J-S63043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 GREGORY J. MOSER                         :
                                          :
                    Appellant             :     No. 772 WDA 2018

            Appeal from the Judgment of Sentence April 12, 2018
     In the Court of Common Pleas of Potter County Criminal Division at
                      No(s): CP-53-CR-0000258-2016


BEFORE:    OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E. :                  FILED DECEMBER 18, 2018

      Appellant, Gregory J. Moser, appeals from the judgment of sentence

entered April 12, 2018, in the Potter County Court of Common Pleas, following

his guilty plea to, and sentencing on, eleven counts of sexual abuse of children

- possession of child pornography, 18 Pa.C.S. § 6312(d). Appellant contends

that his sentence of twenty-eight to fifty-six months’ imprisonment is

excessive. After a careful review, we affirm.

      The relevant facts and procedural history are as follows: Appellant was

charged with twenty counts of disseminating child pornography and one count

of criminal use of a communication facility. On September 6, 2017, Appellant

entered into a negotiated agreement by which the Commonwealth would

amend the information to reflect eleven counts of the Section 6312(d)

charges, to which Appellant would plead guilty.      Appellant was to receive

concurrent sentences. The trial court thereafter ordered an assessment of

____________________________________
* Former Justice specially assigned to the Superior Court.
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whether Appellant should be classified as a sexually violent predator (“SVP”)1

and for a pre-sentence investigation (“PSI”).

       The Pennsylvania Sexual Offenders Assessment Board (“SOAB”)

determined that Appellant did not meet the criteria for SVP classification. The

SVP assessment included Appellant’s history as a victim of physical and sexual

abuse by his grandparents when he was a child. The SVP assessment further

stated:

       There are no additional factors that are supported in the field of
       sexual offending that are reasonably related to the risk of re-
       offense.

                                     ***
       The literature clearly shows that there are two (2) pathways to
       sexual re-offense, chronic antisociality and sexual deviance.
       [Appellant] did not utilize either of these pathways to offend.

SVP Assessment, 11/15/2017, at 4-5.

       The PSI noted that the standard sentencing range for Appellant’s

offenses was thirty to forty-two months’ imprisonment, the mitigated range

was eighteen months’ imprisonment, and the aggravated range was fifty-four

____________________________________________


1 The SVP assessment has not been included in the certified record; however,
a copy of the SVP assessment has been included in Appellant’s reproduced
record. Generally, this Court may only consider documents that have been
included in the certified record. See Erie Ins. Exch. v. Moore, 175 A.3d
999, 1006 (Pa.Super. 2017). However, where, as here, the accuracy of the
SVP document is not in dispute, for the sake of judicial economy, we shall
consider the SVP assessment included in Appellant’s reproduced record. See
Commonwealth v. Barnett, 121 A.3d 534, 546 n.3 (Pa.Super. 2015)
(“While this Court generally may only consider facts that have been duly
certified in the record, where the accuracy of a document is undisputed and
contained in the reproduced record, we may consider it.”) (citations omitted)).


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months’ imprisonment. Attached to the PSI as exhibits were letters about

Appellant’s positive character from his employer and members of his

community, and Appellant’s own statement about his memories of being

abused as a child, along with expressions of sorrow and regret for his actions.

PSI, Exs. “A”-“C.”

       At sentencing, Appellant presented a letter and testimony from a social

worker indicating that Appellant’s viewing of the offending material was based

on childhood trauma; he also presented a statement from his wife about his

good character. N.T., 4/11/2018, at 4-5; Sentencing Mem., 4/9/2018, Exs.

“C”-“D.”2    Appellant further provided the trial court with copies of orders

involving similar crimes and situations in nearby Tioga County, where the

defendants received minimal sentences.           Id., Exs. “A”-“B.”   During his

allocution, Appellant again apologized, stated that he was receiving

counseling, and reiterated that he had been physically and sexually abused as

a child. N.T., 4/11/2018, at 11.

       The trial court proceeded on April 11, 2018, to sentence Appellant to

concurrent terms of imprisonment, stating that it was sentencing Appellant to

a standard-range sentence of twenty-eight to fifty-six months’ imprisonment.




____________________________________________


2 The exhibits attached to Appellant’s sentencing memorandum dated April 9,
2018, are not labelled, but the letters from Appellant’s counselor-social worker
and from his wife are the third and fourth attachments, respectively. We will
therefore cite to them as Exhibit “C” and Exhibit “D,” respectively.


