author: CHARLES, J.,

text:
    Commonwealth v. Suarez-Irizzary

      C.P. of Lebanon County,
    nos. CP-38-CR-1204-2009, 1206-2009, 1207-2009, and 1217-2009.

      Nichole Eisenhart, for Commonwealth.

      Allen Welch, for defendant.
    August 6, 2010
   CHARLES, J.,

As technology increases, the law must keep pace. When maps were first created, they represented a cartographer’s “best estimate” of where things were located. Since then, measuring wheels, odometers, airplane photography and now global satellite imaging have moved cartography from the realm of human estimating to satellite-verified pinpoint accuracy. When the legal system needs to establish distance with precision, it should not eschew the accuracy that technology now affords in favor of more flawed and primitive means of measurement.

In this case, a dispute has arisen with respect to whether the situs of the defendant’s drug transaction was within 1,000 feet of a school so as to implicate the so-called “school zone sentencing enhancement.” The Commonwealth asks us to accept a distance measurement that the Commonwealth obtained using a computer program called “Google Earth”. The defendant challenges the Commonwealth’s ability to authenticate the “Google Earth” measurements. Stripped to its essence, the defendant claims that police should have undertaken a physical measurement instead of relying upon a computer-based satellite imaging system.

The issue before us is one of first impression within the Commonwealth of Pennsylvania. Based upon guidance we have gleaned from other jurisdictions, established general precedent regarding authentication, and our own commonsense analysis, we will uphold the Commonwealth’s request to establish school zone applicability using Google Earth.

I. FACTS

The defendant was charged on four separate action numbers as enacted in the following charts:

(1) Action no. CR-38-CR-1204-2009

(3) Action no. CR-38-CR-1217-2009

(4) Action no. CR-38-CR-1206-2009

Date of Location of Charge Date incident incident of guilty plea 6/12/09 801 E. Walnut St., Lebanon, PA Delivery of a controlled substance 6/16/10 6/12/09 801 E. Walnut St., Lebanon, PA Criminal use of communication facility 6/16/10

Throughout the pendency of the defendant’s prosecution, the Commonwealth consistently took the position that the defendant’s delivery occurred within 1,000 feet of a school. When the defendant entered a plea of guilty on May 3, 2010, he would not acknowledge in his plea that the drug delivery occurred within a school zone. Rather, he asked that the applicability of the school zone enhancement be decided by the sentencing judge.

On June 16,2010, the defendant was called before us for sentencing. Prior to actually sentencing the defendant, a brief hering was conducted regarding applicability of the school zone enhancement. At this hearing, the Commonwealth produced Detective William Walton of the Lebanon County Drug Task Force. Detective Walton testified that he utilized a computer program named “Google Earth” in order to determine that the defendant’s drug delivery occurred within 1,000 feet of a school. Detective Walton testified that he was familiar with the Google Earth computer program and that he had utilized that tool to determine distance on multiple occasions in the past. Detective Walton told us that before he began using Google Earth to determine distance, he verified its accuracy by physically measuring a distance between two known points and then using Google Earth to calculate the same distance. Detective Walton testified that Google Earth’s measurement was within one foot of the one he physically determined.

The defendant did not question the manner in which Detective Walton used the Google Earth system or that the Google Earth calculation resulted in a difference between the drug delivery and a school of less than 1,000 feet. However, the defendant vigorously challenged the authenticity of the Google Earth system. The defendant pointed out that Detective Walton played no part in setting up the satellite imaging system or the Google Earth computer program that relied upon it. Without such evidence, the defendant argued that we should simply disregard Detective Walton’s determination that his drug delivery occurred within 1,000 feet of a school zone.

Following the brief sentencing hearing, we asked both parties to submit briefs with respect to the Google Earth authenticity issue. We have received those briefs. The issue of the Commonwealth’s reliance upon Google Earth is now before us for disposition.

II. DISCUSSION

Authentication of evidence is addressed by the Pennsylvania Rules of Evidence. Pa.R.E. 901(a) states that the requirement of authentication “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa R.E. 901(a). Rule 901 regarding authentication contains a specific provision dealing with authentication of a “process of system.” Pa.R.E. 901(b)(9) permits authentication by “evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.”

To our knowledge, Pennsylvania’s appellate courts have not yet directly addressed the method by which a computer satellite imaging system can be authenticated. However, in Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170 (2006), our Supreme Court did discuss authentication of a computer generated recreation of a crime scene. The court determined that a three-prong test should be used. That test requires:

(1) Some evidence to authenticate the accuracy of the computer imaging;

(2) Relevance; and

(3) That the probative value of the computer imaging outweighs its prejudice.

In pre-internet days, the admissibility of maps was discussed on occasion by our appellate courts. “In determining the admissibility of maps and diagrams, much must be left to the discretion of the trial judge.” Albig v. Municipal Authority of Westmoreland County, 348 Pa. Super. 505, 520, 502 A.2d 658, 666 (1985), citing Jones v. Spidle, 446 Pa. 103, 286 A.2d 366 (1971). “Unofficial maps are usually admissible as evidence when verified by the testimony of a witness who has personal knowledge of their accuracy.” Albig supra at 520, 502 A.2d at 666. The key to authenticating maps is proof of their accuracy, reliability, completeness and fairness. 44 Am.Jur. Proof of Facts Second 707 (Foundation for admission of maps, diagrams or charts, section 1). From a very general perspective, the person who prepared a map or diagram need not be present in court so long as the witness can testify that the diagram fairly and accurately portrays relevant information. 3 Wharton’s Criminal Evidence § 16:24 (15th edition).

While Pennsylvania has not directly addressed use of satellite imaging systems to determine distance, other states have done so. Interestingly, most of the cases we found that addressed satellite imaging were presented within the context of a “school zone” dispute similar to the one now before us.

In Commonwealth v. Whitlock, 906 N.E. 2d 995 (Mass. App. 2009), the Commonwealth of Massachusetts sought to prove that a drug sale occurred within 1,000 feet of a school. The Commonwealth presented testimony from a police captain who used a computer program called “Arcview” to determine the distance between the school and the sale. The captain testified that he verified the accuracy of Arcview by comparing the Arcview measurement between two known points with a measurement he personally conducted using a measuring wheel. The court declared that this type of “calibration” was sufficient to support admissibility of the Arcview measurement. The court stated: “In each case where a witness testifies that he used a measuring tool to determine a distance, the relevant question is not whether the testimony is hearsay, but whether the foundation was sufficient for introduction of the observed result.” Id. at 1,000.

In State v. Polanco, 797 A.2d 523 (Conn. App. 2002), the state sought to use a computer-generated map to prove that cocaine was seized within 1,500 feet of a school. The defendant objected to the map based upon lack of foundation and complained that no one established the accuracy of the computer GPS system to create the map. The prosecutor called a geographic information systems technician to describe the map’s creation and use. This witness testified that he routinely generated distance information using the GPS system. The court permitted the admission of the computer-generated map and stated: “More specific testimony concerning the underlying technology was unnecessary, and any remaining doubt as to the reliability of that technology went to the weight to be given to the map, not its admissibility.” Id. at 534.

