Com. v. Starling, D. ( 2019 )

J-S32029-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID STARLING, :
:
Appellant : No. 2008 EDA 2018
Appeal from the Judgment of Sentence Entered March 16, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000527-2016
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 04, 2019
Appellant, David Starling, appeals from the judgment of sentence
entered on March 16, 2018, in the Philadelphia County Court of Common
Pleas. After review, we affirm.
The trial court set forth the facts underlying Appellant’s convictions as
follows:
[The victim,1 S.S.,2] testified that in mid-2015, she went to
temporarily live with her aunt [D.S.] in Philadelphia. (N.T.
12/06/17 at pp. 31, 32, 35, 38, 41). Although she had nowhere
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1 The victim was born in August of 1992.
2 Although the victim’s surname differs from Appellant’s surname, in an effort
to protect the victim’s identity, we refer to her and the familial witnesses using
initials or shortened versions of their first names. See Commonwealth v.
S.M., 769 A.2d 542, 543 (Pa. Super. 2001) (referring to the victim by her
initials because she was a juvenile at the time of the offense); see also 18
Pa.C.S. § 3019(a) (protecting the identity of victims of sex crimes).
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else to go, she was reluctant to live there because her older cousin
[Appellant] resided there. (Id. at 41).
[S.S.] testified that, when they were children, [Appellant]
would force her to perform oral sex on him, would make her touch
his penis, and would touch her chest and vagina without her
consent. (Id. at 41-42, 45). She would tell him to stop, but he did
not. (Id. at 49). [S.S.] described these incidents; how “it felt
weird” when [Appellant] put his hands on her, how [Appellant]
would grab her head and move it back and forth when he forced
her to perform oral sex on him, and how he would instruct her not
to use her teeth on his penis. (Id. at 45-47). Finally, at the age of
around 11 or 12, [S.S.] told [Appellant] that “enough is enough.
This is weird. We’re family. Stop.” (Id. at 47-48). According to
[S.S.], [Appellant] ignored her and kept trying to touch her and
coerce her to touch him, but after a while he stopped. (Id. at 48).
[S.S.] testified that these incidents took place at her
grandmother’s house, her Aunt [Ca.’s] house, and more rarely, at
her own house. (Id. at 44). When asked for an approximate
number of times this occurred, [S.S.] testified first that it
happened more than 100 times, then later testified that it
happened closer to 1,000 [times]. (Id. at 44, 48). [S.S.] testified
that she was between the ages of around three and around eleven
or twelve when this happened, but her statement to the police
specified that it was between the ages of four and eight. (Id. at
44).
The only person [S.S.] told during this time was her mother,
but her mother—who struggled with schizophrenia, bipolar
disorder, and drug addiction—called her “fast” and never did
anything about it. (Id. at 49). Later, when [S.S.] was a teenager
and living with her sister, [Sh.], [Appellant] tried to sleep over at
[Sh.’s]; [S.S.] then told her sister about her history with
[Appellant], and [Sh.] made [Appellant] leave. (Id. at 50-51).
[S.S.] testified that on the night of May 20, 2015, she was
sleeping on her aunt’s couch on the first floor. She admitted she
had used marijuana less than twenty-four hours before this. (Id.
at 137). [Appellant] slept upstairs and [S.S.] said she was sure to
never fall asleep when he was in the same room because, although
he was smaller than she was, she “didn’t trust him.” (Id. at 56,
112). [S.S.] testified that night she “woke up to the force of
[Appellant] on me[.]” (Id. at 61). She had been sleeping on her
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stomach and [Appellant] was now physically laying on top of her.
(Id. at 68). She could not scream because she could barely
breathe, but managed to tell him to get off her. (Id. at 69-70.)
When she tried to fight him off, [Appellant] put his arm around
her neck and started choking her with his arm or his hand. (Id. at
68, 143). She testified that she “absolutely” had never given
[Appellant] consent to have sex with her that night. (Id. at 79).
She testified that [Appellant] told her she was his first love, forced
his knees between her legs, moved her boxers to the side, and
began to penetrate her vaginally. (Id. at 62, 67, 68). [S.S.]
testified that she struggled to escape, kept trying to fight him off,
and soon “was able to get him off of me” and started screaming.
