J-A14031-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT WATKINS : No. 2198 EDA 2024
Appeal from the Judgment of Sentence Entered July 11, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008471-2022
BEFORE: PANELLA, P.J.E., NICHOLS, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 12, 2025
The Commonwealth appeals from the judgment of sentence imposed
following an open guilty plea to endangering the welfare of a child entered by
Appellee, Robert Watkins.1 The Commonwealth argues that the sentencing
court abused its discretion by imposing a mitigated range term of incarceration
that allegedly failed to protect the public. We affirm.
The facts of the case, confirmed by Appellee, were stated by the
Commonwealth at the guilty plea proceeding, as follows:
Courtney Collingsworth[,] the mother of five-year-old [M.W.,] … would testify that she brought her son and her daughter to their father’s home, [Appellee’s home,] on the evening of July 8th, 2021. The children were in [Appellee’s] care and custody and control during that time. And he was their legal guardian in charge of their care. She would testify that on or about Friday, July 9th ____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 4304. J-A14031-25
in the middle of the day she received a phone call from [Appellee] indicating that her son was not well. She … later … received another phone call and was notified that there was a medical emergency. She went to the hospital where her child was subsequently pronounced [dead at Children’s Hospital of Philadelphia (“CHOP”)] at 4:07 p.m.
[F]ire medic unit number 35 … received a call for an unresponsive child on Friday, July 9th, 2021[,] at the Park Town Apartments located on the Ben Franklin Parkway … in the City and County of Philadelphia. Ninth District [Police O]fficer Auty … also responded to the location for an unresponsive child. That child being [M.W.], age 5. [Appellee] was present at the time, and indicated that he took both of his children swimming.
… [A] video marked C-9 for identification purposes would show that [Appellee] … enter[ed] the pool area of the apartment building at 9:59 a.m. that morning with both of his children. They played and swam in the pool area until 10:32.02 a.m. At 10:32.02, you can see [Appellee] carrying his lethargic son out of the pool area. A subsequent video in the elevator area at 10:34.44 shows [M.W.] being carried [fireman’s] style over the shoulder of [Appellee] into his apartment.
The child was laid down for a nap. [Appellee] took a video of [M.W.] during that timeframe making reference to how he didn’t last very long in the pool. Subsequent to that, [Appellee] tried to awaken [M.W.] a few hours later and he was unresponsive. The child [was] transported by ambulance to CHOP.
When the medic and police arrived[, Appellee] did not offer any explanation for what happened to the child other than he had been taken to the pool and perhaps taken in some water.
After [M.W.] was pronounced [dead], the remains of the child were turned over to the Philadelphia Medical Examiner’s Officer where[,] on July 10th of 2021, a postmortem examination was performed by Dr. Lindsay Simon who is now the chief medical examiner here in the City and County of Philadelphia.
She would testify[,] after being qualified as an expert in forensic pathology[,] … to a reasonable degree of medical and scientific certainty that she examined the remains of [M.W.], and … reviewed the toxicology report[,] which yielded the following[:]
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The toxicology report was positive for fentanyl in the blood, brain, liver and gastric areas of the body. The amount that was present in the child’s blood was 45 … milligrams[,] which would be[,] in her testimony[,] 10 times [the amount of] a large dose of fentanyl for an adult.
As a result of her examination of the child, she would determine that the immediate cause of death was drug intoxication specifically fentanyl, and that the manner of death was homicide.
She would also testify … that the fentanyl that was in the child’s system had a component to it that was commonly found in the nontraditional[,] non-sanctioned manufacturing process of fentanyl, and that the component was consistent with the type of fentanyl that was manufactured illegally and is found in many street recreational drugs here[.]
N.T. Guilty Plea, 4/5/24, 13-17. The Commonwealth also “admitted into
evidence a number of exhibits and reports in support of its factual basis.”
Opinion, Kamau, J., 10/29/24 (“Sentencing Court Opinion”), 3. In addition,
the Commonwealth stated that its “theory of this case” was that Appellee’s
criminal “conduct was in the delayed response to the medical emergency of
the child.” N.T. Guilty Plea, 4/5/24, 18.