In State v. Franklin, 843 N.E. 2d 1267 (Ohio App.3d, 2005), the prosecution sought to prove that a drug sale occurred within 1,000 feet of a school. To do so, the prosecution proffered a geographic information system specialist who described global imaging software that he used to measure the distance between the drug sale and the school. The defendant argued that the global imaging software must be supported by expert testimony. The Ohio appellate court disagreed. As part of its reasoning, the court emphasized that the defendant had been given notice about the school zone distance and the prosecutor’s methodology of calculating that distance well in advance of trial. The court stated that the defendant therefore had the opportunity to conduct his own measurements in order to refute the state’s computer-generated calculations.

In State v. Young, 902 So.2d 461 (La. App. 2005), a police officer testified at trial that a drug sale occurred “approximately” 150 feet from a school. The court testified that the police officer’s mere estimation of distance, without more, was insufficient to establish that the drug sale occurred within Louisiana’s 1,000 foot school zone. On appeal, the prosecution attached maps and measurements generated by the computer program “Map Quest” to verify that the drug sale did in fact occur within the school zone. The prosecution asked the appellate court to take judicial notice of the measurements derived from “Map Quest”. The Louisiana appellate court refused to do so and determined that some supporting testimony would be needed in order to accept the Map Quest measurements.

As we sift through all of the above, we reach the following conclusions with respect to the admissibility of computer-generated satellite imaging distance calculations:

(1) Courts should not take judicial notice of computer-generated satellite maps.

(2) Authenticating evidence will be required before computer-generated satellite-based distance calculations are admitted in evidence.

(3) Neither expert testimony nor testimony from those who created the satellite imaging system are necessary in order to authenticate maps or distances derived from the use of the satellite mapping system.

(4) Computer-generated determinations of distance can be authenticated when an individual testifies that he/ she verified the accuracy of the computer program by comparing a computer-generated distance between two known points with an independently determined calculation of the distance between the same two points.

(5) In order to prevent undue prejudice from the use of computer-generated satellite-based imaging systems, the Commonwealth must produce the identity of the imaging system and the results of its usage to the defendant sufficiently in advance of its proffered use that the defendant can make independent calculations and/or dispute the accuracy of the system.

III. CONCLUSION

Based upon the legal conclusions we have derived from our research as outlined above, we determine that the Commonwealth’s use of the Google Earth technology was properly authenticated when Detective Walton testified about his familiarity with the Google Earth system and his independent verification of Google Earth’s accuracy using two known points that Detective Walton himself measured. In addition, it was plainly apparent to us that the defendant was well aware in advance of sentencing that the Commonwealth intended to produce a distance measurement calculated using Google Earth. The defendant therefore had ample opportunity to make his own distance calculations and/or challenge th accuracy of Google Earth.

Based largely upon these two factual findings, we overrule the defendant’s objection to the Comm on - wealth’s use of Google Earth technology. We will accept the Commonwealth’s Google Earth measurement at a rescheduled sentencing hearing that we will establish via an order that we will simultaneously enter.


source: Caselaw Access Project

author: PARISI, J,

license: Public Domain

text:
    Commonwealth v. Detsch

      C.P. of Berks County,
    no. CP-06-CR-4266-2005.

      Adrian Shchuka, for the Commonwealth.

      Christopher M. Brett, for defendant.
    July 14, 2010
   PARISI, J,

On January 20, 2010, the defendant was found guilty of a single count of sexual abuse of children possession of child pornography following a non jury trial. This court subsequently ordered the Pennsylvania Sexual Offenders Assessment Board to evaluate the defendant in order to determine if he met the criteria for classification as a sexually violent predator. After the evaluation was conducted, this court determined that the defendant was not a sexually violent predator. On April 26, 2010, the defendant received a split sentence, with this court sentencing the defendant to a period of incarceration of not less than six months nor more than 23 months, followed by two years of probatí on. On May 24, 2010, the defendant filed a timely notice of appeal to the Superior Court. The defendant raises the following claims on appeal:

“(1) Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the conviction for sexual abuse of children when it was not shown the defendant possessed pornographic images of underage children and the reasonable inferences to be drawn from the evidence presented at trial are equally consistent with the possibility that someone other than the defendant possessed the images.
“(2) Whether the evidence presented by the Commonwealth at trial was sufficient to sustain the conviction for sexual abuse of children when it was not shown that the images were of real children as opposed to computer generated images.
“(3) The lower court erred by improperly admitting Commonwealth exhibit 12 based on the improper admission of Commonwealth exhibit 17 which was hearsay not subject to an exception under the Hearsay Rule, Pa. Rule of Evidence 802, and whose declarant was not subject to cross-examination, in violation of the defendant’s right to confrontation in violation of the 6th Amendment to the U.S. Constitution and Article 1 Section 9 of the Pa. Constitution.” Defendant’s concise statement of matters complained of on appeal, 6/15/10.

FACTUAL BACKGROUND

On February 14, 2005, a cybertip was generated by the National Center for Missing and Exploited Children which was then accessed by Detective David Peifer of the Delaware County District Attorney’s office. The tip indicated that an America Online (AOL) customer with the screen name “schillerl759” emailed an image of child pornography on February 11, 2005 from the email address “schillerl759@aol.com.” The image appeared to be of a child under the age of 18 completely nude and engaged in a sexually explicit act/pose that revealed and exposed the child’s genitalia. AOL informed Detective Peifer that the account subscriber associated with the screen name “schillerl759” was the defendant. Detective Peifer secured a court order enabling him to acquire the internet protocol (IP) address for the computer from which the image was sent. The IP address was linked to a phone number belonging to the defendant. Detective Douglas Weaver and other members of the Berks County detectives executed a search warrant on the defendant’s residence located at 15895 Kutztown Road, Maxatawny Township, Pennsylvania. The defendant admitted that he was the subscriber of the AOL account described in the search warrant, but stated the account had been terminated in February for a violation, and now he knew what that meant. According to the defendant, the screen name, “schilierl759” was used by his roommate, Daniel Schaffer.

The police seized three computers, a hard drive, and hundreds of three and one-half inch floppy disks, five of which contained suspected child pornography, from the defendant’s residence. The defendant admitted to downloading material onto the floppy disks and labeling them. Some of the disks that contained suspected pornography were commingled with college lesson plans, college examinations and college syllabi.

Dr. Mark Reuben, a board-certified pediatrician, examined the images of suspected child pornography and determined, within a reasonable degree of medical certainty, that there were four photographs of nude children under the age of 18. One of these photographs was taken from on a floppy disk labeled, “National Seminars Group,” which was written in the defendant’s handwriting. Next to this label were the letters “MF” and “G hole no. 2.” Another photograph of nude individuals under the age of 18 was taken from a file labeled “bear 4047” located on the defendant’s Toshiba laptop. This file was accessed during the same time period as a file containing an answer sheet to a psychology exam on March 10, 2005.