(Id. at 68, 72).
[S.S.] and her brother [Sa.] both testified that at this point
[Sa.] ran up from the basement. (Id. at 68, 72, 178). [Sa.] (who
had been previously unaware of [Appellant’s] prior assaults on
[S.S.]) testified that he had been asleep in the basement when he
heard his sister scream. (Id. at 176-78, 189, 193). Both testified
that [S.S.], crying and angry, told [Sa.] that [Appellant] had just
raped her. (Id. at 75, 178). They testified that [Appellant] ran
upstairs and [Sa.] chased him, but was blocked by their [a]unt,
who had appeared at the top of the stairs. (Id. at 62, 181). Both
testified that at this point [S.S.] left the apartment (without her
phone). (Id. at 76, 184). [Sa.] testified that he went looking for
her but was unsuccessful. (Id. at 186). [S.S.] testified that she
sat somewhere and watched the sunrise, before returning to
retrieve her belongings. (Id. at 76). [S.S.] testified that her aunt
then told [S.S.] that she had called the police, kicked [Appellant]
out, and never would have let [Appellant] stay there “if she would
have known.” (Id. at 77, 108). [S.S.] then went to her sister’s
house and washed herself. (Id. at 78).
[S.S.], Officer Timothy McGinn, and Officer Carl Diaz all
testified that on May 20, 2015, [S.S.] arrived at the 17th Police
District Headquarters and reported that she was raped by her
cousin the night before. (Id. at 4-6, 28, 31; N.T. 12/07/17 at pp.
31, 32, 35, 38, 41). Officer Diaz also testified that [S.S.] told him
she had additionally been raped by [Appellant] multiple times
when she was between the ages of four and eight. (N.T. 12/07/17
at p. 44).
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It was stipulated that at 8:18 p.m., on May 20, 2015, a
nurse “performed a rape kit on the victim and vaginal areas were
swabbed, and subsequent analysis did not reveal any DNA of the
[Appellant].” (Id. at 107). [S.S.’s] physical exam noted that she
had no visible physical injuries at that time. (Id. at 139-140).
Finally, [S.S.’s] aunt [D.S.] testified that on November 21st
or December 1st, 2017, she received a witness subpoena from the
District Attorney stating that her attendance at trial was
mandatory and asking her to contact the District Attorney to
provide any information she might have. (Id. at 104). In response,
[D.S.] left a voicemail with the District Attorney stating she did
not want to speak to him or a detective. (Id. at 106).
Trial Court Opinion, 1/15/19, at 2-5.
Appellant was arrested and charged with rape, sexual assault, indecent
assault, unlawful restraint, and simple assault.3 Criminal Information,
1/20/16. At the conclusion of Appellant’s trial on December 8, 2017, the jury
found Appellant guilty of unlawful restraint. Verdict, 12/8/17. The jury found
Appellant not guilty of rape and sexual assault, and a nolle prosequi was
entered on the charges of indecent assault and simple assault. Id. On March
16, 2018, the trial court sentenced Appellant to a term of one to two years of
incarceration, followed by three years of probation, for the conviction of
unlawful restraint. N.T., Sentencing, 3/16/18, at 16. On March 22, 2018,
Appellant filed a timely post-sentence motion that the trial court denied on
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3 18 Pa.C.S. §§ 3121(a)(1), 3124.1, 3126(a)(1), 2902(a)(1), and 2701(a)
respectively.
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June 1, 2018. This timely appeal followed. Both the trial court and Appellant
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issues for this Court’s
consideration:
I. Whether the court erred allowing evidence of Appellant’s past
sexual behavior toward Complainant into evidence.
II. Whether the court erred in declining to grant a mistrial because
of the prosecutor’s remarks regarding [Appellant’s] mother’s
failure to testify.
III. Whether the court’s sentence was harsh and unreasonable.
Appellant’s Brief at 8.
In his first issue, Appellant avers the trial court erred in admitting
evidence of his past sexual behavior. It is well settled that the admissibility
of evidence is left to the sound discretion of the trial court, and a reviewing
court will not disturb an evidentiary ruling absent an abuse of that discretion.
