J-S71044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PATRICK SCOTT MONGEAU

 Appellant No. 3513 EDA 2015

Appeal from the Judgment of Sentence April 20, 2015

in the Court of Common Pleas of Bucks County Criminal Division

at No(s): CP-09-CR-0006068-2014

BEFORE: BOWES, PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 19, 201

Appellant, Patrick Scott Mongeau, appeals from the judgment of 

sentence entered in the Bucks County Court of Common Pleas. 1 Appellant 

challenges the sufficiency of the evidence and the discretionary aspects of 

his sentence. We affirm.

We adopt the facts as set forth by the trial court’s opinion. See Trial 

Ct. Op., 4/8/16, at 2-5. Following a jury trial, Appellant was convicted of 

 

*

Former Justice specially assigned to the Superior Court.

1 On December 21, 2015, this Court issued a rule to show cause as to why 

this appeal should not be quashed as untimely filed based upon the Court of 

Common Pleas of Bucks County Docket, which indicated that post-sentence 

motions were untimely filed on August 10, 2015. The docket in the certified 

record on appeal indicates that the sentence was imposed on April 20, 2015, 

and post sentence motions were filed on April 30, 2015. Therefore, the post 

sentence motion was timely filed. See Pa.R.Crim.P. 720(A)(1).
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arson endangering inhabited property,2reckless burning endangering 

personal property,3criminal mischief,

4

stalking,5simple assault,6

harassment,7and recklessly endangering another person.8 He was 

sentenced to consecutive terms of five to ten years’ imprisonment for arson, 

three-and-a-half to seven years for reckless burning, two-and-a-half to five 

years for stalking,9one to two years for simple assault, and one to two years 

each for recklessly endangering another person. 

 

2 18 Pa.C.S. § 3301(c)(2).

3 18 Pa.C.S. § 3301(d)(2).

4 18 Pa.C.S. § 3304(a)(1).

5 18 Pa.C.S. § 2709.1(a)(1).

6 18 Pa.C.S. § 2701(a)(1).

7 18 Pa.C.S. § 2709(a)(1).

8 18 Pa.C.S. § 2705. Appellant was charged with four counts of reckless 

endangerment.

9 We note the trial court opinion indicates that Appellant was sentenced to 

“two-and-a-half to seven years for the crime of Stalking.” Trial Ct. Op. at 1. 

However, Appellant was sentenced to two-and-a-half to five years for 

stalking. N.T. Sentencing Hr’g, 4/20/15, at 36. The trial court concludes in 

its opinion that Appellant’s aggregate sentence was sixteen to thirty-two 

years’ imprisonment, which reflects a maximum five years’ imprisonment for 

stalking. Trial Ct. Op. at 1. Therefore, when the case returns to the trial 

court, the court is ordered to correct the record to reflect a two-and-one half 

to five year sentence for stalking. Cf. Commonwealth v. Holmes, 933 

A.2d 57, 66 (Pa. 2007) (holding courts have inherent power to correct 

patent errors in sentencing order when case is not pending on appeal).
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On April 30, 2015, Appellant filed a post-sentence motion for 

reconsideration of his sentence and for a new trial. On July 14, 2015, the 

trial court denied the motion to reconsider Appellant’s sentence. On October 

26, 2015, the court denied the motion for a new trial. On November 23, 

2015, Appellant filed an appeal from the October 26th order. Appellant filed 

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal and the trial court filed a responsive opinion.

Appellant raises the following issues for our review:

A. Whether [A]ppellant filed timely post-sentencing 

motions, warranting a consideration of his appeal on the 

merits?

B. Whether the trial court abused its discretion in imposing 

the maximum penalty provided by law in that said 

sentence is manifestly excessive, only takes into 

consideration the serious nature of the crimes and the 

protection of the victim, fails to adequately take into 

consideration the rehabilitative needs of [A]ppellant, as 

well as his history and character, and exceeds the top of 

the aggravated range of the sentencing guidelines by 

double without stating sufficient reasons on the record?

C. Whether the evidence was insufficient to sustain the 

verdict of guilty as to all counts?

1. Whether the evidence was insufficient to sustain the 

verdict of simple assault where there was no evidence 

[A]ppellant intended to inflict bodily injury or attempted 

to inflict bodily injury or recklessly caused bodily injury 

by his actions of grabbing Kimberly Harvey Kelly 

[(“Victim”)] by the back of the neck and chin and 

flipping her to the ground and where all of her injuries 

were caused by the gravel on the ground?

2. Whether the evidence was insufficient to sustain the 

arson, reckless burning, criminal mischief and recklessly 
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endangering another person charges where there was 

no confession and no physical evidence linking 

[A]ppellant to the arson?

Appellant’s Brief at 6-7.

As a prefatory matter, we consider whether the notice of appeal was 

timely filed.

Rule of Criminal Procedure 720 sets forth the procedure 

to be followed when a post-sentence motion is filed. 

Under this rule, the trial court must decide the postsentence motion within 120 days of the filing of the 

motion. Pa.R.Crim.P. 720(B)(3)(a). The trial court may 

grant one 30-day extension for a maximum of 150 days. 

Pa.R.Crim.P. 720(B)(3)(b). If the trial court fails to decide 

the motion within this time period, it is deemed denied by 

operation of law. Id. Where a post-sentence motion is 

denied by operation of law, the clerk of courts is directed 

to enter an order on behalf of the court and “forthwith 

furnish a copy of the order . . . to . . . the defendant(s) 

and defense counsel. . . .” Pa.R.Crim.P. 720(B)(3)(d).

Ordinarily, the time for filing an appeal begins to run on 

the date the post-sentence motion is denied, either by the 

court or by operation of law. . . . [O]ur review of the 

record clearly shows that the clerk of courts did not enter 

an order reflecting that [the a]ppellant’s post-sentence 

motion was denied by operation of law. This Court has 

previously held that, where the clerk of courts does not 

enter an order indicating that the post-sentence motion is 

denied by operation of law and notify the defendant of 

same, a breakdown in the court system has occurred and 

we will not find an appeal untimely under these 

circumstances. Therefore, we decline to quash the appeal 

. . . .

Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (some 

citations omitted). Analogously, in the case sub judice, the clerk of courts 

did not enter an order indicating that Appellant’s post-sentence motion was 
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denied by operation of law. Therefore, we will not find the appeal 

untimely.10 See id.

Appellant challenges the discretionary aspects of his sentence. In his 

Pa.R.A.P. 2119(f) statement, he claims that

when the trial court imposed the sentence, the court only 

considered two factors: the protection of the community 

and the protection of the victims. The trial court failed to 

consider the mitigating evidence presented by [A]ppellant, 

his history and characteristics, and his rehabilitative needs.

 * * *

Other than focusing on the serious nature of the offense 

and the protection of the victims, the trial court failed to 

state reasons on the record for imposing such a manifestly 

excessive sentence.

Appellant’s Brief at 26, 28. 

Appellant argues that the trial court abused its discretion in imposing 

the sentence, considering only the aforementioned two factors. Id. at 29. 

He avers that “a sentence at the top of the aggravated range of the 

guidelines would also address the nature of the charges and the protection 

of the victim.” Id. at 32. He claims “the sentence was manifestly excessive 

because the trial court failed to put sufficient reasons on the record for 

exceeding the top of the aggravated range of the guidelines . . . .” Id. at 

34.

This Court has stated,

 

10 Given our resolution of the timeliness of the appeal, we need not address 

the first issue raised on appeal.
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discretionary aspects of [an appellant’s] sentence [ ] are 

not appealable as of right. Rather, an appellant 

challenging the sentencing court’s discretion must invoke 

this Court’s jurisdiction by satisfying a four-part test. 

We 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.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some 

citations omitted).

Instantly, Appellant timely filed his appeal, preserved the issue of an 

excessive sentence in his post-sentence motion for reconsideration of 

sentence, and included a statement in his brief which conforms with 

Pa.R.A.P. 2119(f). See Appellant’s Brief at 26-28. Accordingly, we 

ascertain whether Appellant has raised a substantial question. See

Leatherby, 116 A.3d at 83.

“We conduct a case-by-case analysis to determine what allegations 

constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d 

1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. § 

9781(b). “A claim that a sentence is manifestly excessive such that it 

constitutes too severe a punishment raises a substantial question.” 

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011); 
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Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) 

(concluding appellant raised a substantial question when he claimed that a 

sentencing court imposed an excessive sentence and failed to consider 

substantial mitigating factors). “[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.” Commonwealth v. Bricker, 

41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted). 

We find that Appellant’s Rule 2119(f) statement presents a substantial 

question. See id.; Kelly, 33 A.3d at 640; Perry, 883 A.2d at 602. Our 

standard of review is 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. An abuse 

of discretion is more than just an error in judgment and, 

on appeal, the trial court will not be found to have abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. 

More specifically, 42 Pa.C.S.A. § 9721(b) offers the 

following guidance to the trial court’s sentencing 

determination:

[T]he sentence imposed should call for confinement 

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.A. § 9721(b).

Furthermore, 
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Section 9781(c) specifically defines three instances 

in which the appellate courts should vacate a 

sentence and remand: (1) the sentencing court 

applied the guidelines erroneously; (2) the sentence 

falls within the guidelines, but is “clearly 

unreasonable” based on the circumstances of the 

case; and (3) the sentence falls outside of the 

guidelines and is “unreasonable.” 42 Pa.C.S. § 

9781(c). Under 42 Pa.C.S. § 9781(d), the appellate 

courts must review the record and consider the 

nature and circumstances of the offense, the 

sentencing court’s observations of the defendant, the 

findings that formed the basis of the sentence, and 

the sentencing guidelines. The weighing of factors 

under 42 Pa.C.S. § 9721(b) is exclusively for the 

sentencing court, and an appellate court could not 

substitute its own weighing of those factors. The 

primary consideration, therefore, is whether the 

court imposed an individualized sentence, and 

whether the sentence was nonetheless unreasonable 

for sentences falling outside the guidelines, or clearly 

unreasonable for sentences falling within the 

guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Bricker, 41 A.3d at 875-76 (alterations and some citations omitted).

When imposing 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. Where 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 report constitutes the 

record and speaks for itself. 

Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) 

(quotation marks and citations omitted).

At the sentencing hearing, Appellant’s counsel stated: 
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As a child, his parents divorced when he was very 

young. . . . He ended up with his mother, who was very 

physically and mentally abusive to him.

 * * *

You can see from the information the Commonwealth has 

submitted that he has no convictions at 51 years old and 

for any violent crimes until this. He has no convictions 

from any of the other states he lived in for violent crimes. . 

. .

When he got here, he started having the mental health 

issues. He was diagnosed with PTSD as a result of his 

childhood, bipolar disorder, and severe depression. He 

was in and out of mental health facilities either as an 

inpatient or outpatient.

 * * *

He attempted suicide two times, once by cutting his 

wrists and once by od’ing on pills.

 

 * * *

When he got to the Bucks County Prison, they were 

treating him there for mental health problems. They gave 

him medication. Since basically his conviction on this, he 

has worked with the psychiatrist to wean him off the 

medication because they said it was mostly for having 

severe depression and they don’t think at this point he is 

severely depressed.

N.T., 4/20/15, at 12-14. The trial court indicated that prior to sentencing, 

he read the Commonwealth’s sentencing memorandum. Id. at 25. The 

Commonwealth’s Pre-Trial Domestic Violence Investigation Report was 

attached to the Commonwealth’s Sentencing Memorandum. Id. at 2; see

also Commonwealth’s Sentencing Mem., 2/23/15, at 1-9. Appellant initially 
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objected, but ultimately withdrew his objection, to the introduction of the 

report into evidence. N.T. at 8.

After a careful consideration of the record, we find no abuse of 

discretion. See Bricker, 41 A.3d at 875-76. The trial court considered the 

Domestic Violence Investigation Report. See Antidormi, 84 A.3d at 761. 

We find the trial court adequately addressed this issue and affirm on that 

basis. See Trial Ct. Op. at 11-14 (holding Appellant’s history, character and 

rehabilitative needs were pivotal factors in sentencing; protection of the 

public, gravity of offense in relation to the impact on five victims and the 

community, and rehabilitative needs of Appellant justified the sentence 

imposed).

