J-S46019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAREE VAUGHN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2174 EDA 2019

Appeal from the Judgment of Sentence Entered March 14, 2019

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

No(s): CP-51-CR-0003914-2018

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

MEMORANDUM BY SHOGAN, J.: FILED: MARCH 22, 2021

Appellant, Sharee Vaughn, appeals from the judgment of sentence 

entered March 14, 2019, in the Court of Common Pleas of Philadelphia County. 

Upon careful review, we affirm the judgment of sentence with the exception 

that we eliminate the condition that the trial court placed upon Appellant’s 

release from imprisonment.

The trial court set forth the factual and procedural history of this case 

as follows:

Complainant A.K., an 11-year-old child, was at home with 

his mother, [Appellant], on March 24, 2018 when his mother 

noticed her drugs were missing. Notes of Testimony, 1/7/19 at 

15. She asked A.K. to help find them. Id. at 16. When he could 

not find the drugs his mother hit him and choked him with both 

hands, causing him to be unable to breath[e]. Id. at 17. 

[Appellant] also stomped A.K. on his stomach with her foot. Id. 

at 18. The beating stopped when A.K. told [Appellant] that a 

friend of hers took them, lying to her to stop the beating. Id. at 

19.
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The next morning [Appellant] asked A.K. why he lied about 

who took the drugs. Notes of Testimony, 1/7/19 at 21. 

[Appellant] became angry and told A.K. to go to [Appellant’s]

bedroom. Id. Once inside the room [Appellant] used a leather 

belt to beat A.K. on his back, arms and legs. Id. at 21-22. The 

beating only stopped when [A.K.] was able to escape from the 

room. Id. at 23. Following the assault, [A.K.] ran out of the house 

into the cold while barefoot and wearing only his sweatpants. Id. 

He was eventually able to find a SEPTA worker who called the 

police. Id. at 23-24.

After speaking with police, A.K. was taken to a hospital and 

treated by a doctor. Notes of Testimony, 1/7/19 at 26. He had 

markings on his neck from where [Appellant] had choked him. Id. 

a[t] 29; Commonwealth Exhibit 2. He also had red marks and 

bruising on his lower neck, chest, arms and legs as a result of the 

beating by [Appellant] with the belt. Notes of Testimony, 1/7/19 

at 29-33; Commonwealth Exhibits 3-9.

On January 7, 2019[, Appellant] appeared before the 

Honorable Mia R. Perez in a waiver trial and was found guilty of 

Aggravated Assault (F1),[1] Strangulation (F2),[2] Endangering 

Welfare of Children (F3),[3] Simple Assault (M2),[4] and Recklessly 

Endangering Another Person.[5]

On March 14, 2019, this [c]ourt sentenced [Appellant] to 5-

10 years of state incarceration for the aggravated assault with a 

concurrent sentence of 5-10 years of state incarceration for the 

strangulation. This [c]ourt sentenced [Appellant] to four years of 

reporting probation for Endangering Welfare of Children, with no 

further penalty for the simple assault and recklessly endangering 

another person charges.

[Appellant] filed a Motion to Reconsider Sentence on 

March 25, 2019, and an amended version of the motion on July 9, 

2019. This [c]ourt denied [Appellant’s] motion on July 16, 2019.

____________________________________________

1 18 Pa.C.S. § 2702(a)(9).

2 18 Pa.C.S. § 2718(a)(1).

3 18 Pa.C.S. § 4304 (a)(1).

4 18 Pa.C.S. § 2701(a).

5 18 Pa.C.S. § 2705.
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Trial Court Opinion, 11/6/19, at 1-2. 

This timely appeal followed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Did not the trial court err as a matter of law in finding the 

evidence sufficient to convict Appellant of Aggravated Assault, 18 

Pa.C.S.A. § 2702(a)(9), where the evidence failed to establish (1) 

that Appellant had the specific intent to cause serious bodily injury 

to A.K., or (2) that Appellant caused serious bodily injury to A.K. 

intentionally, knowingly, or recklessly under circumstances 

manifesting extreme indifference to the value of human life?

2. Did not the trial court err as a matter of law in finding the 

evidence sufficient to convict Appellant of Strangulation, 18 

Pa.C.S.A. § 2718(a)(1), where the evidence failed to establish that 

Appellant impeded A.K.’s breathing or circulation of blood?

