Com. v. Vaughn, S. ( 2021 )

J-S46019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAREE VAUGHN :
:
Appellant : No. 2174 EDA 2019
Appeal from the Judgment of Sentence Entered March 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003914-2018
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021
Appellant, Sharee Vaughn, appeals from the judgment of sentence
entered March 14, 2019, in the Court of Common Pleas of Philadelphia County.
Upon careful review, we affirm the judgment of sentence with the exception
that we eliminate the condition that the trial court placed upon Appellant’s
release from imprisonment.
The trial court set forth the factual and procedural history of this case
as follows:
Complainant A.K., an 11-year-old child, was at home with
his mother, [Appellant], on March 24, 2018 when his mother
noticed her drugs were missing. Notes of Testimony, 1/7/19 at
15. She asked A.K. to help find them. Id. at 16. When he could
not find the drugs his mother hit him and choked him with both
hands, causing him to be unable to breath[e]. Id. at 17.
[Appellant] also stomped A.K. on his stomach with her foot. Id.
at 18. The beating stopped when A.K. told [Appellant] that a
friend of hers took them, lying to her to stop the beating. Id. at
19.
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The next morning [Appellant] asked A.K. why he lied about
who took the drugs. Notes of Testimony, 1/7/19 at 21.
[Appellant] became angry and told A.K. to go to [Appellant’s]
bedroom. Id. Once inside the room [Appellant] used a leather
belt to beat A.K. on his back, arms and legs. Id. at 21-22. The
beating only stopped when [A.K.] was able to escape from the
room. Id. at 23. Following the assault, [A.K.] ran out of the house
into the cold while barefoot and wearing only his sweatpants. Id.
He was eventually able to find a SEPTA worker who called the
police. Id. at 23-24.
After speaking with police, A.K. was taken to a hospital and
treated by a doctor. Notes of Testimony, 1/7/19 at 26. He had
markings on his neck from where [Appellant] had choked him. Id.
a[t] 29; Commonwealth Exhibit 2. He also had red marks and
bruising on his lower neck, chest, arms and legs as a result of the
beating by [Appellant] with the belt. Notes of Testimony, 1/7/19
at 29-33; Commonwealth Exhibits 3-9.
On January 7, 2019[, Appellant] appeared before the
Honorable Mia R. Perez in a waiver trial and was found guilty of
Aggravated Assault (F1),[1] Strangulation (F2),[2] Endangering
Welfare of Children (F3),[3] Simple Assault (M2),[4] and Recklessly
Endangering Another Person.[5]
On March 14, 2019, this [c]ourt sentenced [Appellant] to 5-
10 years of state incarceration for the aggravated assault with a
concurrent sentence of 5-10 years of state incarceration for the
strangulation. This [c]ourt sentenced [Appellant] to four years of
reporting probation for Endangering Welfare of Children, with no
further penalty for the simple assault and recklessly endangering
another person charges.
[Appellant] filed a Motion to Reconsider Sentence on
March 25, 2019, and an amended version of the motion on July 9,
2019. This [c]ourt denied [Appellant’s] motion on July 16, 2019.
____________________________________________
1 18 Pa.C.S. § 2702(a)(9).
2 18 Pa.C.S. § 2718(a)(1).
3 18 Pa.C.S. § 4304 (a)(1).
4 18 Pa.C.S. § 2701(a).
5 18 Pa.C.S. § 2705.
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Trial Court Opinion, 11/6/19, at 1-2.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Did not the trial court err as a matter of law in finding the
evidence sufficient to convict Appellant of Aggravated Assault, 18
Pa.C.S.A. § 2702(a)(9), where the evidence failed to establish (1)
that Appellant had the specific intent to cause serious bodily injury
to A.K., or (2) that Appellant caused serious bodily injury to A.K.
intentionally, knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of human life?
2. Did not the trial court err as a matter of law in finding the
evidence sufficient to convict Appellant of Strangulation, 18
Pa.C.S.A. § 2718(a)(1), where the evidence failed to establish that
Appellant impeded A.K.’s breathing or circulation of blood?
