Com. v. Greenblott, A. ( 2017 )

J-A30037-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM GREENBLOTT
Appellant No. 251 EDA 2016
Appeal from the Judgment of Sentence Entered October 1, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0002880-2013
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017
Appellant Adam Greenblott appeals from the October 1, 2015
judgment of sentence entered in the Court of Common Pleas of Monroe
County (“trial court”), following his jury convictions for aggravated assault,
endangering the welfare of children (“EWOC”), simple assault, and recklessly
endangering another person (“REAP”).1 Upon review, we affirm.
The facts underlying this case are undisputed. As recounted by the
trial court:
On November 30, 2013, an ambulance responded to
[Appellant’s] Monroe County residence after a 911 call that a
child, three year-old C.K., was showering unattended and fell in
the shower. The four EMS responders were Mehmet Barzev,
John Brooks, Joseph Fiorentino and Christine Fiorentino. Upon
arrival, EMS found C.K. wearing sweatpants and both C.K. and
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1
18 Pa.C.S.A. §§ 2702(a)(1), 4304(a)(1), 2701(a)(1), and 2705,
respectively.
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the couch were dry. His eyes were rolling back of his head and
he was in and out of consciousness. EMS observed new and
existing visible trauma to the head, multiple abrasions to the
head and face, contusions to his forehead, left and right temple,
and to the left and right ear.
Eventually, C.K. become more lucid and alert. He
complained of pain in his neck and abdomen. EMS immobilized
C.K. by placing a cervical collar around C.K.’s neck, strapped him
on a pediatric spine board, and called for a Medevac.
While waiting for the Medevac, C.K. made consistent
statements to all four EMS that he did not want [Appellant] at
the hospital because [Appellant] hurts him. Specifically, C.K.
told EMS that [Appellant] grabs him by the neck and spanks him.
C.K. also stated [Appellant] punched him in the head and had
punched him in the head on prior occasions.
The Medevac transported C.K. to Lehigh Valley Hospital in
Allentown, Pennsylvania. Jennifer Love, a registered nurse,
treated C.K. upon arrival. Love found that C.K. was alert,
oriented, and acting age appropriately. When Love assessed
C.K. for injuries, she found old and new injuries, including
bruising on the top of his left ear, swelling on forehead, bruising
in his groin, bruising in lower back, burn on left hand, and
petechiae in his eyelids. C.K. told and demonstrated how
[Appellant] put his hand on the back of C.K.’s head and slammed
it forward causing C.K.’s head to hit the bathtub. A CT Scan
revealed C.K. suffered an acute subdural hemorrhage and
midline shift in the brain. . . .
This was not the first incident in which [Appellant] injured
C.K. or where C.K. was injured while in [Appellant’s] care. Some
of the old injuries, including those for which the hospital had
records, were inflicted by [Appellant] when he was watching C.K.
[Appellant] was interviewed by the police at the hospital
and then again at police headquarters. He gave inconsistent
explanations in explaining C.K.’s old and new injuries including
an explanation that defied logic. For instance, [Appellant]
claimed that C.K. injured his ear when [Appellant], who weighed
280 pounds at the time of his arrest, was pushed over by a gust
of wind and the door he was holding slammed shut on C.K.
Trial Court Opinion, 4/11/16, at 1-3 (internal record citation omitted) (sic).
On December 1, 2013, based on the Commonwealth’s allegation that
Appellant slammed C.K.’s head into a hard surface, resulting in serious
bodily injury to C.K., Appellant was charged with aggravated assault, EWOC,
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simple assault and REAP. The case proceeded to a jury trial, at which
photographs of C.K.’s old and new injuries, C.K.’s past and present medical
records, and C.K.’s diagnostic films and reports were admitted into evidence.
Id. at 2.
Both parties presented, inter alia, expert testimony. First, Dr. Debra
Esernio-Jenssen, board-certified by the American Board of Pediatrics in both
general pediatrics and in child abuse pediatrics, testified for the
Commonwealth. See N.T. Trial, 7/9/15, at 14, 21. Dr. Esernio-Jenssen
testified that she was employed by the Lehigh Valley Health Network, where
she served, among other things, as the Medical Director of Child Protection
Team and the Medical Director of the Child Advocacy Center. Id. at 15.