3. Did not the court err as a matter of law and abuse its discretion 

when it imposed a manifestly excessive and unreasonable 

sentence of five to ten years of incarceration for Strangulation, 

and an equally excessive and clearly unreasonable sentence of a 

concurrent term of five to ten years of incarceration for 

Aggravated Assault, after failing to give individualized 

consideration to Appellant's personal history, rehabilitative needs, 

and background, as well as to the circumstances of the case; and 

which was in excess of what was necessary to address the gravity 

of the offense, the protection of the community, and Appellant's 

rehabilitative needs?

4. Did not the trial court err as a matter of law by imposing an 

illegal “no contact” condition of parole under which Appellant is 

prohibited from having unsupervised contact with any children, 

including her own, for the entirety of the fourteen-year period of 

supervision, which includes the time that the Pennsylvania Board 

of Probation and Parole has exclusive statutory authority over 

Appellant's supervision while on state parole?

Appellant’s Brief at 4-5.
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Appellant’s first two issues challenge the sufficiency of the evidence. 

Our standard of review is well established:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at trial in

the light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. In applying the above test, we 

may not weigh the evidence and substitute our judgment for the 

fact-finder[’s]. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless the 

evidence is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt by 

means of wholly circumstantial evidence. Moreover, in applying 

the above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the finder 

of fact while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part or none 

of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

In her first issue, Appellant argues that there was insufficient evidence 

presented by the Commonwealth to prove beyond a reasonable doubt that 

she committed the crime of aggravated assault. Appellant’s Brief at 23-35. 

Appellant contends that the Commonwealth failed to establish that she 

attempted to cause serious bodily injury to A.K. Id. at 24-34. Also, Appellant 

asserts that the Commonwealth did not establish that she caused serious 

bodily injury to A.K. Id. at 34-35.

The relevant provision of the Crimes Code defining aggravated assault 

applicable to this case provides as follows:
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(a) Offense defined.—A person is guilty of aggravated assault if 

he:

* * *

(9) attempts to cause or intentionally, knowingly or 

recklessly causes serious bodily injury to a child less 

than 13 years of age, by a person 18 years of age or 

older.

18 Pa.C.S. § 2702(a)(9). As we expressed in Commonwealth v. Fortune, 

68 A.3d 980 (Pa. Super. 2013):

For aggravated assault purposes, an “attempt” is found where an 

accused who possesses the required, specific intent acts in a 

manner which constitutes a substantial step toward perpetrating 

a serious bodily injury upon another. An intent ordinarily must be 

proven through circumstantial evidence and inferred from acts, 

conduct or attendant circumstances.

Id. at 984 (citations omitted).

In addition, the Court in Fortune summarized the following:

The Pennsylvania Supreme Court in Commonwealth v. 

Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) created a 

totality of the circumstances test to be used to evaluate whether 

a defendant acted with the necessary intent to sustain an 

aggravated assault conviction. In Commonwealth v. Matthew, 

589 Pa. 487, 909 A.2d 1254 (2006), that Court reaffirmed the test 

and articulated the legal principles which apply when the 

Commonwealth seeks to prove aggravated assault by showing 

that the defendant attempted to cause serious bodily injury. 

Specifically, the Court stated, in relevant part, that:

Alexander created a totality of the circumstances 

test, to be used on a case-by-case basis, to determine 

whether a defendant possessed the intent to inflict 

serious bodily injury. Alexander provided a list, 

albeit incomplete, of factors that may be considered 

in determining whether the intent to inflict serious 

bodily injury was present, including evidence of a 

significant difference in size or strength between the 
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defendant and the victim, any restraint on the 

defendant preventing him from escalating the attack, 

the defendant’s use of a weapon or other implement 

to aid his attack, and his statements before, during, 

or after the attack which might indicate his intent to 

inflict injury. Alexander, at 889. Alexander made 

clear that simple assault combined with other 

surrounding circumstances may, in a proper case, be 

sufficient to support a finding that an assailant 

attempted to inflict serious bodily injury, thereby 

constituting aggravated assault.

Matthew, 909 A.2d at 1257 (citation and quotation marks 

omitted). The Court indicated that our case law does not hold that 

the Commonwealth never can establish a defendant intended to 

inflict bodily injury if he had ample opportunity to inflict bodily 

injury but did not inflict it. Rather, the totality of the 

circumstances must be examined as set forth by Alexander.

Fortune, 68 A.3d at 984.