On April 5, 2024, Appellee entered an open guilty plea, that is, one with
no agreed-upon sentence, to a single count of endangering the welfare of a
child, graded as a second-degree felony with a statutory maximum of ten
years’ imprisonment. See N.T. Guilty Plea, 4/5/24, 6, 10, 20. The court
ordered a pre-sentence investigation (“PSI”) report and a mental health
evaluation (“MHE”) of Appellee in anticipation of sentencing. Id., 21.
The sentencing hearing was held on July 11, 2024. It was agreed by the
parties that Appellee had a prior record score (“PRS”) of zero, as he had no
prior convictions, and the crime to which he entered a guilty plea had an
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offense gravity score (“OGS”) of eleven. N.T. Sentencing, 7/11/24, 4. The PRS
and OGS produced a standard range for the Sentencing Guidelines of nine to
sixteen months, with the mitigated range being nine months less and the
aggravated range being nine months more. Id. The court noted that it had
reviewed both the PSI and MHE prior to the hearing. Id., 3. Defense counsel
then presented argument that the appropriate sentence would be a term of
probation, noting also that Appellee had been incarcerated on the charge for
a month and a half. See id., 4, 8. Counsel described the single charge, for
which Appellee had accepted responsibility, as an unintentional “aberration,”
a mistake not “reflective of his true character.” See id., 4, 7-8, 23. Appellee
had no prior criminal history, and the conviction was based on his having failed
to call for medical help immediately. See id., 8. Counsel argued that the
statutory sentencing factors favored probation, at least in part because
incarceration could not be worse than the guilt Appellee felt over the death of
his son. See id., 6-7.
The Commonwealth argued that Appellee’s sentence should not be
probation, but include a period of imprisonment. It first presented testimony
from the child’s mother, who explained that her son’s death had hit the family
“hard.” N.T. Sentencing, 7/11/24, 11. She recognized that putting Appellee
in prison would not change what happened, but thought, given her pain, that
“[he] can’t just walk around like nothing happened.” Id., 12. She testified, “I
honestly think it was a mistake,” but believed that Appellee could have saved
her son if he had come forward “instead of saving” himself. Id. She believed
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Appellee knew where the fentanyl had come from and had tried to “cover it
up.” Id., 12. She asked him to be “honest” and give her closure by telling her
how the fentanyl had come to be ingested by her son. See id., 11-12. When
asked by the court whether she believed “it was intentional,” the mother
stated, “oh it wasn’t intentional, but it became intentional when [he] let my
son sit there for two hours dead. [Appellee] could have saved [her son]
instead of saving [him]self.” Id., 12-13.
The Commonwealth followed the mother’s testimony with argument
emphasizing Appellee’s supposed lies during the investigation of the incident
and suggesting he had a more direct involvement in his son’s death than he
admitted to in his guilty plea. See N.T. Sentencing, 7/11/24, 13-20. Pointing
out that the expert testimony would have established the fentanyl that killed
the victim was likely illegally purchased on the street, the Commonwealth
argued that Appellee was, or knew who was, the source of the fentanyl. See
id., 14-16. The Commonwealth argued Appellee had lied to investigators by
suggesting his son had ingested Percocet as a result of his wiping his son’s
face with a towel contaminated with Percocet.2 See id., 14-15. The
Commonwealth noted that Appellee also admitted to buying Percocet on the
street and referred to it by its street name “perc.” See id., 15-16. From this,
____________________________________________
2 Appellee had told investigators that he had taken a Percocet the night before
because of pain, but then vomited. He used a towel to clean up and the next day used the same towel to wipe his son’s mouth after he vomited. See N.T. Sentencing, 7/11/24, 15.
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the Commonwealth suggested Appellee knew the source of the fentanyl and
hid it from investigators and his son’s mother. See id., 16. The
Commonwealth criticized Appellee’s unwillingness to tell the truth about the
source of the fentanyl and asked the court to “hold him responsible for” not
doing so. Id., 17. It further contended that Appellee’s guilty plea
encompassed “leaving drugs around the house that your child can ingest, and
then after he ingests it, delaying the call.” Id., 18.
