Com. v. Moser, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY J. MOSER :
:
Appellant : No. 772 WDA 2018
Appeal from the Judgment of Sentence April 12, 2018
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000258-2016
BEFORE: OTT, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E. : FILED DECEMBER 18, 2018
Appellant, Gregory J. Moser, appeals from the judgment of sentence
entered April 12, 2018, in the Potter County Court of Common Pleas, following
his guilty plea to, and sentencing on, eleven counts of sexual abuse of children
- possession of child pornography, 18 Pa.C.S. § 6312(d). Appellant contends
that his sentence of twenty-eight to fifty-six months’ imprisonment is
excessive. After a careful review, we affirm.
The relevant facts and procedural history are as follows: Appellant was
charged with twenty counts of disseminating child pornography and one count
of criminal use of a communication facility. On September 6, 2017, Appellant
entered into a negotiated agreement by which the Commonwealth would
amend the information to reflect eleven counts of the Section 6312(d)
charges, to which Appellant would plead guilty. Appellant was to receive
concurrent sentences. The trial court thereafter ordered an assessment of
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* Former Justice specially assigned to the Superior Court.
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whether Appellant should be classified as a sexually violent predator (“SVP”)1
and for a pre-sentence investigation (“PSI”).
The Pennsylvania Sexual Offenders Assessment Board (“SOAB”)
determined that Appellant did not meet the criteria for SVP classification. The
SVP assessment included Appellant’s history as a victim of physical and sexual
abuse by his grandparents when he was a child. The SVP assessment further
stated:
There are no additional factors that are supported in the field of
sexual offending that are reasonably related to the risk of re-
offense.
***
The literature clearly shows that there are two (2) pathways to
sexual re-offense, chronic antisociality and sexual deviance.
[Appellant] did not utilize either of these pathways to offend.
SVP Assessment, 11/15/2017, at 4-5.
The PSI noted that the standard sentencing range for Appellant’s
offenses was thirty to forty-two months’ imprisonment, the mitigated range
was eighteen months’ imprisonment, and the aggravated range was fifty-four
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1 The SVP assessment has not been included in the certified record; however,
a copy of the SVP assessment has been included in Appellant’s reproduced
record. Generally, this Court may only consider documents that have been
included in the certified record. See Erie Ins. Exch. v. Moore, 175 A.3d
999, 1006 (Pa.Super. 2017). However, where, as here, the accuracy of the
SVP document is not in dispute, for the sake of judicial economy, we shall
consider the SVP assessment included in Appellant’s reproduced record. See
Commonwealth v. Barnett, 121 A.3d 534, 546 n.3 (Pa.Super. 2015)
(“While this Court generally may only consider facts that have been duly
certified in the record, where the accuracy of a document is undisputed and
contained in the reproduced record, we may consider it.”) (citations omitted)).
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months’ imprisonment. Attached to the PSI as exhibits were letters about
Appellant’s positive character from his employer and members of his
community, and Appellant’s own statement about his memories of being
abused as a child, along with expressions of sorrow and regret for his actions.
PSI, Exs. “A”-“C.”
At sentencing, Appellant presented a letter and testimony from a social
worker indicating that Appellant’s viewing of the offending material was based
on childhood trauma; he also presented a statement from his wife about his
good character. N.T., 4/11/2018, at 4-5; Sentencing Mem., 4/9/2018, Exs.
“C”-“D.”2 Appellant further provided the trial court with copies of orders
involving similar crimes and situations in nearby Tioga County, where the
defendants received minimal sentences. Id., Exs. “A”-“B.” During his
allocution, Appellant again apologized, stated that he was receiving
counseling, and reiterated that he had been physically and sexually abused as
a child. N.T., 4/11/2018, at 11.
The trial court proceeded on April 11, 2018, to sentence Appellant to
concurrent terms of imprisonment, stating that it was sentencing Appellant to
a standard-range sentence of twenty-eight to fifty-six months’ imprisonment.
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2 The exhibits attached to Appellant’s sentencing memorandum dated April 9,
2018, are not labelled, but the letters from Appellant’s counselor-social worker
and from his wife are the third and fourth attachments, respectively. We will
therefore cite to them as Exhibit “C” and Exhibit “D,” respectively.
