Com. v. Moeller, P., Jr. ( 2022 )

J-S13030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PHILLIP G. MOELLER, JR. :
:
Appellant : No. 1303 MDA 2021
Appeal from the Judgment of Sentence Entered September 8, 2020
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001646-2015
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: JULY 27, 2022
Appellant, Phillip G. Moeller, Jr., appeals nunc pro tunc from the
judgment of sentence entered in the Schuylkill County Court of Common
Pleas, following his jury trial conviction for one count of involuntary
manslaughter.1 We affirm.
The relevant facts and procedural history of this appeal are as follows.
On October 8, 2013, Appellant babysat his girlfriend’s four-year-old grandson
(“Victim”). (See N.T. Trial, 7/23/20, at 91). That evening, Appellant called
his girlfriend and told her that Victim “fell, had an accident,” and Victim was
“in the hospital.” (Id. at 97). At first, Appellant told his girlfriend that Victim
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2504(a).
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fell after “jumping on the bed.” (Id. at 100). Later, Appellant changed his
story and claimed that Victim was injured while “they were roughhousing and
[Appellant] was holding [Victim] up in the air and dropping him on the bed.”
(Id. at 101). Appellant indicated that Victim hit his head on the “corner of
the footboard pole there on the bed.” (Id. at 102). Days later, Victim died
as a result of his injuries.
On September 10, 2015, the Commonwealth filed a criminal information
charging Appellant with involuntary manslaughter. Appellant proceeded to his
first jury trial, which ended in a mistrial on June 6, 2017. Following a second
trial, a jury found Appellant guilty of involuntary manslaughter on July 24,
2020.2 On September 8, 2020, the court imposed an aggravated-range
sentence of two (2) to five (5) years’ imprisonment.
On October 5, 2020, Appellant filed an untimely post-sentence motion.
In it, Appellant claimed that he was unable to timely file a post-sentence
motion due to delays arising from the COVID-19 pandemic. Appellant asked
the court to grant nunc pro tunc relief and consider the motion as properly
filed, and he requested the imposition of a lesser sentence. On November 10,
2020, the court granted nunc pro tunc relief, accepted the motion as properly
____________________________________________
2At trial, the Commonwealth presented testimony from Doctor Paul Bellino,
M.D., who testified as an expert in “pediatrics and child abuse.” (N.T. Trial at
162). Significantly, Dr. Bellino opined that Victim’s injuries were inconsistent
with a single fall. (See id. at 192). Rather, Dr. Bellino’s “medical impression
[was] that this child has been physically abused.” (Id. at 193).
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filed, and scheduled a hearing on Appellant’s sentencing claim. Following a
hearing, the court declined to reduce Appellant’s sentence.
On April 23, 2021, Appellant filed a counseled petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, alleging that
prior counsel was ineffective in conjunction with the preservation of post-
sentence and direct appeal rights. The court granted PCRA relief on August
24, 2021. Specifically, the court reinstated Appellant’s right to file another
post-sentence motion nunc pro tunc. Appellant timely filed a post-sentence
motion nunc pro tunc on August 27, 2021. Appellant argued that the court
imposed an aggravated-range sentence “based upon testimony that other
bruises found on the victim ‘could have’ been caused by abuse.” (Post-
Sentence Motion Nunc Pro Tunc, filed 8/27/21, at ¶4). Appellant insisted that
no other facts supported such a harsh sentence, and he requested that the
court modify his sentence to fall within the standard range. The court denied
relief on October 6, 2021.
Appellant timely filed a notice of appeal nunc pro tunc on October 8,
2021. On October 12, 2021, the court ordered that Appellant file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
timely filed his Rule 1925(b) statement on October 26, 2021.
Appellant now raises one issue on appeal:
Whether the [trial] court abused its discretion by imposing
a sentence that was unduly harsh?
(Appellant’s Brief at 6).
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Appellant argues that the court relied on impermissible factors when
imposing an aggravated range sentence. Specifically, Appellant contends that
the court based the sentence on “speculative” testimony that Appellant
intentionally committed acts of child abuse. Appellant maintains the
Commonwealth did not put the question of Appellant’s intention before the
jury. Further, Appellant emphasizes that some trial testimony supported his
claim that Victim’s bruising resulted from roughhousing and medical treatment
rather than child abuse. Appellant insists the court improperly relied on the
speculative testimony to justify the imposition of an aggravated range
sentence. Appellant concludes that this Court must vacate the sentence and
remand for re-sentencing. As presented, Appellant’s claim challenges the
discretionary aspects of his sentence. See Commonwealth v. Shugars, 895
A.2d 1270 (Pa.Super. 2006) (stating claim that sentence was excessive based
on impermissible factors constitutes challenge to discretionary aspects of
sentencing).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
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
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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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “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.” Phillips, supra at 112
(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “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
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process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)
(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.
