Commonwealth v. Berry

287 A.3d 831 (Table)

COMMONWEALTH of Pennsylvania

v.James BERRY, Appellant

Commonwealth of Pennsylvania

v.James Berry, Appellant

No. 543 EDA 2022

No. 544 EDA 2022

Superior Court of Pennsylvania.

Filed October 3, 2022

MEMORANDUM BY McLAUGHLIN, J.:

James Berry appeals from the judgment of sentence imposed on his convictions for two counts of endangering the welfare of children ("EWOC") and one count of sexual abuse of children.¹ Berry argues the court abused its discretion in relying on impermissible sentencing factors. We affirm.

We previously summarized the underlying facts as follows:

Docket 6728 of 2018 involved [Berry's] conduct involving his younger brother, J.B. (born in 2001), who suffers from intellectual disabilities. When J.B. was a young child, [Berry] sexually assaulted him twice: once forcing J.B. to perform oral sex and once in attempting to engage in anal sex with J.B. When J.B. was approximately sixteen years old, [Berry] used J.B.’s money to hire a prostitute to have sex with J.B. J.B. did not want to participate in the sex act but was compelled by [Berry]. [Berry] recorded the [sex] act.

Docket 6729 of 2018 involved [Berry's] conduct involving his great-nephew, J.J. (born in 2009). When J.J. was seven years old, he went to [Berry's] house for [Berry] to babysit him. While there, [Berry] "unzipped his pants, pulled out his penis, and told J.J. to touch his penis." Trial Court Opinion, 12/5/2019, at 2 (unnumbered) (record citations omitted). "J.J. did touch [Berry's] penis and [Berry] told him to squeeze it. [Berry] then told J.J. he was not doing it right and left the room where J.J. stayed until his mom picked him up later." Id. (unnumbered) (record citations omitted).

Commonwealth v. Berry , Nos. 2147 EDA 2019, 2148 EDA 2019, 2021 WL 3782689 (Pa. Super. 2021) (unpublished memorandum).

As stated above, a jury convicted Berry of two counts of EWOC—one graded as a third-degree felony, and one graded as a first-degree misdemeanor—and one count of sexual abuse of children. The court sentenced Berry in June 2019. Before imposing sentence, the court stated,

The truly sad part of this is the fracturing of this family. Watching both sides, Mr. Berry's parents on one side and his siblings on the other side. The fact that this family hasn't figured out a way to come together, it exemplifies the harm that was done to these children. It shows me that not only were [J.B.] and [J.J.] directly harmed by Mr. Berry's actions, but the victims of his actions extend far beyond these two little boys.

The fact that I've been watching and reading that [J.B.] is no longer in his own home and is struggling to stay and become part of [S.B.]’s home, which is admirable, he is moving forward despite this victimization. It's a testament to [J.B.]’s strength, and I hope that he understands that and hears that. His testimony was not easy to give. He was forced to watch this video multiple times in this courtroom in front of strangers.

I agree that Mr. Berry has a [c]onstitutional right to try his case, sir. I do not hold the fact there was a jury trial against him. However, there was a -- in the process, that doesn't mean we don't revictimize the victim again. And in this particular case, this Court as well as the civilians had to sit there and watch as [J.B.] reacted to that video.

This Court has balanced Mr. Berry's prior record score of zero with the acts that the jury found him guilty of, the victim impact statements that have been made on behalf of [J.B.] and [J.J.]. I'm also taking into account that while this is Mr. Berry's first conviction, there are previous other contacts. This is not the anomaly that the zero would foreshadow for me, and I have concerns about the predatory nature of Mr. Berry's behavior in taking advantage of these children at a time in which their family was going through the health concerns of their father.

The fact that [J.B.] does suffer from Autism, and [J.J.] was at a very tender age at the time of these events that played a role into the sentencing and given the diminished capacity of the both of these young boys.

N.T., 6/25/19, at 23-25.

The court imposed three consecutive sentences. On the conviction for sexual abuse of children, the court imposed a sentence of 60 to 120 months’ incarceration. This was an upward deviation from the sentencing guidelines, for which the upper end of the aggravate range was a minimum sentence of 48 months. See id. at 13-15. On the conviction for EWOC as a third-degree felony, the court imposed a sentence of 18 to 36 months’ incarceration, which was in the aggravated range of the sentencing guidelines. Finally, on the conviction for EWOC graded as a first-degree misdemeanor, the court sentenced Berry to 12 to 24 months’ incarceration, which also fell in the aggravated range. The aggregate sentence was 90 to 180 months’ (seven and one-half to fifteen years’) incarceration. The court also stated that Berry would be required to register as a sex offender with the Pennsylvania State Police.

