J-A24001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW JOSEPH BRUBAKER

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1287 WDA 2019

Appeal from the Judgment of Sentence Entered April 22, 2019

In the Court of Common Pleas of Clearfield County Criminal Division at

No(s): CP-17-CR-0000844-2018

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY: BENDER, P.J.E. FILED OCTOBER 07, 2020

Appellant, Matthew Joseph Brubaker, appeals from the aggregate

judgment of sentence of 20 to 41 years’ incarceration, imposed after he pled

guilty to one count of corruption of minors, 730 counts of sexual intercourse

with animals, and 730 counts of cruelty to animals. Appellant solely

challenges the discretionary aspects of his sentence. We affirm.

The trial court set forth the following summary of the facts and

procedural history of this case:

The case at bar involves sexual intercourse with horses,

goats, and dogs by ... [Appellant,] and the exposing of a minor

child (sixteen years old) to these deviate sex acts. No trial was

held, but [Appellant entered] a guilty plea and accepted all facts

in the affidavit of probable cause[,] as set forth below.

[Appellant], Terry Wallace (“Wallace”), and Marc Measnikoff

(“Measnikoff”) all owned a plot of land in Munson, Pennsylvania.

[Appellant] and Measnikoff shared a camper on one side of the

property and Wallace and his child lived in a camper on the other

side of the property. [Appellant] owned five horses, four of which
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were female, one of which was male. Wallace owned one horse.

Measnikoff owned nine horses, seven of which were female and

two of which were male. There were also goats, at least one cow,

and dogs on the property. [Appellant] had sexual intercourse with

dogs, goats, a cow, and each of the female horses. [Appellant]

had sexual intercourse with animals daily. [Appellant] would often

videotape these sexual encounters.

This case came to the attention of police after an interview

with Wallace’s child, who reported that for the past four [to] five

years[,] he ha[d] been exposed to all three men having sexual

intercourse with animals on a daily basis. The child stated that he

first discovered this conduct when he found a video of his father,

Wallace, having sexual intercourse with a goat on the[ir] shared

i[P]ad. The child reported that Wallace would receive a message

from Measnikoff and/or [Appellant] and go to their camper. The

child would then be expected to locate a particular horse, walk it

into a V shaped chute, and wait on the other side of the wall until

whoever was abusing the horse finished having sexual intercourse

with it. The child also noted that the living conditions were

deplorable, as he had to regularly collect rain water to take a

shower, had a limited supply of canned food, no electricity, and

no bathrooms were located on the property.

On January 2[4], 2019[, Appellant] entered an open plea of

guilt, providing the sentencing court full discretion in determining

sentencing, to one count of corruption of minors (misdemeanor of

the first degree), [730] counts of sexual intercourse with animals

(misdemeanor of the second degree), and [730] counts of cruelty

to animals (summary offense). At the ... sentencing hearing, it

was determined that [Appellant] had a prior record score of zero.

The standard range for corruption of minors [was] restorative

sanctions [to] three months[’ incarceration]. This court sentenced

[Appellant] in the aggravated range to six months[’ to] two years[’

incarceration] for corruption of minors. The standard range for

sexual intercourse with animals [was] restorative sanctions. This

court sentenced [Appellant] in the aggravated range to three ...

[to] six months[’ imprisonment] on the first [78] counts of sexual

intercourse with ... animal[s,] to be served consecutively. Cruelty

to animals is a summary offense. [Appellant] was sentenced to

two years[’] probation for cruelty to animals[,] to be served

concurrent to the above[-]mentioned sentence. Additionally, this

court determined [Appellant] shall have no unsupervised contact

with anyone under the age of eighteen years old, and shall not
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consume alcohol.[1] In making its determination, the court noted ... the severity of the acts, the number of acts committed by

[Appellant], the fact that [Appellant] videoed the acts, and the

harm that resulted [to] the child from viewing these videos at all,

but especially at such a young age.

On [June 25], 2019, [Appellant’s] motion for

reconsideration of sentence was heard. On the sexual intercourse

with animals sentence, defense counsel argued that by using the

amount of counts as a reason for sentencing in the aggravated

range, this court [had] double-aggravat[ed] the charges. Defense

counsel further argued that the majority of the sentence imposed

related to the sexual intercourse with animals charge[,] rather

than the corruption of minors charge, which he deemed to be

backwards. ... The Commonwealth responded that each count

constitutes a specific instance of criminal conduct, and that

[Appellant] should be sentenced accordingly.

Trial Court Opinion (TCO), 8/20/19, at 1-3 (unnecessary capitalization

omitted).