Next, Appellant argues the evidence was insufficient to sustain the 

verdict of guilty as to the charge of simple assault. He avers that Victim

testified that [A]ppellant grabbed her by the back of her 

neck and her chin and flipped her to the ground. The 

injuries she sustained were a result of landing on gravel 

and dirt and were limited to scratches and bruises that did 

not require medical attention. Not the type of injuries that 

rise to the level of “substantial pain” or “physical 

impairment” that meet the definition of “bodily injury”. 

Appellant’s Brief at 37. 

Our review is governed by the following principles: “A claim 

challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 
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require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. 

 * * *

When reviewing the sufficiency of the evidence, an 

appellate court must determine whether the evidence, and 

all reasonable inferences deducible from that, viewed in 

the light most favorable to the Commonwealth as verdict 

winner, are sufficient to establish all of the elements of the 

offense beyond a reasonable doubt. . . .

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007) 

(citations and quotation marks omitted). 

Simple assault is defined as follows: 

(a) Offense defined.—Except as provided under Section 

2702 (relating to aggravated assault), a person is guilty of 

assault if he:

(1) attempts to cause or intentionally, knowingly or 

recklessly causes bodily injury to another[.]

18 Pa.C.S. § 2701(a)(1). Bodily injury is defined as “Impairment of physical 

condition or substantial pain.” 18 Pa.C.S. § 2301. 

The Commonwealth need not establish that the victim 

actually suffered bodily injury; rather, it is sufficient to 

support a conviction if the Commonwealth establishes an 

attempt to inflict bodily injury. This intent may be shown 

by circumstances which reasonably suggest that a 

defendant intended to cause injury.

Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994)

(citation omitted). In Richardson, this Court found the evidence sufficient 

to support a conviction for simple assault where the defendant punched the 
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police officer in the face which caused the officer “to suffer a sore jaw for a 

couple of days but did not require him to go to a hospital or to miss work.” 

Id.

At trial, Victim testified to the following.11 Appellant and Victim had an 

“on and off again” intimate relationship. N.T., 2/5/15, at 45. In September 

or October of 2013, Victim told Appellant she “wanted no more contact” with 

him. Id.

[The Commonwealth]: Did there come a time when you 

realized that your requests to not have contact were going 

ignored?

A: Yes.

Q: And so what did you then do for help?

A: It was just all about keeping him calm, but away from 

my children.

Q: Well, at some point did you receive a voice mail that 

alarmed you?

A: Yeah.

Q: And can you tell us about that?

A: When─when it was obvious that he wasn’t going to get 

his way, he threatened me.

Q: What did he say?

A: He said he was going to kill me.

Q: Did you keep that voice mail?

 

11 See Trial Ct. Op. at 2-3.
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A: Yeah.

Id. at 49-50. The voice mail recording was played in open court. Id. at 51.

Victim testified regarding the incident at the Penn Warner Club 

campsite.12 Id. at 59. Appellant was outside of the camper and she was 

trying to calm him down but was unsuccessful. Id. at 65. Appellant 

“forcibly kissed” Victim and “it hurt.” Id.

[The Commonwealth]: Did he say anything to you?

A: He said, you have a week to fix this.

Q: Fix what?

A: I guess me seeing Joe.

Q: And then what did he say after that?

A: I said, why? You know, like I am not understanding 

why he has to act like this and what he is thinking.

Q: And did he respond?

A: He said, you have a week to fix this or we are dead.

 * * *

I said, why do I have to die? And he said, because we are 

soul mates, and that’s when he grabbed for me.

Q: He grabbed for you. How did he grab for you?

A: He went for my neck.

Q: Okay. Can you show us using your hands how it 

happened?

 

12 See Trial Ct. Op. at 3-4.
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A: He goes for my neck like he is going to snap my neck. 

That’s how he is going to, quote, unquote, kill me. And so 

he does this gesture where he grabs the back of my neck 

and my chin (demonstrating).

 * * *

One hand─whatever hand it is─is on my chin twisting me 

one way and the other hand twists me the opposite way.

Q: Of your head?

A: Yeah, to break my neck.

Q: And you had, unfortunately, been in this position 

before?

A: Yeah. Last time I had like nerve damage. It took four, 

almost five months for the pain to go away. I thought it 

was permanent, actually.

A: And so the last time, how did you react when you were 

in that position?

A: I fought it.

Q: And so this time what did you do?

A: I just went with it . . . .

Q: And so you were flipped. And where did you end up?

A: On my back on the road in the gravel.

 * * *

Q: Were you hurting after this?

A: Yeah. I mean, I landed on a bunch of gravel, big stone 

gravel and dirt. My arms and my back were bruised and 

scratched up.

N.T. at 66-69.
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The trial court opined:

In the instant case, [Appellant] applied force to a vital 

and vulnerable part of Victim’s body. He used sufficient 

force to cause her to be thrown to the ground. Given . . . 

his threats to kill her, the jury could reasonably infer that 

[Appellant] intended to cause bodily injury and could find 

that he took a substantial step towards accomplishing that 

goal.

Trial Ct. Op. at 7.

Instantly, the record, viewed in the light most favorable to the 

Commonwealth, reveals that Appellant attempted to cause, or intentionally, 

knowingly or recklessly caused, bodily injury to Victim. See 18 Pa.C.S. § 

2701(a)(1); 18 Pa.C.S. § 2301; Richardson, 636 A.2d at 1196. After 

careful consideration of the entire record, we hold the evidence believed by 

the jury was sufficient to sustain a simple assault conviction. See Ratsamy, 

934 A.2d at 1235-36. 

Lastly, Appellant contends the evidence was insufficient to sustain the 

arson, reckless burning, criminal mischief, and recklessly endangering 

another person charges where there was no confession and no physical 

evidence linking Appellant to the arson. Appellant’s Brief at 40. 

As a prefatory matter, we consider whether Appellant has waived this 

issue. In Commonwealth v. Williams, 959 A.2d 1252 (Pa. Super. 2008), 

the appellant raised the following issue in the Rule 1925(b) statement and 

brief: “There was insufficient evidence to sustain the charges of Murder, 
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Robbery, VUFA no license, and VUFA on the streets. Thus [Appellant] was 

denied due process of law.” Id. at 1256. This Court found the issue waived.

