J-S69040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PATRICK EUGENE FATTA,

Appellant No. 2026 MDA 2015

Appeal from the Judgment of Sentence October 16, 2015

in the Court of Common Pleas of Lancaster County

Criminal Division at No.: CP-36-CR-0000169-2015

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 29, 2016

Appellant, Patrick Eugene Fatta, appeals from the judgment of 

sentence imposed following his open guilty plea to possession of child 

pornography, 18 Pa.C.S.A. § 6312(d), criminal use of a communication 

facility and several related offenses. Appellant claims the sentencing court 

applied an incorrect offense gravity score (OGS) and sentence enhancement. 

We vacate the judgment of sentence and remand for resentencing. 

On July 8, 2015, Appellant entered counseled, open guilty pleas to 

three counts of sexual abuse of children─possession of child pornography─ 

and other offenses.1 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Specifically, on docket number 169 of 2014, he pleaded guilty to two 

counts of sexual abuse of a child─possession of child pornography 

(possession of 186 videos depicting child pornography, children under the 

age of eighteen, and 1532 still photographs (digital images) depicting child 

pornography, children under the age of eighteen,─no indecent contact), 18 

Pa.C.S.A. § 6312(d), felonies of the third degree.2 At count three, he 

pleaded guilty to criminal use of a communication facility (his computer), a 

felony of the third degree. At count four, he pleaded guilty to sexual abuse 

of a child─possession of child pornography (three videos depicting indecent 

contact),3a felony of the second degree.4 (See N.T. Guilty Plea, 7/08/15, at 

1, 7-8). 

(Footnote Continued) _______________________

1 On the same day, Appellant also signed and submitted a written guilty plea 

colloquy, co-signed by counsel. 

2 Section 6312(d) provides:

(d) Child pornography.─Any person who intentionally 

views or knowingly possesses or controls any book, magazine, 

pamphlet, slide, photograph, film, videotape, computer depiction 

or other material depicting a child under the age of 18 years 

engaging in a prohibited sexual act or in the simulation of such 

act commits an offense.

18 Pa.C.S.A. § 6312(d).

3

“Indecent contact” is defined by statute as follows: “Any touching of the 

sexual or other intimate parts of the person for the purpose of arousing or 

gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.

4

(Footnote Continued Next Page)
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At the same time, on docket number 873 of 2015, Appellant pleaded 

guilty to indecent assault of a person less than thirteen years of age, a 

misdemeanor of the first degree. (See id. at 3, 9). From January 2009 

until December 2013, Appellant had indecent contact with a minor victim 

who was born in 2004; touching her vaginal area for sexual gratification. 

(See id.). Appellant also pleaded guilty to corruption of minors for the same 

acts.5 

Pertinent to issues presented for review, the Commonwealth chose to 

charge Appellant collectively, i.e., rather than charge him with 1,532 

separate charges of possession of digital image files of child pornography, it 

(Footnote Continued) _______________________

(d.1) Grading.─The offenses shall be graded as follows:

(1) Except as provided in paragraph (3), an offense under 

subsection (b) is a felony of the second degree.

(2)(i) Except as provided in paragraph (3), a first offense 

under subsection (c) or (d) is a felony of the third degree.

(ii) A second or subsequent offense under subsection (c) or 

(d) is a felony of the second degree.

(3) When a person commits an offense graded under 

paragraph (1) or (2)(i) and indecent contact with the child as 

defined in section 3101 (relating to definitions) is depicted, the 

grading of the offense shall be one grade higher than the grade 

specified in paragraph (1) or (2)(i).

18 Pa.C.S.A. § 6312(d.1). Because there was no dispute that this was 

treated as a first offense, subsection 2(ii) does not apply. 

5 The pleas at docket number 873, while indirectly relevant as part of the 

overall plea and sentence scheme, are not at issue in this appeal. 
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charged him on one count of possessing 1,532 digital images (still 

photographs). Similarly, instead of charging Appellant with 186 counts of

possessing digital video files, the Commonwealth filed one count of 

possessing 186 video files of child pornography. Notably, Appellant pleaded 

guilty on all counts.6 

The day after the guilty plea, as announced at the plea hearing, 

counsel filed “Defense Objections to Sentencing Guideline Computation.” 

(Defense Objections, 7/09/15). The Commonwealth filed a response on 

September 29, 2015. The trial court dismissed the objections by order filed 

October 14, 2015. 

