J-S51024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAYMOND LEON ENDERLE

Appellant No. 73 MDA 2014

Appeal from the Judgment of Sentence December 2, 2013

In the Court of Common Pleas of Tioga County

Criminal Division at No(s): CP-59-CR-0000371-2013

BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED FEBRUARY 19, 2015

Raymond Leon Enderle appeals from the judgment of sentence 

imposed on December 2, 2013, in the Court of Common Pleas of Tioga 

County. Enderle pled guilty to the charge of stalking, a misdemeanor of the 

first degree.1 The charge arose as a result of Enderle’s engaging in repeated 

acts of driving by or near the work place and residence of the victim.2 The 

____________________________________________

1 18 Pa.C.S. § 2709.1(a)(1).

2 By way of background, we note:

Prior to December, 2011, [Enderle] became romantically 

involved with the victim in this case[.] The two of them have a 

daughter who resides with [the victim]. In 2011, a domestic 

altercation occurred between [Enderle] and [the victim] resulting 

in [Enderle’s] pleading guilty to burglary, graded as a felony of 

the first degree, and reckless endangerment, graded as a 

misdemeanor of the second degree. [Enderle] was sentenced to 

(Footnote Continued Next Page)
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trial court sentenced Enderle to a sentence of intermediate punishment, 

Phase 1 of which involves incarceration as a community service/work release 

inmate for 12 months, followed by four years’ probation. In this timely 

appeal, Enderle (1) challenges the discretionary aspects of the sentence 

imposed by the trial court, and (2) contends the trial court’s opinion 

demonstrates the trial court improperly relied upon “alleged arrests” in 

sentencing him. Enderle’s Brief, at 4.3 For the following reasons, we affirm.

Enderle’s first argument is a challenge to the discretionary aspects of 

the sentence. The principles that guide our review are as follows: 

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.

The right to appellate review of the discretionary aspects of a 

(Footnote Continued) _______________________

two months to one year and eleven months on the burglary 

followed by two years of probation for the reckless 

endangerment. On March 3, 2012, [Enderle] was found guilty of 

violating a Protection From Abuse Order and was directed to pay 

a fine.

Enderle’s Brief at 6 (footnote omitted).

3 Enderle preserved the first issue by timely complying with the trial court’s 

order to file a Pa.R.A.P. 1925(b) statement of error complained of on appeal. 

The second issue was not known to Enderle until the trial court filed its Rule 

1925(b) opinion, and therefore we will not deem it waived.
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sentence is not absolute, and must be considered a petition for 

permission to appeal. An appellant must satisfy a four-part test 

to invoke this Court’s jurisdiction when challenging the 

discretionary aspects of a sentence.

[W]e conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal; (2) whether the 

issue was properly preserved at sentencing or in a motion to 

reconsider and modify sentence; (3) whether appellant's brief 

has a fatal defect; and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code.

****

A substantial question will be found where an appellant advances 

a colorable argument that the sentence imposed is either 

inconsistent with a specific provision of the Sentencing Code or is 

contrary to the fundamental norms which underlie the 

sentencing process. At a minimum, the Rule 2119(f) statement 

must articulate what particular provision of the code is violated, 

what fundamental norms the sentence violates, and the manner 

in which it violates that norm.

Commonwealth v. Zirkle, ___ A.3d ___, ___ [2014 Pa. Super. LEXIS 

4563] (Pa. Super. 2014) (citations omitted).

Here, Enderle preserved his discretionary aspects of sentencing 

challenge by filing a motion to modify sentence within 10 days of sentencing, 

and a timely appeal. See Pa.R.Crim.P. 720(A). Enderle has also included 

in his brief a concise statement pursuant to Pa.R.A.P. 2119(f). See

Enderle’s Brief at 10–11. The only remaining question is whether Enderle 

has raised a substantial question.