3. Did not the court err as a matter of law and abuse its discretion
when it imposed a manifestly excessive and unreasonable
sentence of five to ten years of incarceration for Strangulation,
and an equally excessive and clearly unreasonable sentence of a
concurrent term of five to ten years of incarceration for
Aggravated Assault, after failing to give individualized
consideration to Appellant's personal history, rehabilitative needs,
and background, as well as to the circumstances of the case; and
which was in excess of what was necessary to address the gravity
of the offense, the protection of the community, and Appellant's
rehabilitative needs?
4. Did not the trial court err as a matter of law by imposing an
illegal “no contact” condition of parole under which Appellant is
prohibited from having unsupervised contact with any children,
including her own, for the entirety of the fourteen-year period of
supervision, which includes the time that the Pennsylvania Board
of Probation and Parole has exclusive statutory authority over
Appellant's supervision while on state parole?
Appellant’s Brief at 4-5.
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Appellant’s first two issues challenge the sufficiency of the evidence.
Our standard of review is well established:
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[’s]. 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.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
In her first issue, Appellant argues that there was insufficient evidence
presented by the Commonwealth to prove beyond a reasonable doubt that
she committed the crime of aggravated assault. Appellant’s Brief at 23-35.
Appellant contends that the Commonwealth failed to establish that she
attempted to cause serious bodily injury to A.K. Id. at 24-34. Also, Appellant
asserts that the Commonwealth did not establish that she caused serious
bodily injury to A.K. Id. at 34-35.
The relevant provision of the Crimes Code defining aggravated assault
applicable to this case provides as follows:
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(a) Offense defined.—A person is guilty of aggravated assault if
he:
* * *
(9) attempts to cause or intentionally, knowingly or
recklessly causes serious bodily injury to a child less
than 13 years of age, by a person 18 years of age or
older.
18 Pa.C.S. § 2702(a)(9). As we expressed in Commonwealth v. Fortune,
68 A.3d 980 (Pa. Super. 2013):
For aggravated assault purposes, an “attempt” is found where an
accused who possesses the required, specific intent acts in a
manner which constitutes a substantial step toward perpetrating
a serious bodily injury upon another. An intent ordinarily must be
proven through circumstantial evidence and inferred from acts,
conduct or attendant circumstances.
Id. at 984 (citations omitted).
In addition, the Court in Fortune summarized the following:
The Pennsylvania Supreme Court in Commonwealth v.
Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) created a
totality of the circumstances test to be used to evaluate whether
a defendant acted with the necessary intent to sustain an
aggravated assault conviction. In Commonwealth v. Matthew,
589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test
and articulated the legal principles which apply when the
Commonwealth seeks to prove aggravated assault by showing
that the defendant attempted to cause serious bodily injury.
Specifically, the Court stated, in relevant part, that:
Alexander created a totality of the circumstances
test, to be used on a case-by-case basis, to determine
whether a defendant possessed the intent to inflict
serious bodily injury. Alexander provided a list,
albeit incomplete, of factors that may be considered
in determining whether the intent to inflict serious
bodily injury was present, including evidence of a
significant difference in size or strength between the
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defendant and the victim, any restraint on the
defendant preventing him from escalating the attack,
the defendant’s use of a weapon or other implement
to aid his attack, and his statements before, during,
or after the attack which might indicate his intent to
inflict injury. Alexander, at 889. Alexander made
clear that simple assault combined with other
surrounding circumstances may, in a proper case, be
sufficient to support a finding that an assailant
attempted to inflict serious bodily injury, thereby
constituting aggravated assault.
Matthew, 909 A.2d at 1257 (citation and quotation marks
omitted). The Court indicated that our case law does not hold that
the Commonwealth never can establish a defendant intended to
inflict bodily injury if he had ample opportunity to inflict bodily
injury but did not inflict it. Rather, the totality of the
circumstances must be examined as set forth by Alexander.
Fortune, 68 A.3d at 984.
In Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003), our
Supreme Court stated that in cases “[w]here the intention of the actor is
obvious from the act itself, the finder of fact is justified in assigning the
intention that is suggested by the conduct.” Moreover, our Supreme Court
has long observed, “It is beyond question that manual strangulation can result
in serious bodily injury, if not death.” Commonwealth v. Watson, 431 A.2d
949, 952 (Pa. 1981).
The trial court addressed Appellant’s challenge to the sufficiency of the
evidence with the following apt discussion:
The evidence in this case does establish that [Appellant]
attempted to cause serious bodily injury to the victim. [Appellant]
deliberately and violently attacked her 11-year old son on two
separate occasions. Notes of Testimony, 1/7/19 at 17-19, 21-22.
She admitted to the assaults in a video police statement played
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during the trial, confirming unapologetically that she had beaten
her son because [she thought] he had stolen her drugs. See
Commonwealth Exhibit 14.
Applying the Alexander factors in this case, there is a
significant inherent difference between [Appellant] and [A.K.’s]
sizes and strengths because [Appellant] is an adult and [A.K.,] a
child. This [c]ourt further notes that [Appellant’s] role as [A.K.’s]
mother would not only reflect a duty of care owed to [A.K.], but
also a position of authority contributing to [A.K.’s] vulnerability.
As to [Appellant’s] ability to escalate the assault, the only reason
[Appellant] did not continue to beat her son, incurring more
severe injuries, was because he fled the house, running barefoot
into the cold to seek help from a stranger. Notes of Testimony,
1/7/19 at 22. As to the factor involving use of weapons, in the
second incidence of assault, [Appellant] used a weapon, a belt, to
aid in her attack, resulting in injuries to [A.K.’s] arms, legs and
chest. Id. at 22; Commonwealth Exhibits 3-9. In the first assault,
[Appellant] choked [A.K.] - and while a separate weapon was not
employed in that attack, this [c]ourt views [Appellant’s] use of her
hands to strangle as having no other purpose than to cause [A.K.]
serious bodily harm or death. As to the factor in Alexander
regarding statements or threats made to [A.K.], although there is
no evidence of verbal statements, this [c]ourt notes that the force
of a choking hold implies an intent to seriously injure or kill.
This [c]ourt finds that the evidence clearly established the
requisite elements of Aggravated Assault as a felony in the first
degree.
Trial Court Opinion, 11/6/19, at unnumbered 6-7 (citation omitted).
We have thoroughly reviewed the certified record before us on appeal,
and we agree with the trial court’s determination that the Commonwealth
presented sufficient evidence to establish beyond a reasonable doubt that
Appellant committed the crime of aggravated assault. It is undisputed that
A.K. testified that during the first altercation with Appellant, she pushed him
to the floor and choked him around the neck with her hands. N.T., 1/7/19, at
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17. A.K. specifically testified that he could not breathe during the incident.
Id. This action of manual strangulation can result in serious bodily injury.
Watson, 431 A.2d at 952. Thus, the trial court was justified in assigning the
intention that is suggested by Appellant’s conduct. Hall, 830 A.2d at 542.
Accordingly, Appellant’s contrary claim lacks merit.
Appellant next argues that the Commonwealth failed to prove beyond a
reasonable doubt that she committed the crime of strangulation. Appellant’s
Brief at 35-39. Appellant asserts that the Commonwealth did not prove, as a
medical fact, that A.K.’s breathing or circulation of blood was impeded. Id.
at 37-38. Appellant posits that “despite A.K.’s limited assertion that he could
not breathe, his breathing could not have been impeded when he was able to
tell Appellant to stop; to yell for help; and to tell his mother a lie about who
might have taken the drugs.” Id. at 38.
The offense of strangulation is defined as follows:
(a) Offense defined.--A person commits the offense of
strangulation if the person knowingly or intentionally impedes the
breathing or circulation of the blood of another person by:
(1) applying pressure to the throat or neck
18 Pa.C.S. § 2718(a). Moreover, “[i]nfliction of a physical injury to a victim
shall not be an element of the offense. The lack of physical injury to a victim
shall not be a defense in a prosecution under this section.” 18 Pa.C.S. §
2718(b).
