Com. v. Buskirk, L.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2025
• Docket: 2692 EDA 2024
• Status: Unpublished

Opinion

J-S19038-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LARRY BUSKIRK : : Appellant : No. 2692 EDA 2024

Appeal from the Judgment of Sentence Entered April 5, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003605-2021

BEFORE: PANELLA, P.J.E., STABILE, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED JUNE 27, 2025

Larry Buskirk (“Buskirk”) appeals from the judgment of sentence

imposed by the trial court following his guilty plea to one count of aggravated

assault and one count of possession of an instrument of crime (“PIC”). 1 On

appeal, Buskirk challenges the discretionary aspects of his sentence. We

affirm.

On July 26, 2020, Elisabeth Delliponti (“Delliponti”) visited Buskirk at

his friend’s apartment. Delliponti and Buskirk were not in a relationship at the

time, but had previously dated for three months. Buskirk asked Delliponti to

move in with him. After Delliponti refused, Buskirk shouted obscenities at

her. Delliponti turned to walk down the stairs, at which point Buskirk tackled

____________________________________________

1 18 Pa.C.S. §§ 2702(a)(1), 907(a). J-S19038-25

her from behind. Buskirk then put his arm around Delliponti’s throat and

repeatedly hit her head and face with a closed fist. Subsequently, Buskirk

sicced his friend’s pit bull on Delliponti. The dog attacked Delliponti’s face,

breast, forearm, back, and legs. Buskirk continued to assault Delliponti while

the dog attacked her. Delliponti freed herself and climbed onto the pool table.

Buskirk struck Delliponti’s arms, ribs, and legs with a pool cue until the pool

cue broke. When Buskirk let the dog outside, Delliponti escaped. The assault

lasted between thirty and forty minutes.

Delliponti suffered bruises, lacerations, and puncture wounds across her

body, and dog bite wounds on her thighs, legs, arms, breasts, back, and face.

Delliponti required hospitalization for her injuries and seven stitches for the

dog bite wound in her thigh. She was unable to work for two months while

she recovered from her injuries and continued to experience muscle and

tendon damage to the affected areas for over nine months following the

assault.

The police arrested Buskirk on July 30, 2020. Between the date of the

assault and date of his arrest, Buskirk repeatedly harassed Delliponti via text

and social media, including threats to decapitate her, harm her friends, and

post nude images of her on social media. Once incarcerated, Buskirk sent

Delliponti a series of threatening letters in violation of a court-imposed order.

The letters include pornographic drawings, threats of violence, and illustrative

sexual innuendos.

-2- J-S19038-25

Buskirk also exhibited a pattern of threatening and inappropriate

behavior during his court appearances. At his first preliminary hearing Buskirk

called Delliponti a “f*cking c*nt,” and repeatedly asked Delliponti about her

relationship status while she testified. The trial court judge ended the

proceedings after Buskirk’s outbursts and rescheduled a second preliminary

hearing.

On April 14, 2022, Buskirk entered into a negotiated plea to one count

of aggravated assault in exchange for a prison term of two to four years

followed by three years of probation. At the plea hearing, Buskirk continued

to turn to face Delliponti and twice refused to face forward at the judge’s

request. At the judge’s third request, when Buskirk again refused to face

forward he was removed from the courtroom while stating obscenities directed

at the judge. The trial court found Buskirk in contempt of court after a hearing

regarding these outbursts and sentenced him to five months and twenty-nine

days in jail without parole.

At the rescheduled plea hearing, the trial court judge rejected the

negotiated plea deal, at which point Buskirk repeatedly threatened to commit

suicide and pointed at the judge and Delliponti to indicate their responsibility

for his suicidal thoughts. The trial court held a second contempt hearing

regarding these outbursts and sentenced him to five months and twenty-nine

-3- J-S19038-25

On December 1, 2023, Buskirk entered an open guilty plea to

aggravated assault and PIC. The trial court accepted the plea and sentenced

him to ten to twenty years in prison for the aggravated assault conviction

followed by five years of reporting probation for the PIC conviction. Buskirk

filed a post-sentence motion, which the trial court denied, and thereafter filed

a timely appeal.

Buskirk presents the following issue for our review: “Did the lower court

err by imposing a manifestly excessive and unreasonable sentence where the

sentence was based solely on the seriousness of the crime and the lower court

ignored the significant mitigation presented at the sentencing hearing?”

Buskirk’s Brief at 2.

Buskirk challenges the discretionary aspects of his sentence. “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. Baker, 311 A.3d 12, 18 (Pa. Super. 2024)

(citation omitted). To invoke this Court’s jurisdiction, Buskirk must satisfy the

following four-part test:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post-sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of her appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Rivera, 312 A.3d 366, 376-77 (Pa. Super. 2024) (citation

and brackets omitted). A substantial question is determined on a case-by-

-4- J-S19038-25

case basis and “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.” Commonwealth v. McCain, 176

A.3d 236, 240 (Pa. Super. 2017) (citation omitted).

The record reflects Buskirk filed a timely notice of appeal, properly

preserved the issue in a timely post-sentence motion and included a Rule

2119(f) statement in his brief. His claim that the trial court imposed an

excessive sentence which only reflected the seriousness of his crime and did

not consider any mitigating circumstances raises a substantial question. See

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (holding

appellant’s argument that the trial court solely focused on the seriousness of

his offense is contrary to the fundamental norms of the sentencing process

and raises a substantial question). We therefore proceed to review the merits

of his claim.

Our standard of review of discretionary sentencing challenge is well

settled:

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.

