J-S44025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ZACHARY SCOTT MCPHAIL,

Appellant No. 882 EDA 2016

Appeal from the Judgment of Sentence March 4, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005380-2014

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2017

Appellant, Zachary Scott McPhail, appeals from the judgment of 

sentence entered on March 4, 2016, in the Philadelphia County Court of 

Common Pleas. We affirm. 

The trial court provided the following procedural history:

[Appellant] was arrested December 31, 2013. On May 28, 

2014, [Appellant] was formally charged with inter-alia: 1) 

Involuntary Deviate Sexual Intercourse with a Child pursuant to 

18 Pa.C.S.A. §3123(b); 2) Unlawful Restraint pursuant to 18 

Pa.C.S.A. §2902(a)(1); 3) Incest of a Minor under 13 Years of 

Age pursuant to 18 Pa.C.S.A. §4302(b)(1); 4) Corruption of 

Minors pursuant to 18 Pa.C.S.A. §6301(a)(1)(i); 5) Indecent 

Assault of a Child under 13 Years of Age pursuant to 18 

Pa.C.S.A. §3126(a)(7); and 6) Endangering the Welfare of a 

Child pursuant to 18 Pa.C.S.A. §4304(a)(1). On January 8, 

2016, at the conclusion of his jury trial, [Appellant] was only 

found guilty of the charge of Endangering the Welfare of a Child. 

[Appellant] was found not guilty of all other charges. On 

March 4, 2016, [Appellant] was sentenced to a period of 

confinement in a state correctional institution for 2 years 6 
J-S44025-17

- 2 -

months to 5 years on the charge of Endangering the Welfare of a 

Child. 

On March 11, 2016, [Appellant] timely filed [a] postsentence motion for reconsideration of sentence pursuant to 

Pa.R.Crim.P. 720(B)(1)(a). On March 14, 2016, [Appellant’s] 

motion was denied without a hearing. 

On March 21, 2016, [Appellant] timely filed the instant 

appeal. . . . The Court ordered [Appellant] to file his Statement 

of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) 

on March 23, 2016. On April 13, 2016, [Appellant] filed his 

Statement of Errors Complained of on Appeal and 

contemporaneously filed a Request for Extension of Time to file 

his 1925(b) to obtain the Notes of Testimony from sentencing. 

The Court granted [Appellant’s] extension. On June 15, 2016, 

the Notes of Testimony from the March 4, 2016 sentencing 

hearing became available. On July 7, 2016, [Appellant] filed an 

amended Statement of Errors Complained of on Appeal. 

Trial Court Opinion, 8/30/16, at 1–2. 

Appellant raises the following issue on appeal:

Did not the lower court impose an excessive and 

unreasonable sentence, contrary to the fundamental norms that 

underlie the sentencing process and to specific provisions of the 

Sentencing Code, including 42 Pa.C.S. §9721(b), when it 

imposed a sentence beyond the aggravated range of the 

sentencing guidelines (in fact, the maximum statutory sentence) 

for the charge of endangering the welfare of children (hereafter, 

EWOC), the sole offense of which [Appellant] was convicted; in 

particular, did not the lower court err by justifying its sentence 

upon [Appellant’s] prior record, when that record was already 

take [sic] into account by [Appellant’s] prior record score, and 

did not the lower court err by justifying its sentence upon its 

improper conclusion that the jury convicted [Appellant] of EWOC 

because it found that [Appellant] committed sexual offenses? 

Appellant’s Brief at 3. Appellant’s issue is a challenge to the discretionary 

aspects of his sentence.
J-S44025-17

- 3 -

When an appellant challenges the discretionary aspects of his sentence 

there is no automatic appeal; rather, the appeal will be considered a petition 

for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 

(Pa. Super. 2007). Furthermore, as this Court noted in Commonwealth v. 

Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (1) 

whether [the] appellant has filed a timely notice of 

appeal, see Pa.R.A.P. 902 and 903; (2) whether the 

issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, see

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

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

whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

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

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). 

A substantial question requires a demonstration that “the 

sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 

2005). This Court’s inquiry “must focus on the reasons for which 

the appeal is sought, in contrast to the facts underlying the 

appeal, which are necessary only to decide the appeal on the 

merits.” Id. Whether a substantial question has been raised is 

determined on a case-by-case basis; the fact that a sentence is 

within the statutory limits does not mean a substantial question 

cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255 

(Pa. Super. 2003). However, a bald assertion that a sentence is 

excessive does not by itself raise a substantial question justifying 

this Court’s review of the merits of the underlying claim. Id. 
J-S44025-17

- 4 -

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). Whether 

the issue raised on appeal constitutes a substantial question is a matter 

evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 

808, 811 (Pa. Super. 2001). 