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Immediately prior to sentencing, the trial court explained its reasoning on the

record:

      I have had a chance in the last couple days to review a lot of
      information regarding [Appellant]. I was able to review the letters
      from his therapist, his counselor, some positive letters from family
      members, employer, friends, community members regarding a
      gentleman that’s contributed a lot to his community and balanced
      against his activities in downloading some very disturbing images
      of children depicted in sexual acts. So I’ve heard, not only did
      I hear [his] counselor speak today I had a chance to also review
      his report and letter. I’ve reviewed the sentencing guidelines, I’ve
      reviewed the character of this gentleman based upon information
      provided to me. The guidelines are given to a Judge to give him
      an opportunity to impose a sentence that would be relatively
      consistent across the Commonwealth and so I don’t take those
      guidelines lightly. I do look to see if there is any mitigating factors
      or aggravating factors that would take me above or below the
      guidelines. I appreciate that [Appellant] may have suffered some
      issues as a child and that perhaps that has [a]ffected his abilities
      and some of his decisions. I certainly think that there are many
      people that have gone through similar things that have not gone
      down the road of [Appellant]. These are not innocent acts in my
      opinion. If there was not a market for these types of depictions,
      than I suspect this would all go away but because there is a
      market of people trying to view these images these victims are
      continually created.

      So having reviewed all this I am not going to go to the mitigated
      range, but I am going to go a little bit below the standard range
      in imposing a sentence on this gentleman.

N.T., 4/11/2018, at 15-16.

      Appellant filed a timely post-sentence motion on April 20, 2018, which

the trial court denied on April 27, 2018. Appellant filed the instant, timely

notice of appeal on May 23, 2018, and timely filed a Pa.R.A.P. 1925(b)




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statement pursuant to the trial court’s order.3 The trial court filed a Pa.R.A.P.

1925(a) statement stating its reliance on its record at sentencing.4

       Appellant presents the following issue for our review:

       Did the [t]rial [c]ourt err in sentencing Appellant to an excessive
       sentence of 28 to 56 months[’] incarceration where the [t]rial
       [c]ourt failed to consider substantial mitigating factors and failed
       to consider significantly less onerous sentences imposed for the
       same offense in a neighboring jurisdiction?

Appellant’s Brief at 4.

              Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to an appeal as of right. Prior to reaching the
       merits of a discretionary 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 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).

             When appealing the discretionary aspects of a sentence, an
       appellant must invoke the appellate court’s jurisdiction by
       including in his brief a separate concise statement demonstrating
       that there is a substantial question as to the appropriateness of
       the sentence under the Sentencing Code. 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.

____________________________________________


3 Appellant requested an extension of time to file the statement, which the
trial court granted, and Appellant filed his statement timely.
4 The notes of testimony from Appellant’s sentencing hearing on April 11,
2018, were filed in the certified record on May 31, 2018.


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Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and bold omitted).

      As an initial matter, we note that Appellant has: (1) timely filed a notice

of appeal, (2) preserved the instant issue in a post-sentence motion, and (3)

included a Pa.R.A.P. 2119(f) statement in his brief. Appellant’s Brief at 5-11.

See Manivannan, 186 A.3d at 489. We therefore turn to the next

requirement: whether the question raised by Appellant is a substantial

question meriting our discretionary review. See id.

            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 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.

Id. (quotation marks and some citations omitted).

      In his Pa.R.A.P. 2119(f) statement, Appellant contends that the trial

court failed “to individualize [his] sentence[,]” specifying that the trial court

“failed to adequately consider [his] background as having been abused as a

child, his rehabilitative reaction to being criminally charged, his work and

family history and the fact that there was no evidence presented of any

particular risk of re-offending.” Appellant’s Brief at 10.

      “One of the fundamental norms of the sentencing process is that a

defendant’s sentence be individualized.” Commonwealth v. Luketic, 162

A.3d 1149, 1160 (Pa.Super. 2017) (citing Commonwealth v. Devers, 519

Pa. 88, 546 A.2d 12, 13 (1988) (holding that “sentencing must result both

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from a consideration of the nature and circumstances of the crime as well as

the character of the defendant”) (footnote omitted)). Thus, by alleging that

the sentence imposed on Appellant is contrary to a fundamental norm of the

sentencing process – i.e., individualized sentencing, Appellant has raised a

substantial question. See Appellant’s Brief at 10; Manivannan, 186 A.3d at

489; Luketic, 162 A.3d at 1160.       Hence, we will consider the substantive

merits of Appellant’s sentencing claim.

