J-S14024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOAN GENSIAK

Appellant No. 677 MDA 2015

Appeal from the Judgment of Sentence October 16, 2014

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002134-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2016

Appellant, Joan Gensiak, appeals from the judgment of sentence 

entered October 16, 2014, in the Court of Common Pleas of Lackawanna 

County, following her guilty plea to Neglect of a Care-Dependent Person, 

graded as a felony of the first degree, and Endangering the Welfare of 

Children, graded as a felony of the third degree.1 We affirm the convictions, 

but vacate the judgment of sentence and remand for resentencing. 

The trial court summarized the history of this case as follows. 

On March 19, 2013, Robert Gensiak (hereinafter “Robert”), 

a thirty-two (32) year old male with Down Syndrome, who was 

the brother of [the Appellant,] was admitted to the hospital 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2713 and 4304(a)(1), respectively. 
J-S14024-16

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because he was semi-responsive and unable to stand up. 

[Appellant] resided in the home with Robert.

At the preliminary hearing, David Utter testified that he 

was the lead emergency room technician at the hospital where 

Robert was admitted. He testified Robert was covered in a rash, 

and was emitting a strong, foul smelling odor. He testified that 

Robert weighed sixty[-]nine (69) pounds. While at the hospital, 

Robert went into cardiac arrest and passed away on March 20, 

2013.

The Lackawanna County District Attorney’s Officer charged 

[Appellant] with four (4) charges related to her brother’s death 

and the endangerment of her two (2) year old daughter, who 

also resided in the home. [Appellant’s] mother, Susan Gensiak, 

and [Appellant’s] sister, Rebekah Gensiak, were also charged in 

relation to Robert Gensiak’s death. [Appellant] was charged with 

Murder of the Third Degree ..., Neglect of Care-Dependent Person 

..., Involuntary Manslaughter ..., and Endangering Welfare of 

Children-Parent/Guardian/Other Commits Offense....

On May 8, 2014, all three (3) co-defendants pled guilty 

before [the trial court]. [Appellant] entered a guilty plea to 

[Neglect of Care-Dependent Person and Endangering the Welfare 

of Children.] At the time of the guilty plea, [the trial court] 

engaged in an extensive colloquy of the [Appellant]. The 

[Appellant] ... stated that she had the opportunity to go through 

the four[-]page guilty plea colloquy with her attorney. She 

further stated that her lawyer answered any and all questions 

about the guilty plea colloquy and that she had an understanding 

of her guilty plea and what she was doing. She also conceded 

that there was no agreement between herself, her attorneys and 

the District Attorney’s Office regarding sentencing. She 

additionally acknowledged that she understood the [c]ourt was 

not a party to any agreement she may have had regarding 

sentencing. When questioned, she answered she knew she had 

the right to a jury trial, and understood her attorney’s would 

have the opportunity to cross-examine any witnesses called by 

the Commonwealth and to object to any evidence the District 

Attorney’s Office sought to have admitted to trial.

During the colloquy of the [Appellant], the Assistant 

District Attorney read the allegations of the criminal information 

for both crimes into the record. [Appellant accepted 

responsibility and admitted to committing the crimes with which 
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she had been charged.] ... [Appellant] stated that she was freely 

and voluntarily entering into this plea. ... Accordingly, [the trial 

court] found [Appellant] entered into the plea knowingly, freely 

and voluntarily. 

Prior to sentencing, both attorneys for the [Appellant], on 

July 21, 2014 and August 26, 2014, respectively, filed separate 

motions for the appointment of a psychiatrist to aid in the 

sentencing of the [Appellant]. [Appellant’s] attorneys requested 

that a psychiatrist be appointed at the rate of five hundred 

dollars ($500.00) per hour with a cap of five thousand dollars 

($5,000.00). [The court] granted [Appellant’s] request for a 

psychiatrist, but capped the available amount at two thousand 

dollars ($2,000.00). Defense Counsel declined to use the 

psychiatrist, stating in a letter to the [c]ourt that two thousand 

dollars ($2,000.00) was an insufficient amount. 

Trial Court Opinion, 6/2/15 at 1-4.

The court sentenced Appellant to a term of six to fifteen years’ 

imprisonment. Thereafter, Appellant filed a post-sentence motion to 

withdraw her guilty plea as well as a motion for reconsideration of sentence. 

The trial court denied Appellant’s motions following a hearing. This timely 

appeal followed. 

Appellant raises the following issues for our review.

I. Whether, where Appellant was an [indigent], mentally-ill 

person, charged with third degree murder, the lower court 

erred in [failing to appoint] a mental health expert to aid 

Appellant’s court-appointed counsel at sentencing?

II. Whether, where the Commonwealth misled Appellant into 

pleading guilty, by telling her that her identically-situated 

co-defendant was pleading guilty to an identical offense, 

an untrue fact, the lower court erred in re[f]using to allow 

Appellant to withdraw her guilty plea and proceed to trial?

III. Whether, by failing to articulate sufficient grounds on the 

record and by failing to properly weigh the mitigating 

circumstances present and by sentencing Appellant in a 

wildly disproportionate manner to that of her identically 
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situated co[-]defendant, the lower court erred in 

sentencing Appellant outside of the aggr[a]vated range?

Appellant’s Brief at 7 (unnecessary capitalization omitted). 

Appellant first contends that the trial court erred when it allegedly 

denied her motion for the appointment of a psychiatric expert to assist at 

sentencing. Although Appellant concedes that the trial court agreed to 

provide funds for an expert, she argues that the court’s decision to provide 

less money than the $5,000.00 she requested amounted to a tacit denial of 

Appellant’s motion. 