Enderle asserts:

The Sentencing Code requires the Court to consider a number of 

factors including protection of the public, gravity of the offense 

as it relates to the impact on the life of the victim and on the 
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community, and the rehabilitative needs of the defendant. 42 

Pa.C.S.A. § 9721(b). In the instant case, the Trial Court failed 

to apply those mandatory standards when it imposed a sentence 

of total confinement for a period of 12 months. This appeal 

raises a specific statutory violation inasmuch as the Court seems 

to indicate that pleading guilty to the offense itself establishes 

guilt and authorizes the imposition of a sentence of total 

confinement for a substantial period of time. There was no 

indication that the public needed to be protected or that the 

offense was grave as it related to the impact on the life of the 

community nor is there any indication that incarceration 

accomplished any rehabilitative needs of [Enderle].

Enderles’s Brief at 10–11 (Rule 2119(f) Statement). 

It is well settled that “a claim of inadequate mitigating factors does not 

raise a substantial question for [] review.” Commonwealth v. DiSalvo, 70 

A.3d 900, 903 (Pa. Super. 2013) (citation and quotations omitted). 

Furthermore, “‘[A]rguments that the sentencing court failed to consider the 

factors proffered in 42 Pa.C.S. § 9721 does present a substantial question 

whereas a statement that the court failed to consider facts of record, though 

necessarily encompassing the factors of § 9721 has been rejected.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) 

(citation omitted), appeal denied, 104 A.3d 1, 2014 Pa. LEXIS 3131 (Pa. 

2014). It appears that Enderle’s claim is that the trial court did not consider 

facts of record, which does not raise a substantial question. See id. 

However, even if Enderle’s Rule 2119(f) Statement could be said to present 

a substantial question, no relief would be due.

Prior to sentencing, on November 20, 2013, Enderle, through counsel, 

filed a “Statement in Support of Mitigated Sentence.” Enderle requested 
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that the court impose a mitigated range sentence. Enderle pointed out that, 

at the time of the filing of the charges in this case, he was in the process of 

attempting to reestablish a relationship with his daughter, who was residing 

with the victim. He noted that the charges were filed just days before there 

was to be a hearing in Domestic Relations with regard to his request for 

supervised visitation. Enderle pointed out that all acknowledge that one of 

the incidents recited in the criminal complaint was a coincidental meeting 

when the victim entered the store while he and his wife were ordering ice 

cream. He also acknowledged that he and his wife routinely go to the Kwik 

Fill gasoline station and that, in so doing, he had occasion to glance down 

the victim’s street to attempt to get a glimpse of his daughter. He noted his 

wife was with him on those occasions. Enderle asserted he was employed, 

pays support for his daughter, has reunited with his wife, and enjoys a good 

relationship with his sons. Enderle requested a probationary sentence. 

At the sentencing hearing held on November 25, 2013, the court 

indicated that it had reviewed the presentence report and Enderle’s 

statement in support of a mitigated sentence. At the hearing, Eberle 

declined to make a statement on the record. N.T., 11/25/2013, at 2–3. 

However, counsel for Eberle presented argument on Eberle’s behalf. The trial 

court also heard the argument of the Commonwealth’s attorney. 

The court, at the conclusion of the hearing, stated the following 

reasons in support of its sentence:
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THE COURT: Alright. Mr. Enderle, first of all the Court has 

already adopted all the information in the presentence report 

and I’m not going to go through that line by line, the facts of 

your culpability or guilt for the offense is established by your 

plea. 

The harm to the victim in this case is certainly evident from the 

trauma that she’s related in her letters and the fear that you’ve 

placed her in, and frankly, anybody would have been placed in 

the same position based upon your actions.

I would have to say that there was certainly no grounds that 

would excuse or minimize or justify your actions in this case and 

the concern, of course, is that there have -- you have a prior 

record that involves certain crimes including violating a PFA and 

Recklessly Endangering Another Person, and we have this, of 

course, the crime here of Stalking Causing Repeated Acts To 

Threaten Bodily Injury. So, there’s a history here and given, 

given the mental health concerns there's a concern that this sort 

of thing is still going to recur.

I believe you’ve tried to take some steps to alleviate that and I -

- hopefully you will understand in the future what is and is not 

acceptable. 

