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Commonwealth v. Moser

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
HAROLD JOSEPH MOSER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence February 3, 2012 In the Court of Common Pleas of Northampton County Criminal Division No(s).: CP-48-CR-0002998-2011, CP-48-CR-0002999-2011

BEFORE: DONOHUE, OLSON, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Harold Joseph Moser, appeals from the judgment of sentence[1] entered in the Northampton County Court of Common Pleas. He alleges that the sentencing court abused its discretion in failing to state legitimate aggravating circumstances upon the record to justify an aggravated range sentence, considering information that he was a repeat offender, and failing to consider the fact that he has cancer. Appellant also avers the sentence is manifestly unreasonable, excessive, and based upon the seriousness of the offense. We affirm.

The trial court summarized the facts and procedural history of this case as follows:

On November 10, 2011, [Appellant] entered a negotiated guilty plea to nine (9) counts of Sexual Abuse of Children (F3), one (1) count of Indecent Assault (M1), and one (1) count of Indecent Exposure (M3), in case number 2999-1011. [Appellant] simultaneously pled guilty to one (1) count of Tampering with Physical Evidence, and one (1) count of Resisting Arrest, in case number 2998-2011. Per the negotiated plea, the Commonwealth withdrew the remaining counts in both cases.
The factual predicate for the plea was a series of incidents in which [Appellant], the nine-year-old Victim's uncle, touched the Victim inappropriately, and took pictures of her in suggestive poses and clothing. The Victim's father died a short time before these incidents occurred. In addition, [Appellant] resisted arrest and attempted to destroy evidence when the police executed their search warrant.
After it accepted the plea, the Court remanded the matter to the prosecutor for presentation to the Sexual Offender Assessment board ("SOAB") for a hearing on whether [Appellant] was a sexually violent predator ("SVP"). The hearing took place on January 31, 2012, and the SOAB determined that [Appellant] was a SVP.
The court sentenced [Appellant] on February 3, 2012. Counsel for [Appellant] argued that [Appellant] did not have a formal criminal history, and noted that prior charges for sexual misconduct had been dropped. In addition, he noted that [Appellant] had recently been diagnosed with thyroid cancer. [Appellant] also exercised his right of allocution, asking the Court for leniency and a chance to make something positive out of his life.
The Commonwealth [ ] began [its] side of the case with a reference to [Appellant's] SVP designation. [P.S.[2], ] the Victim's mother (and [Appellant's] sister, . . .) described the impact of the sexual abuse on her daughter, and implored the Court to impose the maximum possible sentence.
[The Commonwealth] then highlighted questionable portions of [Appellant's] psychosexual evaluation. [W]hile [Appellant] claimed he was trying to "fix his marriage, " in reality, his wife had already divorced him. In addition, while [Appellant] claimed during his evaluation that he had never videotaped any of his sexual encounters, he had previously admitted to videotaping himself and his wife having intercourse.
The Court began its portion of the proceeding by noting for the record that it had reviewed all of the available information in preparation for this sentencing. The Court observed that [P.S.'s] testimony was particularly instructive, in that [Appellant's] conduct would continue to haunt the Victim and her friends and family for the remainder of her life.
. . . Taking all of the circumstances into account, the Court concluded that [Appellant] was a repeat sexual offender who was unfit for society. It therefore imposed the following sentence:
With respect to the resisting arrest and tampering with evidence charges, the Court imposed consecutive sentences of five (5) to ten (10) months of incarceration at a SCI.
The nine (9) counts of sexual abuse of children merged by law. Therefore, on this charge, the Court imposed a consecutive SCI sentence of fifteen (15) to thirty (30) months, followed by forty-eight (48) months of state probation. In addition, the Court imposed a consecutive charge of twelve (12) to twenty-four (24) months of incarceration, followed by twelve (12) months of state probation on the indecent exposure charge.
Finally, with respect to the indecent assault of a minor charge, the Court imposed a consecutive SCI sentence of fifteen (15) to thirty (30) months of incarceration, followed by twelve (12) months of state probation.
In summary, the Court imposed an aggregate SCI sentence of fifty-two (52) to one hundred four (104) months, followed by seventy-two (72) months of state probation. The Court noted that these were aggravated range sentences. The Court denied [Appellant] RRRI eligibility.

Trial Ct. Op., 7/18/12, at 1-5 (citations omitted).

Appellant filed timely post-sentence motions, which were denied by the trial court. This timely appeal followed. Appellant filed a timely court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court filed a responsive opinion.

Appellant raises the following issues in his statement of questions involved for our review:

I. Whether the Lower Court erred as a matter of law or abused its discretion in that it failed to properly state the legitimate aggravating circumstances upon the record so as to justify an aggravated range sentence; and that the Trial Court failed to observe that no such circumstances exist to justify an aggravated range sentence?
II. Whether the Lower Court erred as a matter of law or abused its discretion in that the sentence imposed by this Honorable Court is manifestly excessive and unreasonable; and is not supported by any facts which may properly have been considered by the Court; and is based only upon the perceived seriousness of the offense to the exclusion of all other relevant facts; and is inconsistent with the Sentencing Code and/or contrary to the fundamental norms underlying the sentencing process?
III. Whether the Lower Court erred as a matter of law or abused its discretion in considering evidence at the time of Sentencing as the Lower Court considered information offered by the District Attorney's Office that [Appellant] was a repeat offender despite having never been ...

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