Dr. Esernio-Jenssen opined, based on her review of C.K.’s medical records,
specifically the CT scan, that C.K. suffered a traumatic brain injury, i.e., he
“had an acute subdural hemorrhage, most on the entire right side of his
cerebral hemisphere and it went in between a little bit of both cerebral
hemispheres. There was also what is referred to as a midline shift [2] from
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2
Dr. Esernio-Jenssen described a midline shift as follows:
So as you saw in the picture, the brain is set up perfectly
symmetrical. When there’s brain tissue damage and swelling on
a microscopic level the brain could swell as well as sometimes
when there’s a lot of blood; the brain pushes on the other side of
the brain so instead of being perfectly symmetrical one side
pushes towards the other side.
N.T. Trial, 7/9/15, at 65.
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the right to the left.” Id. at 44, 49-50. Dr. Esernio-Jenssen explained that a
subdural hematoma is significant in that
we shouldn’t have blood on top of our brain. It signifies that
there was tearing of blood vessels called bridging veins. Those
are the veins that go from inside the skull through the different
layers [of the brain] and attached to the brain. In addition to
that the blood in between the hemispheres as well and also the
midline shift which meant there was pressure put on the right
side of the brain pushing on to the left side to the brain—and
that’s very [life-]threatening because if that is not treated it can
cause what is referred to as herniation. That means where the
brain goes down into the spinal column and that would cause
immediate death.
....
If it wasn’t treated or monitored it would cause herniation
because it would just get bigger and the brain swelling. So it’s
not only the bleeding, it’s the damage to the brain and the brain
swelling as well.
Id. at 51-52. Dr. Esernio-Jenssen further opined that C.K. suffered the
acute subdural hematoma as a result of being “punched in the head by an
adult male.” Id. at 65. She likened C.K.’s injuries to injuries suffered as a
result of a heavyweight boxing match. Id. Moreover, Dr. Esernio-Jenssen
testified that C.K. weighed 32.4 pounds and measured 37 inches in height at
the time of the incident. Id. at 68-69. Based on these measurements and
the extent of C.K’s injuries, Dr. Esernio-Jenssen opined that C.K.’s falling in
or out of a bathtub did not cause his injuries. Id. at 69. Specifically,
Dr. Esernio-Jenssen explained that C.K.
is small, low mass, low height, falling his own body distance
which he had done two other prior times. Remember when he
was 34 months old he was jumping off a bed and hit something
and had a little cut. Another time he was running and fell on
concrete and had a little cut, no neurologic symptoms, and here
where it’s saying that he just fell unwitnessed and caused these
very significant injuries—acute subdural hemorrhage, a midline
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shift, unconsciousness, thready pulse,[3] you know shallow
respiration; he had evidence of having poor perfusion. He had
an elevated anion gap, his body was stressed, he had an
elevated white count; that is not consistent with a short fall.
Id. at 69-70. Additionally, Dr. Esernio-Jenssen testified that C.K. had
“contusions, ecchymosis and bruises on his forehead, his cheek, his back, his
pubic area. He had petechiae on his upper eyelids, a bruise on his left jaw
and some abrasion on his hands.” Id. at 49.
In response, Appellant offered the testimony of Dr. William Louis
Manion, a pathologist at Virtual Health. Id. at 115. Dr. Manion testified that
he also worked as a medical examiner for the counties of Burlington and
Ocean in New Jersey. Id. Based on his review of C.K.’s medical records,
photographs, and the police reports, among other things, Dr. Manion opined
that C.K.’s injuries were caused by an accidental fall in the bathtub. Id. at
150, 160. He further opined that an absence of retinal hemorrhages
bolstered his conclusion that C.K. suffered injuries because of an accident.
Id. at 163.
To rebut Appellant’s claim that C.K.’s injuries were accidental, the
Commonwealth, over Appellant’s objection, called to the stand Appellant’s
former fiancée, Rebecca Showers, to offer prior bad acts evidence under
Rule 404(b). N.T. Trial, 7/10/15, at 88-90. Ms. Showers testified that she
was engaged to Appellant and was in a relationship with him from fall 2012
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3
Dr. Esernio-Jenssen described a thready pulse as “your heart—that you’re
not pounding out your blood to your extremities.” Id. at 43.
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until fall 2013. Id. at 99. She testified that, during an argument in a
hallway inside Appellant’s home, he “backed [her] towards the end of the
hallway,” held her “by the head” and “pushed [her] head and bounced it up
against the wall.” Id. at 100. Her head hit the wall “very hard.” Id.
Ms. Showers testified that during this argument Appellant was “very angry.”
Id.