The Court's decided that in this case a standard range 

Intermediate Punishment Sentence is the only appropriate 

sentence that the Court can impose with certain other 

restrictions included as part of that sentence and therefore the 

Court’s going to issue a sentence that would include a period of 

incarceration in the standard range under the guidelines as an 

Intermediate Punishment Sentence[.]

N.T., 11/25/2013, at 4–5. The court then issued a standard range sentence 

of intermediate punishment, Phase 1 of which involves incarceration as a 
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community service/work release inmate for 12 months, followed by four 

years’ probation.4

Where the sentencing court has had the benefit of a presentence 

report, “it is presumed that the court is aware of all appropriate sentencing 

factors and considerations, and [] where the court is informed, its discretion 

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 

1135 (Pa. Super. 2009) (citing Commonwealth v. Devers, 546 A.2d 12, 

18 (Pa. 1988)), appeal denied, 987 A.2d 161 (Pa. 2009). Further, the 

suggestion that a defendant must be sentenced to the minimum amount of 

confinement that is consistent with the protection of the public, gravity of 

the offense, and rehabilitative needs of the defendant has been 

rejected. See Commonwealth v. Walls, 926 A.2d 957, 965 (Pa. 2007). 

Finally, “where a sentence is within the standard range of the guidelines, 

Pennsylvania law views the sentence as appropriate under the Sentencing 

Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (citation omitted). 

In light of these principles, and based upon our careful review of the record, 

had a substantial question been raised, we would conclude the court 

____________________________________________

4 With Enderle’s prior record score of three, and offense gravity of four, the 

guideline ranges were as follows: a mitigated range of restorative sanctions 

to three months, a standard range of three to fourteen months’ 

imprisonment, and an aggravated range of fourteen months to seventeen 

months. See N.T., 11/25/2013, at 2.
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considered all relevant Section 9721(b) factors, and fully and properly 

justified the sentence imposed.

The second issue raised by Enderle does not involve the discretionary 

aspects of the sentence. Rather, Enderle contests the fact that the trial 

court specifically noted in its opinion that Enderle was “arrested once or 

twice on [PFA] violations.”5 Enderle cites Commonwealth v. Johnson, 481 

A.2d 1212, 1214 (Pa. Super. 1984), for the principle that a sentencing court 

may consider a defendant’s prior arrests which did not result in conviction, 

as long as the court recognizes that the defendant had not been convicted of 

the charges. Enderle argues, “In noting one or two arrests for PFA 

violations, the Court was improperly considering factors in violation of 

positive Pennsylvania law.” Enderle’s Brief at 15. Enderle claims, “The 

matter should be remanded for re-sentencing consistent with the mandate 

that a court may mention prior arrests but must also articulate that those 

arrests did or did not result in convictions.” Id.

We find this argument presents no basis upon which to disturb the 

judgment of sentence. The trial court’s reference to Enderle’s arrests 

occurred subsequent to sentencing. In fact, at the time of the sentencing 

hearing, the court relied on Enderle’s prior convictions.6 Moreover, the trial 

____________________________________________

5 Trial Court Opinion, 2/28/2014, at 2. 

6 At sentencing, the Commonwealth’s attorney stated that Enderle had “at 

least one conviction for a PFA [and] [h]e may have been arrested on that 

(Footnote Continued Next Page)
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court’s opinion reflects that the criminal history considered by the court in 

fashioning the sentence was Enderle’s prior convictions.7 Accordingly, we 

conclude the sentence was legal and appropriate, and no relief is due.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2015

(Footnote Continued) _______________________

once or twice.” N.T., 11/25/2013, at 3–4. However, the trial judge, in his 

on-the-record statement in imposing the sentence, specifically referenced 

only Enderle’s PFA and Recklessly Endangering Another Person convictions, 

and there is no indication the court relied on the Commonwealth’s attorney’s 

statement. See id. at 4–5. 

7 See Trial Court Opinion, 2/28/2014, at 3 (“[Enderle’s] prior record involves 

crimes including violation of a PFA and Recklessly Endangering Another 

Person. Viewing [Enderle’s] current crime in light of his criminal history and 

given concerns about his mental health caused the court to have significant 

concern that his behavior would reoccur.”).