In Commonwealth v. Hall, 830 A.2d 537, 542 (Pa. 2003), our 

Supreme Court stated that in cases “[w]here the intention of the actor is 

obvious from the act itself, the finder of fact is justified in assigning the 

intention that is suggested by the conduct.” Moreover, our Supreme Court 

has long observed, “It is beyond question that manual strangulation can result

in serious bodily injury, if not death.” Commonwealth v. Watson, 431 A.2d 

949, 952 (Pa. 1981).

The trial court addressed Appellant’s challenge to the sufficiency of the 

evidence with the following apt discussion:

The evidence in this case does establish that [Appellant] 

attempted to cause serious bodily injury to the victim. [Appellant] 

deliberately and violently attacked her 11-year old son on two 

separate occasions. Notes of Testimony, 1/7/19 at 17-19, 21-22. 

She admitted to the assaults in a video police statement played 
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during the trial, confirming unapologetically that she had beaten 

her son because [she thought] he had stolen her drugs. See 

Commonwealth Exhibit 14.

Applying the Alexander factors in this case, there is a 

significant inherent difference between [Appellant] and [A.K.’s] 

sizes and strengths because [Appellant] is an adult and [A.K.,] a 

child. This [c]ourt further notes that [Appellant’s] role as [A.K.’s] 

mother would not only reflect a duty of care owed to [A.K.], but 

also a position of authority contributing to [A.K.’s] vulnerability. 

As to [Appellant’s] ability to escalate the assault, the only reason 

[Appellant] did not continue to beat her son, incurring more 

severe injuries, was because he fled the house, running barefoot 

into the cold to seek help from a stranger. Notes of Testimony, 

1/7/19 at 22. As to the factor involving use of weapons, in the 

second incidence of assault, [Appellant] used a weapon, a belt, to 

aid in her attack, resulting in injuries to [A.K.’s] arms, legs and 

chest. Id. at 22; Commonwealth Exhibits 3-9. In the first assault, 

[Appellant] choked [A.K.] - and while a separate weapon was not 

employed in that attack, this [c]ourt views [Appellant’s] use of her 

hands to strangle as having no other purpose than to cause [A.K.] 

serious bodily harm or death. As to the factor in Alexander

regarding statements or threats made to [A.K.], although there is 

no evidence of verbal statements, this [c]ourt notes that the force 

of a choking hold implies an intent to seriously injure or kill.

This [c]ourt finds that the evidence clearly established the 

requisite elements of Aggravated Assault as a felony in the first 

degree.

Trial Court Opinion, 11/6/19, at unnumbered 6-7 (citation omitted).

We have thoroughly reviewed the certified record before us on appeal, 

and we agree with the trial court’s determination that the Commonwealth 

presented sufficient evidence to establish beyond a reasonable doubt that 

Appellant committed the crime of aggravated assault. It is undisputed that 

A.K. testified that during the first altercation with Appellant, she pushed him 

to the floor and choked him around the neck with her hands. N.T., 1/7/19, at 
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17. A.K. specifically testified that he could not breathe during the incident. 

Id. This action of manual strangulation can result in serious bodily injury. 

Watson, 431 A.2d at 952. Thus, the trial court was justified in assigning the 

intention that is suggested by Appellant’s conduct. Hall, 830 A.2d at 542. 

Accordingly, Appellant’s contrary claim lacks merit.

Appellant next argues that the Commonwealth failed to prove beyond a 

reasonable doubt that she committed the crime of strangulation. Appellant’s 

Brief at 35-39. Appellant asserts that the Commonwealth did not prove, as a 

medical fact, that A.K.’s breathing or circulation of blood was impeded. Id. 

at 37-38. Appellant posits that “despite A.K.’s limited assertion that he could 

not breathe, his breathing could not have been impeded when he was able to 

tell Appellant to stop; to yell for help; and to tell his mother a lie about who 

might have taken the drugs.” Id. at 38.

The offense of strangulation is defined as follows:

(a) Offense defined.--A person commits the offense of 

strangulation if the person knowingly or intentionally impedes the 

breathing or circulation of the blood of another person by:

(1) applying pressure to the throat or neck

18 Pa.C.S. § 2718(a). Moreover, “[i]nfliction of a physical injury to a victim 

shall not be an element of the offense. The lack of physical injury to a victim 

shall not be a defense in a prosecution under this section.” 18 Pa.C.S. § 

2718(b).