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).
In its Pa.R.A.P. 1925(a) opinion, the trial court thoroughly addressed
Appellant’s claim of error as follows:
[Appellant] first contends that the [trial court] erred in
allowing [S.S.] to testify that [Appellant] had continuously raped
her as a child, prior to the incident at bar. Despite the fact that
[Appellant] was found not guilty of all sexual charges, he argues
that the admission of the incidents was “extremely prejudicial.”
[Appellant’s] assertion is incorrect.
Notably, even if the prior incidents had been entered
erroneously, it would be a moot point and harmless error. The
doctrine of harmless error was designed “to advance judicial
economy by obviating the necessity for a retrial where the
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appellate court is convinced that a trial error was harmless beyond
a reasonable doubt. Its purpose is premised on the well-settled
proposition that a defendant is entitled to a fair trial but not a
perfect one.” Commonwealth v. Bond, 190 A.3d 664, 671 (Pa.
Super. 2018), appeal denied, 189 A.3d 992 (Pa. 2018) ((quoting
Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012)). As
the Commonwealth remarked at [Appellant’s] post-sentence
reconsideration hearing, “either the jury didn’t put any credit to
the prior bad acts … or they didn’t hold it with much weight
because they found [Appellant] ultimately not guilty of the
underlying sexual offenses.” (N.T. 06/01/18 at pp. 9-10). As
[Appellant] was found not guilty on every single charge relating
to sexual contact and the prior incidents were admitted in
response to those charges, it is apparent that excluding the
evidence of sexual crimes would not affect the outcome of the trial
in any way. Therefore, respectfully, regardless of whether the
prior crimes should have been admitted, the court’s decision
should be affirmed.
However, even if [Appellant] had been found guilty of any
sexual charge, the incidents would still be properly admitted. … To
determine whether the evidence in question should be admitted,
the trial court “must weigh the evidence and its probative value
against its potential prejudicial impact.” [Commonwealth v.
Wattley, 880 A.2d 682, 685 (Pa. Super. 2005)]. Even when the
evidence is prejudicial, it may be admitted under Pa. R. Evid.
404(b) “where it serves a legitimate purpose” such as inclusion to
show motive, intent, absence of mistake, common scheme, and
identity. Id.
Additionally, evidence of a prior sexual allegation is
[admissible] if it shows that the [d]efendant’s sexual misconduct
was “of a continuing and escalating nature” towards a specific
victim. Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992).
This is admissible to show “a passion or propensity for illicit sexual
relations with the particular person concerned in the crime on
trial.” Commonwealth v. Lomax, 8 A.3d 1264, 1266-67 (Pa.
Super. 2010) (quoting McCormick, Evidence § 190, at 449 (2d ed.
1972)). “This ‘lustful disposition’ exception to the general rule
against the admission of evidence of prior or subsequent bad acts
has been consistently recognized by our Supreme Court for more
than a century.” Commonwealth v. Wattley, 880 A.2d 682, 686-
87 (Pa. Super. 2005).
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To be admissible, prior sexual misconduct between a
defendant and a victim needs to be connected to the current case
enough to show a continuing course of conduct, or lead to a
reasonable inference that a defendant has a propensity towards
illegal sexual acts with the victim. Commonwealth v. Young, 989
A.2d 920, 924 (Pa. Super. 2010). The former conduct does not
require a conviction in court to be admissible. Id. at 926. The
former conduct does not have to be within the same time period
or even within the statute of limitations to be admissible.
Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa. Super. 2005).
And the former conduct does not have to be of the same nature
as the conduct at trial to be admissible. Commonwealth v. Dunkle,
602 A.2d 830, 839 (Pa. 1992).
Finally, another legitimate purpose exception for prior
sexual allegations in a trial is the res gestae exception:
Pennsylvania courts “have long recognized the special
significance of evidence which provides the factfinder
with the res gestae, or complete history, of a crime.”
