Com. v. Notoro, F. (memorandum)
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J-S69033-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FRANCIS J. NOTORO Appellant No. 897 WDA 2013 Appeal from the Judgment of Sentence April 26, 2013 In the Court of Common Pleas of Warren County Criminal Division at No(s): CP-62-CR-0000381-2012 BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J. MEMORANDUM BY LAZARUS, J. FILED: December 23, 2013 Francis Notoro appeals from the judgment of sentence imposed by the Court of Common Pleas of Warren County after a jury found him guilty of simple assault1 and endangering the welfare of a child.2 On April 26, 2013, the trial court sentenced Notoro to 44 to 88 months in a state prison, and ordered him to undergo a sexual offender s evaluation and to complete any recommendations for treatment. After careful review, we affirm on the basis of the trial court opinion. On July 15, 2012, Notoro brought his two-month-old son to the emergency room due to injuries the child sustained while in his care. ____________________________________________ 1 18 Pa.C.S.A. § 2701(a)(1). 2 18 Pa.C.S.A. § 4304(a)(1). J-S69033-13 Specifically, the child suffered from bruising around his penis, navel, and nipples, as well as a fractured left tibia. The opinion of the emergency room physician was that the infant had been sexually abused. During a lengthy interview with Detective Anthony Chimenti of the Warren City Police and Corporeal Brian Zeybel of the Pennsylvania State Police Polygraph Unit on July 18, 2012, Notoro initially stated that the injuries were accidental, but later recanted admitting that he had sexually abused his son and caused the injuries.3 At trial, Notoro testified that he caused the injuries accidentally by pounding his fist on the bed where his son was laying and striking his son. The jury found Notoro not guilty of the most serious offenses stemming from the incident, but still found him guilty of simple assault and endangering the welfare of children. Each of these charges involved some type of sexual conduct with the victim. On May 21, 2013, Notoro filed a post-sentence motion requesting his case be remanded for resentencing on the charge of simple assault and that the requirement of a sex offender evaluation and treatment be stricken from his sentence. The trial court denied Notoro s motion, and this timely appeal followed. On appeal, Notoro raises the following issues for our review: ____________________________________________ 3 The trial court denied Notoro s motion to suppress the statements he made during the interview on January 15, 2013. -2- J-S69033-13 1. Did Judge Hammond abuse his discretion [. . .] by sentencing [Notoro] to the maximum sentence allowable by law, above the standard and even the aggravated range, for the charge of [si]mple [a]ssault? 2. Did Judge Hammond abuse his discretion in sentencing [Notoro] to have a sexual offender evaluation and to complete any recommendations for treatment given that he was found not guilty on the sex offenses and the jury evidently accepted his testimony that he did not sexually abuse his child? Appellant s Brief, at 6. Notoro s claims challenge the discretionary aspects of his sentence. When the discretionary aspects of a sentence are questioned, an appeal is not guaranteed as of right. Commonwealth v. Moore, 617 A.2d 8, 11 (Pa. Super. 1992). Rather, two criteria must be met before an appeal may be taken. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence, Pa.R.A.P. 2119(f); second, an appeal will only be granted when a substantial question has been presented. 42 Pa.C.S.A. § 9781(b). Our standard of review of a sentencing claim is wellsettled: 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2011). -3- J-S69033-13 Here, Notoro asserts that his sentence was excessive. A claim that a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question. Mouzon, 812 A.2d 617, 624 (Pa. 2002). See Commonwealth v. Accordingly, we will review Notoro s claim. Having reviewed the transcripts, the briefs, the relevant law and the record as a whole, this Court concludes that the well-reasoned opinion of the Honorable Gregory J. Hammond thoroughly discusses, and correctly resolves, the issues on appeal. At sentencing, the court notified Notoro that his sentence would be outside of the sentencing guidelines and provided seven reasons for the deviation pursuant to section 9721(b) of the Sentencing Code. Pa.C.S.A. § 9721(b); N.T. Sentencing, 4/26/13, at 10-16. See 42 The trial court further noted that it had the opportunity to observe Notoro on numerous occasions, and felt that he failed to take responsibility, or show remorse, for his actions. Trial Court Opinion, 6/26/13, at 5. For these reasons, the court sentenced Notoro to the maximum sentence permissible. As Judge Hammond correctly notes in his opinion, the Sentencing Guidelines are purely advisory in nature and are merely one factor among many that the court must consider in imposing a sentence. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1114-19 (Pa. 2007). Accordingly, Notoro s sentence was consistent with the protection of the public, the gravity of his offense as it relates to the impact on the life of the victim and the -4- J-S69033-13 community, and his rehabilitative needs. See 42 Pa.C.S.A. § 9721(b). Therefore, we agree with the trial court s conclusion that the sentencing court appropriately exercised its discretion when it imposed Notoro s sentence. Judge Hammond also correctly concluded that the sentencing court did not abuse its discretion when it directed Notoro to undergo a sexual offender s evaluation and complete all recommendations for treatment. The sentencing court imposed these conditions due to the nature of the victim s injuries. Furthermore, despite the jury acquitting Notoro of the alleged sexual offenses, we cannot overlook the fact that Notoro admitted to engaging in oral sex with his son during his interview with Detective Chimenti and Corporeal Zeybel. Appellant s Brief, at 5; Affidavit of Probable Cause, 7/19/12, at 2. Due to the nature of the victim s injuries and Notoro s own admission of sexual abuse, we agree that a sexual offender s evaluation is appropriate. See 42 Pa. C.S.A. § 9718.1(a)(2) (person incarcerated in state institution for endangering welfare of children shall participate in Department of Corrections program of counseling/therapy designed for sex offenders if the offense involved sexual contact with victim). As Judge Hammond correctly concludes in his opinion, the court did not abuse its discretion when it sentenced Notoro. Accordingly, we affirm based on Judge Hammond s opinion. Counsel is directed to attach a copy of that opinion in the event of further proceedings in the matter. Judgment of sentence affirmed. -5- J-S69033-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/23/2013 -6-
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