The trial court addressed this claim of insufficient evidence as follows:
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In this case, [A.K.] credibly testified that [Appellant] placed
her hands on his neck and choked him by the throat after pushing
him to the ground. Notes of Testimony, 1/7/19 at 17. [A.K.]
further testified that he could not breath during this attack. Id. at
[17,] 38. Photographs depicting marks [A.K.] sustained on his
neck were admitted into evidence without objection.
Commonwealth Exhibit 2 and 3. Based on the testimony and
photographic evidence, this [c]ourt found that the Commonwealth
had met its burden of proving beyond a reasonable doubt the
elements of the crime of strangulation.
Trial Court Opinion, 11/6/19, at unnumbered 7-8. We agree with the trial
court’s assessment.
Here, A.K. specifically testified that due to Appellant’s hands choking his
neck, he could not breathe. N.T., 1/7/19, at 17. This testimony is sufficient
to meet the statutory elements set forth by the legislature, i.e., that Appellant
impeded A.K.’s breathing by applying pressure to his throat. Moreover,
Appellant’s assertion that the Commonwealth needed to prove an impediment
to breathing as a “medical fact” is unsupported by legal authority. Further, in
light of A.K.’s unequivocal testimony that he could not breathe, A.K.’s ability
to tell Appellant at some point during the attack to stop the choking and to
call for help is of no moment. Accordingly, Appellant’s claim lacks merit.
Appellant also argues that the trial court abused its discretion in
fashioning her sentence. Appellant’s Brief at 39-54. Appellant claims the trial
court improperly imposed a manifestly excessive and unreasonable sentence
without adequately considering Appellant’s rehabilitative needs and the
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circumstances of the case. Id. at 39. Appellant asserts that she received a
non-individualized and disproportionate sentence. Id.6
Appellant challenges the discretionary aspects of sentencing. “A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted). An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
____________________________________________
6 We observe that within her argument on this issue, Appellant includes a
claim that the trial court deviated without explanation from the Sentencing
Guidelines with regard to her conviction of strangulation. Appellant’s Brief at
39-40. Indeed, it appears that the trial court utilized the same sentencing
guidelines for Appellant’s convictions of aggravated assault and strangulation.
N.T., 3/14/19, at 6. However, Appellant did not preserve for appellate review
the issue of whether the trial court utilized incorrect sentencing guidelines,
having failed to present the claim in her post-sentence motions. See
Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa. Super. 1998) (en
banc) (holding that a misapplication of the Sentencing Guidelines presents a
challenge to the discretionary aspects of sentencing and is waivable);
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”).
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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. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
As to what constitutes a substantial question, this Court does not accept bald
assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the
sentencing court’s actions violated the sentencing code. Id.Herein, the first three requirements of the four-part test are met.
Appellant brought an appropriate appeal, raised the challenge in a post-
sentence motion, and included in her appellate brief the necessary concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
In her Rule 2119(f) statement, Appellant argues that the trial court
abused its discretion by failing to consider and balance her rehabilitative needs
and other factors under 42 Pa.C.S. § 9721(b). Appellant’s Brief at 15-22.
This Court has found a substantial question exists where there is an allegation
that the sentencing court failed to consider the factors set forth in 42 Pa.C.S.
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§ 9721(b).7 See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006) (concluding that the appellant raised a substantial question where it
was alleged that the trial court failed to properly consider the factors set forth
in 42 Pa.C.S. § 9721(b)). Therefore, Appellant has raised a substantial
question. As such, we will review the merits of Appellant’s sentencing claim.
Nevertheless, we conclude that Appellant is entitled to no relief, as the record
reveals that the court did consider all pertinent sentencing factors.
It is undisputed that 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. Fullin, 892 A.2d at 847. In
this context, an abuse of discretion is not shown merely by an error in
judgment. Id. 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. Id.The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference, as it is
the sentencing court that is in the best position to view a defendant’s
____________________________________________
7 We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, the gravity of the offense in relation to
the impact on the victim and the community, and the rehabilitative needs of
the defendant. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006).