Appellant has satisfied the first three elements of the four-part test 

from Moury. Appellant filed a timely notice of appeal, a timely motion to 

reconsider sentence, and he included a statement of reasons for the 

allowance of appeal in his brief. Appellant’s Brief at 11. Accordingly, we 

address whether Appellant raised a substantial question.

Appellant asserted three instances in which the trial court abused its 

discretion: 1) the trial court double-counted factors that were already 

incorporated in the Sentencing Guidelines; 2) the trial court relied on 

impermissible factors when it imposed Appellant’s sentence; and 3) the 

sentence was disproportionate to Appellant’s conduct and was not justified. 

Appellant’s Brief at 12–13. We conclude that Appellant raised substantial 

questions with each of his claims. See Commonwealth v. Robinson, 931 

A.2d 15, 27 (Pa. Super. 2007) (a claim that the trial court impermissibly 

double-counted factors already incorporated in the sentencing guidelines 

raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54, 

56–57 (Pa. Super. 2003) (a claim that the trial court relied on impermissible 

factors raises a substantial question); and Commonwealth v. Parlante, 

823 A.2d 927, 930 (Pa. Super. 2003) (a claim that the trial court 
J-S44025-17

- 5 -

disproportionately sentenced the defendant without providing a justification 

raises a substantial question). 

It should be noted that “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.” Commonwealth v. Sheller, 

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is 

not shown merely by an error in judgement; rather, an appellant must 

establish that the trial court ignored or misapplied the law, exercised its 

judgment for reasons of partiality, prejudice, bias, or ill will, or reached a 

manifestly unreasonable decision. Id. 

When imposing a sentence, the sentencing court is 

required to consider the sentence ranges set forth in the 

Sentencing Guidelines, but it [is] not bound by the Sentencing 

Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 

1111, 1118 (2007) (“It is well established that the Sentencing 

Guidelines are purely advisory in nature.”); Commonwealth v. 

Walls, 926 A.2d 957, 965 (referring to the Sentencing 

Guidelines as “advisory guideposts” which “recommend ... rather 

than require a particular sentence”). The court may deviate 

from the recommended guidelines; they are “merely one factor 

among many that the court must consider in imposing a 

sentence.” Yuhasz, 923 A.2d at 1118. A court may depart 

from the guidelines “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.” Commonwealth v. Eby, 784 A.2d 204, 

206 (Pa.Super.2001). When a court chooses to depart from the 

guidelines however, it must “demonstrate on the record, as a 

proper starting point, his awareness of the sentencing 

guidelines.” Eby, 784 A.2d at 206. Further, the court must 

“provide a contemporaneous written statement of the reason or 

reasons for the deviation from the guidelines.” 42 Pa.C.S.A. 

§ 9721(b).
J-S44025-17

- 6 -

Sheller, 961 A.2d at 190 (emphasis added). 

With respect to the first part of Appellant’s argument concerning 

double-counting factors identified in the Sentencing Guidelines, specifically 

his criminal history, we note that as a general rule, courts are not permitted 

to double-count factors already included in the Sentencing Guidelines. 

Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000). 

Nevertheless, this Court had held that

“[w]hen imposing a sentence, 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), appeal denied, 582 Pa. 671, 868 A.2d 1198 

(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 

L.Ed.2d 902 (2005). “In particular, the court should refer to the 

defendant’s prior criminal record, his age, personal 

characteristics and his potential for rehabilitation.” Id. Where 

the sentencing court had the benefit of a presentence 

investigation report (“PSI”), we can assume the sentencing court 

“was aware of relevant information regarding the defendant’s 

character and weighed those considerations along with 

mitigating statutory factors.” Commonwealth v. Devers, 519 

Pa. 88, 101-02, 546 A.2d 12, 18 (1988). 

Moury, 992 A.2d at 171. 

Instantly, at sentencing, the trial court determined that Appellant 

possessed a prior record score of five and an offense gravity score of five. 