Our standard of review, as it relates to the appointment of a defense 

expert in a criminal matter, is as follows.

The provision of public funds to hire experts to assist in the 

defense against criminal charges is a decision vested in the 

sound discretion of the court and a denial thereof will not be 

reversed absent an abuse of that discretion.

Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008) 

(citation omitted). “[T]he Commonwealth is not obligated to pay for the 

services of an expert simply because a defendant requests one.” Id. at 1225 

(citation omitted). 

Appellant next claims that the trial court erred when it denied her 

post-sentence motion to withdraw her guilty plea. We note that,

[p]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry of 

guilty pleas as sentence-testing devices. A defendant 

must demonstrate that manifest injustice would result if 

the court were to deny his post-sentence motion to 

withdraw a guilty plea. Manifest injustice may be 

established if the plea was not tendered knowingly, 
J-S14024-16

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intelligently, and voluntarily. In determining whether a 

plea is valid, the court must examine the totality of 

circumstances surrounding the plea. A deficient plea does 

not per se establish prejudice on the order of manifest 

injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) 

(internal quotes and citations omitted). 

To be valid, a guilty plea must be knowingly, voluntarily 

and intelligently entered. [A] manifest injustice occurs when a 

plea is not tendered knowingly, intelligently, voluntarily, and 

understandingly. The Pennsylvania Rules of Criminal Procedure 

mandate pleas be taken in open court and require the court to 

conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of his 

plea. Under [Pa.R.Crim.P.] Rule 590, the court should confirm, 

inter alia, that a defendant understands: (1) the nature of the 

charges to which he is pleading guilty; (2) the factual basis for 

the plea; (3) he is giving up his right to trial by jury; (4) and the 

presumption of innocence; (5) he is aware of the permissible 

ranges of sentences and fines possible; and (6) the court is not 

bound by the terms of the agreement unless the court accepts 

the plea. The reviewing Court will evaluate the adequacy of the 

plea colloquy and the voluntariness of the resulting plea by 

examining the totality of the circumstances surrounding the 

entry of that plea. Pennsylvania law presumes a defendant who 

entered a guilty plea was aware of what he was doing, and the 

defendant bears the burden of proving otherwise. 

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014), appeal 

denied, 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted).

We have reviewed Appellant’s first two issues raised on appeal, along 

with the briefs of the parties, the certified record and the applicable law. 

Having determined that the Honorable Margaret A. Bisignani Moyle’s June 2, 

2015 opinion ably and comprehensively disposes of these issues, with 

appropriate reference to the record and without legal error, we affirm 
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Appellant’s first two issues on the basis of that opinion. See Trial Court 

Opinion, 6/2/15 at 6-12.

We write independently to address Appellant’s final issue, which 

challenges the discretionary aspects of her sentence. Preliminarily, we must 

determine whether Appellant has the right to seek permission to appeal the 

sentencing court’s exercise of its discretion. See Commonwealth v. 

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges 

the discretionary aspects of his sentence, we utilize a four-part test 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). 

Id. (internal citations omitted). 

Here, Appellant challenged her sentence in a post-sentence motion 

and filed a timely appeal. Appellant’s appellate brief also contains the 

requisite Rule 2119(f) concise statement. We must now decide whether 

Appellant’s challenge to the discretionary aspects of her sentence raises a 

substantial question. 

“A substantial question will be found where an appellant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the Sentencing Code or is contrary to the fundamental 
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norms which underlie the sentencing process.” Commonwealth v. Zirkle, 

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa. 

2015) (citation omitted). “[W]e cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Christine, 78 

A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation 

omitted). 

Appellant claims in her Rule 2119(f) statement that the trial court 

improperly imposed a sentence outside of the aggravated range of the 

sentencing guidelines. A claim that the sentencing court imposed a sentence 

outside of the guidelines without specifying sufficient reasons presents a 

substantial question for our review. See Commonwealth v. Holiday, 954 

A.2d 6, 10 (Pa. Super. 2008). 

Our review of the sentencing transcript reveals that although the 

sentencing court announced that it was imposing an aggravated range

sentence for the offense of Neglect of a Care-Dependent Person, the court 

proceeded to sentence Appellant outside of the sentencing guidelines. See 

N.T., Sentencing, 10/16/15 at 21. The “Pennsylvania Commission on 

Sentencing Guideline Sentencing Form” contained within the certified record 

indicates that that offense carried an offense gravity store of ten, see also 

204 Pa.Code §§ 303.3 and 303.15, and that Appellant had a prior record 

score of zero. The sentencing guidelines therefore provide for a standard 

range sentence of 22 to 36 months imprisonment, with an aggravated range 
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sentence of 36 to 48 months imprisonment. See id. at § 303.16(a). The trial 

court’s sentence of five to ten years’ imprisonment exceeded the guideline 

range.

“In sentencing outside of the guidelines, the court must demonstrate 

that it understands the sentencing guidelines ranges.” Commonwealth v. 

Garcia–Rivera, 983 A.2d 777, 780 (Pa. Super. 2009). The Sentencing Code 

specifies that “in every case where the court imposes a sentence ... outside 

the guidelines adopted by the Pennsylvania Commission on Sentencing ... 

the court shall provide a contemporaneous written statement of the reason 

or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).

Section 9781(c)(1) of the Sentencing Code makes clear that “the appellate 

court shall vacate the sentence and remand the case to the sentencing court 

with instructions if it finds [that] the sentencing court purported to sentence 

within the sentencing guidelines but applied the guidelines erroneously.”

