Com. v. Tait, J.

• Court: Superior Court of Pennsylvania
• Decided: October 19, 2018
• Docket: 260 EDA 2018
• Status: Unpublished

Opinion

J-S57029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JILLIAN TAIT : : Appellant : No. 260 EDA 2018

Appeal from the Judgment of Sentence December 11, 2017 in the Court of Common Pleas of Chester County Criminal Division at No.: CP-15-CR-0004412-2014

BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.: FILED OCTOBER 19, 2018

Appellant, Jillian Tait, appeals from the judgment of sentence imposed

following her counselled, negotiated, open guilty plea to murder of the third

degree, conspiracy to commit murder of the first degree, endangering the

welfare of children, possessing instruments of crime, simple assault and

related offenses. Appellant actively participated with her boyfriend in the

protracted beating death of her three-year-old son. They also beat her six–

year–old son, who survived. The court imposed an aggregate sentence of not

less than forty-two nor more than ninety-four years of incarceration.

Appellant challenges her sentence as excessive. We affirm.

The facts of this case are not in substantial dispute. Appellant’s criminal

charges and open plea of guilty arose out of her joining in the beating death,

over the course of three days, of her three-year-old son, and the non-fatal ____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S57029-18

assault of her six-year-old son. The six-year-old son was present during the

beatings of his three-year-old brother. The children were suspended upside

down by their feet during the beatings. The murder victim was also taped to

his chair so he would not fall out from the beatings.

The acknowledged principal perpetrator was Appellant’s new live-in

boyfriend (of twenty-three or so days), Gary Fellenbaum. Fellenbaum’s

“estranged” wife, Amber, was also involved, in some sort of an ersatz menage

a trois.1

Although Appellant claims only Gary Fellenbaum, (not she), punched the

deceased child with a closed fist, she does not deny the rest of her involvement

in the beatings, e.g., that she hit the children with a wooden spoon and a

frying pan, and apparently a curtain rod. They also used a homemade whip

on the children. (See Facts in Support of Plea, 2/28/18). Instead of doing

anything to stop Fellenbaum, Appellant actively assisted him.

Notably, after the beatings rendered the three-year-old child

unconscious on the second and third days, they put him in a shower to revive

him, apparently so he could be beaten again. On the third day, he did not

respond. When he finally succumbed to his numerous injuries, it appears that

Amber Fellenbaum belatedly called the police.

____________________________________________

1The Fellenbaums also had an eleven-month-old daughter. She was not the object of any beatings addressed in this appeal.

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There is no dispute that Appellant cooperated with the police when she

was arrested. She gave them a confession. She also claims that she did not

file any pre-trial motions or engage in any other procedures that would have

held up prosecution.2 Appellant attributes Mr. Fellenbaum’s plea to first-

degree murder to her own guilty plea and stated willingness to testify against

him at a trial. (See Appellant’s Brief, at 11). Mr. Fellenbaum was sentenced

to life without parole.

As a result of her plea, the Commonwealth withdrew its notice to seek

the death penalty for Appellant. (See Trial Court Opinion, 3/01/18, at 1). As

agreed, the Commonwealth made no recommendation at sentencing. (See

id. at 2 n.4). At sentencing, the court had the benefit of a presentence

investigation report (PSI).3 Appellant presented herself as remorseful. She

had no prior criminal record, and therefore a prior record score of zero. She

described herself as the victim of a manipulative Fellenbaum. She recounted

that Fellenbaum restricted her to an hour of sleep a night and forced her to

2This claim is rather dubious and demonstrably inaccurate. Even though both Appellant and the prosecutor assert the same claim at different times, the proposition is belied by the record, which confirms numerous motions filed by Appellant’s counsel on November 1, 2016. At the plea hearing, the trial court noted that Appellant’s guilty plea was “an effective withdrawal” of the pending motions. (N.T. (Plea), 4/12/17, at 23). It is more accurate to note, as Appellant’s counsel does on appeal, that the motions were not “litigated.” (Appellant’s Brief, at 11). Nevertheless, to imply that no motions were filed because they were not litigated is both inaccurate and misleading.

3 The PSI is not included in the record before us.

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run the household on a budget of five dollars a week. She related her own

medical history of PTSD (Post Traumatic Stress Disorder), depression, and an

attempted teenage suicide.

The sentencing court noted that with Appellant’s recitation emphasizing

her own loss, “You almost spoke as if someone took the child away from you.”

(N.T. Sentencing, 12/11/17, at 29). The court imposed an aggregate

sentence of not less than forty-two years, nor more than ninety-four years of

incarceration in a state correctional institution, followed by five years of

probation. (See Trial Ct. Op., at 2). The court denied Appellant’s motion for

reconsideration of sentence. This timely appeal followed.4

Appellant presents two overlapping questions for our review:

1. Whether the trial court’s sentence was excessive, given the Sentencing Guideline ranges and the Appellant’s cooperation with the prosecution, and the significantly more brutal assaults perpetrated on the decedent by the closed fist punches to the head and abdomen of the victim, administered exclusively by co- defendant Gary Fellenbaum?