-5- J-S19038-25

Baker, 311 A.3d at 19 (citation omitted). If the trial court was presented

with a presentence investigation 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. Miller, 275 A.3d 530, 535 (Pa. Super. 2022) (citation

omitted); see also Rhoades, 8 A.3d at 919 (“where the sentencing court had

the benefit of a pre[]sentence investigation report, 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”) (citation and quotation marks omitted).

“Where the trial judge deviates from the sentencing guidelines ... he

must set forth on the record, at sentencing, in the defendant’s presence, the

permissible range of sentences under the guidelines and, at least in summary

form, the factual basis and specific reasons which compelled the court to

deviate from the sentencing range.” Commonwealth v. Garcia-Rivera, 983

A.2d 777, 780 (Pa. Super. 2009) (citation omitted).

In every case where the court imposes a sentence or resentence outside the guidelines adopted by the Pennsylvania Commission on Sentencing …, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines to the commission, as established under section 2153(a)(14) (relating to powers and duties). Failure to comply shall be grounds for vacating the sentence or resentence and resentencing the defendant.

42 Pa.C.S. § 9721(b).

-6- J-S19038-25

Buskirk contends that the trial court abused its discretion in imposing a

manifestly excessive sentence on his aggravated assault conviction. Buskirk’s

Brief at 16, 22. He notes that the trial court imposed a statutory maximum

sentence, which was well above the aggravated guideline range. Id. at 17.

He contends that the trial court failed to consider his childhood trauma,

addiction issues, mental health diagnoses, and (alleged) acceptance of

responsibility, and exclusively focused on the severity of the offense and his

behavior in court. Id. at 16, 18-19, 21. Buskirk further asserts that the trial

court ignored that he was amenable to rehabilitation under court supervision

and had expressed his remorse. Id. at 17-18, 19-21, 22.

The record reflects that the trial court judge reviewed the presentence

investigation report and mental health report, as well as the sentencing

guidelines. N.T., 4/5/2024, at 7, 28. The trial court judge also considered

the need to protect the public, Buskirk’s failure to abide by his court-ordered

no contact order, the nature of Delliponti’s injuries, Buskirk’s prior record

score of zero, his behavior in court and contempt of court charges, the gravity

of the offenses, and his rehabilitative needs. Id. at 28-32.

When sentencing Buskirk, the trial court provided the following

explanation for the aggravated-range sentence:

The victim in this case has continued to be victimized by – you were ordered to have zero contact. I know I ordered it when you pled guilty. You violated that order. You have terrified her. She is physically ill at the thought of having to see you. I also look at her injuries and what you did to her. You beat her with a pool stick. You threw her down stairs. You sicced a pitbull on her. The

-7- J-S19038-25

bites and the injuries in these photographs, it’s – it’s unimaginable, all because someone you dated for approximately two or three months did not want to see you anymore…. The gravity of this offense and the impact on the victim, I’m taking into account for the reasons I just said, and your rehabilitative needs. I understand that you may be -- in some of these instances, you were on drugs or alcohol or something else. I find it hard to believe you were on those substances -- and I know full -- I know that you can get things in prison -- but you acted out. You called her a cunt in open court at the first preliminary hearing listing. You -- I know Judge Simmons. She doesn’t suffer fool. And she had to have you gagged and handcuffed in her courtroom in order to proceed with the hearing. You acted out in front of Judge Perez, who is now a sitting federal judge, such that she had to find you in contempt multiple times. And I appreciate that you are not acting like that today, and I’m going to acknowledge that it shows you are growing, but there’s a lot of work to do and that growth is not enough to have me disregard what you have done. I want to just put on the record some of the text messages that came, I believe the Commonwealth has indicated pre-arrest…. I’m giving you an aggravated sentence for all of those reasons, and I’ll supplement the record at a separate time if necessary.

N.T., 04/04/2024, at 28-32; see also Trial Court Opinion, 11/12/2024, at 14-

15 (unnumbered) (noting it considered various aggravating factors in

imposing the sentence, including multiple counts of contempt of court,

numerous threats and continued harassment of Delliponti, violations of stay

away orders, failure to take accountability for his actions, lack of respect for

the court and court orders, and his repeated and escalating violence against

women).

We find no basis to conclude that the trial court abused its discretion

when sentencing Buskirk. Given that the trial court had the benefit of a

presentence investigation report, we therefore presume that it was aware of,

and considered, Buskirk’s mitigating factors as well as all relevant sentencing

-8- J-S19038-25

factors. See Miller, 275 A.3d at 535; see also id. (“The sentencing judge

can satisfy the requirement that reasons for imposing sentence be placed on

the record by indicating that he or she has been informed by the [presentence

investigation report.]”). Indeed, the trial court explicitly considered Buskirk’s

prior addiction history and health circumstances in imposing the sentence.

See Trial Court Opinion, 11/12/2024, at 12 (unnumbered). Further, the court

stated that the weight of the aggravating factors indicated “a long period of

incarceration is required for protection of the public.” Id. at 15 (unnumbered).

The trial court acted in its discretion in determining that the risk Buskirk

presented to Delliponti and the public at large outweighs the mitigating

circumstances. See Baker 311 A.3d at 19 (noting that “the weight accorded

to the mitigating factors of aggravating factors presented to the sentencing

court is within the court’s exclusive domain”). Therefore, we conclude that

the trial court did not abuse its discretion in imposing the sentence. See

Miller, 275 A.3d at 535.

Judgment of sentence affirmed.

Date: 6/27/2025

-9-