Com. v. Sauter, M. ( 2022 )

J-S13008-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MATTHEW ALLEN SAUTER
Appellant No. 958 MDA 2021
Appeal from the Judgment of Sentence Entered July 21, 2021
In the Court of Common Pleas of Lycoming County
Criminal Division at No.: CP-41-CR-0000103-2019
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED AUGUST 09, 2022
Appellant Matthew Allen Sauter appeals from the July 21, 2021
judgment of sentence entered in the Court of Common Pleas of Lycoming
County (“trial court”), following his bench convictions for multiple counts of
sexual abuse of a minor. Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
Appellant was charged with 96 counts of sexual offenses that arose out of
his engaging in oral, anal and vaginal intercourse with a minor female when
she was between the age of twelve (12) and fourteen (14) years.1 Appellant
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Specifically, Appellant was charged with twelve counts of rape of a child
(18 Pa.C.S.A. § 3121(c)), twelve counts of statutory sexual assault (18
Pa.C.S.A. § 3122.1(b)), twelve counts of involuntary deviate sexual
intercourse (“IDSI”) (18 Pa.C.S.A. § 3123(a)(7)), twelve counts of
(Footnote Continued Next Page)
J-S13008-22
proceeded to a non-jury trial, following which the trial court found him guilty
of all charges except six counts of rape of a child, six counts of aggravated
indecent assault – complainant less than 13 years old, and six counts of
indecent assault – complainant less than 13 years old. In total, the trial
court found Appellant guilty of 78 separate counts of sexual offenses against
the minor. On March 3, 2021, the trial court designated Appellant as a
sexually violent predator and sentenced him to an aggregate term of 90 to
180 years’ imprisonment.2 Following a motion for reconsideration of
sentence, the trial court on July 21, 2021 amended the judgment of
sentence to reflect that certain offenses merged with either rape of child,
statutory sexual assault and/or IDSI for sentencing purposes. The merger,
however, did not affect the trial court’s overall sentencing scheme or
(Footnote Continued) _______________________
aggravated indecent assault – complainant less than 13 years of age (18
Pa.C.S.A. § 3125(a)(7)), twelve counts of aggravated indecent assault –
complainant less than 16 years of age (18 Pa.C.S.A. § 3125(a)(8)), twelve
counts of corruption of minors (sexual offenses) (18 Pa.C.S.A. §
6301(a)(1)(ii)), twelve counts of indecent assault – complainant less than 13
years of age (18 Pa.C.S.A. § 3126(a)(7)), and twelve counts of indecent
assault – complainant less than 16 years of age (18 Pa.C.S.A. § 3126(a)(8)).
2 In particular, on each of the six convictions for rape of child, the trial court
sentenced Appellant to ten (10) to twenty (20) years in prison. The
sentences were ordered to run consecutively for a total of 60 to 120 years’
imprisonment. On six of the twelve convictions for IDSI, the trial court
imposed a sentence of five (5) to ten (10) years’ imprisonment. The IDSI
sentences were to run consecutive to each other—for an aggregate of 30 to
60 years in prison—and consecutive to Appellant’s sentence for rape of child.
On the remaining 66 counts, the trial court either imposed sentences to run
concurrently with the rape sentences or directed no further punishment.
-2-
J-S13008-22
Appellant’s aggregate sentence. Appellant timely appealed. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents a single issue for our review.
I. Whether he sentencing court abused its discretion by
imposing a manifestly excessive and unduly harsh
sentence without sufficiently considering the fundamental
norms underlying the sentencing process.
Appellant’s Brief at 7. Essentially, Appellant argues that the trial court
abused its discretion in imposing upon him a de facto life sentence by
directing that sentences for six counts of rape of the child and six counts of
IDSI be run consecutive to each other.3
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
____________________________________________
3 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.
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).
-3-
J-S13008-22
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).
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 three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
2119(f) statement in his brief.4 We, therefore, need to determine only if
Appellant’s sentencing issues raise a substantial question.
____________________________________________
4Rule 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
(Footnote Continued Next Page)
-4-
J-S13008-22
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). “[W]e cannot look beyond the statement of questions
presented and the prefatory [Rule] 2119(f) statement to determine whether
a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10
(Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015).
It is settled that this Court does not accept bald assertions of
sentencing errors. See Commonwealth v. Malovich, 903 A.2d 1247,
1252 (Pa. Super. 2006). When we examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists, “[o]ur inquiry
must focus on the reasons for which the appeal is sought, in contrast to the
facts underlying the appeal, which are necessary only to decide the appeal
on the merits.” Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa.