Although unwilling “to put numbers on things,” the Commonwealth
argued that Appellee’s behavior “that night, and post arrest, and during the
investigation[,]” did not warrant probation, and suggested “that justice
requires that he serve some time” in prison. N.T. Sentencing, 7/11/24, 18-
19. It submitted that a period of incarceration also would be a clearer
deterrent to the community for others who might leave drugs around the
house where a five-year old could access them. See id., 19. It suggested that
the tragedy was not merely an accident, but “highly reckless and grossly
negligent” behavior including the purchase of illegal drugs, leaving them
around the house, not seeking emergency aid immediately and misleading
investigators. Id., 19-20. The Commonwealth asked for a sentence “that
meets the severity of what happened here and that drives home the point to
this defendant that actions have consequences.” Id., 20.
Defense counsel’s rebuttal focused on the incident being an “aberration”
on the part of Appellee, on Appellee’s lack of criminal history, and that no one
knows, including Appellee, how the child obtained fentanyl. See N.T.
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Sentencing, 7/11/24, 23-25, 27. Counsel also noted that there was no
evidence that Appellee destroyed any evidence of fentanyl in his home, much
less so thoroughly cleaned his apartment as to eliminate any trace of it. See
id., 25-26.
The court then heard directly from Appellee, who expressed his sadness
for his lost son. N.T. Sentencing, 7/11/24, 28. He explained that his two
children were swimming in the pool and then his son went limp and wanted
to lie down. Id. Appellee took him back to his apartment and put him down,
but his son never woke up. Id. “Now they’re talking about he ingested
fentanyl, [and saying] I was in possession of fentanyl.” Id. He asserted, “I
didn’t kill my son. It had nothing to do with my son dying. I’m the one that
gave my son CPR.” Id., 29. He explained to the court that he could “barely
sleep” and “lost a lot of weight.” Id. He stated that he would accept the
sentence the court imposed. See id., 30.
The court then imposed a term of three to six months in county prison
to be followed by five years’ probation. N.T. Sentencing, 7/11/24, 32. The
sentence falls within the mitigated range of the Sentencing Guidelines and
addressed both the victim’s mother’s request and the Commonwealth’s
argument that a period of imprisonment was warranted. Associated with the
probation, the court imposed the following conditions: Appellee must not be
convicted of new offenses; seek and maintain full-time employment or enroll
in vocational education; complete 200 hours of community service; enroll in
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parenting classes; and submit to random drug screens. See id., 32-33. The
court explained its reasoning, as follows:
This is a very difficult case. … I’ve been contemplating what is the appropriate resolution in this case for a long time. I keep on coming back to 45-milligrams of fentanyl was in the boy’s system, which is ten times a large dose for an adult.
And then I think about the delay. That troubles me. I also think about the [PRS], [OGS], and the guidelines. I look at the fact that [Appellee] has no record -- no real record to speak of. He accepted responsibility. He is a high school graduate. He received his associate’s degree. He has another daughter. As counsel indicated, by every stretch, with the exception of this, [he is] an upstanding citizen.
He is still young. He has a lot of potential. So[,] when I’m thinking about what the appropriate resolution is, I’m not only thinking about justice for the family, but I’m also thinking about what is best for society. I’m thinking about his other kids. What is best for the community. I have all these different [things] to consider.
I considered the statutory factors, including the need for the protection of [the] public. I don’t think [Appellee] poses a danger to the public. I think this was a mistake. I think it was a horrible mistake[,] and I think [Appellee] made horrible decisions and failed to act. I think that is what the [Endangering the Welfare of a Child] charge is.
When I considered the gravity of the offense in relation to the impact on the victim, and the family, the community, it couldn’t have a larger impact. The death of a child. A young child. I think this is probably the greatest impact of a case, impact on the victim and the family that I’ve seen. And then rehabilitative needs of [Appellee]. At this point, as a result of this incident, [Appellee] is certainly going to need counseling, he is going to need therapy, as is the family.