The defendant, a Doctor of Philosophy, had previously taught psychology and related subjects at several schools, including Montgomery County Community College, and also conducted seminars for National Seminars Group.

DISCUSSION

The defendant’s first and second claims will be addressed together as they challenge the sufficiency of the Commonwealth’s evidence.

When reviewing the sufficiency of the evidence courts view the evidence in the record in the light most favorable to the Commonwealth as the verdict winner, and draw all reasonable inferences in its favor. Common wealth v. Davidson, 860 A.2d 575, 579-80 (Pa. Super. 2004). The reviewing court must then determine whether the evidence was sufficient to have permitted the trier of fact to find that each and every element of the crimes charged was established beyond a reasonable doubt. Id. at 580. The facts established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence so long as the evidence against the defendant is not “so weak and inconclusive that as a matter of law no probability of fact can be drawn from the circumstances.” Id. The Commonwealth may meet its burden by means of wholly circumstantial evidence. Commonwealth v. Crayhill, 926 A.2d 488, 490 (Pa. Super. 2007). Furthermore, it is within the province of the trier of fact to weigh the credibility of witnesses and to believe all, part, or none of their testimony. Commonwealth v. McCalman, 795 A.2d 412, 415 (Pa. Super. 2002).

Under section 6312(d)(1), a person commits a felony of the third degree when they:

“knowingly possess or control any book, magazine, pamphlet, slide, photograph, film, videotape, computer depiction, or other material depicting a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such act.”

A “prohibited sexual act” is defined as under section 6312(a) as:

“sexual intercourse, masturbation, sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the genitals, or nudity if such nudity is depicted for the purpose of sexual stimulation or gratification of any person who might view such depiction.”

Accordingly, there are three elements which the Commonwealth must satisfy to support a conviction under section 6312(d)(1): (1) there must be a depiction of an actual child engaged in a prohibited sexual act or simulation of such act; (2) the child must be under the age of 18; and (3) the defendant must have knowingly possessed or controlled the depiction. Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006). (emphasis added)

Accessing the internet and viewing child pornography over the internet constitutes control for purposes of section 6312(d). Id. at 436-37.

A review of the record reflects the Commonwealth established that the defendant knowingly possessed or controlled prohibited material under section 6312(d)(1). The defendant admitted to owning the computer and the AOL account from which the initial illicit photograph that triggered the investigation was emailed. The defendant admitted to downloading the files from his computers onto floppy discs and labeling the discs with names that corresponded to the names from the original files. The Commonwealth’s expert, Dr. Reuben, established that there were four photographs of nude children under the age of 18 among the material removed from the computers and floppy discs belonging to defendant. One of the images which Dr. Reuben determined depicted a nude child under the age of 18 was taken from a floppy disc labeled “National Seminars Group,” a group which the defendant was previously associated with. Additionally, the police found photographs of nude individuals established to be under the age of 18, in a file labeled “Adil 0171” taken from the defendant’s HP Pavilion desktop computer and in a file labeled “bear 4047” taken from the defendant’s Toshiba laptop. The “bear 4047” file was accessed during the same time period as a file containing an answer sheet to a psychology exam on March 10, 2005.

Despite the reasonable inferences the fact-finder may derive from this evidence, the defendant alleges the evidence presented at trial is equally consistent with their theory that someone other than the defendant possessed the images. This contention ignores the standard of review. In this case it was the province of the court, as trier of fact, to determine the weight to be accorded to the evidence and to assess the credibility of the witnesses. Koehler, 914 A.2d at 437. This court found the Commonwealth’s evidence to be credible and disbelieved the defendant’s theory that his roommate downloaded the images of child pornography and maintained exclusive access to and control over the images. The defendant’s argument regarding possession and control is further undermined by the fact that at least one of the images of child pornography was accessed during the same time period as a file containing material for a course taught by the defendant. Given the totality of the evidence presented at trial, there exists no reason to disturb this court’s finding that the defendant knowingly possessed or controlled the depictions of nude children for the purpose of sexual gratification in violation of section 6312(d)(1).

The defendant further contends that his conviction cannot stand as the Commonwealth failed to establish that the depictions were of real children as opposed to computer generated images. Again, this claim ignores the logical inferences that this court derived from the evidence presented at trial. Dr. Reuben, stated he had reviewed the photographs of individuals relevant to the defendant’s case. He testified to a reasonable degree of medical certainty that four of the photographs he reviewed depicted nude children under the age of 18. Dr. Reuben explained, in depth, the analysis he used to determine whether these individuals were under the age of 18 based upon their sexual development. Given Dr. Reuben’s experience and the context of his testimony, this court as trier of fact, could reasonably infer, especially after having viewed the photographs, that these items were photographs of “real children” and not computer generated images. See Davidson, 860 A.2d at 584. Thus, when viewed in the light most favorable to the Commonwealth, the evidence present at trial was sufficient to sustain the defendant’s conviction for a single count of sexual abuse of children possession of child pornography.

The defendant’s final claim is that this court erred in admitting Commonwealth exhibit 12 based upon an improper admission of Commonwealth exhibit 17 as this exhibit constituted hearsay and did not meet any exceptions to the hearsay rule under Pa.R.E. 802.

In Pennsylvania, hearsay is defined as an out-of-court statement offered at trial to prove the truth of the matter asserted. Pa.R.E. 801. However, an out-of-court statement offered to explain a witness’ course of conduct is not hearsay and is admissible without first satisfying any of the hearsay exceptions. Commonwealth v. Rega, 593 Pa. 659, 693, 933 A.2d 997, 1017 (2007).

At trial, Detective Weaver testified that the images in the photographs taken from the floppy disc labeled “National Seminars Group,” contained known images of child pornography as these images were part of the “Sabban” series. Defense counsel objected on the basis of hearsay to this testimony and to the admission of a letter from Brazilian law enforcement officer, Julio Velez, regarding an investigation of the “Sabban” series which stated that the individuals in the photograph removed from the floppy disc labeled “National Seminars Group” were under the age of 18. This court overruled the objections to the admission of the letter and the testimony about the “Sabban” series investigation. N.T., bench trial, 1/19/10, pp. 37, 39, and 129. However, this court expressly stated that it would admit this evidence solely for the purpose of Detective Weaver explaining his investigation and not as a conclusion as to whether the images in the “Sabban” series, in fact, met the definition of child pornography under Pennsylvania law. Id. at p. 39.

