Com. v. Clark, A.

• Court: Superior Court of Pennsylvania
• Decided: April 21, 2025
• Docket: 896 EDA 2024
• Status: Unpublished

Opinion

J-S43026-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY PHILLIP CLARK : : Appellant : No. 896 EDA 2024

Appeal from the Judgment of Sentence Entered December 8, 2023 In the Court of Common Pleas of Lehigh County Criminal Division at No: CP-39-CR-0003612-2022

BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.

MEMORANDUM BY STABILE, J.: FILED APRIL 21, 2025

Appellant, Anthony Phillip Clark, appeals from the judgment of sentence

entered on December 8, 2023, in the Court of Common Pleas of Lehigh

County. On appeal, Appellant challenges the discretionary aspects of his

sentence. Upon review, we affirm.

The trial court summarized the factual and procedural background as

follows.

[A]ppellant entered guilty pleas to rape and involuntary deviate sexual intercourse. He was literally caught with his pants down sexually assaulting the ninety-four (94) year old victim, who was a resident at South Mountain Memory Care (hereinafter South Mountain) due to her dementia. She was incapable of caring for herself and verbally uncommunicative.

On the day of the attack, [February 2, 2022,] a nurse walked into the victim’s room and observed [Appellant] between the victim’s legs. The victim’s nightgown was pushed up and she was not wearing any undergarments. [A]ppellant’s pants were down and his buttocks was exposed. J-S43026-24

The police were contacted[,] and the victim braved a sexual assault kit. DNA, or seminal material, was taken from the [victim’s] vagina and anus. A search warrant was secured for [A]ppellant’s DNA, and it was determined that the DNA secured from [A]ppellant matched the DNA found in the victim’s vagina and anus.

Trial Court Opinion, 5/1/24, at 1-2 (unnecessary capitalization, footnotes,

citations to the record, and internal quotation marks omitted). 1

On August 21, 2023, Appellant plead guilty to rape of a person who

suffers from a mental disability, 18 Pa.C.S.A. § 3121(a)(5), and involuntary

deviate sexual intercourse of a person who suffers from a mental disability,

18 Pa.C.S.A. § 3123(a)(5). On December 5, 2023,

[A]ppellant was sentenced to not less than ten (10) years nor more than twenty (20) years for each count . . . . Both sentences were ordered to run consecutively, resulting in a total sentence of not less than twenty (20) years nor more than forty (40) in a state correctional institution.

A post-sentence motion was filed, which contained a “Motion to Modify Sentence” for a variety of reasons, including the imposition of consecutive sentences, and that the sentences were excessive. ...

On February 26, 2024, the “Motion to Modify Sentence” was denied. A timely notice of appeal was filed[.]

Trial Court Opinion, 5/1/24, at 3. This appeal followed.

Appellant argues that the sentencing court imposed a sentence outside

the aggravated range of the sentencing guidelines, which was excessive and

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1 The victim passed away on June 15, 2022. The charges against Appellant

were filed on July 28, 2022.

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unreasonable, as it focused on the seriousness of the offense. Second,

Appellant argues that the sentencing court failed to consider mitigating factors

and/or sentencing factors. Third, Appellant argues that the sentencing court

failed to provide “appropriate” reasons for imposing a sentence outside the

aggravated range of the sentencing guidelines. Appellant’s Brief at 4, 7-9,

12-13.2 We disagree.

Appellant’s arguments implicate the discretionary aspects of his

sentence. See, e.g., Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa.

Super. 2004) (stating a claim that the trial court imposed a manifestly

excessive sentence and focused solely on the serious nature of the crimes he

committed implicates the discretionary aspects of a sentence).

Issues concerning the discretionary aspects of a sentence are not

appealable as of right. To invoke this Court’s jurisdiction, an appellant must

satisfy the following four-pronged test by demonstrating that he: “(1) timely

2 Appellant stated his claim for our review as follows:

Whether the lower court abused its discretion in imposing manifestly excessive and unreasonable sentences for rape and involuntary deviant sexual intercourse which are both at the statutory maximum limit when the court failed to consider any significant mitigating factors, failed to apply and review any of the necessary factors set forth in 42 Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c) and (d) or otherwise failed to set forth appropriate reasons for it deviation [sic] from the standard sentencing ranges and sentenced Appellant based upon the seriousness of the offense[.]

Appellant’s Brief at 4.

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appealed; (2) properly preserved his objection in a post-sentence motion; (3)

included in his brief a Pa.R.A.P. 2119(f) concise statement of the reasons

relied upon for allowance of appeal; and (4) raised a substantial question that

the sentence is inappropriate under the Sentencing Code.” Commonwealth

v. Strouse, 308 A.3d 879, 882 (Pa. Super. 2024).