In its Rule 1925(a) opinion, the trial court explains that when it announced its decision to deviate from the guidelines, it "was clear in its record which aggravating factors were considered." Trial Court Opinion, 3/19/22, at 6. According to the court, it

emphasized the potential long-term mental health ramifications to the complainants, the lifelong impact these offenses will have within complainants and [Berry's] family, this court's "concerns about the predatory nature" of [Berry's] behavior, that J.B. was particularly vulnerable to this predatory behavior due to his intellectual disabilities and J.J. particularly vulnerable due to his tender age, the victim impact letter written by [S.B.], J.B.’s sister, and the recommendation of both the prosecution and the child advocates.

Id.

Berry filed an untimely post-sentence motion 11 days after he was sentenced. The court denied it, and Berry appealed.

A panel of this court found Berry had waived his discretionary sentencing claims by filing an untimely post-sentence motion. However, we remanded for further proceedings on Berry's claims related to sex offender registration, which are not at issue in this appeal.

Berry filed a timely Post Conviction Relief Act petition in December 2021, arguing that his counsel had been ineffective for failing to file a timely post-sentence motion. The court granted relief, deemed Berry's post-sentence motion as filed nunc pro tunc , and granted Berry leave to file new notices of appeal within 30 days. Berry filed the notices of appeal.²

Berry raises one issue: "Did not the lower court err and abuse its discretion in imposing a manifestly excessive aggregate sentence of 7½ to 15 years, where the court upwardly departed from the Sentencing Guidelines and relied upon impermissible sentencing factors, including [Berry]’s election to go to trial and cross examine witnesses?" Berry's Br. at 4.

Berry's issues go to the discretionary aspects of his sentence. We will undertake the review of such issues when (1) the appeal is timely, (2) the issues have been preserved in the court below, (3) the appellant has included a Rule 2119(f) statement in his brief, and (4) the statement raises a substantial question that the sentence violates the Sentencing Code or sentencing norms. Commonwealth v. Banks , 198 A.3d 391, 401 (Pa. Super. 2018) ; Pa.R.A.P. 2119(f).

Berry's appeal is timely, his issues have been preserved, and he has included a Rule 2119(f) statement. In the statement, Berry argues the aggregate sentence was manifestly excessive and "unduly harsh given [his] prior record and the crimes for which he was actually convicted." Berry's Br. at 22. He further argues the court "provided inadequate reason for its departure from the guidelines,³ citing [Berry's] decision to go to trial and cross-examine the complainant, along with his prior arrests." Id. at 20. We find these issues raise a substantial question and turn our review to the merits of Berry's claims. See Banks , 198 A.3d at 401 ("It is well settled that ‘a claim that the sentencing court relied on impermissible factors in sentencing raises a substantial question’ " (citation omitted)); Commonwealth v. Caldwell , 117 A.3d 763, 769 (Pa. Super. 2015) (holding substantial question raised where consecutive sentences aggregate to unduly harsh sentence in light of the nature of defendant's crimes).

The Sentencing Code requires the court to impose a sentence 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). The court must consider the ranges recommended by the sentencing guidelines, and if it departs from the guidelines, must provide its reason for doing so. Id. However, the guidelines’ ranges are but one factor the court must consider; the court is not bound by the guidelines. Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008).

When reviewing a sentence, this Court must take into consideration "(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. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission." Id. at 190-91 (citing 42 Pa.C.S.A. § 9781(d) ).

We will vacate a sentence that falls outside of the sentencing guidelines if we determine the sentence is "unreasonable." 42 Pa.C.S.A. § 9781(c)(3). We may find a sentence is unreasonable "based upon a review of the factors set forth in Section 9781(d) or based upon a finding that the trial court did not give proper consideration to the general sentencing standards stated in Section 9721(b)." Commonwealth v. McCain , 176 A.3d 236, 241 (Pa. Super. 2017) (comma omitted). We will not vacate absent a manifest abuse of discretion by the...