If [an a]ppellant wants to preserve a claim that the 

evidence was insufficient, then the 1925(b) 

statement needs to specify the element or elements 

upon which the evidence was insufficient. This 

Court can then analyze the element or elements on 

appeal. The instant 1925(b) statement simply does 

not specify the allegedly unproven elements. 

Therefore, the sufficiency issue is waived.

Before leaving this issue, we note that the Commonwealth 

failed to object to the aforementioned defect in the 

1925(b) statement. We also see that the trial court’s 

opinion addressed the topic of sufficiency. The 

Commonwealth’s failure and the presence of a trial court 

opinion are of no moment to our analysis because we 

apply Pa.R.A.P.1925(b) in a predictable, uniform fashion, 

not in a selective manner dependent on an appellee’s 

argument or a trial court’s choice to address an 

unpreserved claim. Thus, we find 1925(b) waiver where 

appropriate despite the lack of objection by an appellee 

and despite the presence of a trial court opinion. 

Id. at 1257 (some citations omitted). 

Appellant raised the following issues in his Rule 1925(b) statement: 

“Whether the evidence was insufficient to sustain the arson, reckless 

burning, criminal mischief, and recklessly endangering another person 

charges where there was no confession and no physical evidence linking 

[A]ppellant to the arson.” Statement of Matters Complained of on Appeal, 

12/11/15, at 2 (unpaginated). 

Appellant did not “specify the element or elements upon which the 

evidence was insufficient.” See Williams, 959 A.2d at 1257. The fact that 
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the Commonwealth did not object to the defect and that the trial court 

addressed the issue is of no moment. See id. Therefore, we find the issue 

waived. See id.

Additionally, Appellant cites no legal authority in support of this 

insufficiency claim. It is well established that the 

failure to properly develop [a] claim and to set forth 

applicable case law to advance it renders [the] issue also 

waived. See Commonwealth v. Hunzer, 868 A.2d 498, 

516 (Pa. Super. 2005) (holding that an appellant waived a 

claim where he failed to cite any legal authority in support 

of an argument in his appellate brief); Commonwealth v. 

Ellis, 700 A.2d 948, 957 (Pa. Super. 1997) (holding waiver 

results if an appellant fails to properly develop an issue or 

cite to legal authority to support his contention in his 

appellate brief).

Id. at 1258. Therefore, even assuming arguendo that the issue was not 

waived based upon the deficient Rule 1925(b) statement, it is waived for 

failure to develop the claim with citation to legal authority. See id. 

Accordingly, we affirm the judgment of sentence and order the trial court to 

correct the record to reflect a two-and-a-half to five-year sentence for 

stalking.

Judgment of sentence affirmed. 

Judge Panella Joins the Memorandum.

Judge Bowes Concurs in the Result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/19/2016
1 Ms. Harvie-Kelly is the guardian ofM.C. N.T. 2/4/15 pp. 28-29. 

sz :fl'\/ 8·· !hh tJ)i:/ 

Defendant now appeals. 

.·.:.i r; ·+: 

Endangering Another Person for an aggregate sentence of sixteen to thifh-.t~'o'years: JM/) 

-, : I ' 

years for the crime of Simple Assault, and one to two years for each of the crimes of Recklessly 

crime of Reckless Burning, two-and-a-half to seven years for the crime of Stalking, one to two 

incarceration of five to ten years for the crime of Arson, three-and-a-half to seven years for the 

of 18 Pa.C.S. § 2705. On April 20, 2015, the Defendant was sentenced to consecutive terms of 

Endangering M.G., Recklessly Endangering E.K. and Recklessly Endangering W.K in violation 

Kelly in violation of 18 Pa.C.S. § 2709(a)(l), Recklessly Endangering M.C., Recklessly 

Assault of Ms. Harvie-Kelly in violation of 18 Pa.C.S. § 2701 (a)(l), Harassment of Ms. Harvie3304(a)(l), Stalking of Ms. Harvie-Kelly in violation of I 8 Pa.C.S. § 2709. l(a)(l), Simple 

in violation of 18 Pa.C.S. §3301(d)(2), Criminal Mischief, in violation of 18 Pa.C.S. § 

Burning Endangering Personal Property, specifically a motorcycle owned by Ms. Harvie-Kelly, 

four children, M.C., 1 M.G., E.K. and W.K., in violation of I 8 Pa.C.S. § 3301(c)(2), Reckless 

Endangering Inhabited Property, specifically the residence of Kimberly Harvie-Kelly and her 

On February 6, 2015, following a trial by jury, the Defendant was convicted of Arson 

OPINION 

PATRICK SCOTT MONGEAU 

v. [3513 EDA 2015] 

COMMONWEALTH OF PENNSYLVANIA No. CP-09-CR-0006068-2014 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 09/21/2016 04:45 PM
2 

2 N.T. 2/5/15 pp. 36-37. 

·' N.T. 2/5/15 pp. 39-45. 

·I N.T. 2/4/15 pp. 22-25, 32-33; N.T. 2/5/l 5 p. 46, 50-53. 

5 N.T. 2/5/15 p. 53. 

c, N.T. 2/5/15 p. 52. 

7 N.T. 215115 pp. 46, 48-49. 

He subjected Ms. Harvie-Kelly to physical assaults, causing her to suffer nerve damage during 

attempted to communicate with Ms. Harvie-Kelly through e-mail, text messaging and Facebook.7 

circled the home knocking on all of the windows.6 When not appearing in person, the Defendant 

On one such occasion, the Defendant climbed on to the roof of the home. 5 On another, he 

her oldest sons and police to stay away from their home and to refrain from contacting them." 

the Harvie-Kelly residence uninvited and unannounced despite being told by Ms. Harvie-Kelly, 

to cause her substantial emotional distress. The Defendant randomly and repeatedly appeared at 

continuous course of conduct designed to place Ms. Harvie-Kelly in fear of bodily injury and/or 

conviction. Between September of2013 and June of 2014, the Defendant engaged in a 

period of approximately eight months and formed the basis for the Defendant's Stalking 

This case involves three distinct criminal episodes. The first criminal episode spanned a 

terminated that relationship.3 

offenses for which the Defendant was tried and convicted began to occur when Ms. Harvie-Kelly 

allowed him to reside there. Subsequently, the two began a romantic relationship. The criminal 

nowhere to stay. Ms. Harvie-Kelly drove to Philadelphia, brought him back to her home and 

from a bus depot in Philadelphia and told her that he did not have transportation and that he had 

2012, the Defendant contacted her through Face book. One month later, the Defendant called her 

ages 17, 16, 13 and 9.2 Ms. Harvie-Kelly knew the Defendant from middle school. In July of 

located at 85 Quaker Hill Road, in Middletown Township, Bucks County, with her four children, 

Kimberly Harvie-Kelly, age 51 at the time of trial, resided in a single family residence 
3 

8 N.T. 2/5/15 p. 68. 

9 N.T. 2/5/15 p. 50; Exhibit C-5. 

10N.T. 2/4/15 pp. 23-24. 