              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
       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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (quotation

omitted).

       Here, Appellant contends that “[t]he sentence imposed by the [t]rial

[c]ourt . . . is ‘clearly unreasonable’ based upon the circumstances of the

case.” Appellant’s Brief at 19. Appellant argues that he pleaded “guilty to

only   possession of child     pornography” and     not   to   “forward[ing]   or

distribut[ing] pornography to any other person or entity.” Id. He continues

that he had “terminated his unlawful activity prior to being charged” and had

sought counseling thereafter. Id. at 19, 23 (citing N.T., 4/11/2018, at 4-5;

Sentencing Mem., 4/9/2018, Ex. “C”).          He emphasizes that the SOAB




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determined he did not demonstrate a likelihood to re-offend. Id. at 20-21

(citing SVP Assessment, 11/15/2017, at 4-5). He concludes:

      Thus, the [t]rial [c]ourt had before it a 60-year old respected
      member of the community, who probably, as a result of being
      molested as a child, watched pornography videos on his computer.
      All of the evidence pointed to Appellant’s being a good citizen, a
      good employee, a good stepfather and a law-abiding person. The
      question becomes, “Why does such an individual need to be
      incarcerated in the state prison for over two years?”

Id. at 24.

      “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa.Super. 2012).                  In

addition:

      Where pre-sentence reports exist, we shall continue to presume
      that the sentencing judge was aware of relevant information
      regarding the defendant’s character and weighed those
      considerations along with mitigating statutory factors. A pre-
      sentence report constitutes the record and speaks for itself. In
      order to dispel any lingering doubt as to our intention of engaging
      in an effort of legal purification, we state clearly that sentencers
      are under no compulsion to employ checklists or any extended or
      systematic definitions of their punishment procedure. Having
      been fully informed by the pre-sentence report, the sentencing
      court’s discretion should not be disturbed.

Devers, 519 Pa. at 101-02, 546 A.2d at 18.

      Accordingly, where the sentencing judge had the benefit of a pre-
      sentence report, it will be presumed that he was aware of relevant
      information regarding appellant’s character and weighed those
      considerations along with the mitigating statutory factors.


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Commonwealth v. Fullin, 892 A.2d 843, 849-50 (Pa.Super. 2014)

(quotation omitted).

      In the case sub judice, in its remarks during the sentencing hearing,

quoted above in their entirety, the trial court explicitly stated that it

“review[ed] the letters from [Appellant’s] therapist, his counselor, . . . family

members,    employer,    friends,   [and]   community    members[.]”       N.T.,

4/11/2018, at 15. It also “hear[d his] counselor speak” during the sentencing

hearing and stated that it “appreciate[d] that [Appellant] has suffered some

issues as a child and that perhaps that has [a]ffected his abilities and some of

his decisions.” Id. at 15-16.

      Additionally, as a PSI exists, we presume that the trial court rendered

Appellant’s sentence fully informed by it. See Devers, supra; Fullin, supra.

Consequently, we accept that the trial court considered Appellant’s statement

that he was abused as a child, the letter from his employer articulating his

work history, and the statements from community members expressing their

respect for Appellant. See id.; PSI, Exs. “A”-“C.”

      As for Appellant’s contention that the trial court did not consider the

SOAB’s conclusion that he was unlikely to re-offend, the SVP assessment was

incorporated into the PSI. See PSI at 3. We therefore presume that, as with

the other content from the PSI, the trial court was aware of this information

regarding Appellant’s character and weighed this consideration along with all

other factors. See Devers, supra; Fullin, supra. Accordingly, the record


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contradicts Appellant’s assertions that the trial court did not consider that he

suffered abuse as a child, that he sought counseling, that he was a respected

member of the community, or his work and family history. Compare

Appellant’s Brief at 19, 23-24 with N.T., 4/11/2018, at 15-16, and PSI, Exs.

“A”-“C.”