The trial court addressed this claim of insufficient evidence as follows:
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In this case, [A.K.] credibly testified that [Appellant] placed 

her hands on his neck and choked him by the throat after pushing 

him to the ground. Notes of Testimony, 1/7/19 at 17. [A.K.] 

further testified that he could not breath during this attack. Id. at 

[17,] 38. Photographs depicting marks [A.K.] sustained on his 

neck were admitted into evidence without objection. 

Commonwealth Exhibit 2 and 3. Based on the testimony and 

photographic evidence, this [c]ourt found that the Commonwealth 

had met its burden of proving beyond a reasonable doubt the 

elements of the crime of strangulation.

Trial Court Opinion, 11/6/19, at unnumbered 7-8. We agree with the trial 

court’s assessment.

Here, A.K. specifically testified that due to Appellant’s hands choking his 

neck, he could not breathe. N.T., 1/7/19, at 17. This testimony is sufficient 

to meet the statutory elements set forth by the legislature, i.e., that Appellant

impeded A.K.’s breathing by applying pressure to his throat. Moreover, 

Appellant’s assertion that the Commonwealth needed to prove an impediment 

to breathing as a “medical fact” is unsupported by legal authority. Further, in 

light of A.K.’s unequivocal testimony that he could not breathe, A.K.’s ability 

to tell Appellant at some point during the attack to stop the choking and to 

call for help is of no moment. Accordingly, Appellant’s claim lacks merit.

Appellant also argues that the trial court abused its discretion in 

fashioning her sentence. Appellant’s Brief at 39-54. Appellant claims the trial 

court improperly imposed a manifestly excessive and unreasonable sentence 

without adequately considering Appellant’s rehabilitative needs and the 
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circumstances of the case. Id. at 39. Appellant asserts that she received a 

non-individualized and disproportionate sentence. Id.

6

Appellant challenges the discretionary aspects of sentencing. “A 

challenge to the discretionary aspects of a sentence must be considered a 

petition for permission to appeal, as the right to pursue such a claim is not 

absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) 

(citation omitted). 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 

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).

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

omitted; brackets in original).

____________________________________________

6 We observe that within her argument on this issue, Appellant includes a 

claim that the trial court deviated without explanation from the Sentencing 

Guidelines with regard to her conviction of strangulation. Appellant’s Brief at 

39-40. Indeed, it appears that the trial court utilized the same sentencing 

guidelines for Appellant’s convictions of aggravated assault and strangulation. 

N.T., 3/14/19, at 6. However, Appellant did not preserve for appellate review 

the issue of whether the trial court utilized incorrect sentencing guidelines, 

having failed to present the claim in her post-sentence motions. See

Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa. Super. 1998) (en 

banc) (holding that a misapplication of the Sentencing Guidelines presents a 

challenge to the discretionary aspects of sentencing and is waivable); 

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”).
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Whether a particular issue constitutes a substantial question about the 

appropriateness of sentence is a question to be evaluated on a case-by-case 

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001). 

As to what constitutes a substantial question, this Court does not accept bald 

assertions of sentencing errors. Commonwealth v. Malovich, 903 A.2d 

1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the 

sentencing court’s actions violated the sentencing code. Id.

Herein, the first three requirements of the four-part test are met. 

Appellant brought an appropriate appeal, raised the challenge in a postsentence motion, and included in her appellate brief the necessary concise 

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

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a 

substantial question requiring us to review the discretionary aspects of the 

sentence imposed by the trial court.

In her Rule 2119(f) statement, Appellant argues that the trial court 

abused its discretion by failing to consider and balance her rehabilitative needs 

and other factors under 42 Pa.C.S. § 9721(b). Appellant’s Brief at 15-22. 

This Court has found a substantial question exists where there is an allegation 

that the sentencing court failed to consider the factors set forth in 42 Pa.C.S. 
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§ 9721(b).7 See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 

2006) (concluding that the appellant raised a substantial question where it 

was alleged that the trial court failed to properly consider the factors set forth 

in 42 Pa.C.S. § 9721(b)). Therefore, Appellant has raised a substantial 

question. As such, we will review the merits of Appellant’s sentencing claim. 

Nevertheless, we conclude that Appellant is entitled to no relief, as the record 

reveals that the court did consider all pertinent sentencing factors.

It is undisputed 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. Fullin, 892 A.2d at 847. In 

this context, an abuse of discretion is not shown merely by an error in 

judgment. Id. 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. Id.