Because the record in the instant case does not indicate that the trial 

court properly considered the sentencing guidelines, and it appears that the 

trial court erroneously believed it was sentencing Appellant within the 

sentencing guidelines, when it in fact sentenced Appellant beyond the 

guidelines, we are constrained to vacate the judgment of sentence and 

remand for resentencing. See id. See also Commonwealth v. Byrd, 657 

A.2d 961 (Pa. Super. 1995) (vacating the judgment of sentence where the 

sentencing court failed to set forth the permissible range of sentences under 

the guidelines, and provided reasons on the record to support what it 
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believed was a sentence in the aggravated range, while actually sentencing

the appellant outside of the guidelines without providing a contemporaneous 

statement of its reasons for such deviation). As our decision upsets the trial 

court’s sentencing scheme, we must vacate the entire judgment of sentence 

and remand for resentencing.2 See generally Commonwealth v. Tanner, 

61 A.3d 1043, 1048 (Pa. Super. 2013).

Convictions affirmed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2016

____________________________________________

2 Due to our disposition of this issue, we decline to address Appellant’s 

additional claim that the sentencing court failed to adequately explain the 

disparity between Appellant’s sentence and that of her co-defendant, 

Rebekah Gensiak. 
(.iry 

{' ·1~-L 

1 

testified Robert was covered in a rash, and was emitting a strong, fou~ smelling 

emergency room technician at the hospital where Robert was admitted. He 

At the preliminary hearing, David Utter testified that he was the lead 

at p. 46. 

N.T. 9/27/13 at 113.Q. Defendant resided in the home with Robert. N.T. 9/27/13 

admitted to the hospital because he was semi-responsive and unable to stand up. 

Defendant, Joan Gensiak (hereinafter "Defendant" or "Appellant") was 

(32) year old male with Down Syndrome, who was the brother of the 

On March 19, 2013, Robert Gensiak (hereinafter "Robert"), a thirty-two 

II. FACTUAL/PROCEDURALHISTORY 

Pa. R.A.P. 1925(b). 

Gensiak in her Statement of Errors Complained of on Appeal pursuant to 

1925(a), addresses the four (4) issues raised by Defendant/Appellant Joan 

The following Opinion, pursuant to the requirements under Pa. R.A.P. 

I. INTRODUCTION 11 I 

I 

I 

MEMORANDUM OPINION PURSUANT TO Pa. R. A. P. 1925(a) 

JOAN GENSIAK : 2013 CR 2134 

: CRIMINAL DIVISION 

vs. 

CLERK OF JUDICJAL 

RECO'RDS CRIMHHiL 

DIVISION 

: 1N[llr~,co;μRT:rPF2~9¥MON 

: ~~;A~l't)p 'LA~K!A WA~A 

:COUNTY 

COMM. OF PENNSYLVANIA 

BISIGNANI MOYLE, J. 

Circulated 03/17/2016 03:36 PM
2 

I Defendant's entire guilty plea colloquy by this Court can be found from pages three (3) 

through twenty-four (24) in the May 8, 2014 transcript. 

colloquy with her attorney. N.T. 5/18/14 at p. 5. She further stated that her 

stated that she had the opportunity to go through the four page guilty plea 

§ 4304. At the time of the guilty plea, this Court engaged in an extensive 

colloquy of the Defendant.1 The Defendant, upon this Court's questioning, 

Children, graded as felony of the third degree, in violation of Title 18 Pa. C.S.A 

Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering Welfare of 

Cate-Dependent Person, graded as a felony of the first degree, in violation of 

Defendant Joan Gensiak entered a guilty plea to one (1) count of Neglect of 

On May 8, 2014, all three (3) co-defendants pled guilty before this Court. 

violation of Title 18 Pa. C.S.A. 4304(a)(l). 

Endangering Welfare of Children-Parent/Guardian/Other Conunits Offense, in 

d 

11 

i 

l 

Involuntary Manslaughter, in violation of Title 18 Pa. C.S.A. § 2504, and 

Neglect of Care-Dependent Person, in violation of Title 18 Pa. C.S.A. § 2713, 

with Murder of the Third Degree in violation of Title 18 Pa. C.S.A. § 2502, 

were also charged in relation to Robert Gensiak's death. Defendant was charged 

Defendant's mother, Susan Gensiak, and Defendant's sister, Rebekah Gensiak, 

endangerment of her two (2) year old daughter, who also resided in the home. 

Joan Gensiak, with four (4) charges related to her brother's death and the 

The Lackawanna County District Attorney' s Office charged Defendant, 

arrest and passed away on March 20, 2013. N.T. 9/27/13 at p. 56. 

pounds. N.T. 9/27/13 at p. 53. While at the hospital, Robert went into cardiac 

odor. N.T. 9/27/13 at p. 46. He· testified that Robert weighed sixty nine (69) 

II 

I 
3 

that in their opinion, the Defendant was entering into the plea freely and 

voluntarily entering into this plea. N.T. 5/18/14 at p. 23. Her attorneys stated 

with her also." N.T. 5/18/14 at p. 23. Defendant stated that she was freely and 

admitted that she did in fact commit that crime and she "should have done more 

charge of Endangering the Welfare of a Child. N.T. 5/18/14 at p. 23. She 

at p. 22. The Assistant District Attorney then read the allegations regarding the 

commit this crime, stating "I should have done more and .... yes.11 N.T. 5/18/14 

Neglect of Care-Dependent Person, Defendant responded that she did in fact 

the Assistant District Attorney read the allegations regarding the charge of 

the allegations of the criminal information for both crimes into the record. After 

During the colloquy of the Defendant, the Assistant District Attorney read 

N.T. 5/18/14 at p. 18. 

any evidence the District Attorney's Office sought to have admitted to trial. 

to cross-examine any witnesses called by the Commonwealth and to object to 

right to a trial by jury, and understood her attorneys would have the opportunity 

N.T. 5/18/14 at p. 16. When questioned, she answered she knew she had the 

Court was not a party to any agreement she may have had regarding sentencing. 

