J-S82010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KIMBERLY A. TUTKO

                            Appellant                 No. 213 MDA 2016


          Appeal from the Judgment of Sentence December 16, 2015
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0005680-2014


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                           FILED FEBRUARY 09, 2017

        Kimberly Tutko appeals from the judgment of sentence imposed on

December 16, 2015, in the Court of Common Pleas of Dauphin County

following her guilty plea to charges of third-degree murder, aggravated

assault and two counts of endangering the welfare of a child (EWOC),1

regarding the death by starvation of her nine-year-old son, and near death

by starvation of her ten-year-old daughter. The only condition of sentencing

pursuant to the plea was that the sentences associated with the death of her

son (murder and EWOC) run concurrent with the charges associated with the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2502(c), 2702(a)(9), and 4304(a)(1), respectively. EWOC
was classified as a third-degree felony pursuant to § 4304(b) regarding
course of conduct.
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harm caused to her daughter (aggravated assault and EWOC).                        Tutko

received an aggregate sentence of 20 to 40 years’ incarceration. 2               In this

timely appeal, Tutko challenges the discretionary aspect of her sentence,

claiming her sentence for murder is manifestly excessive in that the

sentencing     court   failed   to   give      adequate   weight   to   the   mitigating

circumstances presented. After a thorough review of the submissions by the

parties, relevant law, and the certified record, we affirm.

       The facts underlying the charges against Tutko 3 are truly disturbing

and well-known to the parties.          We state, in general terms, that her son,

nine-years-old at the time of his passing, weighed less than 17 pounds and

was covered in his own waste.            He was kept locked in a room without a

working light or sanitary facilities.          He suffered extreme dental neglect,

which a forensic dental expert concluded caused significant pain.               Tutko’s

daughter, who had previously suffered a debilitating brain injury, was

similarly neglected and covered in filth; ear wax flowed from her ears to her

face and her eyes were so encrusted she could not open them. Her body

____________________________________________


2
  Specifically, 18 to 36 years’ incarceration for third degree murder and two
to four years’ incarceration, consecutive, for EWOC. Tutko’s sentence for the
crimes against her daughter, aggravated assault, five to years’ incarceration,
followed by two to four years’ incarceration for EWOC, are to be served
concurrently with the sentence for murder.
3
  Tutko’s husband was similarly charged, with an additional charge of
concealing the death of a child. We are unaware if he has filed an appeal; if
he has filed an appeal, it is not before this panel.



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was so twisted from neglect and malnutrition that her spine impinged upon

her lungs. She was near death when taken from the Tutko home.4

       Tutko now claims that the 18-36 year sentence imposed for the

murder of her son was manifestly excessive in that the sentencing court

failed to give proper weight to the fact that her husband abused her. 5 This

claim represents a challenge to the discretionary aspect of her sentence.

       This Court has held, “[w]here an appellant challenges the
       discretionary aspects of a sentence, there is no automatic right
       to appeal and an appellant's appeal should be considered a
       petition for allowance of appeal.” Commonwealth v. Crork,
       966 A.2d 585, 590 (Pa. Super. 2009).

          Before we reach the merits of this [issue], we must engage
          in a four part analysis to determine: (1) whether the
          appeal is timely; (2) whether Appellant preserved his
          issue; (3) whether Appellant's brief includes a concise
          statement of the reasons relied upon for allowance of
          appeal with respect to the discretionary aspects of
          sentence; and (4) whether the concise statement raises a
          substantial question that the sentence is appropriate under
          the sentencing code.
       Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super.
       2013) (citing Commonwealth v. Malovich, 903 A.2d 1247,
       1250 Pa. Super. 2006)).
                                  ***
         The determination of what constitutes a substantial
         question must be evaluated on a case-by-case basis. A
         substantial question exists “only when the appellant
____________________________________________


4
  All underlying facts are taken from the notes of testimony of the guilty
plea, see N.T. Guilty Plea, 10/26/2015 at 5-10, and the Grand Jury Report,
see Grand Jury Report # 3, 5/28/2015 at 2-3, 29-32.
5
  Tutko does not challenge the sentence imposed regarding the crimes
against her daughter, which run concurrent to the murder sentence.



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        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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
     (internal citations omitted).

Commonwealth v. Johnson, 125 A.3d 822, 825-26 (Pa. Super. 2015).

     Here, the appeal is timely and the issue has been preserved in both a

post-sentence motion for reconsideration and Pa.R.A.P. 1925(b) statement.

The final question is whether the claim represents a substantial question.

Case law is split as to whether an assertion that a sentence is excessive due

to the failure to properly consider and weigh the mitigating circumstances

represents a substantial question. Compare Commonwealth v. DiSalvo,

70 A.3d 900 (Pa. Super. 2013) (failure to give adequate weight to mitigating

circumstances does not present a substantial question), Commonwealth v.

Rhoades, 8 A.3d 912 (Pa. Super. 2012) (same), with Commonwealth v.

Gonzalez 109 A.3d 711 (Pa. Super. 2015 (failure to consider mitigating

circumstance presents a substantial question), Commonwealth v. Raven,

97 A.3d 1244 (Pa. Super. 2014) (same).

     Given that the plea was to third-degree murder and other related

charges, we will accept Tutko’s claim as presenting a substantial question.

Having made this determination, we are mindful 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. In this context, an abuse

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      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

                                      ***
      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the   defendant's    prior    criminal    record, age,   personal
      characteristics and potential for rehabilitation.

Commonwealth v. Kearns, ___ A.3d ___, 2016 PA Super. 238, at *4,

(November 7, 2016) (citations omitted).

      The certified record in this matter is replete with details of the crimes

committed. Said details are found in the affidavit of probable cause in the

arrest warrant, the notes of testimony of the guilty plea, the pre-sentence

report, the report from the indicting grand jury, as well as from the

sentencing hearing.    Details of Tutko’s life are also found throughout the

record, especially in the pre-sentence report and sentencing hearing. During

the sentencing hearing, the trial judge demonstrated his familiarity with said

details by recounting an episode in which one of Tutko’s sons stood between

her and husband, absorbing abuse intended for her. See N.T. Sentencing

Hearing, 12/16/2015 at 14.      The trial judge also agreed that Tutko had

suffered domestic violence at the hands of her husband. Id. at 22. Before

issuing the sentence, the trial judge stated:

      As I’ve indicated, I’ve reviewed the presentence report, all of the
      notes, listened to the testimony. As I indicated earlier, I’ve had
      an intimate knowledge of this case. I’ve handled both the

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      dependency/Children and Youth side and criminal side. I’ve
      listened to all the background. I’ve listened to this woman being
      involved and taking part in for six [sic] of them – five of them,
      excuse me, the termination of her parental rights to her children.
      And that is the speaker that is blaring to this Court – nine
      children taken away, and, worse, one taken away by third
      degree murder. She bears that same responsibility.

Id. at 31.

      The 18-36 year sentence for third degree murder is a standard range

sentence.

      Since the sentencing court had and considered a presentence
      report, this fact alone was adequate to support the sentence,
      and due to the court's explicit reliance on that report, we are
      required to presume that the court properly weighed the
      mitigating factors present in the case.

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006).

      The certified record amply demonstrates that not only did the trial

court read and consider the presentence report, it read, listened to and

considered other relevant factors, which, as noted above, included additional

information about the abuse suffered by Tutko. We have discovered nothing

in the certified record to support Tutko’s claim that the trial court failed to

give the proper weight to the mitigating circumstances applicable to Tutko’s

situation. Therefore, we find the trial court neither abused its discretion nor

committed an error of law in passing sentence. Accordingly, Tutko’s claim

must fail.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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