Acceptance of responsibility is very important. It’s the first step towards rehabilitation. On balance, I do think a short custodial sentence is appropriate, but [Appellee] doesn’t need to be going upstate.
N.T. Sentencing, 7/11/24, 30-32.
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On July 18, 2024, the Commonwealth filed a motion for reconsideration
and modification of sentence. In its motion, the Commonwealth argued that
the sentencing court had agreed there were aggravating factors, which the
Commonwealth identified as street-purchased drugs that “were left out,” and
Appellee’s delay in seeking emergency assistance. See Commonwealth’s
Motion to Reconsider and Modify Sentence, 7/18/24, ¶ 10. It noted that after
it completed its argument, the sentencing court “improperly implored” the
defense to argue for a second time and provide mitigation. Id., ¶ 12. It argued
that by imposing a mitigated range sentence, the court did not adequately
consider the Sentencing Guidelines, double-counted Appellee’s PRS, and did
not account for the court’s “findings that the Commonwealth established”
aggravating factors. Id., ¶¶ 20-21. It asked the sentencing court to reconsider
and “impose a sentence that is both reasonable and authorized by the
applicable sentencing statutes.” Id., ¶ 24.
On August 2, 2024, the sentencing court filed an order denying the
Commonwealth’s motion to reconsider. See Sentencing Court Order, 8/2/24
(denying reconsideration). On August 16, 2024, the Commonwealth timely
filed its notice of appeal. See Pa.R.Crim.P. 721(B)(b)(ii) (where no defense
post-sentence motions filed, the Commonwealth’s notice of appeal “shall be
filed within 30 days of the entry of the order disposing of its motion” for
modification). The sentencing court and Commonwealth then complied with
Rule of Appellate Procedure 1925.
The Commonwealth’s question involved in this appeal is:
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Did the [sentencing] court abuse its discretion where it failed to protect the public – especially a surviving child – from a reckless and dangerous felon, and offered flawed reasons for its deviation from the sentencing guidelines in imposing a mere 3 to 6 months incarceration for endangering the welfare of his five-year-old child resulting in a fatal overdose?
Appellant’s Brief, 4.
The Commonwealth’s appeal challenges the discretionary aspects of
Appellee’s sentence. Discretionary sentencing claims are not appealable as of
right. See Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.
2015). Rather, an appellant challenging the sentencing court’s discretion must
invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2)
properly preserving the issue at sentencing or in a motion to reconsider and
modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of a sentence; and (4) presenting a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §
9781(b), or sentencing norms. Commonwealth v. Miller, 275 A.3d 530, 534
(Pa. Super. 2022), appeal denied, 302 A.2d 626 (Pa. 2023). An appellant
must satisfy all four requirements. Id.
Here, the Commonwealth complied fully with the first three
requirements for merits review of its appellate claim. Therefore, we now turn
to whether Appellant established a substantial question for review. We make
the determination on a case-by-case basis. Commonwealth v. Crawford,
257 A.3d 75, 78 (Pa. Super. 2021). “We cannot look beyond the statement of
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questions presented and the prefatory Rule 2119(f) statement to determine
whether a substantial question exists.” Id. at 78-79 (quoting
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018))
(brackets omitted). A substantial question is presented where:
… an appellant 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 which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.
Commonwealth v. Mastromarino, 2 A.3d 581, 585–586 (Pa. Super. 2010)
(quoting Commonwealth v. Bullock, 948 A.2d 818, 826 n.6 (Pa. Super.
2008)) (citation omitted).
The Commonwealth forwards two substantial questions for review. See
Appellant’s Brief, 12. First, the sentencing “court acknowledged multiple
aggravating factors and yet failed to protect the public with its sentence,”
thereby failing to “consider the need to protect the public and the gravity of
the offense in fashioning a sentence” in violation of the sentencing code. Id.;
see 42 Pa.C.S. § 9721(b). Second, the sentencing court imposed a sentence
in the mitigated range without taking into account “the gravity of the result of
the offense [and] without noting compelling reasons for doing so.” Id., 13.
