Opinion
J-S79041-16 No. 126 EDA 2016
12-19-2016
COMMONWEALTH OF PENNSYLVANIA v. TIMOTHY MICHAEL MERWARTH, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 19, 2015 in the Court of Common Pleas of Lehigh County, Criminal Division, No(s): CP-39-CR-0000047-2014 BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Timothy Michael Merwarth ("Merwarth") appeals from the judgment of sentence imposed following his guilty plea to two counts of sexual abuse of children (by photographing the victim and possessing child pornography, respectively), and one count each of endangering the welfare of children ("EWOC") and corruption of minors. We affirm.
See 18 Pa.C.S.A. §§ 6312(b) and (d), 4304(a), 6301(a)(1)(ii).
At Merwarth's guilty plea hearing, he admitted to the prosecution's following summation of the facts underlying his offenses:
On April 18th, 2013, the victim in this case, [D.J., Merwarth's step-daughter,] who was 17 years old at the time[,] ran away from her residence, which was located at 3746 Route 309 in North Whitehall Township, Lehigh County. She was found ... a couple of days later at approximately 3:43 in the morning at [a business located] in North Whitehall Township.
When there, the state police found [the victim] and asked her why she had run away. She indicated [] that [] it was because she had been sexually assaulted by ... Merwarth, and he
had been doing it for the past year and a half. [The victim] was brought into the Child Advocacy Center ... for a forensic interview. ...
[In the interview, the victim] indicated that [Merwarth] ... began sexually assaulting, [i.e.,] ... having ... vaginal and oral intercourse[] with her[, beginning] around her 16th birthday .... She disclosed that these incidents occurred two or three times a week at different times of the day and night at her residence in North Whitehall Township, [and] that it would always happen whenever her mother was not at home.
[The victim] indicated that ... [Merwarth] would bring her to the room, [] remove her clothes, [and] threaten to harm her if she did not comply. She also indicated that when it was over, he would threaten to kill her if she told anybody, that he would tell her he could get to her no matter what, and that [] he would kill her and her whole family if anybody found out. She also indicated that[,] at least on a couple of occasions[,] he videotaped her.
Subsequent to [the victim's forensic interview], there was a search warrant conducted on [] Merwarth's residence in North Whitehall Township. Multiple computers and electronics were seized from the residence, [and] given to the [S]tate [P]olice in Bethlehem. The devices were sent to the State Police Computer Crimes Unit for analysis.
Recovered from [Merwarth's] computers were at least two files [that] had video images, [with] at least one of [Merwarth] engaging in vaginal intercourse with [the victim,] and at least one where she was ... performing oral sex on [] Merwarth. Those videos were ... shown to [the victim]. She identified herself and [Merwarth] in the videos. She identified herself as being 16 years old in those videos.
Subsequent to that, [] [Merwarth] was brought in to [be interviewed by the] [S]tate [P]olice. He was [interviewed] in [] the presence of his attorney. ... [] [T]he [S]tate [P]olice informed [Merwarth] that he was not in custody, [and] he was free to leave at any time .... [] [Merwarth] acknowledged that he engaged in sexual intercourse with [the victim]. He acknowledged that he knew he was making [] child pornography when he was filming these acts, and he said he had access and
watched the videos he made of [the sexual assaults] at least four or five times after the encounter[s].N.T., 7/8/14, at 16-19; see also id. at 19 (wherein Merwarth's counsel stated Merwarth's assertion that the sexual encounters were consensual); see also Trial Court Opinion, 2/3/16, at 2 (stating that Merwarth also "deceived others into believing that [the victim's] claims [of Merwarth's sexual abuse] were a figment of her imagination[,] until the videotapes [of the assaults] were uncovered.").
In February 2014, the Commonwealth charged Merwarth with the above-mentioned crimes, among several others. On July 8, 2014, Merwarth entered a negotiated guilty plea to the above-mentioned offenses. The trial court deferred sentencing, and ordered the preparation of a pre-sentence investigation report ("PSI"), as well as an assessment of Merwarth by the Sexual Offenders Assessment Board as to whether he should be classified as a sexually violent predator ("SVP").
In exchange for Merwarth's plea, the Commonwealth agreed that the minimum sentence would not exceed 15 years in prison.
Merwarth also entered a plea of nolo contendere to involuntary deviate sexual intercourse ("IDSI"). The trial court subsequently permitted Merwarth to withdraw his plea to the IDSI charge (which resulted in the reinstatement of all of the original charges against Merwarth). However, the instant appeal concerns only the sentence imposed on Merwarth's convictions of sexual abuse of children, EWOC and corruption of minors. The record does not reveal the disposition on the IDSI charge.
On October 19, 2015, after reviewing the PSI, the trial court imposed the following sentences on Merwarth's convictions: for sexual abuse of children (by photographing the victim) - 4 to 8 years in prison; for sexual abuse of children (by possessing child pornography) - 3 to 6 years in prison; for EWOC - 3 to 6 years in prison; and, for corruption of minors - 3 to 6 years in prison. The trial court ordered all of these sentences to run consecutively, which resulted in an aggregate sentence of 13-26 years in prison. On the same date, the trial court further ruled that Merwarth met the criteria for being designated as an SVP.
Notably to this appeal, these sentences were outside and above the aggravated range of the applicable sentencing guidelines.