11 N.T. 2/4/15 pp. 35-36; N.T. 2/5/15 p. 52. 

12 N .T. 2/5/15 p. 54. 

1., N .T. 2/5/ I 5 pp. 54-56. 

Simple Assault and Harassment convictions. On that date, the Defendant arrived at the Harviecampground located in Falls Township, Bucks County, and formed the basis for the Defendant's 

The second criminal episode occurred on June I, 2014 at Penn Warner Park, a lakeside 

controlling behavior. 

"keeping him calm."!' That tactic also failed to curb the Defendant's violent, aggressive and 

terminate the unwanted contact, she tried to minimize the Defendant's aggressive behavior by 

escorted off the property." She was, therefore, forced to change tactics. Rather than trying to 

untouchable" because, when the police were called to Ms. Harvie-Kelly's home, he was simply 

impact on the Defendant's behavior. She testified that the Defendant began to believe "he was 

and her children had failed. She also realized that police intervention was having a negative 

Ms. Harvie-Kelly soon realized that her attempts to keep the Defendant away from her 

cellphone within reach. 11 

of the residence were locked, no one was al lowed in or out and everyone in the home kept a 

the Defendant's potential presence. When the family was in "lockdown," the windows and doors 

so often that the family initiated what they called the "lockdown procedure" at the first sign of 

have."!" The Defendant's intrusions into the lives of this family caused such fear and occurred 

death threat, the Defendant admitted that he had made conunents that he "probably shouldn't 

one can stop me now. Goodbye you whore."? When he was contacted by the police about this 

Defendant left Ms. Harvie-Kelly a voicemail message in which he told her, "You are dead. No 

one of those assaults. 8 Finally, he threatened to take her life. On January 28, 2014, the 
4 

14 N.T. 2/4/15 pp. 28-40. 

15 N.T. 2/4/15 pp. 108-11 l; N.T. 2/5/15 pp. 60-63. 

16 N.T. 2/5/15 pp. 64-68. 

17 N.T. 2/4/15 p. 111; N.T. 2/5/15 p. 69. 

18 N.T. 2/4/15 p. 56, Exhibit C-1; N.T. 2/5/15 p. 69. 

to the Defendant· s Arson, Reckless Burning and Criminal Mischief convictions. Between 3 :00 

The third criminal episode occurred that same date at the Harvie-Kelly residence and Jed 

Kelly sustained painful scratches and bruises to her arms and back during this incident .18 

Ms. Harvie-Kelly cry out and ran to assist her. The Defendant then fled the area.17 Ms. Harvieneck like he is going to snap my neck. That's how he is going to ... kill me." Mr. Loomis heard 

result, was "flipped" to the ground." Ms. Harvie-Kelly testified that the Defendant "goes for my 

To avoid suffering serious injury, she did not resist the force being applied to her head and, as a 

Kelly, one hand on the back of her neck, one hand on her chin, and twisted her head and neck. 

die. He responded, "Because we are soul mates." The Defendant then grabbed Ms. Harviehave a week to fix this or we are dead." Ms. Harvie-Kelly asked the Defendant why she had to 

speak with him, the Defendant grabbed her, forcibly kissed her on the mouth and told her, "You 

and yelling.15 Ms. Harvie-Kelly went outside to try to calm him down. As she was trying to 

trailer where Ms. Harvie-Kelly and Mr. Loomis were staying and began banging on their door 

At approximately 1 :00 a.m., the Defendant arrived at Penn Warner Park, located the 

not return, 14 

initiated "lockdown mode." M.C. stood watch until 3:00 a.m. to make sure the Defendant did 

Harvie-Kelly and her boyfriend to warn them the Defendant might be on his way. He also 

comment, "She is probably at the Jake with her new boyfriend." M.C. immediately called Ms. 

boyfriend, Joseph Loomis, were staying at Penn Warner Park. M.C. heard the Defendant 

the Defendant that Ms. Harvie-Kelly was not home but did not disclose that she and her 

Kelly residence shortly after midnight looking for Ms. Harvie-Kelly. Her oldest son, M.C., told 
5 

19 Two burnt paper matches were found at the point of ignition. N.T. 2/5/15 pp. I 09-111; Exhibit C-4. 

20N.T. 2/5/15 pp. 95-116. 

21 N.T. 2/5/1 S pp. 36-37. 

22 Statement of Matters Complained of on Appeal p. 2 ~ 2. 

23 Statement of Matters Complained ofon Appeal p. 2 ~ 3. 

and any reasonable inferences from such evidence, in the light most favorable to the 

verdicts.23 The standard for reviewing a sufficiency claim is whether, viewing all the evidence 

The Defendant asserts that the evidence at his trial was insufficient to sustain the jury's 

hearsay issues have therefore been waived. 

to identify, in any manner, the testimony he seeks to challenge on appeal. The Defendant's 

Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.Super2002). Here, the Defendant has failed 

appeal and writes an opinion pursuant to that supposition, the issue is still waived. 