Following a three-day trial, the jury found Appellant guilty of the
above-referenced crimes. On October 1, 2015, at sentencing, Appellant
argued that the trial court would abuse its discretion if it imposed an
aggravated-range sentence because it was precluding from considering
Appellant’s “position of trust” vis-à-vis C.K. as an aggravating factor. In
support, Appellant argued that this factor already was subsumed in, and
contemplated by, the EWOC conviction. The trial court disagreed, imposing
upon Appellant an aggravated-range sentence of 66 to 132 months in prison
for aggravated assault followed by a consecutive aggravated-range sentence
of 12 to 24 months’ imprisonment for EWOC. The trial court did not impose
a sentence for simple assault and REAP, because it claimed they merged
with aggravated assault.4 Thus, Appellant received an aggregate sentence
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4
Although not an issue on appeal, we note that REAP does not merge with
aggravated assault. See Commonwealth v. Cianci, 130 A.3d 780, 783
(Pa. Super. 2015) (concluding that aggravated assault and REAP do not
merge for purposes of sentencing because “each offense requires proof of an
element that is absent from the other offense, and one offense can be
committed without committing the other offense”).
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of 78 to 156 months’ imprisonment. Appellant timely filed post-trial
motions, which the trial court denied. Thereafter, Appellant appealed to this
Court. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant raises three issues for our review:
I. Did the trial court err when it sustained Appellant’s
conviction for aggravated assault, causing serious bodily
injury, where the Commonwealth did not establish that
C.K. (a three-year-old child) suffered “serious bodily
injury”?
II. Did the trial court err when it admitted irrelevant
prejudicial evidence of a prior purported incident of
domestic violence between Appellant and a former
paramour, when the only value of the evidence was to
demonstrate that Appellant had a violent character and
acted in accord with that character on the evening C.K.
was injured?
III. Did the trial court err by using an element of the offense of
[EWOC] when it imposed sentence as grounds to: (1)
aggravate Appellant’s sentence for aggravated assault; (2)
impose a consecutive sentencing for [EWOC]; and (3)
aggravate Appellant’s sentence for [EWOC]?
Appellant’s Brief at 7 (unnecessary capitalization omitted).
We begin our analysis with Appellant’s second argument concerning
the admissibility of Ms. Shower’s testimony under Rule 404(b).
The admission of evidence is a matter for the sound discretion of the
trial court and a ruling thereon will be reversed on appeal only upon a
showing that the trial court clearly abused its discretion. Commonwealth
v. Sherwood, 982 A.2d 483 (Pa. 2009) (citation omitted). “An abuse of
discretion is not merely an error of judgment; rather discretion is abused
when the law is overridden or misapplied, or the judgment exercised is
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manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record.” Commonwealth v. Antidormi,
84 A.3d 736, 745 (Pa. Super. 2014) (citation omitted), appeal denied, 95
A.3d 275 (Pa. 2014); accord Commonwealth v. Trinidad, 96 A.3d 1031,
1036 (Pa. Super. 2014).
Instantly, Appellant argues that the trial court abused its discretion in
allowing Ms. Showers to testify under Rule 404(b) about Appellant hitting
her head against the wall because such testimony was not relevant and
“more prejudicial than probative of Appellant’s responsibility for C.K.’s
injuries.” Appellant’s Brief at 26. We disagree.
Evidence is relevant if it logically tends to establish a material fact in
the case, tends to make a fact at issue more or less probable, or supports a
reasonable inference or presumption regarding a material fact.
Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992). Once
evidence is found to be relevant and probative, it is inadmissible only if its
probative value is substantially outweighed by the danger of unfair prejudice
to the defendant. Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa.
Super. 1999) (citing Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992),
appeal denied, 795 A.2d 972 (Pa. 2000)).
Rule 404(b), relating to character evidence, crimes and other acts,
provides in relevant part:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
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(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1), (2) (emphasis added). As our Supreme Court explained
in Sherwood:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Sherwood, 982 A.2d at 497 (citations omitted).
This Court sitting en banc warned in Commonwealth v. Ross, 57
A.3d 85 (Pa. Super. 2012) (en banc), appeal denied, 72 A.3d 603 (Pa.
2013):
The purpose of Rule 404(b)(1) is to prohibit the admission of
evidence of prior bad acts to prove “the character of a person in
order to show action in conformity therewith.” Pa.R.E.
404(b)(1). While Rule 404(b)(1) gives way to recognized
exceptions, the exceptions cannot be stretched in ways that
effectively eradicate the rule. With a modicum of effort, in most
cases it is possible to note some similarities between the
accused’s prior bad conduct and that alleged in a current case.