The sentencing judge has broad discretion in determining the proper 

penalty, and this Court accords the sentencing court great deference, as it is 

the sentencing court that is in the best position to view a defendant’s 

____________________________________________

7 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) 

include the protection of the public, the gravity of the offense in relation to 

the impact on the victim and the community, and the rehabilitative needs of 

the defendant. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 

2006).
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character, displays of remorse, defiance, or indifference, and the overall effect 

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 

2007) (quotations and citations omitted).8 As previously noted, when 

imposing a sentence, the sentencing court must consider “the protection of 

the public, the gravity of the offense as it relates to the impact on the life of 

the victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S. § 9721(b). As we have stated, “[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). “In particular, the court should refer to the defendant’s prior criminal 

____________________________________________

8

 The Walls Court instructed the following:

In making this “unreasonableness” inquiry, the General Assembly 

has set forth four factors that an appellate court is to consider:

(d) Review of the record—In reviewing the record the appellate 

court shall have regard for:

(1) The nature of the circumstances of the offense and 

the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe 

the defendant, including any pre-sentence 

investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

Walls, 926 A.2d at 963.
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record, his age, personal characteristics and his potential for rehabilitation.” 

Id. In addition, “[o]ur Supreme Court has determined that where the trial 

court is informed by a pre-sentence report, it is presumed that the court is 

aware of all appropriate sentencing factors and considerations, and that where 

the court has been so informed, its discretion should not be disturbed.” 

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing 

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

Our review of the record reflects that at the time of Appellant’s 

sentencing, the trial court received and reviewed a presentence report. N.T., 

3/14/19, at 4, 16. The trial court heard argument from Appellant’s counsel. 

Id. at 6-8. Further, the trial court heard Appellant’s allocution. Id. at 13-16. 

Immediately following Appellant’s allocution and prior to announcing the 

judgment of sentence, the trial court gave a detailed account of its reasoning 

for imposing the sentence. Id. at 16-18.

The trial court further elaborated its reasoning for imposition of the 

specific sentence upon Appellant in its written opinion, as follows:

This [c]ourt stated sufficient reasons for imposing its 

sentence, and adequately examined and investigated 

[Appellant’s] background, character and rehabilitative needs 

when arriving at its sentence. This [c]ourt’s sentence was not 

excessive based on the gravity and nature of the offense and the 

concern for protection of the public.

* * *

[Appellant] was found guilty of Aggravated Assault (F1), 

Strangulation (F2), Endangering Welfare of Children (F3), Simple 

Assault (M2), and Recklessly Endangering Another Person. The 
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prior record score for [Appellant] was a 2 and the offense gravity 

score for the lead charge of aggravated assault was an 11 as [the 

victim] was under 13 years of age. Thus, the sentencing range 

was 48 to 66 months plus or minus 12 months. At the time of 

sentencing, the Commonwealth requested a sentence for 6 to 12 

years of incarceration followed by five years of domestic violence 

probation, which itself was within the relevant guidelines. Notes 

of Testimony, 3/14/19 at 11.

This [c]ourt sentenced [Appellant] to 5-10 years of state 

incarceration for the aggravated assault with a concurrent 

sentence of 5-10 years of state incarceration for the strangulation, 

four years of reporting probation for Endangering Welfare of 

Children, with no further penalty for the simple assault and 

recklessly endangering another person charges. This [c]ourt 

ordered upon release that [Appellant] was to be supervised by the 

domestic violence unit of probation and parole.

This [c]ourt’s on-record statements incorporating the 

findings in the PSI, [Forensic Intensive Recovery Evaluation 

(“FIR”)] and mental health reports are sufficient to explain the 

reasons for the sentence imposed, to demonstrate that 

compliance with applicable sentencing laws and regulations, and 

to show that, in sentencing [Appellant], this [c]ourt acted well 

within its discretion. Notes of Testimony, 3/14/19 at 16. This 

[c]ourt considered both mitigating and aggravating factors when 

arriving at its sentence within the guidelines.

This [c]ourt carefully reviewed [Appellant’s] prior record 

score, offense gravity score and range, the facts in this trial, 

[Appellant’s] video statement and [A.K.’s] testimony, and the 

history and character of [Appellant] as summarized in the defense 

mitigation memo and at the sentencing hearing. Id. at 16.