(Pa.Super.200 l ). Even if the trial court correctly guesses the issue the Defendant raised on 

equivalent to no concise statement at all." Commonwealth v. Dowling, 778 A.2d 683, 686-687 

which is "too vague to allow the court to identify the issue raised on appeal is the functional 

appeal. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super.2011). A concise statement 

statement of matters complained of on appeal must properly specify the error to be addressed on 

not identify any of those witnesses and does not cite to any portion of the trial record. A concise 

inadmissible hearsay statements of three witnesses."22 In making this claim, the Defendant does 

The Defendant asserts that this Court erred in admitting "a substantial amount of 

asleep in the house when the Defendant started the fire.21 

the sliding glass doors located at the back of the residence.i? M.C., M.G., E.K. and W.K. were 

gasoline with a match. 19 The fire, while burning, blocked anyone from exiting the home through 

motorcycle parked beside the home and along the back wall of the residence. He ignited the 

on the property, retrieved a gas can and poured a trail of gasoline in the back yard, over a 

a.m. and 7:00 a.m., the Defendant returned to the Harvie-Kelly residence. He entered the shed 
24 Statement of Matters Complained ofon Appeal p. 2 ~ 3a. 

6 

Commonwealth, the finder of fact reasonably could have determined all the elements of the 

crime were established beyond a reasonable doubt. Commonwealth v. Hardy, 918 A.2d 766, 774 

(Pa.Super.2007). The Commonwealth may sustain its burden of proving every element of the 

crime by means of wholly circumstantial evidence. Commonwealth v. Montalvo, 598 Pa. 263, 

27 4, 956 A.2d 926, 932 (2008). In evaluating the sufficiency of the evidence, a court may not 

weigh the evidence and substitute its judgment for that of the jury. Commonwealth v. Gooding, 

818 A.2d 546, 549 (Pa.Super.2003), appeal denied, 575 Pa. 691, 835 A.2d 709 (2003). Any 

question of doubt is for the finder of fact to resolve unless the evidence is so weak and 

inconclusive that no probability of fact could be drawn from the evidence. Commonwealth v. 

Hardy, 918 A.2d at 774. In determining the credibility of witnesses and the weight of the 

evidence produced, a jury is free to believe all, part or none of the evidence. Conunonwealth v. 

Martin, 627 Pa. 623, 101 A.3d 706, 718 (2014). 

With regard to his conviction for Simple Assault, the Defendant claims that there was no 

evidence that he attempted to inflict bodily injury or intentionally, knowingly or recklessly 

caused bodily injury to Kimberly Harvey-Kelly as required by Section 2701 ( a)(l ).24 "Bodily 

injury" is defined as impairment of physical condition or substantial pain. 18 Pa.C.S. § 2301. A 

person attempts to cause bodily injury if he has the intent to cause such injury and he does any 

act which constitutes a substantial step toward causing that injury. 18 Pa.C.S. § 901. A person 

intentionally causes bodily injury if it is his conscious object or purpose to cause such injury. A 

person knowingly causes bodily injury if he is aware that it is practically certain that his conduct 

will cause such injury. A person recklessly causes bodily injury when he consciously disregards 

a substantial and unjustifiable risk that such injury will result from his conduct. The risk must be 

of such a nature and degree that, considering the nature and intent of the actor's conduct and the 
7 

circumstances known to him, its disregard involves a gross deviation from the standard of 

conduct that a reasonable person would observe under the circumstances. 18 Pa.C.S. § 302(b). 

In the instant case, the Defendant applied force to a vital and vulnerable part of Ms. 

Harvie-Kelly's body. He used sufficient force to cause her to be thrown to the ground. Given 

his history of violent and assaultive behavior toward Ms. Harvie-Kelly and his threats to kill her, 

the jury could reasonably infer that the Defendant intended to cause bodily injury and could find 

that he took a substantial step towards accomplishing that goal. The jury could also have 

reasonably found that the Defendant intentionally, knowingly or recklessly caused Ms. HarvieKelly to suffer bodily injury since she sustained bruises, scratches and experienced pain as a 

result of his actions. 

In challenging his Simple Assault conviction, the Defendant relies on Commonwealth v. 

Wertelet, 696 A.2d 206, 210-21 I (Pa.Super.1997) wherein the court held that evidence that the 

defendant kicked a state trooper in the shins with the back of her heel as she was flailing about 

and squirming while the trooper attempted to handcuff her, was insufficient to establish "bodily 

injury" for purposes of aggravated assault of a police officer. Id. at 210-211. In support of its 

holding, the court noted that the trooper did not report any bruising or swelling and characterized 

the injury as similar to "bumping your shin on a coffee table." Id. at 213. The facts of this case 

are clearly distinguishable both in terms of the degree of force used and the injury caused. In 

addition, unlike the defendant in Wertelet, the Defendant here applied substantial force to a vital 

and vulnerable part of the victim's body and discontinued his assault only after Ms. HarvieKelly's boyfriend appeared. Finally, in addition to having been charged with causing bodily 

injury, the Defendant in the instant case was also charged with attempting to cause bodily injury. 
8 

25 Statement of Matters Complained of on Appeal p. 2 ~ Jb. 

Evidence of the Defendant's violent words and actions and the injuries suffered by Ms. HarvieKelly was sufficient to support the jury's verdict under either theory. 

The Defendant maintains that the evidence was insufficient to sustain his convictions for 

Arson Endangering Inhabited Property, Reckless Burning Endangering Personal Property, 

Criminal Mischief, Recklessly Endangering M.C., Recklessly Endangering M.G., Recklessly 

Endangering E.K. and Recklessly Endangering W.K, all of which related to the intentionally set 

fire at the residence of Kimberly Harvie-Kelly and her four children between 3:00 a.m. and 7:00 

a.m. on June I, 20 I 5. The Defendant does not challenge the jury's findings that the fire was 

intentionally set, that an accelerant was used, that the fire placed the residence in danger of 

damage or destruction or that the fire placed or may have placed M.C., M.G., E.K. and W.K. in 

danger of death or serious bodily injury. He asserts that there was insufficient evidence for the 

jury to conclude that he was the individual who set the fire because "there was no confession and 

no physical evidence linking him to the arson. "25 As stated above, the Commonwealth may 

sustain its burden of proving every element of the crime by means of wholly circumstantial 

evidence. Commonwealth v. Montalvo, supra. In the instant case, there was more than 

sufficient circumstantial evidence to establish that the Defendant was the person who started the 

fire at the victims' home. The Defendant had a long history of stalking and threatening Ms. 