To preserve the purpose of Rule 404(b)(1), more must be
required to establish an exception to the rule—namely a close
factual nexus sufficient to demonstrate the connective
relevance of the prior bad acts to the crime in
question. . . . this Court has warned that prior bad acts may
not be admitted for the purpose of inviting the jury to conclude
that the defendant is a person “of unsavory character” and thus
inclined to have committed the crimes with which he/she is
charged.
Ross, 57 A.3d at 105-06 (emphasis added).
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Mindful of the warning, and upon careful review, we discern no abuse
of discretion on the part of the trial court in allowing Ms. Showers to testify
on behalf of the Commonwealth about Appellant’s “slamming her head into a
wall” while she was engaged to him to rebut Appellant’s claim that C.K.’s
injuries were the result of an accident. See Trial Court Opinion, 4/11/16, at
12. As the trial court found, and we agree, there exists in this case a close
factual nexus sufficient to establish the connective relevance of Appellant’s
prior bad acts to the crimes in question. The trial court reasoned:
[Appellant] claimed C.K.’s injuries were the result of an
accident—C.K. falling, presumably in the bathtub. Given the
remarkable similarity between C.K.’s description and Ms.
Showers’ description of how [Appellant] grabbed them when he
was angry, evidence concerning the circumstances of C.K.’s
injuries supported a reasonable inference that C.K.’s injuries
were not accidental or the product of a mistake, but, rather, a
result of [Appellant’s] deliberate act—one that he had performed
before. Thus, we found the evidence was relevant. Based on
the claim of accident, the testimony of [Appellant’s] expert, and
the fact that the assault occurred when no one else was around,
we found that the evidence was offered, admitted, and used for
legitimate purposes, and that its probative value outweighed any
prejudicial effect.
Id. at 13-14. Moreover, our review of the record reveals that the trial court
gave the jury a cautionary instruction on Appellant’s prior bad acts evidence.
See N.T. Trial 7/10/15, at 188. As a result, we conclude the instruction
“ameliorated any undue prejudice caused by the introduction of the prior
bad acts.” Sherwood, 982 A.2d at 497-98 (citing Commonwealth v.
Claypool, 495 A.2d 176, 179-80 (Pa. 1985) (finding that giving of
cautionary instructions was sufficient to overcome prejudicial effect of
introduction of prior bad acts evidence)).
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We next address Appellant’s argument that his conviction for
aggravated assault was unsupported by sufficient evidence.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Antidormi, 84 A.3d at 756.
In support of his sufficiency argument, Appellant points out only that
the Commonwealth failed to prove that C.K. suffered a “serious bodily
injury.”5 Appellant’s Brief at 19. Specifically, Appellant asserts that C.K.’s
injury never matured into a life-threatening injury even though it had the
potential to do so. Id. at 22-24.
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5
Appellant does not challenge the element of mens rea on appeal.
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To obtain a conviction for aggravated assault, the Commonwealth
must prove beyond a reasonable doubt that the defendant “attempt[ed] to
cause serious bodily injury to another, or caus[ed] such injury intentionally,
knowingly, recklessly under circumstances manifesting extreme indifference
to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). “Where the victim
suffers serious bodily injury, the Commonwealth is not required to prove
specific intent.” Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa.
Super. 2007) (citation omitted), appeal denied, 940 A.2d 364 (Pa. 2007).
Serious bodily injury is defined as “[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S.A. § 2301.
Here, the evidence presented at trial, viewed in a light most favorable
to the Commonwealth, establishes the Commonwealth proved the element
of serious bodily injury. As the trial court found:
After [Appellant] assaulted [C.K.], EMS personnel found C.K. on
a sofa, pale, cold and not responsive. His eyes were rolling in
back of his head and he was in and out of consciousness. They
observed old and new trauma to C.K.’s head, multiple abrasions
on his head and face, and contusions on his forehead, left and
right temple, and left and right ear.
The same injuries were observed by medical personnel at
Lehigh Valley Medical Center. In addition, petechiae were noted
in C.K.’s eyelids. A CT scan and medical examination
demonstrated that C.K. had suffered a subdural hematoma and
a midline shift in his brain.
C.K.’s injuries, old and new, were demonstrated through
testimony, photographs, and medical records that were entered
into evidence.
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Dr. Esernio-Jenssen unequivocally testified that C.K. had
suffered physical abuse and abusive head trauma, that the
subdural hematoma and midline shift in the brain were not
accidental and did not result and could not have resulted from a
fall, and that the injuries were serious life threatening injuries.