The Commonwealth concludes that “there were compellingly different
circumstances that justified an upward departure, if any departure from the
guidelines. Because the sentence is unreasonable and double-counts [the]
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lack of a [PRS], the Sentencing Code requires that it be vacated.” Id. We find
that the Commonwealth has presented a substantial question warranting
review because it has “sufficiently articulate[d] the manner in which the
sentence violates either a specific provision of the sentencing scheme set forth
in the Sentencing Code or a particular fundamental norm underlying the
sentencing process.” Commonwealth v. Mouzon, 812 A.2d 617, 627–28
(Pa. 2002). See also Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001) (holding that the Commonwealth raised a substantial question
where it alleged defendant’s sentence was excessively lenient and provided
specific reasons why the sentence violated sentencing norms).
We now turn to a substantive review of the exercise of the sentencing
court’s discretion. Our standard of review of the discretionary aspects of
sentencing is as follows:
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. Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting
other cases).
Additionally, our review is confined by statutory mandate. See
Johnson, 125 A.3d at 826-27. Specifically, we may only vacate and remand
for resentencing, here, if the sentencing court’s application of a guideline
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sentence term was “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). 3 “[I]t is
clear that the General Assembly intended the concept of unreasonableness
[for the purposes of Section 9781(c)] to be inherently a circumstance-
dependent concept that is flexible in understanding and lacking precise
definition.” Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007).
In deciding whether a sentencing court imposed a sentence that was
clearly unreasonable, we are to be guided by the considerations listed in 42
Pa.C.S. § 9781(d) – that is, the nature and circumstances of the offense and
the history and characteristics of the defendant; the opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; the findings upon which the sentence was based; and the
recommendations of the Sentencing Guidelines – and we review whether the
trial court properly considered the sentencing factors outlined in 42 Pa.C.S. §
9721(b) – the protection of the public, the gravity of the offense with respect
to the victim and the community, and the rehabilitative needs of the
defendant. See Walls, 926 A.2d at 964; Commonwealth v. Velez, 273 A.3d
6, 12 (Pa. Super. 2022). “[T]he weight accorded to the mitigating factors or
aggravating factors presented to the sentencing court is within the court’s
3 Although the sentence imposed is in the mitigated range of the Sentence Guidelines, thus, below the standard range, it is still within the guideline ranges overall and subject to review under 42 Pa.C.S. § 9781(c)(2). See Commonwealth v. Johnakin, 502 A.2d 620, 623 n.2 (Pa. Super. 1985) (a sentence is outside the guidelines, and thereby subject to review under 42 Pa.C.S. § 9781(c)(3), where it is below even the mitigated minimum range that the guidelines set for the offense).
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exclusive domain.” Commonwealth v. Baker, 311 A.3d 12, 19 (Pa. Super.
2024); Velez, 273 A.3d at 10 (similar). Where, as here, the sentencing court
had a PSI, “it is presumed the court was aware of and weighed all relevant
information contained [in the report] along with any mitigating sentencing
factors.” Baker, 311 A.3d at 19 (internal quotation marks and citation
omitted); Velez, 273 A.3d at 10 (similar).
The Commonwealth raises three purportedly distinct claims challenging
the court’s discretionary decision to impose a term within the mitigated range
of the Sentencing Guidelines. Each fits within the substantial question alleging
excessive leniency and inadequate consideration of statutory factors. See.
Kenner, 784 A.2d at 811. In its first claim, the Commonwealth argues that
the sentencing court acknowledged “multiple aggravating factors within the
facts of this case,” which “belies” its “lenient sentence” of three to six months’
imprisonment. Appellant’s Brief, 21. As support, it quotes from the sentencing
hearing where the court complimented the Commonwealth’s “fine job of
providing aggravated circumstances.” Id., 22 (emphasis omitted); see N.T.