Super. 2008) (quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.
(Footnote Continued) _______________________
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).
-5-
J-S13008-22
Super. 2005)). A Rule 2119(f) statement is inadequate when it “contains
incantations of statutory provisions and pronouncements of conclusions of
law[.]” Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005)
(citation omitted).
Here, Appellant asserts in his Rule 2119(f) statement:
Appellant states a substantial question as to whether the
sentence was contrary to the fundamental norms of the
sentencing process because the court unreasonably sentenced
[A]ppellant to consecutive sentences that would ultimately result
in a life sentence.
Appellant’s Brief at 13.5
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the ‘minimum possible’ confinement.”
Moury, 992 A.2d at 171 (citation omitted). “Generally, Pennsylvania law
affords the sentencing court discretion to impose its sentence concurrently
or consecutively to other sentences being imposed at the same time or to
sentences already imposed. Any challenge to the exercise of this discretion
ordinarily does not raise a substantial question.” Commonwealth v.
Austin, 66 A.3d 798, 808 (Pa. Super. 2013); see also 42 Pa.C.S.A. §
9721(a) (providing that the court may impose sentences “consecutively or
____________________________________________
5 To the extent Appellant argues that the trial court abused its discretion in
failing to address sentencing factors or specifically failed to take into account
the protection of public or his rehabilitative needs, the argument is waived.
Appellant did not raise this issue before the trial court or in his Rule 1925(b)
statement. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.
1925(b)(4)(vii) (issues not included in a 1925(b) statement are waived).
-6-
J-S13008-22
concurrently”); Commonwealth v. Johnson, 873 A.2d 704, 709 n.2 (Pa.
Super. 2005) (noting that challenges to the trial court’s discretion to impose
consecutive or concurrent sentences ordinarily does not raise a substantial
question); Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.
1995) (stating that an appellant is not entitled to a “volume discount” for his
crimes by having all sentences run concurrently). “The imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Moury, 992 A.2d at 171-72 (citation
omitted).
Based on Appellant’s 2119(f) statement, we accept that Appellant
raises a substantial question, given the aggregate length of the sentence
imposed. Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).6
____________________________________________
6 Appellant’s suggestion that the trial court generally failed to consider his
mitigating circumstances also does not raise a substantial question. In this
regard, we have “held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super.
2013) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.
Super. 2010)); see also Commonwealth v. Berry, 785 A.2d 994 (Pa.
Super. 2001) (explaining allegation that sentencing court failed to consider
certain mitigating factor generally does not raise a substantial question);
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)
(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or ‘did not
adequately consider’ certain factors does not raise a substantial question
that the sentence was inappropriate,”), appeal denied, 676 A.2d 1195 (Pa.
1996); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super.
(Footnote Continued Next Page)
-7-
J-S13008-22
Appellant principally relies upon Commonwealth v. Coulverson, 34
A.3d 135 (Pa. Super. 2011), appeal denied, 93 A.3d 461 (Pa. 2014) for
relief. There, the defendant pled guilty to rape, IDSI, sexual assault,
aggravated indecent assault, robbery, unlawful restraint, terroristic threats,
and two counts of indecent assault that he committed when he was 19 years
old. Coulverson, 34 A.3d at 138–39. The sentencing court imposed an 18
to 90–year aggregate term of imprisonment, which included the imposition
of multiple consecutive statutory maximum sentences to accomplish the
upper end of the sentence. Id. at 139. On appeal, we found that the
imposition of a 90–year maximum sentence on a 19–year old defendant was
“clearly unreasonable” as the trial court imposed a virtual life sentence,
failing to give any consideration to defendant’s characteristics and
improperly basing its determination that defendant should “spend as much
of his life in prison as the court could order[.]” Id. at 148.
(Footnote Continued) _______________________
1997) (finding absence of substantial question where appellant argued the
trial court failed to adequately consider mitigating factors and to impose an
individualized sentence). Even if we were to find a substantial question, we
still would conclude Appellant is not entitled to relief. Where, as here, the
sentencing court had the benefit of a presentence investigation report, see
N.T. Sentencing, 3/3/21, at 19-21, we can assume the sentencing court was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors. See
Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (citations
and internal quotation marks omitted), appeal denied, 76 A.3d 538 (Pa.
2013).
-8-
J-S13008-22
In the present case, as opposed to Coulverson, the trial court
imposed a standard range sentence that did not extend to the statutory
maximum. Indeed, the minimum sentence and the maximum sentence are
both within the standard range of the guidelines and the maximum sentence
is two times the minimum sentence. In contrast, in Coulverson, the
defendant’s maximum sentence was five times his minimum sentence.