An appellant who challenges the discretionary aspects of a sentence in

a criminal matter shall set forth in a separate section of the brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence. The statement shall immediately

precede the argument on the merits with respect to the discretionary aspects

of the sentence. Pa.R.A.P. 2119(f). Where the Commonwealth objects to an

appellant’s failure to fulfill the requirements of Rule 2119(f), “the sentencing

claim is waived for purposes of review.” Commonwealth v. Griffin, 149 A.3d

349, 353-54 (Pa. Super. 2016).

Appellant here timely filed a motion for reconsideration and timely

appealed from the judgment of sentence. Additionally, Appellant, included in

his brief a separate concise statement of reasons relied upon for appeal.

Finally, Appellant raised a substantial question for our review. See, e.g.,

Commonwealth v. Lawrence, J., 960 A.2d 473, 478 (Pa. Super. 2008) (an

averment that the court sentenced based solely on the seriousness of the

offense and failed to consider all relevant factors raises a substantial

question). Accordingly, we proceed to address the merits of Appellant’s

claims.

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In considering the discretionary aspects of Appellant’s sentence, we note

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. See Commonwealth v. Lawrence, D., 313 A.3d 265, 285

(Pa. Super. 2024). In this context, an abuse of discretion requires the

sentencing court to have ignored or misapplied the law, otherwise acted with

manifest unreasonableness, or made its decision while exhibiting partiality,

prejudice, bias, or ill-will; a sentence will be affirmed unless the sentencing

court's determination suffers from such a lack of support so as to be clearly

erroneous. Id.

Additionally, our review of the discretionary aspects of a sentence is

confined by the statutory mandates of 42 Pa.C.S.A. § 9781(c) and (d).

Subsection 9781(c) provides:

The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

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In reviewing the record, we consider:

(1) The nature and 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 presentence investigation [(PSI)].

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Furthermore,

[w]hen imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118 ([Pa.] 2007) (“It is well established that the Sentencing Guidelines are purely advisory in nature.”); Commonwealth v. Walls, 926 A.2d 957, 965 [(Pa. 2007)] (referring to the Sentencing Guidelines as “advisory guideposts” which “recommend ... rather than require a particular sentence”). The court may deviate from the recommended guidelines; they are “merely one factor among many that the court must consider in imposing a sentence.” Yuhasz, 923 A.2d at 1118. A court may depart from the guidelines “if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001). When a court chooses to depart from the guidelines however, it must “demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines.” Eby, 784 A.2d at 206. Further, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).

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At issue here is the imposition of a sentence outside of the sentencing

guidelines. To this end, we have held that

when deviating from the sentencing guidelines, a trial judge must indicate that [s]he understands the suggested ranges. However, there is no requirement that a sentencing court must evoke “magic words” in a verbatim recitation of the guidelines ranges to satisfy this requirement. Our law is clear that, when imposing a sentence, the trial court has rendered a proper contemporaneous statement under the mandate of the Sentencing Code so long as the record demonstrates with clarity that the court considered the sentencing guidelines in a rational and systematic way and made a dispassionate decision to depart from them.

Commonwealth v. Beatty, 227 A.3d 1277, 1287-88 (Pa. Super. 2020)

(internal citations and quotation marks omitted).

When reviewing a sentence outside of the guideline range, the essential

question is whether the sentence imposed was reasonable. Walls, 926 A.2d

at 962. An appellate court must vacate and remand a case where it finds that

“the sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In making a

reasonableness determination, a court should consider the factors set forth in

Both offenses for which Appellant was convicted are felonies of the first

degree. By statute, a court may not impose a sentence of more than 20 years

for first-degree felonies. 18 Pa.C.S.A. § 1103(1). The court imposed

sentences of not less than 10 years and not more than 20 years in prison for

each of the two crimes for which Appellant was convicted; each to be served

consecutive to the other. Each crime therefore was sentenced to a minimum

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of 120 months, resulting in a minimum combined confinement of 20 years or

240 months. The court’s sentence was within the statutory range for the

crimes committed. There is no dispute however, that the sentence imposed

was above the aggravated range of the sentencing guidelines. Under the

guidelines as of the time these crimes were committed, the offense gravity

score for each offense was 12. See 204 Pa. Code. § 303.15. Appellant’s prior

score was zero. As such, the standard range for the minimum sentence for

each offense was 48-66 months. See 204 Pa. Code. § 303.16(a).