This sentence was below the statutory maximum that the court could have imposed, of 15½ to 31 years in prison.
Merwarth thereafter filed a timely post-sentence Motion challenging the discretionary aspects of his sentence, which the trial court denied. Merwarth filed a timely Notice of Appeal followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Merwarth now presents the following issues for our review:
1. Whether the [sentencing] court abused its discretion by departing above the [sentencing] guidelines and in making the sentences consecutive?Brief for Appellant at 6. We will address Merwarth's issues together as they are related.
2. Whether the [sentencing court's stated] reasons [for the sentences imposed] support or justify the length of the sentence?
Merwarth challenges the discretionary aspects of his sentence, from which there is no automatic right to appeal. See Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted).
We conduct a four-part analysis to determine: (1) whether the 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 the 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).
Here, Merwarth filed a timely Notice of Appeal and preserved his issue in a post-sentence Motion. Merwarth also included a Rule 2119(f) Statement in his brief. Accordingly, we will review Merwarth's Rule 2119(f) Statement to determine whether he has raised a substantial question.
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.Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted); see also 42 Pa.C.S.A. § 9781(b).
In his Rule 2119(f) Statement, Merwarth presents only the following sentence upon which he relies for allowance of appeal: "Here the [trial] court's reasons for the sentences imposed, especially the consecutive aspect of the multiple counts[,] which were departures above the guidelines, do not justify the sentences." Brief for Appellant at 5.
Despite the baldness of the claim Merwarth presents in his Rule 2119(f) Statement, we determine that he has raised a substantial question. See Commonwealth v. Holiday , 954 A.2d 6, 10 (Pa. Super. 2008) (stating that "[a] claim that the sentencing court imposed a sentence outside of the guidelines without specifying sufficient reasons presents a substantial question for our review.") (citing Commonwealth v. Rodda , 723 A.2d 212, 214 (Pa. Super. 1999) (en banc)).
Merwarth argues that the trial court abused its discretion in imposing an unreasonable aggregate sentence, which was outside and above the aggravated range of the sentencing guidelines, without stating adequate reasons for the sentence imposed. Brief for Appellant at 10-11. In support of this claim, Merwarth advances only the following sentence of substantive argument: "To justify the sentence, the [sentencing] court relied on [Merwarth's] deflecting blame away from himself and blaming others[;] his lack of remorse ...; the repeated nature of the offense[s]; mere allegations that this was a 'house of horrors'[;] and [Merwarth's] supposed cleverness in fooling authorities." Id. (internal citations to record omitted).
We review discretionary aspects of sentence claims under the following standard: "[S]entencing 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." Commonwealth v. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006).
The Sentencing Code sets forth the considerations a trial court must take into account when formulating a sentence, stating that "the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with 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). A sentencing court has broad discretion in choosing the range of permissible confinement that best suits a particular defendant and the circumstances surrounding his crime. Commonwealth v. Walls , 846 A.2d 152, 154-55 (Pa. Super. 2004). Where, as here, a sentencing court imposes a sentence outside of the sentencing guidelines, the court must provide in open court a contemporaneous statement of reasons in support of its sentence. 42 Pa.C.S.A. § 9721(b). When doing so,
a trial judge ... [must] demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate 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, so long as it also states of record the factual basis
and specific reasons which compelled it to deviate from the guideline range.Commonwealth v. Bowen , 55 A.3d 1254, 1264 (Pa. Super. 2012) (citations, paragraph break and brackets omitted).
Finally, when evaluating a challenge to the discretionary aspects of a sentence, it is important to remember that the sentencing guidelines are purely advisory in nature. Commonwealth v. Yuhasz , 923 A.2d 1111, 1118 (Pa. 2007); see also Walls , 926 A.2d at 963 (stating that "rather than cabin the exercise of a sentencing court's discretion, the [sentencing] guidelines merely inform the sentencing decision.").
Here, the trial court concisely addressed Merwarth's challenge to his sentence, adeptly summarized the applicable law, and determined that the sentences imposed were reasonable and warranted under the circumstances of this case. See Trial Court Opinion, 2/3/16, at 9-13. The trial court's cogent analysis is supported by the law and the record, and we conclude that the court stated adequate reasons for deviating from the sentencing guidelines, and ordering the sentences to run consecutively. Accordingly, we affirm on this basis in rejecting Merwarth's issues on appeal. See id.; see also id. at 5 (stating that "[t]he sentencing guidelines were also considered, but a deviation was warranted. The victim was abused for an extended period of time, and had nowhere to turn because she was unable to find anyone to believe her. She was raised in a house of horrors by a master manipulator. Even after the videos were uncovered, [Merwarth] attempted to manipulate the investigators by suggesting the victim was the aggressor.") (footnote omitted); see also id. at 6 (stating that Merwarth's "exploitation of the victim only came to an end because of the accidental discovery of the visual documentation of his acts.").
We additionally observe that the sentencing court here had the benefit of a PSI, which the court expressly stated it had considered prior to imposing Merwarth's sentence. N.T., 10/19/15, at 84. A "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 [PSI]; thus properly considering and weighing all relevant factors." Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted); see also id. (stating that where a sentencing court is informed by a PSI, its discretion generally should not be disturbed).
Based upon the foregoing, we discern no abuse of discretion by the sentencing court in imposing Merwarth's sentences.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/19/2016
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