J-S47033-20

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JONATHAN ALLAN O’BRIAN,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 72 MDA 2020

Appeal from the Judgment of Sentence Entered November 25, 2019

in the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0003612-2018

BEFORE: STABILE, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 19, 2021

Jonathan Allan O’Brian (Appellant)1 appeals from the judgment of 

sentence imposed on November 25, 2019, after he was found guilty of rape 

of a child, involuntary deviate sexual intercourse (IDSI) with a child (two 

counts), unlawful contact or communication with a minor – sexual offenses, 

indecent assault of person less than 13 years of age, corruption of minors, 

and indecent exposure. We affirm.

The charges stem from Appellant’s sexual abuse of his stepdaughter

(Stepdaughter) when she was around seven or eight years old. Appellant’s 

relationship with Stepdaughter’s mother (Mother) began in 2014. Appellant 

and Mother subsequently married and had a child. Appellant and Mother 

 

1 We have changed the caption to reflect the correct spelling of Appellant’s last 

name, which is O’Brian instead of Obrian.
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resided together with that child and Mother’s two other children (i.e., 

Stepdaughter and Stepdaughter’s sister).2

In early June 2018, Stepdaughter disclosed the sexual abuse to a friend 

at school. Police were notified, and they interviewed Stepdaughter on June 5, 

2018. Stepdaughter underwent a forensic interview on June 6, 2018, where 

she made further disclosures. Appellant, who is an over-the-road truck driver, 

was away for work when the investigation began. When he returned to the 

area on June 8, 2018, police interviewed him in an emergency room of a 

hospital. Appellant had gone to the hospital for treatment of a laceration to 

his head, which was an injury he sustained in an incident unrelated to this 

case. During the recorded interview, Appellant denied abusing Stepdaughter. 

Before he left the hospital, police arrested him and charged him with the 

above-referenced crimes.

On September 7, 2019, which was the first day of trial, Appellant filed

and presented a motion to suppress the recorded interview he gave to police

at the hospital, arguing the police subjected him to custodial interrogation 

without warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). The 

trial court denied the motion, and the case proceeded to a two-day jury trial

immediately thereafter. 

 

2 Appellant and Mother later had a second child together who was born at 

some point following Appellant’s arrest but prior to sentencing. 
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Stepdaughter testified at trial regarding the abuse. She described being 

abused in Appellant’s truck and their home while Mother and the other children 

were running errands. Stepdaughter testified Appellant would forbid her from 

going on errands with Mother and the other children as a punishment; the 

only way to get out of the punishment was to perform sexual acts with 

Appellant. Specifically, Appellant made Stepdaughter perform fellatio on him 

and penetrated her vagina and anus with his penis. 

In addition to other witnesses, the Commonwealth presented the 

testimony of Detective Jeffrey Corcoran. The detective testified regarding his 

investigation and summarized the statement Appellant had provided to him at 

the hospital. The Commonwealth did not seek to introduce a recording or 

transcript of the statement. At the end of the trial, the jury returned a guilty 

verdict on all charges.

On November 25, 2019, Appellant was sentenced to an aggregate term 

of 30 to 60 years of incarceration, followed by a 10-year term of probation. 

Specifically, the trial court sentenced Appellant to separate, consecutive 15-

to-30 year terms of incarceration for rape of a child and one count of IDSI. It 

also sentenced Appellant to one concurrent 15-to-30 year term of 

incarceration for the second count of IDSI; one consecutive 10-year term of 

probation for unlawful contact with a minor; and no further penalty for his 

three remaining convictions. 
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Appellant timely filed a post-sentence motion, which the trial court 

denied on December 11, 2019. Appellant timely filed a notice of appeal.3 On 

appeal, Appellant raises two issues. Appellant’s Brief at 7.

The first issue asks this Court to decide whether the trial court erred by 

failing to suppress Appellant’s statement to police based upon his contention 

that the statement was elicited by custodial interrogation without Miranda

warnings. Id. Accordingly, we review this issue with the following in mind. 

Our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether

the factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct. [W]e may 

consider only the evidence of the prosecution and so much of the 

evidence for the defense as remains uncontradicted when read in 

the context of the record as a whole. Where the record supports 

the findings of the suppression court, we are bound by those facts 

and may reverse only if the court erred in reaching its legal 

conclusions based upon the facts.

Commonwealth v. Prisk, 13 A.3d 526, 530 (Pa. Super. 2011) (citation 

omitted).

On appeal, Appellant argues that any statements he provided to police 

at the hospital should be suppressed because he was subject to custodial 

interrogation and was not free to leave the hospital. Appellant’s Brief at 29-

35. He focuses on several factors he believes distinguish his case from other 

cases where this Court has upheld the denial of a suppression motion based 

on a police interview of a suspect in a hospital setting. 