Reliance on Coulverson, therefore, is misplaced.
The instant case, however, is similar to Prisk. There, the defendant
was convicted of 314 offenses, including multiple counts of rape, IDSI, and
indecent assault. Prisk, 13 A.3d at 528. He sexually abused his
stepdaughter for seven years, beginning when she was ten years old. Id.The trial court imposed an aggregate sentence of 633 to 1,500 years’
imprisonment. Id. at 529. On direct appeal to this Court, the defendant
“assert[ed] his aggregate sentence [was] manifestly excessive and
unreasonable, because the court imposed consecutive sentences for some of
his convictions,” the “court failed to recognize the absurdity of the aggregate
sentence imposed,” and “[b]ased on his current life expectancy, . . . his
minimum sentence [was] roughly twelve times longer than necessary for the
court to have effectively imposed a life sentence.” Id. at 532.
In denying relief, we reasoned:
[W]e must emphasize that the jury found [the defendant] guilty
of [314] separate offenses. These offenses stemmed from [the
defendant’s] systematic sexual abuse of his stepdaughter, which
occurred on an almost daily basis over the course of six years.
Further, the court did not impose consecutive sentences for
-9-
J-S13008-22
every count. At the same time, [the defendant] was not entitled
to a “volume discount” for his multiple offenses. Based upon the
foregoing, we will not deem the aggregate sentence as excessive
in light of the violent criminal conduct at issue.
Id. at 533 (citation omitted).
Here, based on uncontradicted evidence of record, Appellant used his
position of trust and authority as a father figure to sexually assault the
minor female victim over two and a half years. As the trial court reasoned:
Here, Appellant’s acts were predatory, intentional and occurred
repeatedly. Appellant formerly dated the victim’s mother for
approximately five years. The victim and her brother viewed
Appellant as a father figure. After Appellant and the victim’s
mother ended their relationship, the victim’s mother lost her
housing and abandoned the children. The victim’s mother joined
a carnival and ultimately relinquished her parental rights to her
sister and her sister’s husband. They suffered a house fire.
They were living in a hotel and then a rental in the Williamsport
area.
During this tumultuous time in the child’s life, she happened to
see Appellant at a birthday party for a mutual acquaintance.
Shortly thereafter, Appellant began visiting the children every
other week. The visits occurred at the residence where
Appellant lived with his mother. Appellant’s bedroom was in the
basement of the house and the children slept downstairs with
him. At first, the visits involved both children but shortly after
the visits started Appellant began visiting with the victim one
weekend and her brother the next. Appellant would make the
victim’s brother sleep on an uncomfortable couch in his
bedroom, but he would have the victim sleep in his bed with
him.
While the victim was alone in the basement with Appellant, he
repeatedly sexually abused her. He subjected her to vaginal,
oral and anal intercourse on a biweekly basis. He violated her in
countless degrading and unspeakable ways. He arranged for
visits claiming he was a father figure, yet defied everything
expected of a loving and fiduciary relationship. He utilized his
position of trust to satisfy his deviant desires at the expense of
- 10 -
J-S13008-22
the victim’s quality of life. Although he may not have physically
taken her life, she will have to live with what Appellant did to her
every day of her life. She will have a lifetime of trauma, stress,
remorse, physical issues, social issues and emotional issues.
Her life is forever changed and the hurdles she will have to
overcome to have a normal life, a normal sex life and a normal
relationship with someone are going to be huge.
Trial Court Opinion, 10/4/21, at 4-5. Thus, we agree with the trial court that
Appellant must not receive a volume discount for committing multiple
heinous crimes on account of his age or other factors. As noted, Appellant
sexually assault a young girl, who viewed him as a father figure, over the
course of two and a half years. Under the circumstances of this case, and
consistent with Prisk, we cannot conclude that the trial court abused its
sentencing discretion, especially where the court did not impose a
consecutive sentence for every count. Accordingly, Appellant is not entitled
to relief.7
Judgment of sentence affirmed.
____________________________________________
7 Where, as here, the sentencing court had the benefit of a presentence
investigation report, see N.T. Sentencing, 3/3/21, at 19-21, we can assume
the sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors. See Commonwealth v. Griffin, 65 A.3d 932,
937 (Pa. Super. 2013) (citations and internal quotation marks omitted),
appeal denied, 76 A.3d 538 (Pa. 2013).
- 11 -
J-S13008-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/09/2022
- 12 -