Sentencing, 7/11/24, 22. As for aggravating circumstances, the
Commonwealth specifically relies on Appellee’s delay in calling for emergency
help and the “level of obfuscation” he provided to various parties concerning
“different details about the incident.” Appellant’s Brief, 22. The
Commonwealth also relies on Commonwealth v. Moeller, 2022 WL 2965595
(Pa. Super., filed July 27, 2022) (unpublished memorandum), to support his
claim that the sentencing court should have imposed a sentence in the
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aggravated range based on the proven aggravating factors. See Appellant’s
Brief, 23.4
The Commonwealth assumes that because it presented cogent
argument on a point, supported by some evidence in the record, it necessarily
proved an aggravating factor. The sentencing court did not state that the
aggravating factor was proven, but only noted that the Commonwealth “did a
really fine job of providing aggravating circumstances.” N.T. Sentencing,
7/11/24, 22. It is on this point that the Commonwealth’s reliance on Moeller
undermines its argument. In that non-precedential decision, we affirmed an
aggravated range sentence because the sentencing court had based its
sentence on aggravating factors proven by evidence in the record. See
Moeller, 2022 WL 2965595, *4 (“the court did not base the sentence upon
mere speculation … [it] drew its conclusions from the ample testimony of the
Commonwealth’s expert”). Here, the court exercised its discretion to base
Appellee’s sentence on other factors.
Moreover, the fact that an aggravating circumstance might be present
is not definitive of the sentence. An appropriate sentence is based on the
court’s discretionary weighing of mitigating and aggravating factors. See
Baker, 311 A.3d at 19 (“weight accorded to the mitigating factors or
aggravating factors presented to the sentencing court is within the court’s ____________________________________________
4 We note that, in violation of Pa.R.A.P. 126(a), the Commonwealth’s citation
to Moeller fails to inform us that it is an “unpublished non-precedential memorandum decision” of this Court, which may only be cited for its persuasive value.
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exclusive domain”); Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.
Super. 2009) (appellate court cannot reweigh sentencing factors and impose
judgment in place of sentencing court where lower court was fully aware of all
mitigating and aggravating factors). As the sentencing court explains in its
written opinion, there was more to consider in the balancing than just the
Commonwealth’s argument on aggravating circumstances:
Prior to imposing sentence, the court thoroughly reviewed [Appellee]-specific considerations such as his [PSI], his background and criminal history. The court considered mitigating factors[,] in addition to the aggravating factors[,] in fashioning its sentence. The court considered that [Appellee] was raised by a single mother and maternal grandparents – [his] father was not an active part of his life during his formative years. [Appellee] graduated from high school in 2008 and received an associate’s degree in business and accounting from Career Prism [I]nstitute in 2015. Since then, [Appellee] has maintained fairly steady employment. In addition to [M.W., Appellee] has another young child[. Appellee] had no prior arrest record, and there was no indication of domestic abuse or violence.
Sentencing Court Opinion, 6. In addressing the statutory factors of the
protection of the public, the impact of crime on the victim and the community,
and the rehabilitative needs of Appellee, the court explained:
[The mother of the victim], understandably, wanted to know how her son was accidentally exposed to a lethal dose of Fentanyl and sought closure. While the senseless tragedy that occurred here deeply impacted the victim’s family, this court found that [Appellee] did not pose a danger to the community. Moreover, [Appellee] accepted responsibility for his crime and demonstrated genuine remorse.
Id., 7. In sum, we conclude that the court properly considered both
aggravating and mitigating factors and did not abuse its discretion.
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It also is clear from the sentencing hearing that the Commonwealth did
not argue that Appellee’s delay in calling for emergency help was an
aggravating factor. To the contrary, it was Appellee’s argument in favor of a
probationary term that the crime he pleaded to was “an unfortunate accident”
and based on “failing to make that phone call right away. Not anything else.”
See N.T. Sentencing, 7/11/24, 7, 9. The Commonwealth’s aim was to
persuade the court that Appellee’s criminal conduct was not merely failure to
call promptly for emergency aid but included obtaining illegal street drugs and
leaving them in a location where a five-year-old could reach them and ingest
them. See id., 18-20. It thus argued the victim’s death was the result of
Appellee’s “highly reckless and grossly negligent” behavior warranting a
period of imprisonment. Id., 19-20. The sentencing court was not persuaded
and, instead, found that the conviction was based on “a horrible mistake”
where Appellee “made horrible decisions and failed to act.” Id., 31. We find it
less than forthright for the Commonwealth to argue on appeal that the criminal
conduct it had argued was too limited at the sentencing hearing should now
be taken alone as an aggravating factor. Undoubtedly, it was not unreasonable
for the sentencing court to reject the Commonwealth’s argument for
aggravating the sentence where that argument was inconsistent with the
testimony proffered by the Commonwealth at the sentencing hearing and the
Commonwealth’s statement at the guilty plea proceeding. See id., 11-13;
N.T. Guilty Plea, 4/5/24, 18.