. . . Res gestae evidence is of particular import and
significance in trials involving sexual assault. “By their
very nature, sexual assault cases have a pronounced
dearth of independent eyewitnesses, and there is
rarely any accompanying physical evidence. . . . In
these cases the credibility of the complaining witness
is always an issue.”
Commonwealth v. Wattley, 880 A.2d 682, 687 (Pa. Super. 2005)
(citations omitted).
In the present case, the court weighed the probative aspects
of these prior incidents against the possible prejudice to
[Appellant] and concluded that any prejudice was outweighed. In
addition to more generally demonstrating [Appellant’s] intent,
common scheme, and absence of mistake in sexually assaulting
his cousin, these incidents would demonstrate his “lustful
disposition” towards illicit sexual relations with this specific victim
and a necessary res gestae of the case. The incidents were
primarily admissible to demonstrate [Appellant’s] “passion or
propensity for illicit sexual relations with the particular person
concerned in the crime on trial.” [S.S.’s] testimony that
[Appellant] had sexually assaulted her on numerous prior
occasions tended to show a continuing course of conduct wherein
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[Appellant] force[d] himself on his cousin when they were alone
in the homes of various family members. Additionally they also
provided the factfinders with the case’s res gestae; in deciding to
include these incidents, the court noted that they were necessary
to show “a complete picture” of [Appellant] and [S.S.’s]
relationship. (N.T. 12/04/17 at p. 10). For example, the previous
incidents provided context for when [Appellant] told [S.S.] “you
are the love of my life” and “I’ve always loved you” during the
sexual encounter at issue. Without this history, the nature of the
relationship between the cousins would have been unnecessarily
confused.
The potential prejudice from the admission of these
incidents was lessened by the court’s pointed jury instruction on
the matter: this is because “when examining the potential for
undue prejudice, a cautionary jury instruction may ameliorate the
prejudicial effect of the proffered evidence.” Commonwealth v.
Hairston, 84 A.3d 657, 666 (Pa. 2014) (noting that jurors are
presumed to follow the court’s instructions). The court
emphasized, in a jury instruction approved by [Appellant], that
the evidence was before the jury for a limited purpose and should
not be considered for any reason other than showing [Appellant’s]
lustful desires toward [S.S.] and the cousins’ relationship history.
As a jury is presumed to follow jury instructions, this lessened the
prejudicial effect of the statements.
[Appellant] argued primarily that these incidents were
overly prejudicial because they were “unproven” and because they
ended between twelve and sixteen years before the incident in
question. [Appellant’s] first argument is null: case law shows that
admissible prior incidents under Rule 404(b) are not limited to
court convictions. Young, 989 A.2d at 924. His second argument,
that a lengthy pause in alleged sexual activity meant “there is not
a continuing course of conduct,” is more persuasive, but still
insufficient to overcome the probative effect of the prior incidents.
(N.T. 12/04/17 at p. 11).
As highlighted continuously in our case law, the remoteness
in time of former conduct is simply one more factor to be
considered in … [an] admissibility determination; it is not
dispositive as long as the former conduct leads to a reasonable
inference that a defendant has a continuing course of illicit sexual
contact with a victim. Commonwealth v. Knowles, 637 A.2d 331,
333 (Pa. Super. 1994) (finding a continuing course of conduct
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despite a gap of five to seven years, because the evidence
indicated that “the sexual abuse was resumed when the defendant
had an opportunity to be alone with the victim”); see also
Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010)
(holding evidence of the defendant’s prior sexual assault of a
different but similar victim was admissible despite a ten to eleven
year gap between incidents).
Here, the trial court found that there was enough evidence
to show a continuing course of conduct of illicit sexual activity
between [Appellant] and [S.S.] due to the fact that whenever
[Appellant] had access to [S.S.], the contact would occur. [S.S.]
was more accessible to [Appellant] as a child when their families
would spend a significant amount time together. As she grew
older, [S.S.] testified that she autonomously told [Appellant]
“enough is enough,” shut down all sexual contact, and avoided
him, for example, telling her sister not to allow him in her house.
However, years later, when [Appellant] finally again had access to
[S.S.] again (when she was forced by circumstances to sleep over
at [Appellant’s] mother’s home) the sexual abuse continued.