On October 16, 2015, the court imposed an aggregate sentence of not 

less than two and one-half years’ nor more than five years’ incarceration, 

followed by a consecutive five year term of probation.7 (See Trial Court 

____________________________________________

6 The record does not include any of the videos or still photos. We defer to 

the factual findings of the trial court, particularly as to what percentage of 

the images depicted children under thirteen, or thirteen to eighteen, how 

many images depicted indecent contact, etc. Appellant does not dispute the 

actual content of the images, or the related classification issues.

7 On the indecent assault and corruption of minor charges at docket number 

873, the court sentenced Appellant to two terms of imprisonment in a state 

correctional institution for not less than three months and not more than two 

years. The court made the sentences concurrent with each other and 

consecutive to the sentences at No. 169. 
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Opinion, 2/12/16, at 1; see also N.T. Sentence, 10/16/15, at 19-20). 

Appellant timely appealed.8 

Appellant presents three questions for our review:

I. Did the trial court err in assigning Counts 1 and 2, 

Sexual Abuse of Children─Possession of Child Pornography, an 

Offense Gravity Score of 7?

II. Did the trial court err in applying an 18 month 

enhancement to the guidelines in Count 4, Sexual Abuse of 

Children─Possession of Child Pornography (F2), where the 

defendant only possessed three digital video files depicting 

children under the age of 18 engaged in prohibited sexual acts or 

in the simulation of such acts which involved indecent contact?

III. Did the trial court err in failing to grant relief on Counts 

1 and 2 where the wrong offense gravity score was applied and 

Count 4 where the wrong guideline enhancement was applied?

(Appellant’s Brief, at 5).

Our standard of review is well-settled.

[S]entencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias 

or ill will. It is more than just an error in judgment.

____________________________________________

8 On November 16, 2015, the trial court granted plea counsel leave to 

withdraw. The court appointed the Public Defender, who continues to 

represent Appellant in this appeal. Appellant filed a concise statement of 

errors on December 30, 2015. See Pa.R.A.P. 1925(b). The Commonwealth 

filed an answer. At the end of 2015, the sentencing judge, the Honorable 

Joseph C. Madenspacher, assumed senior status. This appeal was 

reassigned to the Honorable Merrill M. Spahn, Jr. Judge Spahn filed the trial 

court opinion on February 12, 2016. (See Trial Ct. Op., 2/12/16, 1 n.2); 

see also Pa.R.A.P. 1925(a). 
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Commonwealth v. Downing, 990 A.2d 788, 792–93 (Pa. Super. 2010) 

(citation omitted). Appellant’s claims challenge the discretionary aspects of 

his sentence. See Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. 

Super. 2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013) (reviewing 

challenge to application of offense gravity score in calculation of guideline 

ranges for abuse of discretion). 

“It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.” Commonwealth v. 

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 

825 (2011) (citation omitted).

Before we reach the merits of this case, we must 

engage in a four part analysis to determine: (1) whether 

the appeal is timely; (2) whether Appellant preserved his 

issue; (3) whether 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 sentencing code. The third and fourth of these 

requirements arise because Appellant’s attack on his 

sentence is not an appeal as of right. Rather, he must 

petition this Court, in his concise statement of reasons, to 

grant consideration of his appeal on the grounds that there 

is a substantial question. Finally, if the appeal satisfies each 

of these four requirements, we will then proceed to decide 

the substantive merits of the case.

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

(citations omitted).

In this case, as already noted, Appellant filed a timely notice of appeal, 

preserved his claims in his timely motion, and included in his appellate brief 
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a Rule 2119(f) statement. Accordingly, we will review the Rule 2119(f) 

statement to determine if Appellant has presented a substantial question. 

This Court has held that “[a] claim that the sentencing court misapplied the 

Guidelines presents a substantial question.” Commonwealth v. Archer, 

722 A.2d 203, 211 (Pa. Super. 1998). Therefore, we will review the merits 

of Appellant’s claims. 

Appellant first claims that the sentencing court applied an “incorrect 

offense gravity score.” (Appellant’s Brief, at 12). We find Appellant’s 

argument as presented to be somewhat opaque. (See id. at 12-16). 

However, the gist of his claim is that the sentencing court erred in applying 

the higher offense gravity score then in effect for images involving children 

under the age of thirteen, when the charge was collective and “only . . . 

some” of the videos and images included children under the age of thirteen. 

(Id. at 15). Appellant maintains that the trial court compromised the 

fundamental norms of the sentencing process. (See id. at 12). We 

disagree.