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Immediately prior to sentencing, the trial court explained its reasoning on the
record:
I have had a chance in the last couple days to review a lot of
information regarding [Appellant]. I was able to review the letters
from his therapist, his counselor, some positive letters from family
members, employer, friends, community members regarding a
gentleman that’s contributed a lot to his community and balanced
against his activities in downloading some very disturbing images
of children depicted in sexual acts. So I’ve heard, not only did
I hear [his] counselor speak today I had a chance to also review
his report and letter. I’ve reviewed the sentencing guidelines, I’ve
reviewed the character of this gentleman based upon information
provided to me. The guidelines are given to a Judge to give him
an opportunity to impose a sentence that would be relatively
consistent across the Commonwealth and so I don’t take those
guidelines lightly. I do look to see if there is any mitigating factors
or aggravating factors that would take me above or below the
guidelines. I appreciate that [Appellant] may have suffered some
issues as a child and that perhaps that has [a]ffected his abilities
and some of his decisions. I certainly think that there are many
people that have gone through similar things that have not gone
down the road of [Appellant]. These are not innocent acts in my
opinion. If there was not a market for these types of depictions,
than I suspect this would all go away but because there is a
market of people trying to view these images these victims are
continually created.
So having reviewed all this I am not going to go to the mitigated
range, but I am going to go a little bit below the standard range
in imposing a sentence on this gentleman.
N.T., 4/11/2018, at 15-16.
Appellant filed a timely post-sentence motion on April 20, 2018, which
the trial court denied on April 27, 2018. Appellant filed the instant, timely
notice of appeal on May 23, 2018, and timely filed a Pa.R.A.P. 1925(b)
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statement pursuant to the trial court’s order.3 The trial court filed a Pa.R.A.P.
1925(a) statement stating its reliance on its record at sentencing.4
Appellant presents the following issue for our review:
Did the [t]rial [c]ourt err in sentencing Appellant to an excessive
sentence of 28 to 56 months[’] incarceration where the [t]rial
[c]ourt failed to consider substantial mitigating factors and failed
to consider significantly less onerous sentences imposed for the
same offense in a neighboring jurisdiction?
Appellant’s Brief at 4.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, 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).
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code. The requirement that
an appellant separately set forth the reasons relied upon for
allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the
sentencing decision to exceptional cases.
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3 Appellant requested an extension of time to file the statement, which the
trial court granted, and Appellant filed his statement timely.
4 The notes of testimony from Appellant’s sentencing hearing on April 11,
2018, were filed in the certified record on May 31, 2018.
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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)
(quotation marks, some citations, and bold omitted).
As an initial matter, we note that Appellant has: (1) timely filed a notice
of appeal, (2) preserved the instant issue in a post-sentence motion, and (3)
included a Pa.R.A.P. 2119(f) statement in his brief. Appellant’s Brief at 5-11.
See Manivannan, 186 A.3d at 489. We therefore turn to the next
requirement: whether the question raised by Appellant is a substantial
question meriting our discretionary review. See id.
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.
Id. (quotation marks and some citations omitted).
In his Pa.R.A.P. 2119(f) statement, Appellant contends that the trial
court failed “to individualize [his] sentence[,]” specifying that the trial court
“failed to adequately consider [his] background as having been abused as a
child, his rehabilitative reaction to being criminally charged, his work and
family history and the fact that there was no evidence presented of any
particular risk of re-offending.” Appellant’s Brief at 10.
“One of the fundamental norms of the sentencing process is that a
defendant’s sentence be individualized.” Commonwealth v. Luketic, 162
A.3d 1149, 1160 (Pa.Super. 2017) (citing Commonwealth v. Devers, 519
Pa. 88, 546 A.2d 12, 13 (1988) (holding that “sentencing must result both
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from a consideration of the nature and circumstances of the crime as well as
the character of the defendant”) (footnote omitted)). Thus, by alleging that
the sentence imposed on Appellant is contrary to a fundamental norm of the
sentencing process – i.e., individualized sentencing, Appellant has raised a
substantial question. See Appellant’s Brief at 10; Manivannan, 186 A.3d at
489; Luketic, 162 A.3d at 1160. Hence, we will consider the substantive
merits of Appellant’s sentencing claim.