 

3 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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First, Appellant argues there was no indication the police asked hospital 

staff for permission to speak to him while he was at the hospital seeking 

emergency medical treatment. He points to an instance during the interview 

where he contends an emergency room nurse was “subservient” to the police 

regarding whether she could proceed with treatment. Id. at 35. He next 

argues the interview was conducted in a room with no other persons present 

and police overruled Appellant’s express wish for Mother to be present. Finally, 

he emphasizes the evidence police had already gathered, arguing this showed 

that police planned to arrest Appellant regardless of the outcome of the 

questioning. Id. He contends police “conducted a lengthy interrogation that 

was confrontational in tone.” Id. According to Appellant, all of these factors 

indicate that Appellant was subjected to an unlawful custodial interrogation

because he was not given Miranda warnings.

Miranda safeguards attach once a person is in custody and subjected 

to “express questioning or its functional equivalent.” Commonwealth v. 

Williams, 941 A.2d 14, 30 (Pa. Super. 2008). “[I]n evaluating whether 

Miranda warnings were necessary, a court must consider the totality of the 

circumstances.” Id.

Whether a person is in custody for Miranda purposes 

depends on whether the person is physically denied of [his or her] 

freedom of action in any significant way or is placed in a situation 

in which [he or she] reasonably believes that [his or her] freedom 

of action or movement is restricted by the interrogation. 

Moreover, the test for custodial interrogation does not depend 

upon the subjective intent of the law enforcement officer 

interrogator. Rather, the test focuses on whether the individual 
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being interrogated reasonably believes [his or her] freedom of 

action is being restricted.

Under the totality of the circumstances approach, the 

following factors are relevant to whether a detention has become 

so coercive as to constitute the functional equivalent of a formal 

arrest: the basis for the detention; its length; its location; whether

the suspect was transported against his or her will, how far, and 

why; whether restraints were used; whether the law enforcement 

officer showed, threatened or used force; and the investigative 

methods employed to confirm or dispel suspicions. 

Id. at 30-31 (citations and quotations omitted).

In the instant case, for purposes of the suppression motion, Appellant’s 

counsel stipulated, with one addition, to the Commonwealth’s summary of a 

police report describing the interview in lieu of Detective Corcoran’s testimony.

N.T., 9/7/2019, at 73-74. The summary was not extensive and left out key 

details, such as the content of the questions, the length of the interview, and 

more specifics about the location of the interview within the hospital. The trial 

court may have had access to those details, as it had listened to the recorded 

interview in the presence of counsel for the Commonwealth and Appellant 

during a pre-trial conference on September 6, 2019. See N.T., 9/7/2019, at 

79 (statement by the trial court during argument on the motion referencing 

the audio recording); Appellant’s Motion to Supplement the Record, 7/8/2020, 

at 1 (referencing the pre-trial conference). However, there is no transcript of 

that conference or further details about what transpired. Moreover, the audio 

recording of Appellant’s interview was not made part of the record. 
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Subsequent to Appellant’s appeal, upon Appellant’s motion and with the 

consent of the Commonwealth, the certified record was supplemented with a 

transcript prepared by defense counsel of two snippets of the taped interview.

The portions provided by counsel cover five minutes of the interview. See 

Appellant’s Motion to Supplement the Record, 7/8/2020, at Exhibit A. 

Counsel’s motion to supplement the record acknowledged that the taped 

interview does not appear in the certified record, yet counsel did not seek to 

include the entirety of the interview. 

This failure impedes our appellate review. It is indisputable that “[t]he 

fundamental tool for appellate review is the official record of the events that 

occurred in the trial court.” Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. 

Super. 2006) (en banc). This Court may consider only the materials in the 

certified record when resolving an issue. Id. Our scope and standard of review 

require us to review whether the trial court’s findings are supported by the 

record and the propriety of its legal conclusion that under the totality of the 

circumstances Appellant was not in custody. See Prisk, 13 A.3d at 530; 

Williams, 941 A.2d at 30. This is a task that we cannot complete meaningfully 

without all of the evidence the trial court reviewed to rule on the suppression 

motion. Without the entire interview, we are unable to determine whether the 

snippets counsel provided are isolated incidents or reflective of the entire 

tenor of the interview, or whether those incidents are outweighed by other 

factors.
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“Our law is unequivocal that the responsibility rests upon the appellant 

to ensure that the record certified on appeal is complete in the sense that it 

contains all of the materials necessary for the reviewing court to perform its 

duty.” Preston, 904 A.2d at 8 (citing Commonwealth v. Kleinicke, 895 

A.2d 562, 575 (Pa. Super. 2006) (en banc)). 