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In its second claim, the Commonwealth argues that the sentencing court
impermissibly double-counted Appellee’s PRS. It draws its conclusion from the
court referencing the PRS and that Appellee had “no real record to speak of.”
Appellant’s Brief, 24; see N.T. Sentencing, 7/11/24, 18-20, 30. The
Commonwealth also alleges the sentencing court’s bias based on it having
asked defense counsel, “Do you think he is a danger to the public? Those are
the kinds of things I want to hear.” Appellant’s Brief, 24-25; see also N.T.
Sentencing, 7/11/24, 23. The Commonwealth argues the last statement is
“both telling and troubling,” because an “impartial court should not ‘want’
anything, ever” but here “wanted to give” Appellee a lenient sentence.
Appellant’s Brief, 25.
This Court has held that it would be an abuse of discretion to deviate
below the mitigated range based on the lack of a prior record because that
lack is factored into the Sentencing Guidelines’ recommendation. See
Commonwealth v. Celestin, 825 A.2d 670, 679 (Pa. Super. 2003); see also
204 Pa. Code § 303.9(a)(1) (“Guideline sentence recommendations are based
on the Offense Gravity Score and Prior Record Score”). Here, the sentencing
court imposed a term of imprisonment within the guideline ranges, albeit the
mitigated range. Therefore, it’s consideration of Appellee’s lack of a prior
record score to sentence within the guidelines was not improper.
Moreover, we conclude that the Commonwealth has misunderstood the
sentencing court’s statements. With respect to its reference to “no real
record,” the court was not double-counting Appellee’s PRS of zero, but,
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instead, referring to his lack of any documented contacts with police, such as
a past arrest. Past arrests are not considered in calculating the PRS or
Sentencing Guidelines.5 Here, where the lack of any past arrests both supports
the court’s understanding of the incident as aberrational and rebuts the
Commonwealth’s attempt to cast Appellee as a drug fiend providing fentanyl
to his young child, we find that it was not improper double-counting.
In addition, we find nothing improper in the court seeking information
from defense counsel that it wanted “to hear,” because it was a request for
counsel to speak directly to a proper sentencing factor:
The Court: This appears to be aberrational behavior. When the [c]ourt is fashioning its sentence, one of the things I have to consider is danger to the public. Do you think he is a danger to the public? Those are the kinds of things I want to hear.
N.T. Sentencing, 7/11/24, 23. The court simply asked defense counsel to
present argument on one of the factors the Sentencing Code requires the court
to consider:
In selecting from the alternatives set forth in subsection (a), the court shall follow the general principle that the sentence imposed should call for total confinement that is consistent with section 9725 (relating to total confinement) and 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.
5 In addition, arrests alone are not a proper consideration under the Sentencing Code. Commonwealth v. Berry, 323 A.3d 641, 649 (Pa. 2024).
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42 Pa.C.S. § 9721(b) (emphasis supplied). We disagree with the
Commonwealth that a court requesting argument from counsel on a specific,
statutory sentencing factor is improper or even evidence of bias.
In its third claim, the Commonwealth argues, similarly as with its first
claim, that the sentencing court “trivializes the nature, consequence, and
circumstances of the crime.” Appellant’s Brief, 26. The Commonwealth
contends that there are “[m]any factors … [demonstrating] a need to deter
future violently reckless conduct and protect the public, specifically
[Appellee’s] living and future children, from the dangers [Appellee] poses.”
Id. It specifically notes that the PSI suggested both that Appellee “have no
unsupervised contact with minors” and that he was “trying to get back with
his children’s mother, indicative of the danger [he] poses to behave recklessly
with drugs in the face of his children.” Id. (internal quotation marks omitted).