Harvie-Kelly. Although he had previously and repeatedly been told been told not to be at the 

Harvie-Kelly residence by family members and police, the Defendant went to that residence in 

search of Ms. Harvie-Kelly just hours before the fire. He then tracked her to Penn Warner Park, 

where he physically assaulted her and threatened her life. After fleeing that scene, he did not 

return to his residence. While police and fire investigators were still on scene, the Defendant 

was observed bicycling by the fire crime scene. When police first attempted to speak with him, 
9 

26 N.T. 2/5/15 pp. 141-174. 

27 Exhibit C-16. 

28 N.T. 02/05/2015 pp. 17, 25; Exhibits C-12A to C-128. 

29 Sentence was imposed on April 20, 2015. On April 30, 2015, the Defendant filed timely post-sentence motions to 

reconsider sentence and for a new trial. following a hearing on July 14, 2015, this Court denied the post-sentence 

motion to reconsider sentence. The Defendant's remaining motions were denied by Order dated October 26, 2015. 

Confusion as to the timeliness of these motions arose because the Defendant's "Memorandum of Law In Support of 

Post-Sentence Motion~ Motion for a New Trial" filed on August 10, 2015 was incorrectly docketed as a "Motion 

for a New Trial." The Clerk of Courts has since corrected the docket. 

standard of review is whether this Court committed an abuse of discretion. Commonwealth v. 

Finally, the Defendant challenges the discretionary aspects of sentence. 29 The applicable 

274, 281 (Pa.Super.2009). 

Commonwealth must prove beyond a reasonable doubt." Commonwealth v. Gibbs, 981 A.2d 

appellant was convicted of multiple crimes each of which contains numerous elements that the 

insufficient."). "Such specificity is of particular importance in cases where, as here, the 

specificity the element or elements upon which the appellant alleges that the evidence was 

sufficiency of the evidence on appeal, an appellant's Rule l 925(b) statement must state with 

Freeman, 128 A.3d 1231, 1248 (Pa.Super.2015) ("In order to preserve a challenge to the 

element(s) the Commonwealth failed to prove beyond a reasonable doubt. Commonwealth v. 

that the evidence was insufficient to support that conviction by failing to specify which 

With regard to the Defendant's Stalking conviction, the Defendant has waived his claim 

presence of gasoline on one of the sneakers was subsequently confirmed by laboratory analysis.28 

to start the fire. Investigators detected the odor of gasoline on the Defendant's sneakers. The 

recovered from the Defendant's person.27 Investigators also determined that gasoline was used 

paper matches "'(ere used to ignite the fire at the Harvie-Kelly residence. A matchbook was 

police founds two items of significance in the arson investigation. Investigators determined that 

statement as to his whereabouts after leaving Penn Warner Park. Among his personal property, 

the Defendant fled on his bicycle.26 After being taken into custody, the Defendant gave a false 
10 

starting point, and that must be respected and considered; they recommend, however, rather than 

sentencing factors-they are advisory guideposts that are valuable, may provide an essential 

no binding effect, create no presumption in sentencing, and do not predominate over other 

As to the sentencing guidelines, the court in Walls reaffirmed that the guidelines "have 

Id. at 961-962. (footnotes omitted) 

The rationale behind such broad discretion and the concomitantly 

deferential standard of appellate review is that the sentencing court 

is "in the best position to determine the proper penalty for a 

particular offense based upon an evaluation of the individual 

circumstances before it." Commonwealth v. Ward, 524 Pa. 48, 

568 A.2d 1242, 1243 (1990); see also Commonwealth v. Jones, 

418 Pa.Super. 93, 613 A.2d 587, 591 (1992) (en bane) (offering 

that the sentencing court is in a superior position to "view the 

defendant's character, displays of remorse, defiance or indifference 

and the overall effect and nature of the crime."). Simply stated, the 

sentencing court sentences flesh-and-blood defendants and the 

nuances of sentencing decisions arc difficult to gauge from the 

cold transcript used upon appellate review. Moreover, the 

sentencing court enjoys an institutional advantage to appellate 

review, bringing to its decisions an expertise, experience, and 

judgment that should not be lightly disturbed. Even with the advent 

of the sentencing guidelines, the power of sentencing is a function 

to be performed by the sentencing court. Ward, 568 A.2d at 1243. 

Thus, rather than cabin the exercise of a sentencing court's 

discretion, the guidelines merely inform the sentencing decision. 

[A]n abuse of discretion is more than a mere error of judgment; 

thus, a sentencing court will not have abused its discretion unless 

"the record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will." 

Id. In more expansive terms, our Court recently offered: "An 

abuse of discretion may not be found merely because an appellate 

court might have reached a different conclusion, but requires a 

result of manifest unreasonableness, or partiality, prejudice, bias, 

or ill-will, or such lack of support so as to be clearly erroneous." 

Grady v. Frito-Lav, Inc., 5 76 Pa. 546, 839 A.2d 1038, 1046 (2003). 

follows: 

Walls, 592 Pa. 557, 926 A.2d 957 (2007). The court in Walls defined abuse of discretion as 
11 

30 The Report is attached to the Commonwealth's Sentencing Memorandum filed on February 23, 2015. 

Investigation Report for purposes of sentencing. 30 The report was admitted at sentencing without 

Prior to sentencing, the Commonwealth submitted a Pre-trial Domestic Violence 

sentence be the minimum possible confinement. Id. at 965. 

Walls, 926 A.2d at 963-964. There is no requirement that a sentencing court's imposition of 

... we decline to fashion any concrete rules as to the 

unreasonableness inquiry for a sentence that falls outside of 

applicable guidelines under Section 9781 ( c )(3). We are of the 

view, however, that the Legislature intended that considerations 

found in Section 9721 inform appellate review for 

unreasonableness. That is, while a sentence may be found to be 

unreasonable after review of Section 9781 ( d)'s four statutory 

factors, in addition a sentence may also be unreasonable if the 

appellate court finds that the sentence was imposed without 

express or implicit consideration by the sentencing court of the 

general standards applicable to sentencing found in Section 9721, 

i.e., the protection of the public; the gravity of the offense in 

relation to the impact on the victim and the community; and the 

rehabilitative needs of the defendant. 42 Pa.C.S. § 972l(b). 

* * * 

Thus, under the Sentencing Code an appellate court is to exercise 

its judgment in reviewing a sentence outside the sentencing 

guidelines to assess whether the sentencing court imposed a 

sentence that is "unreasonable." 42 Pa.C.S. § 9781 (c), (d). 

exceed the guidelines as follows: 

The court in Walls also set forth the standards of review applicable to sentences which 

(Pa.Super.1991 ). 