In the absence of specific indicators that a relevant document 

exists but was inadvertently omitted from the certified record, it 

is not incumbent upon this Court to expend time, effort and 

manpower scouting around judicial chambers or the various 

prothonotaries’ offices of the courts of common pleas for the 

purpose of unearthing transcripts, exhibits, letters, writs or PCRA 

petitions that well may have been presented to the trial court but 

never were formally introduced and made part of the certified 

record.

Preston, 904 A.2d at 7-8. Appellant does not argue that the Commonwealth 

failed to introduce sufficient facts to support the constitutionality of the 

interview by failing to introduce the interview as an exhibit at the suppression 

hearing; instead, he assumes the video was before the trial court and relies 

upon them to make his appellate argument that he was in custody. Because 

Appellant was aware that the entire interview was not part of the certified 

record and did not ensure that this Court had access to it, his first issue 

regarding the denial of his suppression motion is waived. See 

Commonwealth v. Manley, 985 A.2d 256, 263-64 (Pa. Super. 2009) 

(finding suppression issue waived because Appellant failed to ensure item at 

issue was part of the certified record). 
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Appellant’s second issue questions whether the trial court abused its 

discretion by sentencing Appellant to an unreasonable and manifestly 

excessive sentence inconsistent with the protection of the public, rehabilitation 

of Appellant, and gravity of the offenses. Appellant’s Brief at 36-41. This issue 

involves a challenge to the discretionary aspects of his sentence. 

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(1) whether 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 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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014). 

Appellant has satisfied the first three requirements: he timely filed a 

notice of appeal, preserved the issue in a post-sentence motion, and included 

a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we now consider 

whether Appellant has raised a substantial question for our review.

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 

828 (Pa. Super. 2007). “A substantial question exists only when the appellant 

advances a colorable argument that the sentencing judge’s actions were 
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either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) 

(citation and quotation marks omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant contends that his sentence 

is excessive because the trial court ran his sentences consecutively, resulting 

in a minimum 30-year aggregate sentence of incarceration. He argues this 

minimum sentence combined with his age of 50 constitutes a de facto life 

sentence. Appellant’s Brief at 22. This does not present a substantial question. 

Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa. Super. 2018) (holding 

that assertion that consecutive sentences were excessive based on length 

combined with defendant’s age and health did not constitute a substantial 

question).4 Appellant also argues that the trial court focused solely on the 

nature of the crimes and the need for punishment, to the exclusion of other 

statutorily-mandated sentencing factors, such as his rehabilitative needs and 

the protection of society. Appellant’s Brief at 22. This does present a 

substantial question. See Commonwealth v. Macias, 968 A.2d 773, 776

 

4 The author of this memorandum notes that he has written previously 

regarding his continuing dissatisfaction with the state of the law in this 

Commonwealth regarding consecutive sentences. See Commonwealth v. 

Zirkle, 107 A.3d 127, 136 (Pa. Super. 2014) (Strassburger, J., concurring) 

(inveighing against virtual unfettered discretion provided to trial judges in this 

Commonwealth as to imposition of consecutive or concurrent sentences, 

which is exacerbated by the substantial question doctrine). This continues to 

be this author’s personal stance on our jurisprudence.
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(Pa. Super. 2009) (“[A]n averment that the court sentenced based solely on 

the seriousness of the offense and failed to consider all relevant factors raises 

a substantial question.”). Accordingly, we will proceed to review this challenge 

to his sentence, mindful of the following.

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.

* * *

When imposing [a] sentence, a court is required to consider 

the particular circumstances of the offense and the character of 

the defendant. In considering these factors, the court should refer 

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

characteristics and potential for rehabilitation. 

Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019) 

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 

2014)); see also 42 Pa.C.S. § 9781(d). 

Sentencing in Pennsylvania is individualized, and requires 

the trial court to fashion a sentence “that is consistent with the 

protection of the public, the gravity of the offense as it relates to 

the impact on the life of the victim and on the community, and 

the rehabilitative needs of the defendant[.]” 42 Pa.C.S.[] 

§ 9721(b). The trial court must also consider the sentencing 

guidelines adopted by the Pennsylvania Commission on 

Sentencing. Id.

Commonwealth v. Baker, 72 A.3d 652, 663-64 (Pa. Super. 2013). 
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The Sentencing Code sets forth express standards depending on the 

circumstances at hand. Id. In this case, Appellant’s individual 15-to-30-year 

sentences were within the standard range of the sentencing guidelines for 

rape of a child and IDSI with a child less than 13 years of age. See 204 Pa. 