Preliminarily, it bears noting that in both of the instances at issue 

when Appellant refers to “some” of the images, he actually means at least 

eighty per cent of them.9 The trial court decided that “the overwhelming 

____________________________________________

9 149 videos out of 186 are 80.1% of the total. 1348 digital images out of 

1532 are 87.98% of the total. 
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majority of the videos and still photographs” depicted children under the age 

of thirteen. (Trial Ct. Op., at 3). We defer to the factual findings of the trial 

court.

More substantively, Appellant offers no pertinent authority, case law or 

statute, in support of his mere bald assertion that on the facts of this case, 

an OGS of seven required that one hundred per cent of the images at issue 

must meet identical criteria. (See Appellant’s Brief, at 12-16). Our law 

assigns to the sentencing court the discretion to make this determination. 

See Lamonda, supra at 371. We discern no basis to conclude that the 

sentencing court abused that discretion. Appellant’s first claim fails.

In his second issue, Appellant asserts that the sentencing court used 

the wrong sentence guideline enhancement for count four (possession of 

three videos of child pornography depicting indecent contact). (See 

Appellant’s Brief, at 16-18). We agree.

Notably, both the Commonwealth and the trial court now agree the 

calculation was erroneous. (See Trial Ct. Op., at 4-5; see also

Commonwealth’s Brief, at 13-18). They do not dispute that the appropriate 

guideline enhancement for three videos depicting indecent contact should 

have been six months, not eighteen months.10 

____________________________________________

10 (l) Sexual Abuse of Children Enhancement sentence 

recommendations. If the court determines that aggravating circumstances 

described in § 303.10(e) are present, the court shall instead consider the 

(Footnote Continued Next Page)
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Nevertheless, the trial court concludes that the higher sentence 

enhancement was harmless error. (See Trial Ct. Op., at 7-8). Both the trial 

court and the Commonwealth reason that the sentencing court did not rely 

solely on the Guidelines. It also considered Appellant’s show of remorse, 

acceptance of responsibility, and initiation of corrective measures as well as 

(on the negative side) his escalation by actual indecent assault. (See id.

(citing N.T. Sentencing, 10/16/15, at 17-18); see also Commonwealth’s 

Brief, at 16-17). The Commonwealth also notes that the sentencing court 

had the benefit of a pre-sentence investigation report. (See 

Commonwealth’s Brief, at 17). Both cite case law that a sentence in the 

standard range is presumptively appropriate. (See Trial Ct. Op., at 7; 

Commonwealth’s Brief, at 15); see also Lamonda, supra at 372 (quoting 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)) (“where 

a sentence is within the standard range of the guidelines, Pennsylvania law 

(Footnote Continued) _______________________

applicable Sexual Abuse of Children Enhancement related to [the] number of 

images possessed by the offender or the nature and character of the abuse 

depicted:

(1) When applying enhancement based on the 

number of images possessed by the offender. If the 

offender possessed more than 50 images to 200 images, 6 

months are added to the lower limit of the standard range and 6 

months are added to the upper limit of the standard range.

204 Pa. Code § 303.9(l)(1). Each video is considered to have 50 images. 

See 204 Pa. Code § 303.10(e)(1)(ii).
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views the sentence as appropriate under the Sentencing Code.”) (citations 

omitted). 

This reasoning is appropriate to the review of a claim that a sentence 

was excessive. However, it does not address the separate problem at issue 

here, namely, the extent to which the sentencing court considered a 

sentencing enhancement, now conceded to be erroneous, in the formulation 

of an overall sentencing scheme. 

On Information (docket) No. 169 of 2014, the court imposed 

concurrent sentences. Therefore, the sentence on this count four, not less 

than two-and-a-half years’ nor more than five years’ imprisonment, plus a 

consecutive term of five years’ probation, became the de facto lead 

sentence. It is impossible to determine from the record whether the 

sentence would have been different, and possibly shorter, if the court had 

considered the enhancement now agreed to be correct, instead of an 

enhancement which was three times longer. Appellant’s sentence must be 

vacated. 

Accordingly, we will remand to the trial court for a reconsideration of 

Appellant’s sentence. See Commonwealth v. Hennigan, 753 A.2d 245, 

262 (Pa. Super. 2000) (remanding for reconsideration of appellant’s 

sentence because disposition may alter court’s sentencing scheme). The 

Commonwealth may present any appropriate argument for a sentence 

guideline enhancement at the resentencing hearing. 
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Appellant’s third claim basically repeats and recapitulates the 

arguments already presented in the first and second questions. (See

Appellant’s Brief, at 18-22). Therefore, it is unnecessary for us to repeat our 

analysis, and we decline to do so. 

Judgment of sentence vacated. Case remanded for resentencing after 

reconsideration of sentence guideline enhancement. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/29/2016