617 A.2d 330, 333 (Pa.Super.1992) quoting Conunonwealth v. Cornish, 5 89 A.2d 718, 721 

do so as long as it places its reasons for the deviation on the record." Commonwealth v. Dutter, 

advisory, "[i]f the court finds it appropriate to sentence outside the guidelines, of course it may 

require a particular sentence." Id. at 964-965. Since the sentencing guidelines are merely 
12 

objection.31 The information contained in that report included summaries of each of the 

Defendant's police contacts. Several significant incidents were reported. In I 989, the Defendant 

was convicted in Massachusetts of Receiving Stolen Property after he was found attempting to 

sell property that had been taken in a residential burglary two weeks earlier. In 1993, the 

Defendant was convicted of a 1992 larceny in Massachusetts. In 1998, the Defendant's then 

girlfriend reported that the Defendant had been drinking heavily and using crack cocaine and that 

he had broken into a local doctor's office and removed property, The Defendant was convicted 

of receiving stolen property as a result of that incident. In September of 2012, Ms. Harvie-Kelly 

reported that the Defendant slashed all four of the tires on her car. In December of 20 I 2, Ms. 

Harvie-Kelly reported that the Defendant threatened to slash her tires. In February of 2013, Ms. 

Harvie-Kelly reported a physical altercation with the Defendant after the Defendant started to 

damage her personal property. After this incident, he was told not to return to the residence by 

police, but disregarded those instructions and returned to the residence on two occasions two 

days later. On the second occasion, the Defendant had a knife and threatened to harm himself. 

In February of 2013, Ms. Harvie-Kelly reported that the Defendant cut his wrist. In May of 

20 I 3, Ms. Harvie-Kelly reported that she was assaulted by the Defendant, that her fifteen-yearold son was forced to intervene and that while the Defendant held her against the kitchen counter 

of her residence, the Defendant asked her son if he had a knife. In June of 2013, police were 

called to Brooke Glen Behavioral Hospital after the Defendant assaulted two other patients. 

In the instant case, the Defendant asserts that this Court abused its discretion in imposing 

a sentence that exceeded the Sentencing Guidelines without stating sufficient reasons for doing 

so on the record. I-le asserts that in imposing sentence, this Court only considered the serious 

nature of the charges and the protection of the victims and failed to adequately consider the 

31 N.T. 4/20/15 pp. 2-8. 
13 

32 Statement of Matters Complained of on Appeal p. I 1[ I. 

33 The guidelines applicable i11 the Defendant's case were as fol lows: 

Arson: mitigated - RS; standard - 6-14 months; aggravated - 20 months 

Reckless Burning: mitigated - RS; standard - 1-12 mouths; aggravated - 15 months 

Stalking: mitigated -- ; standard - RS-9 months; aggravated - 12 months 

Simple Assault: 111 itigated --; standard - RS-9 months; aggravated - 12 months 

Recklessly Endangering Another Person: mitigated->: standard- RS-6 months; aggravated - 9 months 

34 N.T. 4/20/15 pp. 25-35; N.T. 7/14/J 5 pp. 8-IO. 

35 N.T. 4/20/15 pp. 11-16. 

36N.T. 4/20/15 pp. 25-35; N.T. 7/14/15 pp. 8-!0. 

violent behavior. 

Defendant. Instead, it increased the Defendant's desire to control her life through increasingly 

Kelly's efforts to ameliorate the Defendant's situation in life had no positive effect upon the 

him, who had given him a place to live, and who had offered him Jove and support. Ms. Harviewas the fact that the Defendant chose to victimize the very people who were attempting to help 

life was in disarray did not mitigate his ongoing domestic violence. Of particular importance 

lengthy history of violence towards himself and others. His emotional issues and the fact that his 

circumstances to be mitigating.36 His Jack of a violent criminal history was nullified by his 

Court considered the factors submitted by the defense but did not find those facts and 

back and the fact that his life was "in disarray" called for imposition of a lesser sentence. 35 This 

emotionally and physically abused, his two prior suicide attempts, medical issues concerning his 

violent criminal record, his history of mental health issues, an alleged history of being 

The Defendant argued that his background and history, specifically his age, his Jack of a 

nature of his criminal conduct and the level of violence involved. 34 

those children, the number of and the distinct nature of the crimes he committed, the ongoing 

fact that he chose to victimize children, the fact that he had held a position of trust with regard to 

detail the reasons for doing so which included the number people the Defendant victimized, the 

exceeded the aggravated range of the applicable sentencing guidelines,33 this Court explained in 

Defendant's rehabilitative needs, his history and his character.32 In imposing sentences that 
14 

Date 

./_) ~ I I 

.,._) .. '\Ji 

BY THE COURT: 

Defendant's Statement of Matters Complained of on Appeal lack merit. 

For all of the reasons set forth above, this Court finds that the claims set forth in the 

called for the sentence imposed. 

Defendant's five victims and the community and the rehabilitative needs of the Defendant all 

the protection of the public, the gravity of the offense in relation to the impact on the 

was being sentenced. Based on all of these facts and circumstances, this Court concluded that 

noted that the Defendant continued to demonize Ms. Harvie-Kelly and her son, M.C., even as he 

protect themselves and the ineffectiveness of police intervention as a deterrent. This Court also 

conclusion, this Court noted the Defendant's complete disregard of the victims' attempts to 

community in general, and Ms. Harvie-Kelly and her family in particular. In arriving at that 

control his violent conduct and that, therefore, he will continue to pose a danger to the 

The Defendant's background and his history left little doubt that the Defendant cannot or will not 

suicide convinced this Court that the Defendant's statement, "we're dead," was not an idle threat. 

his life threatening assaults on Ms. Harvie-Kelly and children, and his prior attempts to commit 

children. The palpable hatred and anger in his voice in his January 2014 voicemail death threat, 

Court that he poses a real and continuing danger to the lives of Ms. Harvie-Kelly and her 

than mitigating the Defendant's sentence, the Defendant's history and character convinced this 

rehabilitative needs were pivotal factors with regard to the sentence imposed. However, rather 

Contrary to the Defendant's assertion, the Defendant's history, character and