J-S70042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

LORRAINE MARRERO, :

:

Appellant : No. 611 EDA 2016

Appeal from the Judgment of Sentence January 22, 2016

in the Court of Common Pleas of Lehigh County,

Criminal Division, No(s): CP-39-CR-0002992-2015

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 19, 2016

Lorraine Marrero (“Marrero”) appeals from the judgment of sentence 

imposed following her guilty plea to aggravated assault.

1

 We affirm.

In April 2015, Marrero was at home with her two sons, A., a 2-yearold, and V., a 4-month-old. A. was sick, crying, and throwing himself on the 

floor. V. also started crying. In a “fit of rage,” Marrero picked up V. by the 

torso and squeezed him for approximately one minute. Marrero determined 

that V. was okay because he was smiling, and she did not seek medical 

attention for her son.

On May 23, 2015, Marrero took V. to Sacred Heart Hospital (“Sacred 

Heart”) to be treated for bronchitis. V. was treated at Sacred Heart and was 

released after an x-ray was taken. After reviewing the x-ray, the medical 

staff noticed that V. had two healing rib fractures on his right side, and 

 

1 18 Pa.C.S.A. § 2702(a)(8).
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asked Marrero to bring V. back to Sacred Heart. Sacred Heart also notified 

the police and Children and Youth Services. Two days later, Marrero brought 

V. back to Sacred Heart, and she was informed of the rib fractures. V. was 

transferred to the pediatrics clinic at Lehigh Valley Hospital, where he was 

examined by Dr. Debra Esernio-Jensen, who was part of the Child Advocacy 

Center. 

During an interview, Marrero told police about the incident and gave a 

written statement. Marrero also has a history of mental health problems 

and had not been taking her medication on a regular basis. Marrero was 

charged with aggravated assault and endangering the welfare of children.2

On December 8, 2015, Marrero entered a guilty plea to aggravated 

assault, with the agreement that the Commonwealth would not prosecute 

the endangering the welfare of children charge, and the minimum sentence 

would not exceed 36 months. The trial court deferred sentencing and 

ordered a pre-sentence investigation report (“PSI”). On January 22, 2016, 

after reviewing the PSI, the trial court sentenced Marrero to 3 to 10 years in 

prison. 

On February 1, 2016, Marrero filed a Motion for Reconsideration and 

Modification of Sentence, which the trial court denied. Marrero subsequently 

filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) 

Concise Statement.

 

2 18 Pa.C.S.A. § 4304(a)(1).
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On appeal, Marrero raises the following question for our review: 

Whether the [trial] [c]ourt abused its discretion in imposing a 

manifestly excessive and unreasonable sentence[,] which has a 

minimum sentence that is higher than the [s]entencing 

[g]uideline [r]ange as applied to [Marrero,] when the Court 

failed to consider any significant mitigating factors, failed to 

apply and review all the necessary factors as set forth in 42 

Pa.C.S.A. § 9721(b) and 42 Pa.C.S.A. § 9781(c) and (d)[,] or 

otherwise failed to set forth appropriate reasons for its radical 

deviation from the standard sentencing ranges?

Brief for Appellant at 7.

Marrero claims that the trial court abused its discretion by imposing a 

sentence outside of both the standard and aggravated ranges of the 

sentencing guidelines. Id. at 11. Marrero argues that her minimum 

sentence should have been 6 to 14 months under the standard range, or 20 

months under the aggravated range. Id. at 12. Marrero asserts that the 

trial court failed to adequately explain its reasons for deviating from the 

sentencing guidelines. Id. at 12-14. Further, Marrero claims that the trial 

court considered only the seriousness of the offense and the fact that the 

victim was her son, and failed to consider relevant mitigating factors. Id. at 

15.

Marrero’s claim challenges the discretionary aspects of her sentence.3 

See Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “It 

is well-settled that, with regard to the discretionary aspects of sentencing, 

 

3 Marrero entered an open guilty plea for aggravated assault, so her plea did 

not preclude a challenge to the discretionary aspects of her sentence. See 

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009).
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there is no automatic right to appeal.” Commonwealth v. Mastromarino, 

2 A.3d 581, 585 (Pa. Super. 2010). 

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

We conduct a four-part analysis to determine: (1) whether the 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

see Pa.R.Crim.P. [720]; (3) whether the appellant’s brief has a 

fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

* * *

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. A substantial 

question exists only 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 underlie the 

sentencing process.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

Here, Marrero filed a timely Notice of Appeal, preserved her issue in a 

Motion for Reconsideration and Modification of Sentence, and included a Rule 

2119(f) Statement in her brief. Marrero’s argument that the trial court did 

not provide adequate justification on the record for imposing a sentence 

above the aggravated range raises a substantial question. See 

Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa. Super. 2005) 

(stating that “a substantial question exists where the sentencing court failed 
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to provide sufficient reasons for imposing a sentence outside of the 

guidelines.”). Thus, we will review Marrero’s sentence. 

Our standard of review of a challenge to the discretionary aspects of 

sentence is well-settled:

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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007). “In 

every case in which the court imposes a sentence for a felony ... the court 

shall make as part of the record, and disclose in open court at the time of 

sentencing, a statement of the reason or reasons for the sentence imposed.” 

42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon, 812 A.2d 

617, 620-21 (Pa. 2002) (plurality). In considering these factors, the court 

should refer to the defendant’s prior criminal record, age, personal 

characteristics and potential for rehabilitation.” Commonwealth v. 

McClendon, 589 A.2d 706, 712 (Pa. Super. 1991) (internal citations and 

quotation marks omitted). Additionally, “[w]here pre-sentence reports exist, 

we shall ... presume that the sentencing judge was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors. A pre-sentence 
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report constitutes the record and speaks for itself.” Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988).

Upon our review, we conclude that the trial court adequately set forth, 

on the record, its reasons for imposing a sentence outside of the guidelines: 

Marrero was in a position of trust as V.’s mother; she harmed her own child; 

she did not take complete responsibility for her actions until sentencing; the 

community is at risk; the plea agreement allowed for departure from the 

aggravated range; and imposing a lesser sentence would depreciate the 

seriousness of the crime. See N.T., 1/22/16, at 37. Moreover, the trial 

court indicated that it reviewed Marrero’s PSI in imposing the sentence. See 

N.T., 1/22/16, at 3-4; see also Devers, supra (stating that where the trial 

court had the benefit of a PSI, we presume that the trial court was aware of, 

and considered all relevant factors, and “[h]aving been fully informed by the 

pre-sentence report, the sentencing court’s discretion should not be 

disturbed.”). Therefore, the trial court did not abuse its discretion in 

sentencing Marrero for the aggravated assault conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016