Aggravation could extend these minimums by 12 months for a range of 60 to

78 months of minimum confinement, or a combined range of 120 to 156

months for the crimes committed. The aggregate minimum sentence imposed

for both crimes of 240 months under statute was twice the aggregated

aggravated minimum of 120 months under the guidelines.

Instantly, the trial court clearly articulated the reasons for deviating

from the sentencing guidelines at the sentencing hearing, see N.T.

Sentencing, 12/5/23, at 48-53, which the sentencing court summarized as

follows:

The assault on a vulnerable victim, who[,] by [A]ppellant’s own admission[,] was incapable of protecting herself, was a significant factor in the sentence imposed. [A]ppellant demonstrated that he was a danger to the community he was employed to protect. Even so, [the sentencing] court considered [A]ppellant’s age, lack of prior record, and lack of misconducts in imposing sentence. However, [A]ppellant, by his actions, took “deviancy to an entirely different level,” and was sentenced to the statutory maximums. The sentence in this case was outside the guidelines, but it was not unreasonable. . . . The sentence imposed for the rape of the

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ninety-four (94) old victim is not irrational. It took into account the protection of the public, the gravity of the offense as it relates to the impact of the victim and on the community, and rehabilitative needs of [A]ppellant, which would include sex offender treatment.

Trial Court Opinion, 5/1/24, at 4-5. Additionally, the record shows that the

sentencing court also presided over the guilty plea hearing and was therefore

familiar with the factual background and had the opportunity to observe

Appellant at the guilty plea and sentencing hearings. The sentencing court

acknowledged considering the presentence investigation report and the sexual

violent predator assessment, that provided all pertinent information about

Appellant’s history and characteristics. Furthermore, the sentencing court

acknowledged consideration of the testimony of the witnesses who testified at

the sentencing hearing about the victim, and Appellant’s counsel’s

arguments.3 N.T. Sentencing, 12/5/23, at 48-49. Finally, the sentencing

court acknowledged the applicable guidelines but stated that “with all of that

said, any lesser sentence that I’m about to impose would depreciate the

seriousness of this. This is the type of deviance that exceeds the bounds of

decency.” Id. at 51. With this background, we have no hesitation in

concluding that the sentence imposed was not unreasonable. See 42

Pa.C.S.A. § 9781(d).

To the extent that Appellant argues that the reasons for his lengthy

sentence were not provided on the record, the claim is easily disproved by the

3 Appellant argued for standard range sentences.

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record. See N.T. Sentencing, 12/5/23, at 48-53. Accordingly, the claim is

meritless.

It is unclear what Appellant means when he claims that the sentencing

court did not provide “appropriate” reasons for deviating from the guidelines.

The sentencing court clearly stated that it considered all the evidence brought

before it, including mitigating circumstances. “However, all of those facts and

anything good that can be said about [Appellant] pales in comparison with the

enormity of the crime that he has committed here.” Id. at 49. Thus, to the

extent, Appellant equates “appropriate” with “sufficient,” the sentencing court

provided ample reasons for deviating from the sentencing guidelines. It

seems, therefore, that the real claim here is not the sufficiency of the

explanation but the weight the sentencing court assigned to those factors and

circumstances. Thus, Appellant is essentially arguing that he is unhappy with

the way the sentencing court weighed those factors/considerations, expecting

us to reverse the judgment call made by the sentencing court and replacing it

with a more favorable weighing of those factors. We cannot do that. See

Lawrence, D., 313 A.3d at 286 (“The balancing of the sentencing factors is

the sole province of the sentencing court, which has the opportunity to

observe the defendant and all witnesses firsthand.” In conducting our review,

this Court “cannot reweigh sentencing factors and impose judgment in place

of [the] sentencing court where [the] lower court was fully aware of all

mitigating factors”) (internal citation and quotation marks omitted) (alteration

in original). Additionally, weighing those factors inconsistently with

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Appellant’s wishes is not an abuse of discretion. See Commonwealth v.

Raven, 97 A.3d 1244, 1255 (Pa. Super. 2014) (rejecting Raven’s abuse of

sentencing discretion claim, explaining that “[t]he gist of Raven’s argument is

not that the court failed to consider the pertinent sentencing factors, but

rather that the court weighed those factors in a manner inconsistent with his

wishes” and that “the court carefully considered all of the evidence presented

at the sentencing hearing”). Thus, no relief is due.

In light of the foregoing, we conclude that the trial court did not abuse

its sentencing discretion.

Judgment of sentence affirmed.

Date: 4/21/2025

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