Based on this court’s ruling, the letter regarding the “Sabban” series and Detective Weaver’s testimony about the “Sabban” series investigations were not admitted to prove the truth of the matter asserted, i.e., that the individuals in the photographs removed from the defendant’s residence were under the age of 18. Detective Weaver stated that he reviewed the letter to determine if any of the images from the “National Seminars Group” floppy disc were part of the “Sabban” series as part of his initial investigation. As this court limited the admission of this testimony regarding the “Sabban” series and the letter solely to explain the course of action taken by Detective Weaver in his initial investigation of the defendant, this evidence did not constitute hearsay evidence, See Rega, 593 Pa. at 693, 933 A.2d at 1017. As a result, the floppy disc labeled “National Seminars Group” and the images contained therein were not improperly admitted based upon hearsay evidence. Therefore, the defendant’s right to cross-examination under the confrontation clauses of the federal and state constitutions was not violated. Thus, the defendant’s final claim on appeal fails.

For the foregoing reasons, this court respectfully requests that the defendant’s appeal be denied.

      . 18 Pa.C.S. §6312(d)(1).

      . Commonwealth exhibits 13,20,21, and 24.

      . Commonwealth exhibit 12.

      . Commonwealth exhibit 13.

      . Commonwealth exhibit 20.

      . Dr. Reuben’s qualifications included three years of pediatric training at St. Christopher’s Hospital for Children in Philadelphia, certification by the American Board of Pediatrics, and over 30 years in practice as a pediatrician. His professional experience included viewing thousands of patients in person and viewing pictures of children as an expert witness in previous court cases.

      . Detective Weaver testified that the “Sabban” series is a series of images of individuals which law enforcement officers have previously reviewed during investigations and determined that the individuals in the images were under the age of 18.

      . Commonwealth exhibit 17.


author: HODGE, J,

text:
    Carnahan v. Carnahan

      C.P. of Lawrence County,
    no. 10217 of 2008, C.A.

      Susan M. Papa, for plaintiff.

      Charles S. CusickJr, for defendant.
    July 2010
   HODGE, J,

The plaintiff and defendant have presented exceptions to the report of the master relative to the economic claims attendant to the parties divorce action.

The parties were married on December 31,1994 and separated on July 23, 2007. The plaintiff presented 11 exceptions for review; the defendant presented five exceptions for review.

In disposing of these exceptions, the court observes that while a master’s report is advisory only, it is to be given great deference. Fiorilli v. Fiorilli, 202 Pa. Super. 529, 195 A.2d 369 (1964), Morschhauser v. Morschhauser, 357 Pa. Super. 339, 516 A.2d 10 (1986). A reviewing court has a duty to make a complete and independent review of the proceeding below. Rollman v. Rollman, 280 Pa. Super. 344, 421 A.2d 755 (1980).

In reviewing master’s considerations, however, the report should be given “fullest consideration” particularly on issues of credibility. Kohl v. Kohl, 387 Pa. Super. 367, 564 A.2d 222 (1989). The review is intended to discover inherent improbabilities in the stories of the witnesses, inconsistencies and contradictions, bias, interest, and opposition to incontrovertible physical facts by which credibility may be ascertained. Rollman, supra. However, because the master is the person hearing the testimony and observing the demeanor and appearance of the witness, any issue of credibility must be resolved by giving the master’s findings the fullest consideration, Rorabaugh v. Rorabaugh, 302 Pa. Super. 1, 448 A.2d 64 (1982). With this standard in mind, the following is a discussion and disposition of all exceptions.

PLAINTIFF’S EXCEPTION 1

The award of alimony is unsupported by fact and contrary to law. The master failed to consider defendant’s substantial earnings and properly apply the factors of the divorce code.

An award of alimony is issued with the purpose of effectuating economic justice between the parties, 23 Pa.C.S. §3102 (a)(6), and is guided by the factors in 23 Pa.C.S. §3701. The parties in the instant action were married for 12 1/2 years, and have two minor children together. Each party is in good health. Plaintiff is currently earning approximately $3,300 per month with her employment at Verizon as a staff clerk; her month needs total approximately $4,850. Husband’s monthly income is approximately $6,500, which he earns as a senior staff consultant with Verizon; his monthly needs total $4,000, not including his support obligations. Plaintiff’s role as a homemaker and primary caregiver for their two children allowed defendant to concentrate on his career at Verizon. Consequently, defendant has advanced his career significantly with the company, but does not enjoy the job security that plaintiff has in her position at Verizon.

In 2001, defendant was admittedly unfaithful to his wife; this resulted in an overall distrust of defendant by plaintiff to the point were plaintiff suspected defendant of having a second affair. Although plaintiff has been faithful and dedicated to defendant throughout the course of their marriage, plaintiff has mishandled the marital finances by spending beyond the means of the parties, incurring debt up to credit limits, all of which also resulted in the parties having to obtain loans to pay these bills. The marital problems resulted in the parties separating on July 23,2007; plaintiff filed a complaint in divorce in February of 2008.

Alimony following a divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill. Twilla v. Twilla, 445 Pa. Super. 86, 664 A.2d 1020 (1995). Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage, as well as the payor’s ability to pay. Isralsky v. Isralsky, 824 A.2d 1178, 1188 (Pa. Super. 2003).

At this time, plaintiff’s monthly income does not sustain her reasonable monthly expenses. Defendant, to the contrary, is easily able to generate enough monthly income to cover his monthly expenses. The master was correct in awarding plaintiff alimony, however, upon review this court does not find that said alimony is sufficient in value to sustain the economic needs of plaintiff as she transitions past this divorce. A more appropriate figure equaling $1,300 shall be awarded to plaintiff. Plaintiff’s exception 1 is granted.

PLAINTIFF’S EXCEPTION 2

The master failed to set forth the percentage distribution of marital property.

In an equitable distribution proceeding the master is not required to set forth a specific percentage for the distribution of marital property; the method of distribution is derived from the facts of the individual case, whereas no simple formula need be applied. Anthony v. Anthony, 355 Pa. Super. 589, 514 A.2d 91 (1986). Plaintiff’s exception 2 is denied.

PLAINTIFF’S EXCEPTION 3

The master erred in failing to give plaintiff credit for the negative value of the marital residence.

A review of the record shows that the master properly considered the negative value of the marital residence. In evaluating the value of the marital residence, the master calculated the current fair market value of the residence, evaluated at $190,000, minus the current balance of the mortgage, equaling $162,500, and the current balance of the home equity loan, equaling $33,370. From this calculation, master arrived at anet burden of $5,870. Master correctly concluded that plaintiff should be responsible for the net burden, as this cost was offset by plaintiff being awarded all the furnishings currently located within the home, which have been estimated to have a value of approximately $8,400. Plaintiff’s exception 3 is denied.

PLAINTIFF’S EXCEPTION 4

The master erred in failing to consider the lump sum tax ramifications of a lump sum alimony pendente tile payment.