N.T. 5/18/14 atp. 16. She additionally acknowledged that she understood the 

herself, her attorneys and the District Attorney's Office regarding sentencing. 

5/18/14 at p. 6, 13. She also conceded that there was no agreement between 

she had an understanding of her guilty plea and what she was doing. N.T. 

lawyer answered any and all questions about the guilty plea colloquy and that 

11 

! 
4 

voluntarily, N.T. 5/18/14 at p. 24. Accordingly, this Court found Defendant 

entered into the plea knowingly, freely and voluntarily. N.T. 5/18/14 at p. 24. 

Prior to sentencing, both attorneys for the Defendant, on July 21, 2014 and 

August 26, 2014, respectively, filed separate motions for the appointment of a 

psychiatrist to aid in the sentencing of the Defendant. Defendant's attorneys 

requested that a psychiatrist be appointed at a rate of five hundred dollars 

($500.00) per hour with a cap of five thousand dollars ($5,000.00). This Court 

granted Defendant's request for a psychiatrist, but capped the available amount 

at two thousand dollars ($2,000.00). Defense Counsel declined to use the 

psychiatrist, stating in a letter to the Court that two thousand dollars ($2,000.00) 

was an insufficient amount. 

On October 16, 2014, this Court sentenced all three co-defendants. The 

Defendant was sentenced to six (6) years to fifteen (15) years in a State 

Correctional Institution. N.T. 10/16/14 at p. 21. On October 23, 2014, she filed 

a Motion to Withdraw Plea of Guilty as well as a Motion for Reconsideration of 

Sentence. On November 3, 2014, the Commonwealth filed an Answer to 

Defendant's Motion to Withdraw Guilty Plea. On December 17, 2014, this 

Court held a hearing on Defendant's Motions. Although she raised several 

arguments in her Motion to Withdraw Guilty Plea, by the time of the heating, 

she abandoned all but one (1) argument. N.T. 12/17/14 at p. 109. Namely, she 

argued that she was not aware that her co-defendant, Rebekah Gensiak, pled 

guilty to a misdemeanor charge of Neglect of Care-Dependent Person. Rather, 

she was under the mistaken impression her sister pled to Neglect of CareI 

,, 
5 

below. 

Each of Defendant's four (4) issues complained of on appeal is discussed 

4. The trial comi abused its discretion in sentencing Appellant. 

Specifically, the court sentenced Appellant in a wildly 

disproportionate manner to her co-defendant, Rebekah Gensiak who 

was similarly situated to her, without adequate reason for doing so. 

3. The trial court erred in sentencing Appellant in the aggravated range 

in this case. The court failed to articulate sufficient and/or 

acceptable grounds for an aggravated range sentence on the record. 

2. The trial court erred in refusing to allow Appellant to withdraw her 

guilty plea after sentencing despite the fact that the Commonwealth 

made material misstatements to Appellant in inducing her plea in 

this matter. 

following four issues: 

Complained of on Appeal Pursuant to Rule 1925(b). Defendant raised the 

On April 13, 2015, Defendant filed her Statement of Matters 

Defendant's Motions. 

disparate. On April 8, 2015, this Court issued an Order and an Opinion denying 

1. The trial court erred in refusing to appoint an appropriate Psychiatric 

and/or Psychological Expert Witness to assist Appellant and 

Appellant's Counsel at Sentencing in this matter. 

sentence of her sister co-defendant, arguing the range of prison terms were too 

additional argument. She raised the disparity between her sentence and the 

Dependent Person graded as a felony. Defendant's Motion for Reconsideration 

overlapped with her Motion to Withdraw her Guilty Plea, only setting forth one 

!' ,j 

i1 

I 

11 

I 
6 

at 73. 

where he failed to utilize the experts approved by the court." Carter, 643 A.2d 

appellant cannot now assert that he was prevented from presenting his case 

the testimony of the psychiatrist during trial. The Carter Court held "the 

court granted Defendant's request for a psychiatrist, but Defendant failed to use 

Commonwealth v. Williams, 561 A.2d 714, 718 (1989). In Carter, the trial 

services of an expert." Com. v. Cruter, 643 A.2d 61, 73 (1994) citing 

(1953). "There is no obligation on the part of the Commonwealth to pay for the 

crime." Id. citing United States ex rel. Smith v. Baldi. 344 U.S. 561, 568 

assist in the preparation of a defense whenever requested by one accused of 

mandate, either federal or state, that experts be appointed at public expense to 

Gel01mo, 475 A.2d 765, 769 (Pa. Super. 1984). "There is no constitutional 

of a defense is vested in the sound discretion of the trial court." Comm. v. 

appointment of an expert witness or an investigator to assist in the preparation 

"Under the law of Pennsylvania, as in a majority of states, the 

b. Applicable Law 

(a) The trial court erred in refusing to appoint an appropriate 

Psychiatric and/qr Psychological Expert· Witness to assist 

Appellant and Appellant's Counsel at Sentencing in this 

matter. 

Defendant asserts, on appeal, as follows: 

a. Defendant's Argument 

A. Appointment of an Appropriate Psychiatric and/or Psychological 

Expert Witness 

III. DISCUSSION 
7 

Defendant's first matter complained of on appeal is without merit. 

had no obligation to do so, and Defendant chose not to use the expert, 

Because this Court granted Defendant's request, even though this Court 

and/or psychological expert witness." 

dollars ($2,000.00) as a "refusal refusing to appoint an appropriate psychiatric 

that amount, and now is attempting to frame this Court's grant of two thousand 

Defendant the opportunity to use that amount. The Defendant declined to use 

A.2d at 718. However, this Court was willing to provide a reasonable amount 

I of money for a psychiatrist or psychologist. This Court calculated a reasonable 

amount for Defendant to use for a psychiatrist or psychologist and provided the 

sentencing. 

