father. Newman stated he had sought counseling for the

depression, anxiety, and “aggravation” brought on by the charges. N.T.,

4/3/18, at 10. Newman complained that the victim’s father’s testimony was

fabricated, and stated that the difference in age between him and the victim

did not matter “when it comes to somebody’s life being ripped apart[.]” Id. at

18.

      Regarding the incident in the video, Newman explained that when he

left the courtroom following his plea hearing, a newsperson with a camera

surprised and confronted him. Newman stated that he overreacted because

he had been under extreme stress and was ashamed and embarrassed at his

conduct. Newman also presented the testimony of his current girlfriend, who

stated she did not believe Newman was guilty and denied that Newman had

ever mistreated her daughter.

      Before   imposing   sentence,   the   court   stated   that   it   took   into

consideration the PSI, the video, and a character letter submitted by Newman.

The court then stated,

      In all this time I have seen murderers, rapists, and none have had
      such a poor attitude as you do. To have the guts, and I guess it’s
      guts or stupidity, whatever it is, to stand there and to smirch the
      idea that the victim is four years old is beyond comprehension.

Id. at 19.




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       The court sentenced Newman to 30 to 84 months’ incarceration for

aggravated assault, which the court noted was above the aggravated range

for that charge.3 It stated its reasons were

       primarily your demeanor in this court, your comments on the
       record, obviously the tape. But I am going to give you credit on
       that, you know, you are frustrated, it’s a tough situation, and you
       walk out in the hall and the movie camera is sticking in your face.
       Okay. I am going to give you the benefit of the doubt, okay, on
       that. However, I cannot give you the benefit of the doubt of the
       level of crime that this is. And I am departing from the guidelines
       and going above the guidelines, beyond the aggravated range for
       the following reasons: This child was in a position of care or trust
       with you. Second, the offense was more onerous and significant
       than a usual type of child abuse case that we would see. Third,
       the victim was particularly vulnerable due to her age of four.
       Fourth, it is the opinion of this [c]ourt and based on the [PSI] and
       the affidavit of probable cause that you inflicted extreme cruelty
       on the victim. Five, a lesser sentence would depreciate the
       seriousness of the crime. Six, I do find due to your inability to
       manage your anger that you are a danger to society. For those
       reasons, I deviate from the sentencing guidelines and go above
       the aggravated range.

Id. at 20. For endangering the welfare of children, the court sentenced

Newman to 12 to 60 months’ incarceration, consecutive to his sentence for

aggravated assault. The court noted that this sentence was in the standard

range. For simple assault, the court sentenced Newman to a standard-range


____________________________________________


3   Newman was convicted of Aggravated Assault under 18 Pa.C.S.A. §
2702(a)(8), a second-degree felony, which carries an offense gravity score of
7. Newman’s prior record score was 1. See Explanation of Defendant’s Rights,
filed 1/30/18. An aggravated range sentence for this offense begins at a
minimum sentence of 16 months’ confinement and extends to a minimum of
22 months. See 204 Pa. Code § 303.16(a). The statutory maximum is ten
years’ confinement. See 18 Pa.C.S.A. § 1103(b).

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sentence of 60 months’ probation, concurrent with his sentence for

endangering the welfare of children. The aggregate term of incarceration was

42 to 144 months. After the court sentenced Newman, it noted for the record

that Newman “just turned to the victim’s father and told him he would see

him and he is an asshole.” Id. at 25.

       Newman filed a post-sentence motion, arguing that the sentences “were

unduly harsh as the Court sentenced [him] above the aggravated range”; an

aggravated sentence was unnecessary to satisfy the intent of the sentencing

guidelines; and the court impermissibly relied on Newman’s unsworn

statements to the media. The court denied the motion.

       Newman appealed,4 and raises a single issue: “Whether the trial court

was in error in denying [Newman’s] Post Sentence Motion for Sentence

Modification when it found that it was not unduly harsh to sentence [Newman]

to serve incarceration of 42 months to 144 months[.]” Newman’s Br. at 4.


____________________________________________


4 Newman’s first appeal was dismissed by this Court due to his counsel’s failure
to file a brief. See 568 WDA 2018. Newman subsequently filed an application
to reinstate his appeal in the trial court, asserting that he had never received
the appellate briefing schedule and the Commonwealth had no objection to
reinstatement of his appellate rights. The trial court granted the application
and reinstated Newman’s direct appeal rights. As the proper procedure for
reinstatement of appellate rights nunc pro tunc is through the filing of a
petition under the Post Conviction Relief Act, see Commonwealth v.
Bennett, 930 A.2d 1264, 1269 (Pa. 2007), the trial court should have
construed Newman’s application as a PCRA petition. Regardless of the court’s
failure to do so, the lower court had jurisdiction to grant the requested relief,
as Newman filed his application/petition within one year of his judgment of
sentence. See 42 Pa.C.S.A. § 9545(b)(1). Accordingly, there is no defect in
this Court’s exercise of jurisdiction over the instant appeal.

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     A four-part test must be satisfied before this Court will allow an

appellant to challenge the discretionary aspects of his sentence. This Court

must 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. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (quoting

Commonwealth v. Martin, 611 A.2d 731, 735 (Pa.Super. 1992)).

     Newman’s appeal is timely, and he has included a Rule 2119(f)

statement in his brief. We next turn to whether Newman has preserved his

issues and whether he raises a substantial question that his sentence is not

appropriate under the Sentencing Code.