Code § 303.16(a) (setting the guideline range at 6 years to the statutory 

limit); 18 Pa.C.S. § 3121e(1) (setting the maximum penalty for rape of a child 

at 40 years’ incarceration); id. at § 3123(b) (setting the maximum penalty 

for IDSI with a child less than 13 at 40 years’ incarceration). Because the 

sentences are within the standard range, we must affirm the sentences unless 

the sentences are “clearly unreasonable.” 42 Pa.C.S. § 9781(c) (requiring us 

to vacate a sentence within the guidelines if the case “involves circumstances 

where the application of the guidelines would be clearly unreasonable”; in all 

other circumstances not outlined by subsection (c), we “shall affirm the 

sentence imposed by the sentencing court”).

In arguing that the trial court’s sentence was clearly unreasonable and 

focused solely on punishing Appellant due to the severity of the crimes, 

Appellant highlights three statements the trial court made at sentencing. The 

first referred to Stepdaughter’s description of the abuse as “a nightmare that 

is beyond imagination”; the second referred to each crime as “an entirely 

different set of brutality”; and the third explained the trial court’s decision to 

prohibit Appellant from having contact with his own children by stating, “I just 

can’t think of a more disturbing fact situation[.]” Appellant’s Brief at 39 
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(quoting N.T., 11/25/19, at 9-10, 13). Appellant argues that these statements 

illustrate the trial court’s sole desire to punish him instead of taking into 

account mitigating factors such as his age, a record of only one prior criminal 

offense (a misdemeanor for stalking), and his experience of being relinquished 

to an orphanage by his parents, who were poor, and being adopted at age ten 

after several years in the orphanage. Id.

Appellant’s contention that the trial court solely considered the severity 

of the crimes is belied by the record. The trial court made the following 

comments upon sentencing Appellant.

Well, indeed, this [c]ourt had the opportunity to observe the 

testimony through the course of the trial, and I too would have to 

concur it was the most compelling and at times terrifying 

testimony from a young lady who was convincing, heartfelt, and 

described, essentially, a nightmare that is beyond imagination. 

And I’m not saying that lightly. Through the course of the trial, I 

don’t think there was a dry eye on the jury during that period of 

time.

And I know you maintain your innocence, which is your 

right, and you compelled the witness to testify against you, under 

your right to compel and confront your accusers, so I take no 

adverse inference from that. But you’re about to receive a 

sentence and part of your ability to ever see parole will depend on 

your cooperation in the treatment regimen, which at some point 

will require some level of acknowledgment of what you’ve done. 

So if you’re indeed innocent, that’s the battle you have to fight 

going forward. If you’re not, pretending to be innocent would be 

detrimental to your possible parole. 

I’m taking into consideration not only the details of what 

occurred, as far as the sexual acts, but the fact that they were all 

compelled from what appeared to be a completely abusive misuse 

of parental authority – even though you were the stepfather - the 

devious use of punishment, and then her ability to earn her way 

out of that punishment. I am amazed that that young lady is still 
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able to function in the manner in which she does. And I too would 

say she’s obviously had good counseling and good support so that 

she was able to endure this whole process. 

And, therefore, looking at the guidelines, each one of those, 

as [the district attorney] points out, is just not another count. 

Each one of those is an entirely different set of brutality, and I 

take into consideration each one of these counts occurred more 

than once over a period of time, but it’s even difficult to 

comprehend the level of torment that that young lady endured.

And, therefore, [I’m] taking into consideration the 

guidelines, taking into consideration that your prior record score 

is zero, although there is a misdemeanor stalking that is of 

concern in the larger scheme of things, taking into consideration 

the time you’ve already served in Dauphin County Prison, which 

is probably less pleasant than the time you will spend day by day 

in a state correctional institution, taking into consideration your 

age, as well as the circumstances contained in the presentence 

investigation, and taking into consideration the sentencing code 

and the various concerns that must be taken into consideration, 

including the protection of society.

N.T., 11/25/2019, at 9-11.

While the trial court chose to emphasize the severity of the crimes, in 

context its statements simply explain why it believed a lengthy sentence was 

warranted. To that end, it highlighted Appellant’s egregious abuse of his 

parental role and the commission of multiple separate crimes. However, in 

addition to the severity of the crimes, the trial court expressly considered 

Appellant’s age, his prior record score, the protection of society, and “the 

circumstances contained in the presentence investigation.” Id. Furthermore, 

“[w]hen a sentencing court has reviewed a presentence investigation report, 

we presume that the court properly considered and weighed all relevant 

factors in fashioning the defendant’s sentence.” Baker, 72 A.3d at 664. 
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Appellant has failed to convince us that the trial court’s sentence was clearly 

unreasonable and an abuse of its discretion. Accordingly, no relief is due on 

Appellant’s second issue, and we affirm his judgment of sentence.

Judgement of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/19/2021