She explained, through testimony and demonstrative evidence,
that C.K.’s injuries were consistent with injuries of a type
suffered by a boxer when punched in the head with force. In
addition, Dr. Esernio-Jenssen stated that petechiae on the
eyelids is caused by either a high velocity blow to the eyelid or
attempted strangulation.
Trial Court Opinion, 4/11/16, at 8-9. Accordingly, no relief is due on
Appellant’s sufficiency claim.6
To the extent Appellant argues that C.K.’s injury does not constitute a
serious bodily injury because it never evolved into a life-threatening injury,
such argument is waived. Appellant fails to cite any legal authority for the
proposition that serious bodily injury always must involve a life-threatening
injury. The failure to develop an adequate argument in an appellate brief
may result in waiver of the claim under Pa.R.A.P. 2119.” Commonwealth
v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (citation, quotation
marks and brackets omitted). While this Court may overlook minor defects
or omissions in an appellant’s brief, we will not act as his or her appellate
counsel. Bombar v. W. Am. Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007).
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6
To the extent Appellant attempts to highlight the inconsistency in C.K.’s
testimony and invites us to reweigh the evidence in his favor, we decline to
do so. It is not for this Court to reweigh the evidence and substitute its
judgment for that of the fact-finder. Commonwealth v. Hanible, 30 A.3d
426, 443 (Pa. 2011); see Commonwealth. v. Lehman, 13, 820 A.2d 766,
772 (Pa. Super. 2003), aff'd, 870 A.2d 818 (Pa. 2005) (“the trier of fact
while passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the evidence.”).
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Appellant has made no effort whatsoever to develop this argument with
citation to legal authority. Thus, his failure to develop a coherent legal
argument results in waiver of this issue.
Even if this issue was not waived, Appellant still would not succeed.
The evidence of record clearly demonstrates that C.K. indeed did suffer a
serious bodily injury, irrespective of whether it was life-threatening. As
Dr. Esernio-Jenssen credibly testified, C.K.’s traumatic head injury could
have caused herniation leading to instant death had he not received prompt
treatment for the injury.7 N.T. Trial, 7/9/15, at 51-52. Under Appellant’s
tortured logic, aggravated assault convictions would be reserved only for
near-death situations. For example, if a person shoots another in the chest
and that person for some reason survives with timely medical intervention,
an aggravated assault charge could not be brought. We reject this narrow
interpretation of serious bodily injury.
Lastly, Appellant argues that his sentence is illegal. 8 In support of this
claim, Appellant points out that the trial court improperly used an element of
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7
Our courts have frequently noted that the head represents a vital part of
the human body. See Commonwealth v. Robertson, 874 A.2d 1200,
1207 (Pa. Super. 2007) (noting that laymen can conclude that without
expert testimony that the head, neck, and stomach are vital areas of the
human body); accord Commonwealth v. Alexander, 383 A.2d 887, 889
(Pa. 1978).
8
Appellant has abandoned and withdrawn all other claims challenging the
discretionary aspects of his sentence. See Appellant’s Brief at 16 n.2
(“Appellant withdraws the claims that . . . raise a discretionary aspect of
sentence.”).
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EWOC to impose an aggravated-range sentence for aggravated assault and
EWOC. Appellant’s Brief at 33.
Preliminarily, we note that a trial court’s imposing of an aggravated-
range sentence based upon a factor that constitutes an element of the
offense does not implicate the legality of the sentence, but rather the
discretionary aspects of sentencing. See Commonwealth v. Fullin, 892
A.2d 843, 847-48 n.2 (Pa. Super. 2006). Because Appellant’s issue
implicates only the discretionary aspects of his sentence, we note it is well-
settled that “[t]he right to appeal a discretionary aspect of sentence is not
absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super.
2011). Rather, where an appellant challenges the discretionary aspects of a
sentence, an appellant’s appeal should be considered as a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
An appellant challenging the discretionary 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).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first two requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, and
preserved the issue on appeal through his post-sentence motions.