As we explained above, the premise of the Commonwealth’s argument
is that the sentencing court should have found that the crime to which
Appellee pleaded guilty represented “highly reckless and grossly negligent”
behavior. Appellant’s Brief, 19-20. However, after reviewing the evidence and
arguments presented, the sentencing court found otherwise, deeming the
young child’s death the result of Appellee’s “horrible mistake” in not seeking
emergency help immediately. N.T. Sentencing, 7/11/24, 23. The court’s
finding was consistent with the victim’s mother’s testimony at sentencing and
the Commonwealth’s stated theory of the case at the time of the guilty plea.
See id., 11-13; N.T. Guilty Plea, 4/5/24, 18. Therefore, we conclude the
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sentencing court’s finding was not an abuse of discretion. In the same vein,
we cannot conclude that sentencing in the mitigated range of the Sentencing
Guidelines based on this finding was an abuse of discretion where the court
was fully apprised of Appellee’s circumstances and that of the victims through
the PSI and MHE reports and the evidence presented at sentencing. See
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (when a court has
a PSI report we are required to presume that it weighed the pertinent
sentencing considerations).
The Commonwealth does not dispute the court had the benefit of a PSI
report, but contends it improperly disregarded two particular points in the
report, which allegedly evidenced an improper evaluation of the need to
protect the public. See Appellant’s Brief, 26. With respect to the investigator’s
recommendation that Appellee “should have no unsupervised contact with
minors,” it appears possible that the sentencing court mistakenly omitted that
recommendation as a condition on the consecutive probation, as it applied all
the other recommendations. See PSI Report, 4 (Evaluative Summary). To the
extent that it was an oversight, the Commonwealth waived any relief on this
singular point when it failed to include it in its post-sentence motion. See
Commonwealth v. Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (en
banc) (holding that appellant waived discretionary aspects of sentence claim
by failing to preserve it in a post-sentence motion or at sentencing, even
though raising a substantial question). If the omission were intentional, we
would not find that alone it was an abuse of the court’s sentencing discretion.
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This is particularly so where the court did not agree with the Commonwealth’s
version of the crime as the product of wanton recklessness. Additionally,
defense counsel represented to the court that Appellee would not present a
risk to the victim’s family as Appellee had relocated to another state, with no
intention of ever returning to Philadelphia. See N.T. Sentencing, 7/11/24, 7.
This latter point would support the trial court’s decision to omit requiring
supervision with children.
The Commonwealth’s other stated concern is that Appellee may be
“trying to get back with his youngest child’s mother,” PSI Report, 2 (Social
and Hereditary History). This is a reference to someone other than the mother
of the victim, and thereby attenuated from the concerns presented in this
case. To the extent that Appellee’s aberrational behavior during the incident
is an on-going concern, the sentencing court adequately addressed it by
directing that Appellee “enroll in parenting courses” as a condition of
probation. N.T. Sentencing, 7/11/24, 32.
Our review of the record indicates that the sentencing court did not
abuse its discretion. The record shows that the court was aware of and
considered the facts of the crime and Appellee’s background, including the
accidental death of a young child and the resulting effects on the victim’s
family, as well as Appellee’s age, upbringing, education, “potential,” and
“acceptance of responsibility” as the “first step towards rehabilitation.” N.T.
Sentencing, 7/11/24, 30-32. The court did not apply the guidelines
erroneously, and the application of Sentencing Guidelines – in this case, a
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mitigated range sentence – was not “clearly unreasonable.” 42 Pa.C.S. §
9781(c)(1), (2).6 Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 9/12/2025
6 In stark contrast to the facts presented here, this Court has found a mitigated
range sentence to be clearly unreasonable where the offense involved was a first-degree felony, and “Appellee had a staggering record of criminal conduct as a juvenile and as an adult;” previous attempts at rehabilitation were unqualified failures; and the MHE indicated “the appellee’s prognosis for ‘adequate adjustment’ seemed ‘marginal at best.’” Commonwealth v. Felix, 539 A.2d 371, 381 (Pa. Super. 1988).
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