"There is no is no obligation on the part of the Commonwealth to pay for 

the services of an expert." Carter, 643 A.2d at 73 (1994) citing Williams. 561 

with sentencing. Defendant then chose to proceed without use of the two 

thousand dollars ($2,000.00) to hire an expert and proceed directly to 

allow the appointment of either a psychiatrist or psychological expert to assist 

psychiatrist or psychological expert to assist with sentencing. Instead, this 

Court capped the total available funds at a reasonable amount ($2,000.00) to 

c. Application 

At the outset, this Court notes that the Court did not refuse to appoint a 

11 
8 

18 Pa. C.S.A § 2502(C). Defendant then pled, as aforestated, to one (1) count 

Susan Gensiak pled guilty to Murder of the Third Degree in violation of Title 

On May 8, 2014, all three (3) co-defendants pled guilty before this Court. 

9/27 /13 at p. 145. 

~· Ms. Gensiak replied "[t]o plead to Neglect of Care-Dependent." N.T. 

"And did I ever offer you anything for your testimony today?" N.T. 9/27/13 at 

200. At the preliminary hearing, the District Attorney asked Rebekah Gensiak, 

Commonwealth and testified at the preliminary hearing. N.T. 9/27/13 at p. 144- 

II related to the death of Robert Gensiak. Rebekah Gensiak cooperated with the 

1 · 

I 

sister, Rebekah Gensiak, were each charged with several criminal offenses 

As stated above, Defendant, along with her mother, Susan Gensiak, and 

argument more clearly, one must look at the procedural history of this case. 

guilty .plea, for which this Court held a hearing. In order to frame Defendant's 

issue formed the basis of Defendant's argument in her motion to withdraw 

Rebekah Gensiak, pled guilty to a misdemeanor. N.T. 12/17/14 at p. 10. This 

posHfntence because she was unaware that her sister and co-defendant, 

Defendant asserts that she should be allowed to withdraw her guilty plea 

(b) The trial court erred in refusing to allow Appellant to 

withdraw her guilty plea after sentencing despite the fact that 

. the Commonwealth made material misstatements . to 

Appellant in inducing her plea in this matter. 

Defendant asserts, on appeal, as follows: 

a. Defendant's Argument 

B. · Refusal to Allow Appellant to Withdraw Guilty Plea After 

Sentencing 
9 

well-established that "a showing of prejudice on the order of manifest injustice" 

When considering a petition to withdraw a guilty plea after sentencing, it is 

( c) Applicable Law 

credibility as a witness during trial. N.T. 12/17/14 at p. 105. 

reasoned the co-defendant's plea agreement would have undermined her 

Defendant not to take the plea offer. N.T. 12/17/14 at p. 105. Defense counsel 

that Rebekah Gensiak pled guilty to a misdemeanor, they would have advised 

Sentence. At the hearing, Defendant's counsel argued that if they had known 

Withdraw Guilty Plea and Defendant's Motion for Reconsideration of 

a felony. A hearing was held on December 17, 2014, on Defendant's· Motion to 

Dependent Person, they assumed she was going to plea to that crime, graded as 

Rebekah Gensiak stated that she was going to plea to Neglect of a Caremisdemeanor. N.T. 12/17/14 at p. 99. Defendant's counsel argued that when 

were .unaware, until after sentencing, that Rebekah Gensiak pled guilty to a 

a Motion for Withdrawal of Guilty Plea. Defendant's counsel argued that they 

2014. On October 23, 2014, Defendant filed a Motion for Reconsideration and 

This Court sentenced Defendant, her mother; and her sister on October 16, 

graded as a misdemeanor of the first degree. 

cooperation, pled to one (1) count of Neglect of a Care-Dependent Person, 

18 Pa. C.S.A § 4304. Finally, Rebekah Gensiak, in exchange for her 

Welfare of Children, graded 8;S felony of the third degree, in violation of Title 

violation of Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering 

of Neglect of Care-Dependent Person, graded as a felony of the first degree, in 

I 
10 

by the decedent just prior to the accident and that the Commonwealth had this 

Kephaii, the Defendant asserted that a woman witnessed the car being driven 

averment that another individual was driving at the time of the accident. In 

guilty plea in light of newly discovered evidence that might have supported his 

Driving at an Unsafe Speed and Homicide by Vehicle, sought to withdraw his 

knowledge of the chargers). In Kephart, the Defendant; who pied guilty to DUI, 

determine whether the plea was entered into involuntarily or without 

to withdraw a guilty plea must examine the totality of the circumstances and 

Pennsylvania Superior Court held that a court reviewing a post-sentence motion 

In Commonwealth v. Kephart, 594 A.2d 358, 360 (Pa. Super 1991), the 

A.2d 5, 6 (Pa. Super. 1982). 

entered without knowledge of the charge.'' Commonwealth v. Warren, 453 

manifest injustice requires a showing that the plea was involuntary or was 

as a sentence-testing device. StalT, 301 A.2d at 594. "A demonstration of 

burden because of the recognition that a withdrawal of a guilty plea can be used 

sentencing attempts to withdraw a guilty plea must sustain this more substantial 

Commonwealth v. English, 597 A.2d 122, 123 (Pa. Super. 1991). Postplaced on a defendant in such a motion increases significantly after sentencing. 