The master states in his report that “an award of alimony should not impact the parties’ tax status beyond the general implications commonly associated with an award/obligation of alimony.” (Master’s report p. 46.) Alimony in general is deductible from the payor spouse’s taxable income under Internal Revenue Code §215 and includable in the payee spouse’s income under Internal Revenue Code §71 if the following requirements are met: paid pursuant to a court order or written separation agreement, IRC §71 (b)(1)(A); not designated by the order or agreement as nondeductible to the payor and excludable to the payee, IRC §71 (b)(1)(B); the payor and payee are not living in the same household following a divorce decree, IRC §71 (b)(1)(C); not required under support order or agreement to continue payment under death of payee, 71 (b)(1)(D); and no portion of payment is allocated to child support, 71 (b)(1)(E).

Because all of the above statutory provisions are met, plaintiff’s award of alimony is subject to tax as included in her general income. Throughout the course of marriage, income generated by both parties subjected them to be taxed at a 25 percent marginal rate. Given plaintiff’s current income and support award, plaintiff would still be subject to the same rate that she was previously taxed at. The master correctly concluded that said alimony would not result in plaintiff being subject to any extreme tax implications, and plaintiff presents no evidence to the contrary. Plaintiff’s exception 4 is denied.

PLAINTIFF’S EXCEPTION 5

The master erred in his conclusion that defendant’s standard of living has declined. Plaintiff’s standard of living has declined in favor of the best interest of the minor children.

The master concluded that both the plaintiff and defendant have had a decline in their respective standards of living subsequent to separation. The master found that prior to separation the parties established a comfortable lifestyle as an upper middle class family and had a combined annual income of approximately $190,000. Plaintiff has suffered by no longer having defendant contribute to the household income, yet defendant has also suffered by leaving the marital residence to reside in a two bedroom apartment. Difficulty is certain to arise when both parties wish to assume the same standard of living enj oyed prior to separation, yet the available assets are being divided. Regardless of such a consequence, the parties should attempt to maintain such a standard to whatever extent possible. See e.g. Willkow v. Willkow, 26 D.&C. 3d (1982). As such, the burden of separation has adversely affected both parties in this case.

Furthermore, in any divorce proceeding, both parties are obligated to serve the best interests of the children involved. Conway v. Dana, 456 Pa. 536, 318 A.2d 324 (1974). The primary purpose is to give children some semblance of the standard of living that the children would experience had the family remained intact. Schenkel v. Schenkel, 47 Lehigh L.J. 469 (1997).

The court finds the master did not err in his assessment of the standard of living as related to both parties. Plaintiff’s exception 5 is denied.

PLAINTIFF’S EXCEPTION 6

The master erred in finding that all stock units and all other related assets were defendant’s separate property and not marital.

In determining whether or not an asset received by a spouse is marital, a court must consider when the right to receive the asset accrues. Diamond v. Diamond, 360 Pa. Super. 101, 519 A.2d 1012 (1987). The time that the spouse actually receives an asset is not controlling in determining if the asset is marital property. Id. For example, in the case of LaBuda v. LaBuda, 349 Pa. Super. 524, 503 A.2d 971 (1986), the court determined that pension benefits and the like, can be considered marital property depending upon when the right to receive them accrues, regardless of the fact that the asset was actually received post separation.

Futhermore, any money which is included in an individual’s income for the purposes of calculating support payments may not be labeled as a marital asset subject to equitable distribution. Berry v. Berry, 898 A.2d 1100, 1104 (Pa. Super. 2006) (quoting Rohrer v. Rohrer, 715 A.2d 463, 465 (Pa. Super. 1998). In this case, like the case of Berry, defendant earned the stock options during the course of marriage; however with respect to the stock units issued in 2007, defendant did not have access to the funds at the time of separation as they were due to vest on December 31, 2009 and available shortly thereafter. Defendant did not have the right to access the stock units prior to 2010 and they are therefore not marital in nature. Furthermore, to the extent that the stocks had not yet vested, it would be inappropriate to regard them as having any value. The stock units earned in years 2005, 2006 and 2007 did not vest until after separation and have properly been considered for support purposes. To characterize these stock units as marital property, which they are not, would result in defendant being subject to “double-dipping” and improperly subject to both support and equitable distribution.

Plaintiff’s exception 6 is denied.

PLAINTIFF’S EXCEPTION 7

The master erred in his treatment of the EDP account as a source of alimony pendente lite. The EDP should have been divided 65 percent/3 5 percent to plaintiff and defendant and an alternative source used for APL.

The Verizon Executive Deferral Plain (EDP) is comprised of restricted stock units, which have been deferred by defendant; these stocks have not yet been received by defendant nor have they been considered for support purposes. The RSU’s as previously established can not be characterized as a marital asset. (See discussion plaintiff’s exception 6.) For this reason, it is improper to consider them for purposes of equitable distribution. The master, in utilizing the EDP as a source for alimony pendent lite, found that because the money in the EDP account is currently available to defendant, the most appropriate action is to also make the funds currently available to plaintiff. As such, the master properly treated the account as a source for alimony pendent file.

Plaintiff’s exception 7 is denied.

PLAINTIFF’S EXCEPTION 8

The master erred in assigning plaintiff a 50 percent interest in defendant’s 401(k) for the reason that equity strongly favors plaintiff Plaintiff should receive a gi-eater distribution than 50 percent.

Plaintiff is correct in her assertion that she was only awarded 50 percent of defendant’s 401(k). Plowever, plaintiff was awarded her entire benefit pension plan valued at $31,888 and her own 401(k) plan valued at $32,300, in addition to 50 percent of the marital component of defendant’s 401 (k) plan. If the total marital values of both parties’ pensions / 401(k)s are summated, they equate to $205,188. If plaintiff evaluates her portion of this entire amount ($ 134,688), she will see that master awarded her 66 perecent of the total ($134,688 / $205,188). The master’s equitable division of the parties’ pensions / 401 (k)s does in fact economically favor plaintiff. It would not be economically justifiable to consider defendant’s 401 (k) without additionally considering plaintiff’s pension and 401 (k).

Plaintiff’s exception 8 is denied.

PLAINTIFF’S EXCEPTION 9

The master erred in awarding plaintiff alimony for only four years.

The primary purpose of alimony is to provide the recipient spouse with sufficient income to obtain the necessities of life for a reasonable time after the marriage ends, so that the party has the ability to rehabilitate the self from that point forward. Zullo v. Zullo, 531 Pa. 377, 613 A.2d 544 (1992). Alimony is not designed to be a form of punishment or economic equalization. Id. The master’s award of alimony to plaintiff for four years is appropriate in duration. The master found that in this time, plaintiff could complete her education and become more economically stable. Plaintiff’s exception 9 is denied.

PLAINTIFF’S EXCEPTION 10

The master erred in designating that certain accounts were non-marital because they appear on defendant’s W-2, and further that said funds were previously considered when calculating support.

A review of the master’s report indicates that the master considered defendant’s W-2 statements in order to determine which stocks and other accounts have already been designated as income to defendant. Any income listed on defendant’s W-2 is subject to consideration for purpose of establishing defendant’s income to generate a support award to plaintiff. In doing so, the master did not specifically label accounts as non-marital, but instead characterized the payouts as income. To the extent that income appears on defendant’s W-2, domestic relations can utilize these figures to calculate an appropriate support award; as such the master properly took into consideration said amounts.