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character, displays of remorse, defiance, or indifference, and the overall effect
and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted).8 As previously noted, when
imposing a sentence, the sentencing court must consider “the protection of
the public, the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “[A] court is required
to consider the particular circumstances of the offense and the character of
the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super.
2002). “In particular, the court should refer to the defendant’s prior criminal
____________________________________________
8 The Walls Court instructed the following:
In making this “unreasonableness” inquiry, the General Assembly
has set forth four factors that an appellate court is to consider:
(d) Review of the record—In reviewing the record the appellate
court shall have regard for:
(1) The nature of the circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any pre-sentence
investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Walls, 926 A.2d at 963.
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record, his age, personal characteristics and his potential for rehabilitation.”
Id. In addition, “[o]ur Supreme Court has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).
Our review of the record reflects that at the time of Appellant’s
sentencing, the trial court received and reviewed a presentence report. N.T.,
3/14/19, at 4, 16. The trial court heard argument from Appellant’s counsel.
Id. at 6-8. Further, the trial court heard Appellant’s allocution. Id. at 13-16.
Immediately following Appellant’s allocution and prior to announcing the
judgment of sentence, the trial court gave a detailed account of its reasoning
for imposing the sentence. Id. at 16-18.
The trial court further elaborated its reasoning for imposition of the
specific sentence upon Appellant in its written opinion, as follows:
This [c]ourt stated sufficient reasons for imposing its
sentence, and adequately examined and investigated
[Appellant’s] background, character and rehabilitative needs
when arriving at its sentence. This [c]ourt’s sentence was not
excessive based on the gravity and nature of the offense and the
concern for protection of the public.
* * *
[Appellant] was found guilty of Aggravated Assault (F1),
Strangulation (F2), Endangering Welfare of Children (F3), Simple
Assault (M2), and Recklessly Endangering Another Person. The
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prior record score for [Appellant] was a 2 and the offense gravity
score for the lead charge of aggravated assault was an 11 as [the
victim] was under 13 years of age. Thus, the sentencing range
was 48 to 66 months plus or minus 12 months. At the time of
sentencing, the Commonwealth requested a sentence for 6 to 12
years of incarceration followed by five years of domestic violence
probation, which itself was within the relevant guidelines. Notes
of Testimony, 3/14/19 at 11.
This [c]ourt sentenced [Appellant] to 5-10 years of state
incarceration for the aggravated assault with a concurrent
sentence of 5-10 years of state incarceration for the strangulation,
four years of reporting probation for Endangering Welfare of
Children, with no further penalty for the simple assault and
recklessly endangering another person charges. This [c]ourt
ordered upon release that [Appellant] was to be supervised by the
domestic violence unit of probation and parole.
This [c]ourt’s on-record statements incorporating the
findings in the PSI, [Forensic Intensive Recovery Evaluation
(“FIR”)] and mental health reports are sufficient to explain the
reasons for the sentence imposed, to demonstrate that
compliance with applicable sentencing laws and regulations, and
to show that, in sentencing [Appellant], this [c]ourt acted well
within its discretion. Notes of Testimony, 3/14/19 at 16. This
[c]ourt considered both mitigating and aggravating factors when
arriving at its sentence within the guidelines.
This [c]ourt carefully reviewed [Appellant’s] prior record
score, offense gravity score and range, the facts in this trial,
[Appellant’s] video statement and [A.K.’s] testimony, and the
history and character of [Appellant] as summarized in the defense
mitigation memo and at the sentencing hearing. Id. at 16.
Specific aggravating factors considered in [Appellant’s]
sentence included the nature of the crime, the importance of
protecting the community from violence and [Appellant’s] failure
to take responsibility for her crimes. The first aggravating factor
that this [c]ourt cited was the nature of the crime, specifically that
the assault took the form of a physical beating that resulted in the
child [c]omplainant needing to escape his own home and mother
and run barefoot in the cold seeking help from strangers. Id. at
18. “When an offense is carried out in a manner which makes it
more egregious than is typical for the offense ... the nature of the
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offense is a proper aggravating factor to consider.”