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the 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.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation
omitted).
Here, Appellant contends that “[t]he sentence imposed by the [t]rial
[c]ourt . . . is ‘clearly unreasonable’ based upon the circumstances of the
case.” Appellant’s Brief at 19. Appellant argues that he pleaded “guilty to
only possession of child pornography” and not to “forward[ing] or
distribut[ing] pornography to any other person or entity.” Id. He continues
that he had “terminated his unlawful activity prior to being charged” and had
sought counseling thereafter. Id. at 19, 23 (citing N.T., 4/11/2018, at 4-5;
Sentencing Mem., 4/9/2018, Ex. “C”). He emphasizes that the SOAB
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determined he did not demonstrate a likelihood to re-offend. Id. at 20-21
(citing SVP Assessment, 11/15/2017, at 4-5). He concludes:
Thus, the [t]rial [c]ourt had before it a 60-year old respected
member of the community, who probably, as a result of being
molested as a child, watched pornography videos on his computer.
All of the evidence pointed to Appellant’s being a good citizen, a
good employee, a good stepfather and a law-abiding person. The
question becomes, “Why does such an individual need to be
incarcerated in the state prison for over two years?”
Id. at 24.
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012). In
addition:
Where pre-sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. A pre-
sentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of engaging
in an effort of legal purification, we state clearly that sentencers
are under no compulsion to employ checklists or any extended or
systematic definitions of their punishment procedure. Having
been fully informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed.
Devers, 519 Pa. at 101-02, 546 A.2d at 18.
Accordingly, where the sentencing judge had the benefit of a pre-
sentence report, it will be presumed that he was aware of relevant
information regarding appellant’s character and weighed those
considerations along with the mitigating statutory factors.
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Commonwealth v. Fullin, 892 A.2d 843, 849-50 (Pa.Super. 2014)
(quotation omitted).
In the case sub judice, in its remarks during the sentencing hearing,
quoted above in their entirety, the trial court explicitly stated that it
“review[ed] the letters from [Appellant’s] therapist, his counselor, . . . family
members, employer, friends, [and] community members[.]” N.T.,
4/11/2018, at 15. It also “hear[d his] counselor speak” during the sentencing
hearing and stated that it “appreciate[d] that [Appellant] has suffered some
issues as a child and that perhaps that has [a]ffected his abilities and some of
his decisions.” Id. at 15-16.
Additionally, as a PSI exists, we presume that the trial court rendered
Appellant’s sentence fully informed by it. See Devers, supra; Fullin, supra.
Consequently, we accept that the trial court considered Appellant’s statement
that he was abused as a child, the letter from his employer articulating his
work history, and the statements from community members expressing their
respect for Appellant. See id.; PSI, Exs. “A”-“C.”
As for Appellant’s contention that the trial court did not consider the
SOAB’s conclusion that he was unlikely to re-offend, the SVP assessment was
incorporated into the PSI. See PSI at 3. We therefore presume that, as with
the other content from the PSI, the trial court was aware of this information
regarding Appellant’s character and weighed this consideration along with all
other factors. See Devers, supra; Fullin, supra. Accordingly, the record
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contradicts Appellant’s assertions that the trial court did not consider that he
suffered abuse as a child, that he sought counseling, that he was a respected
member of the community, or his work and family history. Compare
Appellant’s Brief at 19, 23-24 with N.T., 4/11/2018, at 15-16, and PSI, Exs.
“A”-“C.”