Plaintiff’s exception 10 is denied.

PLAINTIFF’S EXCEPTION 11

The master erred in his division of defendant’s non-marital accounts.

See discussion of plaintiff’s exceptions 6 and 7.

PLAINTIFF’S EXCEPTION 12

The master erred in not including all stock options in the alimony pendente life calculation.

As previously established, not all of defendant’s stock options have been taken into consideration for support purposes, but most have. The stock options provided to defendant in the year 2007 are the only remaining stocks which have not been taken into consideration for calculating support. As such, these stocks must be properly allocated to each party. When the portion of the stock labeled PSU vests, (December 31,2009), defendant must take the payment in 2010. The RSUs, however, can be utilized by defendant or deferred to the EDP account. Any stock options in the EDP account have not been paid to defendant, consequently they have not appeared on his W-2 as income, and have not been taken into consideration for support. The master properly found that these remaining stock options were an appropriate source for alimony pendente lite. Plaintiff’s exception 12 is denied.

DEFENDANT’S EXCEPTION 1

The master erred in failing to differentiate between marital non-qualified assets and marital qualified assets.

See discussion plaintiff’s exception 6 and 7. Defendant’s exception 1 is denied.

DEFENDANT’S EXCEPTION 2

The master erred in awarding plaintiff an equitable distribution of assets in excess of two-thirds of the marital equity.

In defendant’s legal memorandum in support of his exceptions, defendant asserts that the parties’ retirement funds would be more appropriately divided in the vicinity of 50/50. However, this court finds defendant’s suggestion to be improper and inconsistent with case law. The master properly took into consideration all relevant factors including, but not limited to, length of marriage, sources of income of the parties, employability, and future needs. In an equitable distribution hearing, it is not uncommon for the needs of one party to outweigh the needs of the opposing party, resulting in an equitable distribution that favors one over the other. Equitable division does not presume an equal division of marital property, rather the goal is economic justice. 23 Pa.C.S. §3502. The master having considered all relevant factors did not err in his distribution of the marital estate.

Defendant’s exception 2 is denied.

DEFENDANT’S EXCEPTION 3

The master erred in awarding plaintiff lump sum alimony pendente lite in the amount of $44,781.30.

See discussion, plaintiff exception 12. Defendant’s exception 3 is denied.

DEFENDANT’S EXCEPTION 4

The master erred in his recommendation that defendant pay plaintiff alimony and alimony pendente lite because amounts used to calculate both alimony and alimony pendente lite were treated as both property and income for purposes of equitable distribution.

Defendant references the case of Dalrymple v. Kilishek, 920 A.2d 1275 (Pa. Super. 2007), in support of his fourth exception. This court would agree that the amount of alimony must be consistent with the reasonable needs of the party and the standard of living established during the course of marriage, and believes that the master was consistent with this case law to the degree that the amount of alimony award did not exceed plaintiff’s reasonable needs, but in fact, was insufficient to do so. Furthermore, the duration of the support was for four years, a reasonable time for plaintiff to further her educational career and move past this divorce proceeding.

Plaintiff’s award of alimony pendente lite, unlike alimony, is not dependent upon the status of the parties, but upon the status of the litigation, and consequently terminates at the time of divorce. Spink v. Spink, 422 Pa. Super. 126, 619 A.2d 277 (1992). The fact that plaintiff does work and is able to earn income does not mean that she will be equally situated with the defendant to proceed with pending action. The master properly considered all relevant factors in determining plaintiff’s need for alimony pendente lite, and was justified in his determination.

Defendant’s exception 4 is denied.

DEFENDANT’S EXCEPTION 5

The master erred in his recommendation and proposed order by basing his assessments on the theory of income equalization.

The court determines that, after a review of the record, defendant’s exception 5 is without merit and without sufficient case law to find otheiwise. Defendant exception 5 is denied.

ORDER

And now, July 20, 2010, the following argument on plaintiff’s and defendant’s exceptions to the report of the master, and after consideration of the briefs and arguments of counsel, and in accordance with the attached opinion, the court hereby orders and decrees as follows:

(1) Plaintiff’s exception 1 is granted. Defendant shall pay alimony to plaintiff in the amount of $1,300 per month for four years.

(2) Plaintiff’s exception 2 is denied.

(3) Plaintiff’s exception 3 is denied.

(4) Plaintiff’s exception 4 is denied.

(5) Plaintiff’s exception 5 is denied.

(6) Plaintiff’s exception 6 is denied.

(7) Plaintiff’s exception 7 is denied.

(8) Plaintiff’s exception 8 is denied.

(9) Plaintiff’s exception 9 is denied.

(10) Plaintiff’s exception 10 is denied.

(11) Plaintiff’s exception 11 is denied.

(12) Plaintiff’s exception 12 is denied.

(13) Defendant’s exception 1 is denied.

(14) Defendant’s exception 2 is denied.

(15) Defendant’s exception 3 is denied.

(16) Defendant’s exception 4 is denied.

(17) Defendant’s exception 5 is denied.

(18) The prothonotary shall properly serve notice of this order upon counsel of record for the parties.


author: STEINBERG, J.,

text:
    Commonwealth v. Holmes

      C.P. of Lehigh County,
    no. CR.-2880-2009.

      Jeffrey Burd, deputy district attorney, for Commonwealth.

      Carol Marciano, for defendant.
    July 16, 2010
   STEINBERG, J.,

On February 11, 2010, the defendant, Leroy Holmes, was found guilty following a jury trial of theft by unlawful taking or disposition and receiving stolen property. The defendant was convicted of unlawfully taking personal belongings from the Garcia household while they were at church. The police recovered Mrs. Garcia’s purse and its contents during a vehicle stop of the defendant’s vehicle shortly after the theft. The jury determined that the stolen property had a value of $200 or more, but less than $2,000.

Following the guilty verdict this court ordered a presentence investigation report. A sentencing hearing was held on April 6,2010, at which time this court determined that the conviction for receiving stolen property would merge with the conviction for theft by unlawful taking or disposition. Thereafter, the defendant was sentenced to a period of incarceration of not less than 24 months nor more than 60 months in a state correctional institution.

On April 16,2010, the defendant filed a timely “post-sentence motion.” In that post-sentence motion the defendant challenges the court’s determination that the defendant’s prior record score is three and also seeks to have this court modify/reconsider the sentence. A hearing on the post-sentence motion was held on June 21, 2010.

For the reasons discussed below, the “defendant’s post-sentence motion” is denied.