Trial Court Opinion, 1/15/19, at 5-9 (internal footnote omitted).
After review, we agree with the trial court’s analysis, and we adopt the
trial court’s rationale as own. Accordingly, Appellant is entitled to no relief on
his first claim of error.
Next, Appellant asserts that the trial court erred in denying a mistrial
based on the prosecutor’s closing remarks concerning Appellant’s mother’s
failure to testify. Appellant’s Brief at 21. After review, we conclude that this
issue is waived.
It is well settled that in order to preserve a claim for appellate review,
a party must make a timely and specific objection, or the claim is waived.
Pa.R.A.P. 302(a); Commonwealth v. McGriff, 160 A.3d 863, 866 (Pa.
Super. 2017). It is not this Court’s responsibility to develop an argument for
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an appellant or scour the record to find evidence to support an argument.
Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018). In
his brief, Appellant failed to direct our attention to the place in the record
where the allegedly improper remark occurred, cite to where he lodged a
timely and specific objection, or point out where he moved for a mistrial.
Accordingly, we conclude that this issue is waived.4
In his final claim of error, Appellant asserts that the sentence the trial
court imposed was harsh and unreasonable. We conclude that no relief is due.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). An appellant challenging the discretionary
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4We reiterate that this Court is not required to conduct an independent review
of the record to develop an appellant’s argument. Cannavo, 199 A.3d at
1289. Nevertheless, it appears that the allegedly improper comment made
by the prosecutor, which Appellant references in his brief at page 22, is located
at pages 144 through 145 of the notes of testimony from December 7, 2017.
N.T., 12/7/17, at 144-145. Assuming, arguendo, that we were to address
Appellant’s issue, we would note that, although the Commonwealth refers to
Appellant’s mother, id. at 144, Appellant’s counsel merely made a general
objection and said: “Your Honor, objection.” Id. To the extent that this could
be construed as an objection to the Commonwealth remarking that Appellant’s
mother refused to testify, we point out that the trial court did not specifically
rule on this general objection. Moreover, Appellant never moved for a
mistrial. Were we to reach this issue and deem this a specific objection and
motion for a mistrial that was denied, we would conclude that Appellant is due
no relief. Rather, we would rely on the rationale espoused by the trial court
on this issue in its opinion. Trial Court Opinion, 1/15/19, at 10-13.
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aspects of his 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original). Whether a particular issue constitutes a
substantial question about the appropriateness of a sentence is a question to
be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d
808, 811 (Pa. Super. 2001). As to what constitutes a substantial question,
this Court does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). An
appellant must articulate the reasons the sentencing court’s actions violated
the sentencing code. Id.
Herein, Appellant has met the first three requirements of the four-part
test. Appellant filed a timely appeal, raised the challenge in a post-sentence
motion, and included in his appellate brief the necessary statement of the
reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).
Therefore, we next determine whether Appellant raised a substantial question.
In his Rule 2119(f) Statement, Appellant asserts that his sentence was
“manifestly excessive as to constitute too severe a punishment,” and it was
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imposed without consideration of mitigating factors or the factors set forth in
42 Pa.C.S. § 9721(b). Appellant’s Brief at 16. This claim presents a
substantial question. See Commonwealth v. Caldwell, 117 A.3d 763, 769-
770 (Pa. Super. 2015) (en banc) (holding that an assertion that a sentence is
excessive, in conjunction with an claim that the trial court failed to consider
mitigating factors, raises a substantial question). Therefore, we will review
the merits of Appellant’s challenge to the discretionary aspects of his
sentence.
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006). In this context, an abuse of discretion is not shown merely by an error
in judgment. Rather, an 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. Id.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference because
the sentencing court is in the best position to view a defendant’s character,
displays of remorse, defiance, or indifference, and the overall effect and
nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted). When imposing a sentence, the
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sentencing court must consider “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). As we have stated, “a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). “In particular,
the court should refer to the defendant’s prior criminal record, his age,
personal characteristics and his potential for rehabilitation.” Id.