Commonwealth v. West 485 A.2d 490, 493(Pa. Super. 1984). The burden 

Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) quoting 

. was doing and the burden of proving involuntariness is squarely on him." 

A.2d 592, 595 (Pa. 1973). "A defendant is presumed to be aware of what he 

is required before withdrawal is properly justified. Commonwealth v. Starr, 301 

ii 

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Kephart, this newly discovered "evidence" does not constitute the type of 

suggesting the deal would have undermined her credibility as a witness. As in 

been to cross-examine the cooperating co-defendant about her plea agreement, 

newly discovered evidence. Further they contend their strategy would have 

I

I to a Kephait analysis. Defense counsel contends this discovery is tantamount to 

that Rebekah Gensiak pled to a misdemeanor, rather than a felony, lends itself 

. . 

circumstances regarding Defendant's plea, this Court finds that her discovery 

manifest injustice. Like the Kephatt Court, after reviewing the totality of the 

circumstances to determine if Defendant has met her burden of establishing 

Under Kephart, this Court is required to examine the totality of the 

! 

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I. 

( d) Application 

denial of appellant's motion to withdraw his guilty plea." Id. 

conclusion, the Court found that "a manifest injustice does not result from the 

reason to believe that the witness's statement was exculpatory. · Id. In 

not amount· to exculpatory evidence and second, the Commonwealth had no 

identity of the driver. Id. The Kephart Court ruled the witness' testimony does 

interviewing the witness contained no reference to any statement regarding the 

driving. In addition, the police investigator testified that his notes from 

further stated that she never told the police investigator the bearded male was 

determine whether the bearded male was the driver or the passenger. Id. She 

them was bearded. Id. However, the witness testified that she could not 

sentencing hearing, the witness stated she saw two males in the car and one of 

evidence and did not turn it over to him. Kephart, 594 A.2d at 360. At the 
12 

raised on appeal is without merit. 

affected the outcome of the trial and therefore, Defendant's second matter 

There is no indication that this newly discovered information would have 

post-sentence guilty plea withdrawal. 

does not give rise to· the stringent standard utilized by our courts to warrant a 

Defense's cross-examination, In either event, this type of attenuated speculation 

on her part. It is just as plausible that a jury would not have been swayed by the 

less inclined to believe Rebekah Gensiak's testimony. This is pure speculation 

of exculpatory evidence. Rather she asserts, if she went to trial, a jury would be 

co-defendant's plea agreement. This scenario does not equate to the discovery 

is asserting that she would have proceeded to trial if she had known about her 

More importantly, the Defendant is not asserting her innocence. Rather, she 

to both offenses "I should have done more." N.T. 5/18/14 at p. 22-23. 

record, and Defendant admitted to committing both crimes, stating with respect 

Assistant District Attorney read the statement of facts for each crime into the 

admitted that she committed the crimes for which she was sentenced. The I 

misdemeanor and not a felony is not exculpatory evidence. The Defend~nt 

newly discovered evidence that one of the co-defendants .in this case pled to a 

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exculpatory epiphany that sways this Court to find a manifest injustice. The 
13 

Commonwealth v. Wall, 926 A.2d 957, 961 (2007) quoting Commonwealth v. 

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

"unless the record discloses that the judgment exercised was manifestly 

362, 365 (Pa. Super. 2005). A sentencing court has not abused .its discretion 

disturbed absent an abuse of discretion." Commonwealth v. Tirado, 870 A.2d 

"Sentencing is within the sound discretion of the trial court and will not be 

(B)(l)(a); see Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). 

during the sentencing proceedings, or they are waived." Pa. R. Crim.P. 720 

Pennsylvania, "such challenges must be raised in a post sentence motion or 

The Defendant is challenging the discretionary aspect of her sentence. In 

b. Applicable Law 

aggregatesentence of six (6) years to fifteen (1.S) years imprisonment. · 

graded as felony three (3). These sentences were run consecutively for an 

years for Endangering the Welfare of a Child under Title 18 Pa. C.S.A § '4304; · 

felony one (1). This Court also sentenced Defendant to one (1) year to five (5) 

Neglect of Care-Dependent Persori under Title 18 Pa: C.S.A § 2713, graded as a 

This Court sentenced Defendant to five (5) years to ten (10) years for 

( c) The trial court erred in sentencing Appellant in the 

· · aggravated range in this case. The court failed to articulate 

sufficient and/or acceptable grounds for an aggravated range 

sentence on the record. 

Defendant asserts, on appeal, as follows: I 

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· a. Defendant's Argument 

C; This Court Set Forth Sufficient Reasons for Defendant/Appellant's. 

Sentence in the Aggravated Range 

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l, 

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14 

should be sentenced within the aggravated range. Id. Second, the sentencing 

sentencing judge may consider any legal factor in deciding whether a defendant 

492 A.2d 443, 444 (1985) sets forth the three criteria that are applicable. First, a 

In order to sentence a Defendant in the aggravated range, Comm. v. Hoover, 

A.2d 816, 823-24 (1992). 

