J-S27010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL GALLAGHER,

Appellant No. 1230 MDA 2015

Appeal from the Judgment of Sentence June 23, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0005379-2014

BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED MAY 05, 2016

Appellant, Michael Gallagher, appeals from the judgment of sentence 

entered on June 23, 2015, in the Dauphin County Court of Common Pleas. 

We affirm.

In its PaR.A.P. 1925(a) opinion, the trial court provided the underlying 

facts of this case as follows: 

Toward the end of August of 2014, the four-month-old 

child, L.G., who is Appellant’s child, was presented to the 

Children’s Hospital of Philadelphia with injuries. (Notes of 

Testimony, Guilty Plea, May 5, 2015, 4). The child was having 

episodes of unresponsiveness, vomiting, etc. (N.T., 25). It was 

determined that the child had a traumatic brain injury which 

included multiple retinal hemorrhages and chronic and bilateral 

subdural hematomas. (N.T., 4). After investigation, the police 

determined that when Appellant was residing in the family home,

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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on multiple occasions and due to frustration with a crying baby, 

he shook the child multiple times. (N.T., 4). Appellant also 

confessed that he threw the child on to the changing table and 

acts of that nature which caused the brain injury. (N.T., 4).

Trial Court Opinion, 9/17/15, at 2. 

Appellant was arraigned on November 24, 2014. On May 

5, 2015, Appellant entered a plea of guilty to Aggravated Assault 

and Endangering the Welfare of Children. 

On June 23, 2015, Appellant was sentenced as follows:

Count 1 [aggravated assault] — 71⁄2-15 years in 

SCI, fine of $1,000 plus costs;

Count 2 [endangering welfare of children] — 3-6 

years in SCI, fine of $500 plus costs, concurrent with 

Count 1.

On June 25, 2015, Appellant filed a Post-Sentence Motion 

to Modify which this Court denied by Order dated June 30, 2015. 

The Commonwealth filed a Motion for Modification of Sentence to 

Include Restitution on July 2, 2015. This Court granted 

Appellant’s Application for Leave to Appeal In Forma Pauperis on 

July 17, 2015. Then, Appellant filed a Notice of Appeal to the 

Superior Court on July 17, 2015. On July 20, 2015, this Court 

filed an Order directing Appellant to file a concise statement of 

matters complained of on appeal within twenty-one (21) days. 

Appellant filed a Statement of Matters Complained of on Appeal 

on August 10, 2015.

Trial Court Opinion, 9/17/15, at 1. 

On appeal, Appellant presents the following issue for this Court’s 

consideration:

Whether the trial court erred in sentencing Appellant to an 

aggregate sentence of 71⁄2 to 15 years in a state correctional 

institution, in the aggravated range of the sentencing guidelines, 

where such a sentence is excessive and unreasonable and 

constitutes too severe a punishment in light of Appellant’s 

rehabilitative needs, and what is necessary to protect the public?
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Appellant’s Brief at 5 (underscoring omitted).

Appellant’s claim of error is a challenge to the discretionary aspects of 

his sentence. It is well settled that a challenge to the discretionary aspects 

of a sentence is a petition for permission to appeal, as the right to pursue 

such a claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 

599 (Pa. Super. 2014). Before this Court may review the merits of a 

challenge to the discretionary aspects of a sentence, we must engage in the 

following four-pronged analysis: 

[W]e conduct a four part analysis to determine: (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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)). 

We note that Appellant has met the first three parts of the four-prong 

test: Appellant filed a timely appeal; Appellant preserved the issue in a 

post-sentence motion; and Appellant included a statement pursuant to 

Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has 

raised a substantial question with respect to the issues he presents.

A determination as to whether a substantial question exists is made on 

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 
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2000). This Court will grant the appeal “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.” Id. at 

912-913.

In Appellant’s brief, he argues that his sentence was manifestly 

excessive such that it constitutes too severe a punishment under the facts of 

this case. Appellant’s Brief at 10. We conclude that Appellant’s claim 

presents a substantial question for our review. See Commonwealth v. 

Mouzon, 812 A.2d 617, 624 (Pa. 2002) (“A claim that a sentence is 

manifestly excessive such that it constitutes too severe a punishment raises 

a substantial question.”). Therefore, we will review the merits of Appellant’s 

challenges.

Our standard of review in appeals of sentencing 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. Mann, 957 A.2d 746, 749 (Pa. Super. 2008). 

A sentencing judge has broad discretion in determining a reasonable 

penalty, and this Court affords the sentencing court great deference, as it is 

the sentencing court that is in the best position to view the defendant’s 
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character, displays of remorse, defiance, or indifference, and the overall 

effect and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 

961 (Pa. 2007) (quotations and citations omitted).1 When imposing a 

sentence, the sentencing court must consider “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). As we have stated, “[A] court is required to consider the 

particular circumstances of the offense and the character of the defendant.” 

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). In 

particular, the sentencing court should refer to the defendant’s prior criminal 

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1

 The Walls Court instructed the following:

In making this “unreasonableness” inquiry, the General 

Assembly has set forth four factors that an appellate court is to 

consider:

(d) Review of the record.—In reviewing the record the appellate 

court shall have regard for:

(1) The nature of the circumstances of the offense 

and the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to 

observe the defendant, including any pre-sentence 

investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.
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record, his age, personal characteristics, and his potential for rehabilitation. 

Id.

Moreover, it is well settled that sentencing courts are not bound by the 

Sentencing Guidelines as they are merely advisory. Commonwealth v. 

Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted). The 

sentencing court may deviate from the Guidelines as they are one factor 

among many that the court must consider when imposing a sentence. Id. 

(citation omitted). The sentencing court “may depart from the [G]uidelines 

if necessary, to fashion a sentence which takes into account the protection of 

the public, the rehabilitative needs of the defendant, and the gravity of the 

particular offense as it relates to the impact on the life of the victim and the 

community.” Id. (internal quotation marks and citation omitted).

In the case sub judice, the trial court had the benefit of a presentence 

investigation report. N.T., 6/23/15, at 2, 22. “Our Supreme Court has 

determined that where the trial court is informed by a pre-sentence report, 

it is presumed that the court is aware of all appropriate sentencing factors 

and considerations, and that where the court has been so informed, its 

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

1128, 1135 (Pa. Super. 2009) (citation omitted). “The sentencing judge can 

satisfy the requirement that reasons for imposing sentence be placed on the 

record by indicating that he or she has been informed by the pre-sentencing 

report; thus properly considering and weighing all relevant factors.” Id. 
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(citing Commonwealth v. Fowler, 893 A.2d 758, 766-767 (Pa. Super. 

2006)).

The trial court addressed Appellant’s argument as follows:

Here, the Sentencing Guidelines call for a maximum term 

of ten to twenty years with a [standard] range of 36 to 54 

months. (Notes of Testimony, Sentencing, June 23, 2015, 25). 

Additionally, consideration of Appellant’s lack of prior criminal 

record should be and was accounted for in the sentencing 

guidelines as determined by his prior record score of zero. (See 

Commonwealth v. Celestin, 825 A.2d 670 (Pa. Super. 2003)). 

(N.T., 2). Furthermore, this Court considered a pre-sentence 

investigative report, the sentencing guidelines, a victim impact 

statement, as well as a statement from both the Appellant and 

the Commonwealth. (N.T., 1-21). Additionally, this Court noted 

that the sentence reflected Appellant’s own admission of a need 

to get help as well as Appellant’s attempt to make excuses for 

his heinous conduct. (N.T., 23-26). Specifically, this Court 

focused on the fact that although Appellant claims he did not 

want to hurt the child, it can easily be inferred from his ongoing 

abuse to the child that it is clear that he intended to hurt the 

child and that he did in fact hurt the child. (N.T., 22).

Upon consideration of all the above information, this Court 

determined that Appellant was in need of state supervision as 

well as long term anger management rehabilitation. (N.T., 26-

27). The [90 to 180 month] sentence imposed by this Court 

provides for anger management counseling as well as for state 

supervision in order to protect the public. The sentence imposed 

was not unreasonable nor excessive or severe in light of 

Appellant’s heinous conduct and the need for long-term 

rehabilitation.

Appellant further argues that this Court erred in omitting 

his reasons for deviating from the sentencing guidelines on the 

record. A sentencing judge is permitted to deviate from the 

sentencing guidelines but “must place on the record the reasons 

for the deviation.” 42 Pa. C.S.A. § 9721(b); Commonwealth v. 

Byrd, 441 Pa.Super. 351, 657 A.2d 961 (1995). 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 
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manifestly unreasonable decision. Commonwealth. v. GarciaRivera, 983 A.2d 777, 781 (Pa. Super. 2009). Appellant’s 

argument is without merit.

Here, this Court clearly set forth a statement of reasons for 

deviating from the guidelines. This Court stated that we “had 

difficulty swallowing Appellant’s statements that he didn’t want 

to hurt the child because it can be inferred from Appellant’s 

ongoing conduct with the child that he did intend to hurt the 

child and clearly hurt the child.” (N.T., 24-25). This Court further

stated, “while the maximum term of ten to twenty years is 

lessened due to Appellant’s acknowledgement of responsibility, 

the middle range of 36-54 months can’t possibly address such 

conduct.” (N.T., 24-25). This Court went on to state that, “the 

sentence that we are about to give this defendant will serve not 

only as a warning for others that engage in this kind of conduct 

but will punish him for what he did and will ensure that society is 

safe from him and that he will have an opportunity for long-term 

rehabilitation.” (N.T., 25-26).

Trial Court Opinion, 9/17/15, at 3-5. 

After review, we note that the trial court considered the testimony 

from the witnesses, reviewed the presentence investigation report, had the 

opportunity to evaluate the remorse expressed by Appellant, and carefully 

articulated its reasons for the sentence imposed. N.T., 6/23/15, at 3-17, 

19-20, 22-26. The trial court was cognizant that the victim was a fourmonth-old child, Appellant’s infant son. Id. at 22. Moreover, Appellant 

admitted that he inflicted the abuse in a manner whereby he attempted to 

minimize visible bruising to the child in order to prevent detection of his 

criminal actions. Id. (citing the presentence investigation report). The 

Sentencing Guidelines provided for a standard minimum-range sentence 

between thirty-six to fifty-four months. 204 Pa.Code § 303.16. However, 
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the trial court chose to deviate from the Guidelines and thoroughly explained 

its rationale. N.T., 6/23/15, at 25. Because the trial court considered all 

relevant factors, stated the recommended minimum sentence provided in 

the Guidelines, and then stated its reasons for departing from the 

Guidelines, we discern no abuse of discretion in the sentence imposed. 

Sheller, 961 A.2d at 190. 

For the reasons set forth above, we conclude that Appellant is entitled 

to no relief. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/5/2016