      Finally, we note that, in Appellant’s statement of questions involved

pursuant to Pa.R.A.P. 2111(a)(4) and 2116, Appellant alleged an additional

reason that the trial court erred, that is, the trial court “failed to consider

significantly less onerous sentences imposed for the same offense in a

neighboring jurisdiction[.]” Appellant’s Brief at 4. Appellant does not include

any related argument in the “Argument” section of his brief pursuant to

Pa.R.A.P. 2111(a)(8) and 2119. Appellant’s Brief at 18-28. The failure to

develop an argument and support it with pertinent authority is a violation of

our briefing rules, which results in waiver of the unsupported issue. See, e.g.,

Commonwealth v. Spotz, 610 Pa. 17, 80 n.21, 18 A.3d 244, 281 n.21

(2011) (“[O]ne sentence does not constitute a developed, reasoned,

supported, or even intelligible argument. The matter is waived for lack of

development.”); In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012)

(“The argument portion of an appellate brief must include a pertinent

discussion of the particular point raised along with discussion and citation of

pertinent authorities[; t]his Court will not consider the merits of an argument

which fails to cite relevant case or statutory authority.”) (internal citations and


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quotation marks omitted)). Accordingly, any claim related to the trial court’s

disregard for the Tioga County sentencing orders provided by Appellant at his

sentencing hearing is waived.

      Even had Appellant had preserved this contention, his argument would

fail. This Court has held:

      It [] is an abuse of discretion to base one defendant’s sentence on
      the sentence imposed on another defendant.                     See
      [Commonwealth v.] Coulverson, 34 A.3d [135,] 147
      [(Pa.Super. 2011)] (stating, “individualized sentencing remains
      the controlling norm of the sentencing process and ... a sentence
      befitting one defendant may not befit another”); Commonwealth
      v. Kalson, 301 Pa.Super. 31, 446 A.2d 1320, 1322 (1982)
      (“Neither the governing statute on sentencing nor the controlling
      case law require, or even suggest, that a sentencing judge should
      consider sentences imposed on other defendants in that county
      for the same crime.”) (footnote omitted)).

Luketic, 162 A.3d at 1165. See Commonwealth v. Martin, 466 Pa. 118,

351 A.2d 650, 651, 657, 659 (1976) (vacating sentence where three judges

agreed in advance to impose identical sentences on six different defendants

who were involved in the sale of heroin, because “the procedures employed

by the sentencing court. . .ignore[d] the basic premises of Pennsylvania

individualized sentencing”). Additionally, “standardized sentences based on a

class of crimes or criminals is prohibited.” Luketic, 162 A.3d at 1162 n.13.

      In the current case, the trial court’s decision not to refer to or be guided

by the sentencing orders from Tioga County was thereby proper since,

contrary to Appellant’s suggestion, no statutory or case law requires or

recommends that a sentencing court consider sentences imposed on other

defendants for the same crime or crimes in the same county, let alone in other

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counties.5 To do so would undermine “the basic premises of Pennsylvania

individualized sentencing,” Martin, 351 A.2d at 657, by suggesting that the

sentence for the same class of crimes should be standardized and that the

character of the defendant need not be considered. Luketic, 162 A.3d at

1162 n.13.      Accordingly, we find no abuse of discretion in the sentence

imposed on Appellant by the trial court.

       Judgment of sentence affirmed.




____________________________________________


5 Assuming consideration of sentencing imposed in neighboring counties were
proper, Appellant still failed to provide the trial court or this Court with
sufficient information about the circumstances of those Tioga County cases --
including the nature of the crimes and the character of those other defendants
-- in order to determine whether those actions were analogous to the current
matter. See Luketic, 162 A.3d at 1160 (citing Devers, 546 A.2d at 13).

Appellant only submitted the sentencing orders for those other actions,
without any other supporting materials such as pleadings, notes of testimony,
or trial court opinions from those Tioga County cases -- in order to provide
context for their sentencing orders. Sentencing Mem., 4/9/2018, at Exs. “A”-
“B.” Therefore, we are unable to determine how closely those other matters
resemble the current one and whether equivalent sentences could have been
warranted, if such considerations were permissible.

Moreover, Appellant’s suggestion that the trial court should have imposed a
sentence in the instant matter comparable to the ones imposed in Tioga
County contradict Appellant’s primary argument, and proposed substantial
question, that the trial court failed to impose an individualized sentence. See
Appellant’s Brief at 10. Appellant cannot both claim that the trial court should
have individualized his sentence and that the trial court should have imposed
a sentence similar to those received by other defendants for similar crimes.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2018




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