2011)). A substantial question is raised when an appellant alleges that his
sentence is excessive because of the trial court’s reliance on impermissible
factors. See Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa.Super.
2011).
Instantly, Appellant timely filed his notice of appeal nunc pro tunc, and
he preserved his issue by including it in his post-sentence motion nunc pro
tunc. Although Appellant’s brief does not include a Rule 2119(f) statement,
the Commonwealth has not objected to this deficiency. Likewise, this
deficiency does not hamper our ability to resolve Appellant’s claim. See
Shugars, supra at 1274 (stating that Superior Court may review claims that
fail to comply with Rule 2119(f) if Commonwealth does not object and absence
of Rule 2119(f) statement does not significantly hamper ability to review
appellant’s argument). Further, Appellant’s claim raises a substantial question
as to the appropriateness of the sentence imposed. See Allen, supra.Accordingly, we proceed to address the merits of Appellant’s issue.
This Court reviews discretionary sentencing challenges based on the
following standard:
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
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exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“[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), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984,
162 L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. When considering the propriety of imposing
an aggravated range sentence, this Court has previously said:
[T]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a normal for
comparison, i.e., the standard range of punishment, for the
panoply of crimes found in the crimes code and by providing
a scale of progressively greater punishment as the gravity
of the offense increases….
The provision of a “norm” also strongly implies that
deviation from the norm should be correlated with facts
about the crime that also deviate from the norm for the
offense, or facts relating to the offender’s character or
criminal history that deviates from the norm and must be
regarded as not within the guidelines contemplation. Given
this predicate, simply indicating that an offense is a serious,
heinous or grave offense misplaces the proper focus. The
focus should not be upon the seriousness, heinousness or
egregiousness of the offense generally speaking, but, rather
upon how the present case deviates from what might be
regarded as a “typical” or “normal” case of the offense under
consideration.
An aggravated range sentence … will thus be justified to the
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extent that the individual circumstances of [an appellant’s]
case are atypical of the crime for which [he] was convicted,
such that a more severe punishment is appropriate.
Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006) (internal
citation omitted).
Instantly, the sentencing court provided an on-the-record statement of
reasons to support the sentence imposed. Initially, the court acknowledged
that Appellant had no prior record and appeared to be a responsible person.
(N.T. Sentencing, 9/8/20, at 8). Nevertheless, the court emphasized that
Victim’s injuries were inconsistent with Appellant’s explanation, and not the
type “which would have occurred if a kid was thrown up in the air and came
down on a bedpost.” (Id.) Our review of the record confirms this assertion.
Specifically, Dr. Bellino testified that “the injury to [Victim’s] brain caused
swelling which ultimately compromised the circulation of blood to his brain as
well as the function of his brain.” (N.T. Trial at 168). Dr. Bellino also observed
that Victim had suffered hemorrhages in both eyes, an “air leak” in his chest,
and physical trauma to his upper arms, chest, and abdomen. (Id. at 190-
91). Moreover, regarding Appellant’s explanation for the injuries, Dr. Bellino
testified there was “nothing there to suggest that there’s been any significant
trauma to the back of the head.” (Id. at 173).
Dr. Bellino noted that the location of Victim’s bruises indicated that
Victim was abused:
Well, I believe there’s medical evidence on [Victim’s]
examination that he has had multiple points of impact over
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his face, sides of both of his head, [and] his shoulders that
are caused by trauma. The story that is offered is that he
hasn’t engaged in any physical behavior that could have
produced those kinds of traumatic injuries.
I would not expect to see the amount of bruising that he has
from just the child exploring his environment. This coupled
with the severe brain injury that he has including the
bleeding within his head as well as the injury to the actual
brain tissue itself with the lack of any other history is what
we see in cases of child physical abuse. So it would be my
medical impression that this child has been physically
abused.
(Id. at 192-93). Thus, contrary to Appellant’s assertions, the court did not
base the sentence upon mere speculation. Rather, the court drew its
conclusions from the ample testimony of the Commonwealth’s expert.
Here, the court properly considered the particular circumstances of the
case and Appellant’s individual character. See Griffin, supra. Based upon
the foregoing, the court found that Appellant’s conduct warranted an
aggravated sentence where evidence of child abuse distinguished this case
from a typical involuntary manslaughter case. See Fullin, supra. Under
these circumstances, we see no abuse of discretion. See McNabb, supra.Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/27/2022
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