J-S37017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellee

v.

WHITLEY ELISE SHARP

Appellant No. 1877 MDA 2016

Appeal from the Judgment of Sentence September 27, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0002383-2016 

 CP-22-CR-0002530-2016

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED DECEMBER 05, 2017

Whitley Elise Sharp appeals from the September 27, 2016 judgment of 

sentence entered in the Dauphin County Court of Common Pleas following her 

entry of guilty pleas to endangering the welfare of children (“EWOC”), 

possession of a controlled substance, and possession of drug paraphernalia.1

We affirm.

In an August 21, 2017 memorandum, we ordered the trial court to 

determine why the sentencing transcript in this matter was not transmitted to 

this Court. We further instructed that if an “extraordinary breakdown in the 

judicial process” caused the transcript to be excluded from the record, then 

____________________________________________

1 18 Pa.C.S. § 4304(a), 35 P.S. § 780-113(a)(16), and 35 P.S. § 780-

113(a)(32), respectively.
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Sharp should be allowed to supplement the record with the transcript. 

Additionally, we instructed the trial court, upon receipt of the transcript, to 

issue a new Pennsylvania Rule of Appellate Procedure 1925(a) opinion 

addressing the merits of Sharp’s claim.

At a September 7, 2017 hearing, the parties stipulated that there was a 

breakdown in the Clerk of Courts’ office that caused the transcript to not 

properly appear on the docket or in the Clerk’s file. “Based upon counsel’s 

efforts to timely obtain the transcript and complete the record,” the trial court

allowed the transcript to be filed of record. On November 2, 2017, this Court 

received the sentencing transcript and a new Rule 1925(a) opinion from the 

trial court.

On August 11, 2016, Sharp pled guilty to the aforementioned offenses. 

During that plea,

Sharp acknowledged that she allowed her boyfriend, the 

child’s father, James Slaughter III, to repeatedly and 

severely physically abuse the child, that she failed to take 

any action to protect the child, failed to seek medical 

attention[,] and that she told the child not to disclose the 

abuse to anyone. 

Trial Ct. Op., 10/31/17, at 1-2 (“1925(a) Op.”).

On September 26, 2016, the trial court sentenced Sharp to 31⁄2 to 7 

years’ incarceration on the EWOC conviction and imposed no further 

incarceration for the other offenses. On September 28, 2016, Sharp filed a 

post-sentence motion to modify sentence, alleging that, in imposing a

sentence that was outside the aggravated range, the trial court did not 
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consider the factors set forth in section 9721(b) of the Sentencing Code. See

42 Pa.C.S. § 9721(b). The trial court denied the motion on October 19, 2016. 

On November 11, 2016, Sharp timely filed a notice of appeal.

Sharp’s sole issue on appeal is whether the trial court abused its 

discretion by not considering mitigating factors “where [Sharp]’s conduct was 

not so egregious to warrant a three and one half to seven . . . years sentence.” 

Sharp’s Br. at 8.

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super. 2011). Before we address such a challenge, we must first 

determine:

(1) whether the appeal is timely; (2) whether [the 

a]ppellant preserved his issue; (3) whether [the appellant’s 

brief includes a concise statement of the reasons relied upon 

for allowance of appeal with respect to the discretionary 

aspects of sentence; and (4) whether the concise statement 

raises a substantial question that the sentence is 

appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

Sharp filed a timely notice of appeal, preserved her discretionary 

aspects of sentencing claim in a post-sentence motion, and included a concise 

statement of the reasons relied upon for allowance of appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 2119(f). Further, a claim that the 

trial court “erred by imposing an aggravated range sentence without 

consideration of mitigating circumstances raises a substantial question.” 
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Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003) (en

banc).

Sharp was sentenced to a statutory maximum sentence that, based on 

application of the sentencing guidelines to Sharp’s conviction, is beyond the 

aggravated range. Further, Sharp argues that the trial court did not consider 

mitigating circumstances. Accordingly, Sharp has raised a substantial 

question for our review.

“Sentencing is a matter vested within the discretion of the trial court 

and will not be disturbed absent a manifest abuse of discretion.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). In 

imposing sentence, the trial court

shall follow the general principle that the 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. § 9721(b).

Sharp argues that the trial court failed to consider mitigating factors in 

imposing a lengthy sentence for EWOC. According to Sharp, the trial court

did not consider efforts she had made to care for the victim and ensure that 

he was safe. Sharp also highlights her lack of a prior record score or any 

evidence that “she has any violent tendencies.” Sharp’s Br. at 16. In 

addition, Sharp asserts that the trial court did not consider information in the 

pre-sentence report that “screamed the need for [Sharp]’s rehabilitation as 

opposed to an excessive period of incarceration.” Id. at 16-17. Sharp also 
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contends that the trial court failed to consider the effect of this incident on 

her, as she has “cared and loved this child since birth.” Id. at 17. We 

disagree.

In its Rule 1925(a) opinion, the trial court explained its imposition of the 

maximum sentence as follows:

In imposing the sentence of 31⁄2 to 7 years incarceration, 

we properly considered the gravity of the instant offense of 

recklessly endangering a child and [Sharp]’s rehabilitative 

needs. We cited our reliance upon a thorough Pre-Sentence 

Report and upon photographs which depicted horrific 

injuries to [Sharp]’s young child. (Transcript of 

Proceedings, Sentencing, p. 9) (hereinafter, “N.T.”). At 

sentencing, the Deputy District Attorney stated to the Court 

that in her 20 years of prosecution of child abuse cases, only 

in homicide cases, she had seen injuries to a child which 

looked as these did. (N.T. p. 7). Because the child had 

soiled his pants, Slaughter beat him on the face and back. 

(N.T. p. 7; N.T. p. 10). In spite of [Sharp]’s knowledge that 

Slaughter beat the little boy, she failed to remove him from 

further harm or seek medical attention. Id. We found no 

mitigation in [Sharp]’s claim that she was victimized by 

Slaughter and feared him. [Sharp]’s inadequate 

acknowledgement of responsibility for the harm to her child 

evidenced significant need for treatment and rehabilitation. 

(N.T. p. 10).

We acknowledged on the record that sentence fell 

outside the guidelines. (N.T. pp. 10-11). . . .

Here, we stated on the record our reliance upon the 

appropriate sentencing factors, namely, that . . . no lesser 

sentence would reflect the gravity of [Sharp]’s failure to 

protect her child from grave harm and her need for 

rehabilitation.

1925(a) Op. at 4-5. At sentencing, the trial court considered mitigating 

factors presented by Sharp. Not only did the trial court consider the pre-
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sentence report,2it also considered the comments of Sharp’s counsel, 

including that Sharp told her probation officer that she was attempting to 

escape the child’s father, Sharp was staying in contact with her children, and 

Sharp had a turbulent childhood marked by abuse. N.T., 9/26/16, at 3-6. 

“The [trial] court merely chose not to give the mitigating factors as much 

weight as [Sharp] would have liked.” Commonwealth v. Macias, 968 A.2d 

773, 778 (Pa.Super. 2009). In these situations, “we cannot re-weigh the 

sentencing factors and impose our judgment in the place of the [trial] court.” 

Id.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2017

____________________________________________

2 “Where pre-sentence reports exist, we . . . presume that the 

sentencing judge was aware of relevant information regarding the defendant’s 

character and weighed those considerations along with mitigating statutory 

factors.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009) 

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