N.T., 3/4/16, at 7–8. The court proceeded to sentence Appellant to two and 

one-half to five years of imprisonment for Endangering the Welfare of a 

Child (“EWOC”). The trial court benefited from a presentence investigation, 

N.T., 3/4/16, at 20; thus, we can presume that it considered all relevant 

factors when imposing sentence. Moury, 992 A.2d at 171. From the 
J-S44025-17

- 7 -

presentence investigation report, the trial court gave particular consideration 

to Appellant’s criminal history, which notably included statutory sexual 

assault. N.T., 3/4/16, at 6, 20. Moreover, the trial court was compelled to 

impose a sentence outside of the Sentencing Guidelines because this crime 

was also of a sexual nature, and the court stated that Appellant’s prior 

record score did not sufficiently integrate the serious crimes of his prior 

record. Id. at 20. While Appellant minimizes the extent and severity of his 

prior criminal behavior, Appellant’s Brief at 19, the trial court was under no 

obligation to do likewise. The trial court properly weighed Appellant’s prior 

record, the nature of those crimes, the nature of the instant offense, 

Appellant’s recidivism, and the PSI report. All of those considerations are 

permissible beyond the factors enumerated in the Sentencing Guidelines; 

thus, we cannot agree that the court double-counted any factors. 

Appellant next claims that the trial court relied on impermissible 

factors when it imposed Appellant’s sentence. Appellant’s Brief at 12. 

Specifically, Appellant alleged that the trial court impermissibly inferred that 

the jury convicted Appellant of EWOC for his sex acts against the victim 

rather than the corporal punishment Appellant inflicted upon the victim. 

Appellant’s Brief at 20. This claim is belied by the record. The trial court 

explicitly instructed the jury that this case concerned Appellant assaulting 

the victim sexually and nothing else. N.T., 3/4/16, at 18–19. Thus, the jury 

was informed that the sexual nature of the assault on the victim was the 
J-S44025-17

- 8 -

behavior that endangered the victim’s welfare, not the corporal punishment. 

Accordingly, there was no improper inference.

Finally, Appellant alleges that the trial court abused its discretion by 

failing to provide adequate justification for the sentence imposed. 

Appellant’s Brief at 12. Section 9721(b) of the Sentencing Code requires the 

trial court to include the reason or reasons for the sentence, particularly if it 

is outside of the Sentencing Guidelines. McNabb, 819 A.2d at 57–58. 

Here, the Sentencing Guidelines provide a minimum sentence of twelve to 

eighteen months, plus or minus three months, for Appellant’s EWOC 

conviction. 204 Pa.Code § 303.16. However, the court imposed a sentence 

of two and one-half to five years, nine months beyond the aggravated 

minimum sentence suggested by the Sentencing Guidelines. 204 Pa.Code 

§ 303.16. Instantly, the trial court adequately described its rationale for 

imposing a sentence outside of the Sentencing Guidelines. 

THE COURT: All right. I’ve reviewed the presentence 

report. I’ve listened to the arguments of counsel. I reviewed 

the notes of testimony, especially my charge to the jury. I think 

both sides, the DA and defense counsel, make good points. 

It was a compromised verdict. That’s what jurors are 

permitted to do. That’s why they have all those cases that say 

inconsistent verdicts are still valid verdicts. 

And I was correct when I told the jury that is a charge that 

can include a wide range of conduct, but I think I also made it 

clear to the jury that the allegation in this case was the sexual 

assault, that it wasn’t anything else. The allegation is here that 

the duty of care, protection or support means, among other 

things, you can’t put your penis in her rectum.
J-S44025-17

- 9 -

Right before I said that, I also said, in this case, the 

allegation is that he penetrated her rectum; that’s how he 

endangered her welfare. 

And they were told that they had to find that beyond a 

reasonable doubt. So I don’t think it’s a mystery what they 

meant when they found him guilty of this. It was a weak jury 

who couldn’t bring themselves to say guilty of other charges that 

sound more serious. 

This is not a Megan’s Law offense, right?

MS. GILLUM: Correct.

THE COURT: I don’t know if anybody on the jury 

understood that. The foreman might’ve been well informed. 

I don’t know what they were thinking, but I do know that 

he doesn’t deserve a guilty, no further penalty sentence. 

There’s absolutely nothing in the presentence report or in his 

background that would justify that. The guideline range would 

allow me to give him a county jail sentence or a state prison 

sentence. The state prison sentence could be one-and-a-half to 

something and still be in the guidelines. However, I find that his 

prior record score understates the seriousness of his prior sexual 

assault. And this is a sexual assault. So on the one count, I 

sentence the defendant to two-and-a-half to five years in the 

state correctional institution. He is not RRRI eligible. He has to 

pay mandatory court costs. He’ll get credit for time served. 

N.T., 3/4/16, at 18–20. 

After review, we discern no abuse of discretion. The trial court did not 

double-count factors already included in the Sentencing Guidelines, it did not 

rely on impermissible factors when sentencing Appellant, and it provided 

justification for Appellant’s sentence. Accordingly, we conclude that 

Appellant is not entitled to relief. 

Judgment of sentence affirmed. 
J-S44025-17

- 10 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/31/2017