Despite Appellant’s protestations to the contrary, our review of the
record reflects that at the time of Appellant’s sentencing, the trial court was
aware of the Sentencing Guidelines, reviewed all relevant and available
information, balanced those considerations pursuant to 42 Pa.C.S. § 9721(b),
and informed Appellant of the basis for the sentence. N.T., 3/16/18, at 4, 16-
17. In its Pa.R.A.P. 1925(a) opinion, the trial court explained:
In the case at bar, [Appellant’s] sentence is reasonable and
appropriate. [Appellant] asked for a sentence of eleven and a half
to twenty-three months,[5] and the court bestowed an extremely
similar sentence of twelve to twenty-four months. Though this
sentence is slightly above the guideline range (restorative
sanctions to nine months, plus or minus three), it is well below
the maximum sentence for a misdemeanor of the first degree (five
years) and fits the seriousness of [Appellant’s] particular crime. …
In deciding upon this sentence, the court considered all
relevant reports, including [Appellant’s] sentencing
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5Specifically, at the sentencing hearing, Appellant’s counsel stated: “We both
agreed that the sentence of 11 and a half to 23 months would be appropriate
with some sort of probationary tail[.]” N.T., 3/16/18, at 5-6.
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memorandum, the presentence psychiatric report, the sentencing
guidelines, [Appellant’s] criminal history, and [Appellant’s] mental
health evaluation. (N.T. 3/16/18 at pp. 4, 16). The court also read
a letter in support of [Appellant] from his aunt and listened to that
same aunt speak on his behalf. (Id. at 9, 16). The court listened
as [Appellant] made the following statement: “I’m sorry that this
happened to my family and hopefully my family can get through
this all right.” (Id. at 16). In addition, the court sat through the
entire jury trial, observed all witnesses and testimony, and
remarked at sentencing that “I remember the trial” and “I am
concerned about the nature of this crime.” (Id. at 11, 16).
The court also noted its concern regarding a prior similar
indecent assault on [Appellant’s] record. (Id. at 11-12). Although
this earlier assault took place when [Appellant] was a juvenile, it
has been established that a prior juvenile conviction may be
considered as a factor in discretionary sentencing. 42 Pa.C.S.A. §
6354 … ; See Commonwealth v. Hale, 128 A.3d 781, 785 (Pa.
2015) (noting that a juvenile record may be used as a
consideration in a discretionary sentencing determination). As in
Conte,[6] the sentence here is fair, reasonable, and well-founded.
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6 In Commonwealth v. Conte, 198 A.3d 1169 (Pa. Super. 2018), the
defendant was charged with multiple counts of rape, involuntary deviate
sexual intercourse, aggravated indecent assault, and endangering the welfare
of a child. Id. at 1172. Following a jury trial, the defendant was found guilty
on only the charge of endangering the welfare of a child. Id. at 1173. The
trial court imposed the statutory maximum sentence of thirty to sixty months
of incarceration. Id. On appeal, the defendant alleged that the trial court
abused its discretion in imposing such a long sentence as he was found guilty
of only a “relatively insignificant misdemeanor.” Id. at 1175. This Court
affirmed the judgment of sentence concluding as follows:
[T]he reasons for the sentence were aptly stated on the record.
As mentioned by the trial court in its opinion, it had the benefit of
sitting through the entire trial and observing the presentation and
demeanor of the witnesses, including [the defendant]. The
sentencing court is in a superior position to review the defendant’s
character, defiance or indifference, and the overall effect and
nature of the crime. Simply stated, the sentencing court sentences
flesh-and-blood defendants and the nuances of sentencing
decisions are difficult to gauge from the cold transcript used upon
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Trial Court Opinion, 1/15/19, at 15-16.
Upon review, we discern no abuse of discretion in the sentence imposed.
The trial court set forth its considerations, explained the basis for the
sentence, and considered the factors set forth in 42 Pa.C.S. § 9721(b).
Accordingly, Appellant’s contrary claim lacks merit.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Therefore, we affirm the March 16, 2018 judgment of sentence.
Judgment of sentence affirmed.
Judge Nichols did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/19
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appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that should not
be lightly disturbed.
Id. at 1177 (internal citations and quotation marks omitted).
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