741 A.2d 726, 735 (Pa. Super. 1999) quoting Commonwealth v. Phillips, 601 

reasons for the sentence imposed has been given." Commonwealth v. Brown, 

the court had the benefit of the presentence report, an adequate statement of the 

personal characteristics and rehabilitative potential, and the record indicates that 

"shows consideration of the defendant's circumstances, prior criminal record, 

A.2d 1220, 1228 (1997). Moreover, where the court's sentencing colloquy 

considerations in a meaningful fashion." Commonwealth v. Cappellini, 690 

that the court was aware of the sentencing considerations and weighed the 

Young. 895 A.2d at 44. "A sentence will not be disturbed where it is evident 

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

trial court must consider the sentencing guidelines as well as the history and 

Commonwealth. v. Young, 895 A.2d 40, 42 (Pa. Super. 2006). In addition, "the 

11 rehabilitative needs of the defendant," 42 Pa.C.S.A; §9721(b); See 

11 

I 

relates to the impact on the life of the victim and on the community, and the 

consistent with the protection of the public, the gravity of the offense as it 

several principles: [t]he sentence imposed should call for confinement that is 

punishment for any convicted defendant, the trial court must be guided by 

Smith, 673 A.2d 893, 895 (1996). "When determining the appropriate 

11 

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15 

prolonged period of time, that Robert Gensiak suffered a painful and prolonged 

In sum, this Court considered that the Defendant's victims suffered for a 

(tl.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.) 

For all of those reason, ma'am, the sentence is imposed here 

today." 

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I 

Another reason· for the sentence here today with respect to Robert 

is that by your own statements to the officers at the time of your 

arrest and your own statements in the presentence investigation is 

that you did take a more proactive role in the treatment and care of 

your brother Robert Gensiak, placing you in a better position to 

observe his deteriorating condition, to be alarmed by it, and to 

bring that attention to the appropriate authorities even if your 

mother wouldn't act. 

The sentences that I'm imposing here today, ma'am, are consistent 

with the protection of the public and the rehabilitative needs of 

you, the defendant. 

[T]he reasons for the sentence being imposed today is that this 

sentence recognizes the serious nature of the offenses that have 

been committed by you, the fact that both of your victims suffered 

and they suffered for a prolonged period of time-unfortunately 

Mr. Robert Gensiak suffered a painful and prolonged conditionof 

the Norwegian scabies-that both victims were unable either due 

to their age or their deteriorating condition or disability to care for 

themselves. We're talking about a two-year-old child and an adult 

male but with a deteriorating condition and a disability. Both of the 

victims were dependent upon you and other members of the family 

to provide the proper attention and medical care necessary to 

prevent any further suffering. 

This Court set forth its reasons for sentencing Defendant in the aggravated 

range, as follows: 

Commonwealth v. Duffy. 491 A.2d 230, 233 (198'5). 

will not be disturbed absent a manifest abuse of discretion. Id. citing 

Finally, the sentencing judge's decision regarding the aggravation of a sentence 

judge's statement of reasons on record must reflect this consideration. Id. 
16 

( d) The trial court abused its discretion in sentencing Appellant. 

Specifically, the court sentenced Appellant in a wildly 

Defendant asserts, on appeal, as follows: 

a. Defendant's Argument 

D. This Court Did Not Abuse its discretion in Sentencing . Defendant/Appellant Disproportionately to her Co-Defendant, 

Rebekah Gensiak 

matter raised on appeal is without merit. 

guidelines and based on the reasons set forth on the record, Defendant's third 

Based on this Court's consideration of the requisite factors, the sentencing 

above referenced sentence. 

potential. After careful consideration of all these factors, this Court imposed the 

circumstances, personal characteristics, education level and rehabilitative 

and the Defendant herself. This Court also took into consideration Defendant's 

investigation report, heard from the Commonwealth, counsel for the Defendant 

Further, this Court reviewed and took into consideration the. presentence 

The Court set forth these reasons on the record during sentencing. 

attention to the appropriate authorities even if Defendant's mother wouldn't act. 

observe his deteriorating condition, to be alarmed by it, and to bring that 

role in the care of Robert Gensiak, placing Defendant in a better position to 

suffering. Further, this Court considered that Defendant took a more proactive 

relied on Defendant for proper attention and medical care to prevent any further 

their age or condition or disability to care for themselves and that both victims 

condition of the Norwegian scabies, that both victims were unable either due to 
17 

sentences .. Commonwealth v. 

articulate differences between 

sentences on co-defendants, the collj(i must 

the co-defendants that jjstify the ~isparate 

. . I 

i hurmond 390 A.2d: 1330( 1330 (Pa; Super. 

In order to impose different 

c. Applicable Law 

the first degree. This sentence as also in the aggravated range. I 

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A trial court is not bound to impose a "like" sentence on!all participants of a 

I I 

crime. Commonwealth. v. Land', 421 A.2d 442, 444 (1980)] "After conbidering 

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the circumstances relating to each defendant, the trial !court may ! impose 

, I 

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different sentences." Common ealth v. Bu1ion, 301 A.2d 675, 677 (Pe, 1973). 

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to ten (10) years for Neglect of Care-Dependent Person under TitJJ 18 Pa. 

i 

C.S.A § 21n, graded as a fel ny one (1). This sentence is in the aggravated 

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range. This Court also sentenc d Defendant to twelve (12) to twenty-four (24) 

i 

months for Endangering the elfare of a Child under Title 18 Pa. C.S,A § 

. I 

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4304, graded as felony thr e (3). The respective sentences wpre run 

I 

consecutively for an aggregate sentence of six (6) years to fifteen Op) years 

I 

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imprisonment. This Court sen enced Rebekah Gensiak to six (6). m~nths. to 

I 

twenty-three (23) months impr sonment stemming from her guilty ple~ to one 

. I 

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(1) count of Neglect of a Care- ependent Person, graded as a misdemeanor of 

sentence. As noted above, this 

between her and her cooperati g co-defendant the Court should reconsider her 

. j . 

ourt sentenced Defendant to sixty (60Y.months 

i 

The Defendant argues th t because there is a disparity in sentencing 

disproportionate manne to her co-defendant, Rebekah Gensiak 

who was similarly situ ted to her, without adequate. reason for 

doing so. 
18 

C.S.A § 2713, graded as a felony one (1) and Endangering Welfare ofChildren 

' ' 

pled guilty to Neglect of Care-Dependent Person in violation of Title 18 Pa. 

guilty to different classifications of charges. Namely, Defendant Joan Gensiak 

reasons were articulated on the record .. First and foremost, the defendants pied 

Defendant, Joan Gensiak, and her· co-defendant, Rebekah Gensiak, Th~se 

Moreover, there are several reasons for the disparity in. sentences between 

range. 

