Commonwealth v. Roden

• Decision Date: 05 May 1999
• Citation: 730 A.2d 995
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jo Rae RODEN, Appellant.
• Court: Pennsylvania Superior Court

730 A.2d 995

COMMONWEALTH of Pennsylvania, Appellee, v. Jo Rae RODEN, Appellant.

Superior Court of Pennsylvania.

Submitted February 16, 1999.

Filed May 5, 1999.

Howard F. Knisely, Lancaster, for appellant.

Megan L. King, Assistant District Attorney, Lancaster, for Com., appellee.

Before STEVENS, ORIE MELVIN and BROSKY, JJ.

STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lancaster County following Appellant's open guilty plea to the charge of third degree murder. On appeal, Appellant's sole contention is that her sentence is manifestly excessive. We affirm.

¶ 2 The relevant facts and procedural history are as follows: On January 21, 1997, Appellant was babysitting the six-month-old victim at her home in Lancaster County when, at some point, Appellant violently shook and struck the infant. Approximately twenty-four hours later, the infant died as a direct result of Appellant's actions.

¶ 3 Appellant was arrested and charged with criminal homicide. On March 3,1998, she pled guilty to third degree murder and, on April 24, 1998, she was sentenced to not less than ten or more than thirty years imprisonment. Appellant filed a post-sentence motion seeking modification of her sentence, which was denied by the trial court, and this timely appeal followed.

¶ 4 As indicated previously, Appellant's sole issue on appeal is that the trial court imposed a manifestly excessive sentence. To support this contention, Appellant alleges that the trial court relied on an impermissible factor in sentencing her at the top of the standard range.¹ Namely, Appellant contends that the trial court improperly focused on the fact that working mothers might quit their jobs and withdraw their children from daycare facilities due to fear generated by Appellant's actions. ¶ 5 Appellant's challenge is to the discretionary aspects of her sentence, and, therefore, it must be considered a petition for permission to appeal, as the right to appeal from the discretionary aspects of sentencing are not absolute.²Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385 (1989) (en banc). Before a challenge to the sentence will be heard on the merits, an appellant must set forth in her brief, a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of her sentence. Pa.R.A.P. 2119(f). Here, Appellant has set forth a proper, separate statement as required by Rule 2119(f), by which she attempts to demonstrate that a substantial question exists regarding the appropriateness of the sentence imposed.

The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge's actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Andrews, 720 A.2d 764, 766-67 (Pa.Super.1998) (citation and quotation omitted). We find that Appellant has raised a substantial question in this case, and, therefore, we shall address the merits of her sentencing issue. See Commonwealth v. Martin, 727 A.2d 1136 (Pa.Super.1999)

(holding that a claim that a sentence is excessive because the trial court relied on an impermissible factor raises a substantial question).

¶ 6 "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." Harris, 719 A.2d at 1052 (citation omitted).

In deciding whether a trial judge considered only permissible factors in sentencing a defendant, an appellate court must, of necessity, review all of the judge's comments. Moreover, in making this determination it is not necessary that an appellate court be convinced that the trial judge in fact relied upon an erroneous consideration; it is sufficient to render a sentence invalid if it reasonably appears from the record that the trial court relied in whole or in part upon such a factor.

Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116, 1124 (1990) (quotation omitted). See Commonwealth v. Harris, 719 A.2d 1049 (Pa.Super.1998)

.

¶ 7 After reviewing the record, we find that the trial court noted on the record the negative effect Appellant's actions would have on some working mothers who rely on babysitters on a daily basis. Specifically, at the sentencing hearing, the trial court stated the following to Appellant:

You have destroyed the lives of more than just that young child, an innocent child given into your care. The reality of life today is that society does need caregivers. Young families need caregivers. Women have the right, if they elect, to work. Some women don't have a choice, they have to work in order for their families to live. They also have the right to have children and have families.

Caregivers aren't forced to be caregivers. You elected to do this. You elected to take children into your home. You didn't do it for free, you were paid for it. You have an obligation. You and all caregivers have an obligation to give what you have been engaged to do. Nobody can...