BACKGROUND

On May 31, 2009, the Garcia family, who resided at 324 1/2 North Jefferson Street in Allentown, left their home around noontime to worship at their church. When the last members of the Garcia household departed for church, their home was secured. Their church activities kept them away from their home until approximately 3 p.m., and upon returning home, they discovered it was burglarized. Specifically, when Ms. Garcia entered the front of her home she noticed CDs scattered on the floor, stereo equipment missing, and her back door open. During Ms. Garcia’s testimony, she provided a room by room inventory of the items stolen, which included stereo equipment, laptop computers, a television, Playstation 3 with games, and $50. Additionally, Ms. Garcia’s purse was stolen from the residence.

The police were called, and Officer Jason Ehl of the Allentown Police Department responded at approximately 3:30 p.m. Ms. Garcia explained what they had discovered, and that her husband was speaking with a neighbor. The neighbor, Kaleb “Nate” Beauplan, informed the police that he observed a “big banana boat car” parked in the alley behind the Garcia residence. Mr. Beauplan described the vehicle as a yellowish in color car from the 70s with a dog in the back seat. Fie observed two males, one black and the other white, making four to five trips back and forth from the residence to the car. They were both “moving things” from the residence. Some of the items he described during his testimony included a Playstation 3, computers and something that “looked like a television.” He also noticed that the car was running while the items were being removed from the Garcia residence. Following the vehicle’s departure, Mr. Beauplan observed that the gate to the Garcia’s yard was open, a window in the back of the home was open, and an air conditioning unit was sitting on the ground outside the window. Mr. Beauplan then began walking back to his residence when he heard someone say, “Oh my god” in Spanish, and saw Mr. Garcia. He told Mr. Garcia what he had observed, and provided a description of the vehicle. He also suggested that someone examine the security camera at the beauty salon at the end of the alleyway.

Officer Ehl and Ms. Garcia were able to review the video footage from the security camera, and observed a very large older model vehicle, which was yellow in color. The vehicle was seen exiting the alleyway. While Officer Ehl was viewing the video footage, Mr. Garcia began searching for the vehicle, which he located in the area of 7th and Gordon Streets. He followed it, secured the license plate number, and contacted his wife about his discovery.

Officer Ehl was immediately notified of Mr. Garcia’s discovery, and responded in his police vehicle. He observed the vehicle heading north on 10th Street, and then turn right on Gordon Street. He activated his lights and siren and within a short distance the vehicle, which was registered to the defendant, stopped. The front passenger, however, exited the vehicle and fled.

Officer Ehl approached the driver’s side of the vehicle, and the defendant, who was the driver of the vehicle, was ordered out of the vehicle. Inside the vehicle, on the center bench seat, was a purse with large long straps and an ornate buckle. It was identified by Ms. Garcia as her purse that was taken from her home. An inventory of the purse revealed a driver’s license, credit cards, and other items of the Garcias. The other items stolen were not found in the vehicle, and were never recovered. However, the defendant’s apprehension did not occur until 30-40 minutes after Officer Ehl’s arrival at the Garcia home.

The defendant was arrested and taken to police headquarters. The defendant waived his Miranda rights and provided a written statement to police. He told the police that he gave his friend Flow a ride to Flow’s parents home, helped to gather Flow’s belongings in the home, and moved the belongings to Flow’s girlfriend’s home. The defendant claimed that he was unaware that Flow did not reside at that address or that the items taken were not Flow’s.

The Garcia’s testified that they did not know the defendant or Flow and did not give anyone permission to enter their home while they were at church. Additionally, the Garcia’s testified that their air conditioning unit was inside their home, not outside on the ground, when they left their home on May 31, 2009.

DISCUSSION

The defendant’s initial contention is that this court incorrectly calculated his prior record score. A misapplication of the sentencing guidelines constitutes a challenge to the discretionary aspects of a sentence. Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998). Therefore, although a sentencing court is not obligated to sentence within the sentencing guidelines, to properly exercise its discretion, accurate guidelines must be applied to reach the correct point of departure. Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa. Super. 2008), citing Archer, 722 A.2d at 210.

The defendant alleges that his prior record was a two and not a three. The specific offense in dispute was the defendant’s prior adjudication for burglary in Florida on November 8,2004. The presentence investigation report assessed only one point for this offense, while this court scored that offense as a two point offense. The effect of this dispute would minimally change the standard range of the guidelines. Specifically, if the burglary adjudication only resulted in being a one point offense, the overall standard range would be RS-9. If the offense was a two point offense, the standard range would be RS < 12.

The presentence investigation report calculated the defendant’s prior record score based upon a review of the following adjudications or convictions:

The first nine offenses were committed by the defendant when he was a juvenile. However, the first four would not be considered in the prior record score because they occurred prior to the defendant’s 14th birthday.

No dispute existed that the adjudications for grand theft larceny on November 8,2004 would add one point to the defendant’s prior record score. The dispute pertains to assessing two points for the burglary adjudication that also occurred the same date. If two points for the burglary adjudication is the correct calculation, then two points would be added to the defendant’s prior record score for all of these offenses. “Only the most serious juvenile adjudication of each prior disposition is counted in the prior record score.” In fact, the defendant’s entire juvenile history only resulted in two points towards his prior record score.

During the sentencing hearing, this court heard argument on whether the burglary adjudication should be considered a one or two point offense. “[Wjhenever the information contained in the presentence [investigation] report is challenged by the defendant at sentencing it is incumbent upon the court to engage in a fact-finding function to determine the truth or falsity of the statements contained in the report.” Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999), quoting Commonwealth v. Kerstetter, 398 Pa. Super. 202, 207, 580 A.2d 1134, 1135-36 (1990). “When a defendant alleges his prior record score is incorrect because he was not responsible for certain prior convictions listed in the presentence report, the court should inquire into the circumstances surrounding the convictions.” Medley, 725 A.2d at 1229. However, the defense has the burden of alleging invalid prior convictions. Commonwealth v. Neary, 355 Pa. Super. 92, 107, 512 A.2d 1226, 1234 (1986); Commonwealth v. Charles, 339 Pa. Super. 284, 296, 488 A.2d 1126, 1132 (1985).

Here, the defendant does not deny that he was adjudicated delinquent for burglary, but claims that the Florida statute for burglary encompasses less severe offenses. Specifically, the Florida burglary statute includes entering a “dwelling, a structure, or a conveyance with the intent to commit an offense therein....” Defense counsel provided a copy of the Florida statute, but was unable to provide docket entries or other evidence to demonstrate that the adjudication was not equivalent to Pennsylvania’s burglary statute. The presentation of a statute, which may or may not support the defendant’s position, does not satisfy the defendant’s burden to show that the allegations appear to have merit justifying further inquiry.

Furthermore, in light of the defendant’s overall criminal history and the sentence imposed of not less than 24 months nor more than 60 months, which was a deviation regardless of the prior record score calculation, this dispute had a negligible impact on the sentence. This is especially true when considering the defendant’s adult offenses, which involved the thefts of two vehicles and a theft from a third vehicle. Additionally, the defendant was on parole for those offenses when he committed this theft. Although only one point was added to the defendant’s prior record score for these three separate offenses because they were imposed in one judicial proceeding, it is apparent that the prior record score was an inaccurate gauge of the defendant’s criminal history.