Court articulated specific reasons for Defendant's sentence in the aggravated 

careful consideration of the reasons listed above. Further, as stated above, this 

exercised by this Court was manifestly unreasonable, or the result of parti~lity, 

prejudice, bias or ill-will. Instead, Defendant's sentence was the result. of 

sentence. Notably, the Defendant has not demonstrated .that the judgment 

. . . 

consideration of all these factors, this Court imposed the above referenced 

ii characteristics, education level and rehabilitative potential, After. careful 

I 

Court also took into consideration Defendant's circumstances, personal 

Commonwealth, counsel for the Defendant and the Defendant herself. This 

consideration the presentence investigation report, heard from the 

At the time of sentencing, this Court had reviewed and · took into 

d. Application 

(Pa. Super 1980). 

960 (Pa. Super. 1983) citing Commonwealth v. McQuaid, 41_7 A.2d 1210, 1216 

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another must be stated on the record. Commonwealth v. Sinwell, 457 A.2d 957, 

1978). The reason why one co-defendant receives a more severe sentence than 

. . . . . ' ' •. 

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Another reason for the sentence here today with respect to Robert 

is that by your own statements to the officers at the time of your 

arrest and your own statements in the presentence investigation is 

that you did take a more proactive role in the treatment and care of 

your brother Robert Gensiak, placing you in a better position to 

observe his deteriorating condition, to be alarmed by it, and to 

bring that attention to the appropriate authorities even if your 

mother wouldn't act. 

The sentences that I'm imposing here today, ma'am, are consistent 

with the protection of the public and the rehabilitative needs of 

you, the. defendant. 

[T]he reasons for the sentence being imposed today is that this 

sentence recognizes the serious nature of the offenses that have 

been committed by you, the fact that both of your victims suffered 

and they suffered for a prolonged period of time=unfortunately 

ML Robert Gensiak suffered a painful and prolonged condition of 

the Norwegian scabies-that both victims were unable either due 

to their age or their deteriorating condition or disability to care for 

themselves. We're talking about a two-year-old child and an adult 

male but with a deteriorating condition and a disability. Both of the 

victims were dependent upon you and other members of the family 

to provide the proper attention and medical care necessary to 

prevent any further suffering. 

Gensiak's sentence, this Court stated as follows, and as stated above: 

Rebekah Gensiak on the record. In setting forth the reasons for Defendant Joan 

Third, this Court articulated the reasons for the sentences of Defendant and 

range. 

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carry different sentencing guidelines .. 

Second, all three (3) co-defendants received a sentence in the aggravated 

a misdemeanor of the first degree. These different classifications obviously 

Dependent person in violation Title 18 Pa. Cons. Stat. Ann. § 2713, graded as 

Defendant Rebekah Genisak pled guilty to one (1) count of Neglect of a Carein violation of Title 18 Pa. C.S.A § -4304, graded as a felony three (3). 

I 

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20 

due to school and work. Additionally, she was on bed rest due to her pregnancy. 

culpable in the eyes of the Court because she was out of the house more often 

Rebekah Gensiak, while culpable in the death of Robert Gensiak, was not as 

her daughter in immediate danger and caused her daughter to suffer. Defendant 

her in a better position to observe his deteriorating condition. Joan also placed 

more proactive role in her brother's care which, as stated by this Court, placed 

placing the reasons for the sentences on the record, this Court noted Joan's 

opportunity to see the pain and suffering Robert suffered before his death. In 

while both sisters lived in the house with Robert Gensiak, Joan had more of an 

pled to two (2) felonies, each of which concerned a separate victim. Further, 

Gensiak was the more culpable of these defendants. Defendant Joan Gensiak 

It is clear from the reasons set forth on the record that Defendant Joan 

(N.T. Rebekah Gensiak? 2013 CR 2143, 10/16/14 at p. 16) 

The reasons for my sentence here today are that the sentence is 

consistent with the protection of the public and the rehabilitative 

needs of you, the defendant..... that the victim due to his 

deteriorating condition and his own disability was unable to care 

for himself and was dependent upon his family members to 

provide care for him, the fact that your brother suffered a painful 

and prolonged death. This sentence also recognizes the serious 

nature of the offense." · 

stated as follows: 

II 

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ill.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.) 

In setting forth the reasons for Rebekah Gensiak's Sentence, the Court 

For· all of those reason, ma'am, the sentence is imposed here 

today." 
21 

& - I - 1-sDATE: 

J. 

BY THE COURT: 

raised on appeal are without merit. 

For the reasons set forth in this Opinion, Defendant/Appellant's matters 

IV. CONCLUSION 

appeal is without merit. 

consideration of the requisite factors, Defendant's fourth matter raised on 

between Rebekah Gensiak and the Defendant, as well as this Court's 

Based on the reasons set forth in the record for the differences in sentence 

prosecution. 

pied. to a misdemeanor in exchange with her cooperation as a witness for the 

on care with Robert. N.T. 12/17/14 at p. 80. Finally, Rebekah Gensiak only 

N.T. 12/17/14 at p. 80. Further, Rebekah Gensiak did not participate in hands