Appellant, however, has failed to file a Pa.R.A.P. 2119(f) statement. 9 We
decline to find waiver on this basis because the Commonwealth did not
object to the omission of the Rule 2119(f) statement. See
Commonwealth. v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008) (noting
even if properly preserved, a challenge to the discretionary aspect of a
sentence is waived if an appellant does not include a Pa.R.A.P. 2119(f)
statement in his brief and the opposing party objects to the statement's
absence), aff'd, 17 A.3d 332 (Pa. 2011); see Commonwealth v. Gould,
912 A.2d 869, 872 (Pa. Super. 2006) (noting that “in the absence of any
objection from the Commonwealth, we are empowered to review claims that
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9
Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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otherwise fail to comply with Rule 2119(f).”). We, therefore, must
determine only if Appellant’s sentencing issues raise a substantial question.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). We have found that a substantial question
exists “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.” Commonwealth v. Phillips, 946
A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964
A.2d 895 (Pa. 2009). Here, based on our review of Appellant’s claim, as
stated earlier, he has raised a substantial question. We consistently have
held that a substantial question exists where a sentencing court “improperly
based [an] aggravated range sentence on a factor that constituted an
element of the offense.” Fullin, 892 A.2d at 848.
When reviewing a challenge to the trial court’s discretion, our standard
of review is as follows:
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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to 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.
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Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).
Appellant argues that the trial court used the factor of “position of
trust,” which is subsumed in EWOC to aggravate his sentence for aggravated
assault and EWOC.10 In so doing, Appellant argues that the factor of
“‘position of trust’ is the functional, practical and legal equivalent of owing
the ‘duty of care, protection, or support,’” which is an element of EWOC.
Appellant’s Brief at 36-37. Specifically, EWOC provides “[a] parent,
guardian or other person supervising the welfare of a child under 18 years of
age, or a person that employs or supervises such a person, commits an
offense if he knowingly endangers the welfare of the child by violating a duty
of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1).
Here, the trial court apprised Appellant of the rationale for his
sentence on the record. See Sentencing Hearing, 10/1/15, at 35-48. The
trial court explained that, although a duty of care owed to the child is an
element of EWOC, it did not aggravate Appellant’s EWOC sentence for a
violation of that duty. Trial Court Opinion, 4/11/16, at 23. Instead, the trial
court found that Appellant had violated his position of trust as to both C.K.
and his mother. For example, during sentencing the trial court stated, “but
____________________________________________
10
For purposes of the instant appeal, we assume, without deciding, that the
factor of position of trust is an element of EWOC.
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the fact that you were in a position of trust where the child trusted you, the
mother trusted you, other people trusted you with this young man’s life
and then you took advantage of that is again to me a black and white
definition of an aggravating circumstance.” Sentencing Hearing, 10/1/15, at
46 (emphasis added). As such, the trial court concluded that its imposition
of an aggravated-range sentence for EWOC was not in error.
Moreover, the trial court did not rely solely on Appellant’s “position of
trust” in imposing his aggravated-range sentence for EWOC. It recounted a
litany of reasons for sentencing Appellant in the aggravated-range,
including, “C.K’s age, the injuries C.K. suffered at the hands of [Appellant]
both before and during the instant assault, [Appellant’s] prior treatment of
his girlfriends, his anger issues, his lack of empathy or remorse, his
courtroom struggle with deputy sheriffs after the verdict was returned, the
direct and collateral consequences of [Appellant’s] criminal actions, and the
nature, grading, and severity of the crimes.” Trial Court Opinion, 4/11/16,
at 23; Sentencing Hearing, 10/1/15, at 35-48. Even if the trial court erred
by improperly considering Appellant’s “position of trust,” he is not thereby
entitled to have his sentence vacated. See Commonwealth v. Bowen,
975 A.2d 1120, 1127 (Pa. Super. 2009) (noting that, despite relying on an
impermissible factor, the trial court evaluated several permissible factors in
imposing an aggravated-range sentence); Commonwealth v. P.L.S., 894
A.2d 120, 133 (Pa. Super. 2006) (finding that even if the trial court
considered an inappropriate factor at sentencing, “the court offered
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significant other support for sentencing in excess of the guidelines in this
case.”), appeal denied, 906 A.2d 542 (Pa. 2006).
To the extent Appellant argues that the trial court abused its discretion
by considering the factor of “position of trust” to aggravate his sentence for
aggravated assault, we disagree. Aggravated assault does not contain the
element of “position of trust.” See 18 Pa.C.S.A. § 2702(a)(1). Thus, the
trial court properly considered the element of “position of trust” to sentence
Appellant in the aggravated-range for aggravated assault.
In sum, we conclude that the trial court did not err in concluding that
sufficient evidence of record supported Appellant’s conviction for aggravated
assault. The trial court also did not abuse its discretion in allowing the
Commonwealth to present evidence under Rule 404(b) and aggravating
Appellant’s sentence for aggravated assault and EWOC.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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