2. Did the sentencing court abuse its discretion by completely disregarding, and failing to adequately consider, Appellant’s cooperation, instead being horrified by the crimes, themselves, to the exclusion of all else, including the character and attitudes of the Appellant, as well as her needs?

(Appellant’s Brief, at 7).

4Appellant filed a court-ordered statement of errors, on February 1, 2018. The trial court filed an opinion on March 1, 2018. See Pa.R.A.P. 1925.

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Because both of Appellant’s claims challenge the discretionary aspects

of her sentence, we address them together.

It is well-settled that a challenge to the discretionary aspects of a

sentence is a petition for permission to appeal, as the right to pursue such a

claim is not absolute. See Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014). Before this Court may review the merits of a challenge

to the discretionary aspects of a sentence, we must engage in the following

inquiry:

[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).

We note that here Appellant has met the first three parts of the four-

prong test. She filed a timely appeal. Appellant preserved the sentencing

issue in a post-sentence motion. (See Appellant’s Post-Sentence Motion for

Reconsideration of Sentence, 12/21/17). In addition, she included a

statement pursuant to Pa.R.A.P. 2119(f) in her brief. (See Appellant’s Brief,

at 11-12). Thus, we next assess whether Appellant has raised a substantial

question with respect to the issue she presents.

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Whether a particular issue constitutes a substantial question about the

appropriateness of a sentence is a question to be evaluated on a case-by-case

basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001), appeal denied, 796 A.2d 979 (Pa. 2002).

As to what constitutes a substantial question, this Court does not accept

bald assertions of sentencing errors. See 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. See id. “A

substantial question will be found where the defendant advances a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” [S]ee [ ] Pa.R.A.P. 2119(f).

* * *

[An Appellant’s] claim that the trial court focused exclusively on the seriousness of the crime while ignoring other, mitigating circumstances, such as [ ] mental health history and difficult childhood, raises a substantial question.

Commonwealth v. Knox, 165 A.3d 925, 929–30 (Pa. Super. 2017), appeal

denied, 173 A.3d 257 (Pa. 2017) (case citations omitted).

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Here, Appellant claims that there was a substantial question whether

her sentence was appropriate under the sentencing statute. (See Appellant’s

Brief, at 11). She notes that the sentence was at the top of the standard

range of the Sentencing Guidelines. (See id.).

While the Rule 2119(f) statement is not a model of clarity or

conciseness, it is apparent that Appellant claims her sentence was excessive

in light of mitigating circumstances, including her cooperation with the

Commonwealth, and her remorse. She also invokes her own difficult

childhood, history of depression, PTSD, attempted suicide, and other personal

troubles. See Knox, supra at 929–30.

Accordingly, we will give Appellant the benefit of the doubt, grant her

petition for allowance of appeal, and address the merits of her claim.

Nevertheless, on independent review, we conclude that Appellant’s claim

merits no relief.

Our standard of review 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.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008) (citation

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A sentencing judge has broad discretion in determining a reasonable

penalty, and appellate courts afford the sentencing court great deference, as

it is the sentencing court that is in the best position to “view the defendant’s

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) (emphasis added) (citation omitted).

When imposing 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.A. § 9721(b). This Court has 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), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545

U.S. 1148 (2005) (citation omitted). In particular, the sentencing court should

refer to the defendant’s prior criminal record, her age, personal

characteristics, and her potential for rehabilitation. See id.

“Where pre-sentence reports exist, we shall . . . 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.”

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014), appeal

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denied, 95 A.3d 275 (Pa.2014) (quoting Commonwealth v. Devers, 546

A.2d 12, 18 (Pa. 1988)).

In this case, Appellant posits that the sentencing court did not give

adequate consideration to her cooperation with the Commonwealth’s

prosecutions, or her other mitigation evidence. She notes that by pleading

guilty she spared her surviving son the ordeal of testifying at a trial. However,

we presume that a sentencing court properly considered mitigation evidence

when it is informed, as the court was here, by a PSI. See Antidormi, supra

at 761.

Moreover, Appellant fails to develop an argument supported by

pertinent authority which substantiates her repeated claims that the

sentencing court failed to credit, or give more than “lip service,” to her

cooperation and other mitigation evidence. (Appellant’s Brief, at 13).

Over-arching the sentencing court’s presumed reliance on the PSI, we

note that the sentencing court explained its reasoning as follows:

So the record is clear, I’ve gone outside the guidelines on some of the sentences. I’ve done so because I can’t imagine a factual scenario that’s more horrific than this. I can’t imagine an abdication of parental responsibility and the conspiracy with another human being to do this to your children.

It tugged at the fabric of our entire society.

(N. T. Sentencing, 12/11/17, at 34).

We agree. We discern no proper basis on which to disturb the discretion

of the sentencing court.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/19/18

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