Commonwealth v. Hanson, 2004 PA Super 326, 856 A.2d 1254(2004). As such, the nature of the crime was a proper aggravating
factor to consider in sentencing.
Protection of the public may also be considered as an
aggravating factor when fashioning a sentence. 42 Pa.C.S. §
9721(b). This [c]ourt cited a concern that [Appellant’s] dangerous
behavior would recur should she not receive a sufficient period of
rehabilitation. Id. at 18. This [c]ourt also considered [Appellant’s]
demeanor in her video statement during the trial and lack of
remorse or accountability at that time. Id. at 17-18, Also noted
during sentencing was [A.K.’s] particular vulnerability due to the
fact that [Appellant] owed him a specific duty of care and nurture
as his mother, Id. at 17.
After careful review of all factors, this [c]ourt properly
sentenced [Appellant] within its discretion and within the
guidelines.
Trial Court Opinion, 11/6/19, at unnumbered 8-11.
We conclude that the reasons the trial judge offered for the sentence
imposed were sufficient to find that the trial court properly considered all
relevant factors in fashioning Appellant’s sentence. Also, because the trial
court had been fully informed and relied upon the presentence report, N.T.,
3/14/19, at 16, we conclude that the trial court did not abuse its discretion in
imposing the instant sentence. Ventura, 975 A.2d at 1133. Accordingly,
Appellant’s claim that the trial court failed to contemplate relevant factors in
considering Appellant’s rehabilitative needs and imposing the sentence lacks
merit.
Appellant last argues that the trial court exceeded its authority at the
time of sentencing. Appellant’s Brief at 54-56. Appellant contends that the
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trial court improperly imposed a “limited contact” condition as part of her state
parole. Id. The Commonwealth agrees with Appellant’s claim and concedes
that this portion of Appellant’s sentence should be vacated. Commonwealth’s
Brief at 19-20. We agree.
Although Appellant raises this argument for the first time on appeal, this
claim is a challenge to the legality of his sentence, and therefore, unwaivable.
See Commonwealth v. Alexander, 16 A.3d 1152, 1154-1155 (Pa. Super.
2011) (citing Commonwealth v. Wilson, 11 A.3d 519 (Pa. Super. 2010) (en
banc) (finding that a challenge to the trial court’s authority to impose
conditions on a defendant’s probation or parole constitutes a challenge to the
legality of sentence which is unwaivable)).
We conclude that the trial court did not have the authority to impose
this restriction. This Court has held that “the Pennsylvania Board of Probation
and Parole [(“PBPP”)] has exclusive authority to determine parole when the
offender is sentenced to a maximum term of imprisonment of two or more
years.” Commonwealth v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011)
(quoting Commonwealth v. Mears, 972 A.2d 1210 (Pa. Super. 2009)). In
Coulverson, this Court found that the trial court exceeded its authority in
imposing a condition that the appellant have no contact with his victims or
their families upon his release on parole. Coulverson, 34 A.3d at 141-142.
See also 61 Pa.C.S. §§ 6132(a) and (b)(1), (2) (codifying the principle
established in Mears).
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J-S46019-20
In this case, Appellant was sentenced to a maximum term of
imprisonment of more than two years. Therefore, the PBPP has exclusive
authority to determine her parole.
To the extent that the trial court’s sentencing order imposes conditions
of parole, we vacate those conditions. We note that “[t]his Court has the
authority to correct an illegal sentence directly rather than to remand the case
for re-sentencing as long as we do not disrupt the trial court’s sentencing
scheme in doing so.” Commonwealth v. Melvin, 103 A.3d 1, 56 (Pa. Super.
2014). As our elimination of the trial court’s condition upon Appellant’s
release from prison does not disrupt the trial court’s sentencing scheme, we
need not remand for resentencing.
Accordingly, we affirm the judgment of sentence after correction of the
sentence as described above to eliminate the condition that the trial court
placed on Appellant’s release from imprisonment.
Judgment of sentence affirmed with appropriate correction. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/21
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