The defendant also contends that his sentence was excessive and unreasonable, and that the court failed to set forth adequate reasons for the sentence. However, a review of these claims, which pertain to the discretionary aspects of the defendant’s sentence, do not present a substantial question regarding the sentence.

“It is well-settled that appeals of discretionary aspects of a sentence are not reviewable as a matter of right.” Commonwealth v. Ladamus, 896 A.2d 592, 595 (Pa. Super. 2006) see also, Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super. 2006), Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003) and Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002). The defendant must demonstrate that a substantial question exists concerning the sentence. Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super. 2005). A substantial question exists 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 underlies the sentencing process. Mouzon, 571 Pa. at 434, 812 A.2d at 627. See also, Commonwealth v. Garcia-Rivera, 983 A.2d 777, 779 (Pa. Super. 2009), quoting Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007).

“The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis.” Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005). However, a substantial question requires something more than alleging the failure to consider a mitigating circumstance or excessiveness. See Ladamus, 896 A.2d at 595. See also, Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008) (A claim of inadequate consideration of mitigating circumstances does not raise a substantial question for review). Likewise, merely alleging that the sentence was unreasonable because it was outside the guidelines does not establish a substantial question. Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super. 2005). See also, 42 Pa.C.S. §9781(c)(3).

The defendant contends that this court failed to state its reasons for deviating from the guidelines. A claim that the trial court failed to state its reasons for deviating from the guidelines presents a substantial question. Garcia-Rivera, 983 A.2d at 780. “Where the trial judge deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.” Commonwealth v. Wagner, 702 A.2d 1084, 1086 (Pa. Super. 1997), quoting Commonwealth v. Royer, 328 Pa. Super. 60, 70-71, 476 A.2d 453, 457 (1984). The defendant’s claim is contradicted by the record and as such fails to present a substantial question.

Even if the merits of the defendant’s sentencing contentions are considered, the defendant fails to demonstrate that there was an abuse of discretion in imposing a sentence outside the guidelines. Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007); Hoch, 936 A.2d at 519. The following explanation has been used as the starting point for determining if the sentencing court properly exercised its discretion:

“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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006), citing Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (enbanc).

Furthermore, if “the sentencing court proffers reasons indicating that its decision to depart from the guidelines is not unreasonable” its responsibilities have been fulfilled. Commonwealth v. Gibson, 716 A.2d 1275, 1277 (Pa. Super. 1998), citing Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893 (1996).

A sentence that exceeds the sentencing guidelines does not make the sentence unreasonable. The guidelines are advisory and nonbinding, but the sentencing court must consider them in formulating a sentence. Walls, 592 Pa. at 569, 926 A.2d at 964. The purpose of the guidelines was explained in Walls as follows:

“Consultation of the guidelines will assist in avoiding excessive sentences and further the goal of the guidelines, viz., increased uniformity, certainty, and fairness in sentencing. Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgment regarding case-specific sentencing. Guidelines may help frame the exercise of judgment by the court in imposing a sentence. Therefore, based upon the above, we reaffirm that the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors — they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence.” Id. at 570, 926 A.2d at 964-65.

Here, this court considered the sentencing guidelines in imposing the defendant’s sentence and recognized that the sentence was a deviation from the guidelines. A departure, however, was appropriate and reasonable in this case. The defendant’s criminal history reflects multiple assault and theft-related adjudications and convictions, dating back to 2001. The defendant was only paroled for three theft-related offenses less than 13 months prior to his arrest on this theft-related crime. The defendant was also on probation for the aforementioned theft offenses when he committed this offense. See Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003) (The fact that the defendant was on probation at the time of offense was a proper factor in imposing sentence). The sentencing guidelines did not adequately reflect the repetitive crimes committed by the defendant, and his inability to avoid serious criminal conduct for any meaningful period of time.

Prior to imposing sentence, not only was the presentence report and the sentencing guidelines considered, but also the “protection of the public, the gravity of the offense as it relates to the impact on the victim and the defendant’s rehabilitative needs.” 42 Pa.C.S. §9721(b); Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), While the Garcia family was in church thinking their home was secure, the defendant participated in the theft of their property. Their security was significantly compromised by the actions of the defendant and his unknown confederate.

The defendant has now either been adjudicated or convicted nine times for theft-related offenses since 2004. He has demonstrated that the public is at risk from his criminal conduct. Attempts within the juvenile system to assist him, i.e. Saint Michael’s School for Boys and Northwestern Academy, have not altered or even abated his fascination with other people’s property.

Moreover, his conduct within an institutional setting has also been less than exemplary. When he was at Saint Michael’s he was discharged for assaulting a teacher. During his prior sentence for the theft offenses, he was placed in the work release program, but removed less than 60 days later for violating rules and regulations. He was returned to that program approximately four months later, and again removed from that program four and one-half months later.

The defendant contends that consideration should have been given to the positive changes made by him in the year between his parole and new arrest. Unfortunately, the positive changes are “few and far between.” While his family remains supportive and he now has a child, aside from some employment where he ironically worked for Lehigh Law Enforcement providing security at local events, the changes were not significant. This is especially true in light of this arrest after his relatively recent release from prison.

Finally, the defendant suggests he received a burglary sentence even though he was only convicted of a theft offense. This allegation is inaccurate and unsupported by the record. The defendant, by his continued criminal conduct, has demonstrated that a county sentence is no longer appropriate. Juvenile placements and county prison have been unsuccessful deterrents to renewed crimes. The length and breadth of his crimes, while only 21 years of age, more than adequately justified the deviation from the guidelines.

For all the foregoing reasons, the defendant’s challenge to his sentence is dismissed.

ORDER

And now, July 16, 2010, upon consideration of the “defendant’s post-sentence motion” in the above-captioned matter; and for the reasons set forth in the accompanying opinion;

It is hereby ordered the “defendant’s post-sentence motion” is denied.

      . 18 Pa.C.S. §3921(a).

      . 18 Pa.C.S. §3925(a).

      . 204 Pa. Code §303.4 — §303.8.

      . See section 303.7(a)(3).

      . The presentence investigation report was corrected during the sentencing hearing to reduce the offense gravity score (OGS) from a 5 to a 3. This change also affected the sentencing guidelines calculation. The defendant had no objection to that OGS reduction.

      . The aggregate prior record score as calculated by this court was a 3.

      . See section 303.6(a)(1). The defendant had a total of 15 juvenile arrests.

      . Offense dates: May 1, 2004, May 11,2004.

      . Offense date: April 13,2004.

      . See section 303.6(b).

      . Offense dates: December 25, 2006, December 26, 2006 and December 30, 2006.

      . See section 303.5(d).

      . Defendant’s post-sentence motion, motion to modify/reconsider sentence ¶¶4,6.

      . Notes of testimony sentencing (N.T.S.), pp. 38-44.

      .N.T.S., p. 44.

      . See section 303.5(d).