Finally, we note that, in Appellant’s statement of questions involved
pursuant to Pa.R.A.P. 2111(a)(4) and 2116, Appellant alleged an additional
reason that the trial court erred, that is, the trial court “failed to consider
significantly less onerous sentences imposed for the same offense in a
neighboring jurisdiction[.]” Appellant’s Brief at 4. Appellant does not include
any related argument in the “Argument” section of his brief pursuant to
Pa.R.A.P. 2111(a)(8) and 2119. Appellant’s Brief at 18-28. The failure to
develop an argument and support it with pertinent authority is a violation of
our briefing rules, which results in waiver of the unsupported issue. See, e.g.,
Commonwealth v. Spotz, 610 Pa. 17, 80 n.21, 18 A.3d 244, 281 n.21
(2011) (“[O]ne sentence does not constitute a developed, reasoned,
supported, or even intelligible argument. The matter is waived for lack of
development.”); In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012)
(“The argument portion of an appellate brief must include a pertinent
discussion of the particular point raised along with discussion and citation of
pertinent authorities[; t]his Court will not consider the merits of an argument
which fails to cite relevant case or statutory authority.”) (internal citations and
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quotation marks omitted)). Accordingly, any claim related to the trial court’s
disregard for the Tioga County sentencing orders provided by Appellant at his
sentencing hearing is waived.
Even had Appellant had preserved this contention, his argument would
fail. This Court has held:
It [] is an abuse of discretion to base one defendant’s sentence on
the sentence imposed on another defendant. See
[Commonwealth v.] Coulverson, 34 A.3d [135,] 147
[(Pa.Super. 2011)] (stating, “individualized sentencing remains
the controlling norm of the sentencing process and ... a sentence
befitting one defendant may not befit another”); Commonwealth
v. Kalson, 301 Pa.Super. 31, 446 A.2d 1320, 1322 (1982)
(“Neither the governing statute on sentencing nor the controlling
case law require, or even suggest, that a sentencing judge should
consider sentences imposed on other defendants in that county
for the same crime.”) (footnote omitted)).
Luketic, 162 A.3d at 1165. See Commonwealth v. Martin, 466 Pa. 118,
351 A.2d 650, 651, 657, 659 (1976) (vacating sentence where three judges
agreed in advance to impose identical sentences on six different defendants
who were involved in the sale of heroin, because “the procedures employed
by the sentencing court. . .ignore[d] the basic premises of Pennsylvania
individualized sentencing”). Additionally, “standardized sentences based on a
class of crimes or criminals is prohibited.” Luketic, 162 A.3d at 1162 n.13.
In the current case, the trial court’s decision not to refer to or be guided
by the sentencing orders from Tioga County was thereby proper since,
contrary to Appellant’s suggestion, no statutory or case law requires or
recommends that a sentencing court consider sentences imposed on other
defendants for the same crime or crimes in the same county, let alone in other
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counties.5 To do so would undermine “the basic premises of Pennsylvania
individualized sentencing,” Martin, 351 A.2d at 657, by suggesting that the
sentence for the same class of crimes should be standardized and that the
character of the defendant need not be considered. Luketic, 162 A.3d at
1162 n.13. Accordingly, we find no abuse of discretion in the sentence
imposed on Appellant by the trial court.
Judgment of sentence affirmed.
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5 Assuming consideration of sentencing imposed in neighboring counties were
proper, Appellant still failed to provide the trial court or this Court with
sufficient information about the circumstances of those Tioga County cases --
including the nature of the crimes and the character of those other defendants
-- in order to determine whether those actions were analogous to the current
matter. See Luketic, 162 A.3d at 1160 (citing Devers, 546 A.2d at 13).
Appellant only submitted the sentencing orders for those other actions,
without any other supporting materials such as pleadings, notes of testimony,
or trial court opinions from those Tioga County cases -- in order to provide
context for their sentencing orders. Sentencing Mem., 4/9/2018, at Exs. “A”-
“B.” Therefore, we are unable to determine how closely those other matters
resemble the current one and whether equivalent sentences could have been
warranted, if such considerations were permissible.
Moreover, Appellant’s suggestion that the trial court should have imposed a
sentence in the instant matter comparable to the ones imposed in Tioga
County contradict Appellant’s primary argument, and proposed substantial
question, that the trial court failed to impose an individualized sentence. See
Appellant’s Brief at 10. Appellant cannot both claim that the trial court should
have individualized his sentence and that the trial court should have imposed
a sentence similar to those received by other defendants for similar crimes.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2018
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