We note that in Appellant’s post-sentence motion and at the hearing

thereon, he asked the court to amend the portion of his sentence prohibiting

him from having any contact with minors to precluding only unsupervised

contact with children. The court granted this aspect of Appellant’s motion and

amended the sentencing order accordingly. In all other respects, the court

denied Appellant’s post-sentence motion.

Appellant filed a timely notice of appeal, and he timely complied with

the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The court filed its Rule 1925(a) opinion on August ____________________________________________

1 Measnikoff and Wallace also pled guilty to the same offenses as Appellant,

and were both sentenced to identical, aggregate terms of 20 to 41 years’

incarceration. Measnikoff’s appeal is docketed at 1405 WDA 2019, and

Wallace’s appeal is docketed at 904 WDA 2019.
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20, 2019. Herein, Appellant states one issue for our review: “Did the [trial]

court err in imposing a sentence that was manifestly excessive in that it: failed

to account for the rehabilitative needs of [Appellant], was inconsistent with

the protection of the public, does not factor in [Appellant’s] lack of a prior

record, there is the absence of aggravating circumstances[,] and[] there is a

disparity between the charges concerning the animals and the charge

concerning the minor.” Appellant’s Brief at iv.2

Appellant’s issue implicates the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant

challenging the discretionary aspects of his sentence must invoke

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

We 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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),

appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to

the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or in a motion to

modify the sentence imposed. Commonwealth v. Mann, 820

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2 Appellant sets forth three additional issues in his Statement of the Questions

Involved, but then states he is withdrawing those claims in the Argument

portion of his brief. See Appellant’s Brief at 10. Therefore, we do not address

those claims herein.
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A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831

A.2d 599 (2003).

The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question

exists “only when the appellant advances a colorable argument

that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”

Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

In this case, Appellant preserved his sentencing issue in his post- sentence motion, he filed a timely appeal, and he has included a Rule 2119(f)

statement in his appellate brief. Therein, he contends that we should grant

his “request for allowance of appeal with respect to the discretionary aspects

of his sentence because this matter involves circumstances where the

application of the guidelines are clearly unreasonable, resulting in an

excessive sentence due to the [trial] court[’s] running multiple counts

consecutive[ly].” Appellant’s Brief at 5. Notably, Appellant does not explain

what circumstances make the court’s decision to impose consecutive

sentences unreasonable in this case. He also cites no case law to support that

this claim constitutes a substantial question for our review. In other words,

nothing in Appellant’s Rule 2119(f) statement amounts to “a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the
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fundamental norms which underlie the sentencing process.” Griffin, 65 A.3d

at 935 (citation omitted).

Nevertheless, even had Appellant demonstrated a substantial question

for our review, we would conclude that no relief is due. We are mindful 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. In this context, an

abuse of discretion is not shown merely by an error in judgment.

Rather, the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law, exercised

its judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). Here, Appellant argues that “the court’s sentence was unnecessarily and

excessively focused on deterrence and incapacitation[,]” rather than on his

rehabilitative needs. Appellant’s Brief at 8. He acknowledges that in the

court’s Rule 1925(a) opinion, it stated:

This [c]ourt determined that a long incarceration will allow

[Appellant] adequate time to work on his mental health through

treatment and time to refrain from said acts so that he may

become a healthy, law abiding, and productive member of society.

This [c]ourt determined that it will take a significant amount of

time to undo the harm that has been done within [Appellant’s]

own mind.

TCO at 6. Appellant complains that the court made the decision that his

rehabilitation required a lengthy term of incarceration without “any

psychological evaluation ... or any expert testimony as to the amount of time

necessary for Appellant to be rehabilitated....” Appellant’s Brief at 9.
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However, our review of the record confirms that Appellant at no point

requested that a psychological evaluation be conducted, or sought to admit

expert testimony regarding his rehabilitative needs. Moreover, in the court’s

opinion, it explained that it imposed aggravated-range sentences

consecutively because it discerned that a lengthy term of incarceration is

warranted not only for Appellant’s rehabilitative needs, but also to protect

society from his criminal propensities, and because “[t]he nature and severity

of these crimes shocked the consciousness of [the] court.” TCO at 6. The

court stressed that “[f]or four [to] five years[, Appellant] regularly had sexual

intercourse with goats, a cow, dogs[,] and horses. He filmed video[s] of these

acts. He recruited a child’s involvement in helping facilitate the sexual

encounters with the animals. For years[,] this behavior continued until the

child reported it to the police.” Id. at 6-7. Accordingly, the court determined

that consecutive, aggravated-range sentences were appropriate. It balanced

this decision by only sentencing Appellant on 78 of the 730 counts of sexual

intercourse with animals. Given this record, and the circumstances of this

case, we would discern no abuse of discretion by the court in sentencing

Appellant, even had he presented a substantial question for our review.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/7/2020