     Whether an appellant has presented a substantial question is evaluated

on a case-by-case basis. Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008). “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.’” Id. (quoting Commonwealth v. Brown, 741 A.2d 726, 736

(Pa.Super. 1999)). This Court will not look beyond the Rule 2119(f) statement

in determining whether an appellant has presented a substantial question, and

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will not accept bald assertions of sentencing errors. Commonwealth v.

Radecki, 180 A.3d 441, 468 (Pa.Super. 2018)

      Newman’s Rule 2119(f) statement reads in its entirety, “[Newman]

moves for sentence modification arguing that the trial court’s imposition of a

sentence of 42-144 months[’] incarceration was unduly harsh case [sic] as

follows: (1) the sentence was beyond the aggravated range, (2) the [c]ourt

failed to property consider mitigating factors; (3) the [c]ourt ran the sentences

consecutively.” Newman’s Br. at 7 (unpaginated).

      Newman has failed to preserve and raise a substantial question.

Regarding the latter two assertions in his Rule 2119(f) statement, Newman

did not raise in his post-sentence motion that the court failed to consider

mitigating factors, or that the court’s decision to run his sentences of

confinement consecutively rendered his sentence unduly harsh. Thus, these

issues are waived. See Pa.R.A.P. 302(a). Moreover, Newman does not identify

the mitigating factors the court allegedly failed to consider, or explain why the

court’s decision to run the sentences of confinement consecutively rendered

his sentence excessive given the facts of the case. See Radecki, 180 A.3d at

468 (bald assertions do not raise a substantial question); Commonwealth v.

Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (substantial question exists

where the “decision to sentence consecutively raises the aggregate sentence

to, what appears upon its face to be, an excessive level in light of the criminal

conduct at issue in the case”).




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       Contrary to Newman’s first assertion—that his aggregate sentence was

above the aggravated range—only the sentence imposed for aggravated

assault, of 30 to 84 months’ incarceration, was above the aggravated range.

The other sentences the court imposed were within the standard ranges. And,

the Sentencing Code allows sentencing courts to impose a sentence above the

aggravated range, unless the sentence is unreasonable. See 42 Pa.C.S.A. §

9781(c)(3) (stating appellate court shall vacate above-guidelines sentence

when “unreasonable”). Newman does not assert in his Rule 2119(f) statement

any reason why his sentence for aggravated assault is unreasonable.

Newman’s claim that his sentence for aggravated assault is unduly harsh

simply because it falls outside the guidelines does not present a colorable

argument that his sentence was inconsistent with a specific provision of the

Sentencing      Code,     or   contrary        to   fundamental   sentencing   norms.

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa.Super. 2013).5
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5 Although we do not look beyond the Rule 2119(f) statement in order to
assess whether a substantial question exists, we observe that Newman
repeats in the argument section of his brief that there is a substantial question
his sentence is inappropriate “because it is outside the guideline range and all
information was not properly considered.” Newman’s Br. at 9. Newman also
argues that the court “ignored mitigating factors such as his background, prior
criminal record, and his statements made at sentencing in imposing
consecutive sentences,” but Newman does not explain what factors or
statements favored a mitigated sentence. Id. Finally, Newman states that the
court erred in “placing too much weight on the statements of the victim’s
father and on the news media coverage of this incident, which resulted in a
total sentence that is beyond the aggravated range.” Id. Again, Newman
confuses his aggregate sentence with his single above-aggravated range
sentence. He has also waived the issue of the court’s reliance on the victim’s



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       Even if Newman’s issues were properly before us, we would conclude

the court did not abuse its discretion in imposing sentence in this case. First,

the court considered the PSI, and we therefore presume that it considered and

weighed all relevant sentencing factors. Commonwealth v. Finnecy, 135

A.3d 1028, 1038 (Pa.Super. 2016). Second, the transcript of the sentencing

hearing reflects that the court did not place undue weight on Newman’s

incident with the cameraperson, as the court stated that it sympathized with

Newman’s state of mind at the time, and gave him the “the benefit of the

doubt” on his actions during that interaction. See N.T. at 20. Finally, the court

thoroughly explained its reason for departing from the guidelines on the

aggravated assault charge. See 42 Pa.C.S.A. § 9721(b). The court’s reasons

encompassed the onerousness of the offense and Newman’s extreme cruelty

toward the victim, the age of the victim and Newman’s responsibility for her

safety, the necessity of imposing a sentence to reflect the seriousness of the

crime, and finally, that due to Newman’s “inability to manage [his] anger[, he

is] a danger to society.” N.T. at 20.

       Ultimately, given the circumstances of the offense, the characteristics

of the defendant, the sentencing court’s observations, and the guidelines

ranges, we do not find that the above-aggravated sentence of 30 to 84
____________________________________________


father’s testimony by failing to raise it in his post-sentence motion, and waived
the issue of the court’s reliance on “media coverage” by failing to include it in
his question presented and Rule 2119(f) statement. Therefore, the argument
section of Newman’s brief also fails to present a preserved substantial
question.


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months’ incarceration was unreasonable. See 42 Pa.C.S.A. § 9781(c)(3), (d).

Nor do we find that the aggregate sentence of 42 to 144 months’ incarceration

was excessive or constituted an abuse of discretion. See Commonwealth v.

Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014) (“a sentence will not be

disturbed absent a manifest abuse of discretion”) (quoting Commonwealth

v. Robinson, 931 A.2d 15, 26 (Pa.Super. 2007) (en banc)).

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/2019




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