Specific aggravating factors considered in [Appellant’s] 

sentence included the nature of the crime, the importance of 

protecting the community from violence and [Appellant’s] failure 

to take responsibility for her crimes. The first aggravating factor 

that this [c]ourt cited was the nature of the crime, specifically that 

the assault took the form of a physical beating that resulted in the 

child [c]omplainant needing to escape his own home and mother 

and run barefoot in the cold seeking help from strangers. Id. at 

18. “When an offense is carried out in a manner which makes it 

more egregious than is typical for the offense ... the nature of the 
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offense is a proper aggravating factor to consider.” 

Commonwealth v. Hanson, 2004 PA Super 326, 856 A.2d 1254 

(2004). As such, the nature of the crime was a proper aggravating 

factor to consider in sentencing.

Protection of the public may also be considered as an 

aggravating factor when fashioning a sentence. 42 Pa.C.S. § 

9721(b). This [c]ourt cited a concern that [Appellant’s] dangerous 

behavior would recur should she not receive a sufficient period of 

rehabilitation. Id. at 18. This [c]ourt also considered [Appellant’s] 

demeanor in her video statement during the trial and lack of 

remorse or accountability at that time. Id. at 17-18, Also noted 

during sentencing was [A.K.’s] particular vulnerability due to the 

fact that [Appellant] owed him a specific duty of care and nurture 

as his mother, Id. at 17.

After careful review of all factors, this [c]ourt properly 

sentenced [Appellant] within its discretion and within the 

guidelines.

Trial Court Opinion, 11/6/19, at unnumbered 8-11.

We conclude that the reasons the trial judge offered for the sentence 

imposed were sufficient to find that the trial court properly considered all 

relevant factors in fashioning Appellant’s sentence. Also, because the trial 

court had been fully informed and relied upon the presentence report, N.T., 

3/14/19, at 16, we conclude that the trial court did not abuse its discretion in 

imposing the instant sentence. Ventura, 975 A.2d at 1133. Accordingly, 

Appellant’s claim that the trial court failed to contemplate relevant factors in 

considering Appellant’s rehabilitative needs and imposing the sentence lacks 

merit.

Appellant last argues that the trial court exceeded its authority at the 

time of sentencing. Appellant’s Brief at 54-56. Appellant contends that the 
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trial court improperly imposed a “limited contact” condition as part of her state 

parole. Id. The Commonwealth agrees with Appellant’s claim and concedes 

that this portion of Appellant’s sentence should be vacated. Commonwealth’s 

Brief at 19-20. We agree. 

Although Appellant raises this argument for the first time on appeal, this 

claim is a challenge to the legality of his sentence, and therefore, unwaivable. 

See Commonwealth v. Alexander, 16 A.3d 1152, 1154-1155 (Pa. Super. 

2011) (citing Commonwealth v. Wilson, 11 A.3d 519 (Pa. Super. 2010) (en 

banc) (finding that a challenge to the trial court’s authority to impose 

conditions on a defendant’s probation or parole constitutes a challenge to the 

legality of sentence which is unwaivable)).

We conclude that the trial court did not have the authority to impose 

this restriction. This Court has held that “the Pennsylvania Board of Probation 

and Parole [(“PBPP”)] has exclusive authority to determine parole when the 

offender is sentenced to a maximum term of imprisonment of two or more 

years.” Commonwealth v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011) 

(quoting Commonwealth v. Mears, 972 A.2d 1210 (Pa. Super. 2009)). In 

Coulverson, this Court found that the trial court exceeded its authority in 

imposing a condition that the appellant have no contact with his victims or 

their families upon his release on parole. Coulverson, 34 A.3d at 141-142. 

See also 61 Pa.C.S. §§ 6132(a) and (b)(1), (2) (codifying the principle 

established in Mears).
J-S46019-20

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In this case, Appellant was sentenced to a maximum term of 

imprisonment of more than two years. Therefore, the PBPP has exclusive 

authority to determine her parole.

To the extent that the trial court’s sentencing order imposes conditions 

of parole, we vacate those conditions. We note that “[t]his Court has the 

authority to correct an illegal sentence directly rather than to remand the case 

for re-sentencing as long as we do not disrupt the trial court’s sentencing 

scheme in doing so.” Commonwealth v. Melvin, 103 A.3d 1, 56 (Pa. Super. 

2014). As our elimination of the trial court’s condition upon Appellant’s 

release from prison does not disrupt the trial court’s sentencing scheme, we 

need not remand for resentencing.

Accordingly, we affirm the judgment of sentence after correction of the 

sentence as described above to eliminate the condition that the trial court 

placed on Appellant’s release from imprisonment.

Judgment of sentence affirmed with appropriate correction. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/21