J-S46024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLOS INGA

Appellant No. 2953 EDA 2014

Appeal from the Judgment of Sentence July 14, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001884-2012

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.:

MEMORANDUM BY OLSON, J.: FILED OCTOBER 09, 2015

Appellant, Carlos Inga, appeals from the judgment of sentence entered 

on July 14, 2014, as made final by the denial of Appellant’s post-sentence 

motion on September 18, 2014. We vacate and remand for resentencing.

The learned trial court ably summarized the underlying facts and 

procedural posture of this case. As the trial court explained:

Appellant [] was arrested [in 2011. The Commonwealth 

later charged Appellant with numerous crimes that allegedly 

occurred in 2007, including: rape by forcible compulsion, 

unlawful contact with a minor, unlawful restraint, sexual 

assault, corruption of minors, and indecent assault.1] 

The instant matter commenced with Appellant pleading not 

guilty to all charges and indicating that he wished to have a 

____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(1), 6318(a)(1), 2902(a)(1), 3124.1, 6301(a)(1), 

and 3126(a)(2), respectively.
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jury trial. [During Appellant’s trial, t]he Commonwealth 

introduced [the] testimony of[: the victim’s stepfather, 

D.M.;] [the victim’s brother, A.T.;] Susan Tran[; the 

victim;] [the victim’s sister, M.; and,] Detective Thomas 

Brown. The defense introduced [the] testimony of Robert 

Chin, William Cuff, and [Appellant]. . . . [The testimony at 

trial was as follows]:

1. In 2007, [the victim] worked in her parent’s [Philadelphia 

restaurant]. . . . At the time, [the victim] was 16 years old.

2. Many of [the victim’s] family members also worked in the 

restaurant, including her parents (mother and stepfather), 

her sister [M.], and her brother, [G.T.]

3. [The victim] would help out her family with various 

administrative tasks at the restaurant. She would answer 

the phone, take delivery orders, serve as hostess, help 

prepare food, cut up vegetables and meat in the kitchen, 

clear tables, etc.

4. The restaurant was often quiet and not terribly busy. In 

short, business was slow.

5. When the restaurant was not busy, [the victim] would 

spend much of her time cleaning the tables and putting 

away plates and silverware for her family.

6. When the restaurant was busy with people and [the 

victim] was helping out with work inside of the kitchen, she 

would often find herself alone in the back with just the cook 

and occasionally the dishwasher.

7. [Appellant] was the cook/chef [whom the victim’s family] 

had employed at that time and he would sometimes be 

alone with [the victim] in the kitchen. [The victim] would 

assist [Appellant] in preparing food and with heating up 

some of the food.

8. [Appellant] would talk to [the victim] while they were in 

the kitchen and [he] made her feel uncomfortable on 

multiple occasions.
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9. On one such occasion, [Appellant] touched [the victim’s] 

private parts with his hands while they were working 

together in the kitchen. On another such occasion, he 

pulled her pants down while they were alone in a large 

refrigerator room area.

10. On or around May [] 2007, [Appellant] touched [the 

victim’s] hand and made her put her hand on his penis. 

[The victim] indicated that her hand was placed on top of 

his clothes and not under his clothes.

11. [The victim] testified that she was uncomfortable and 

took her hand away. [The victim testified] . . . that she did 

not want [Appellant] to take her by the hand and that he 

had forced her to touch his penis. 

[The victim testified that Appellant raped her in or around 

May 2007. According to the victim, at the time, she and 

Appellant were “upstairs in the restaurant,” when Appellant 

grabbed her arm, pulled her onto the couch, “forced down” 

her pants and underwear, and inserted his penis into her 

vagina. N.T. Trial, 4/9/14, at 116-121.] 

12. [The victim] has serious disabilities. The record [] 

reflects that [the victim] has difficulty processing 

information; she has spatial issues, intellectual disabilities 

(detailed below), etc. Further, hundreds of pages of 

documents detailing her health history and disabilities were 

submitted into evidence.

13. [The victim’s] stepfather, [D.M.], explained that his 

stepdaughter has been diagnosed with various intellectual 

deficits (slight mental retardation and attention deficit 

[hyperactivity] disorder), emotional problems, and anxiety. 

She has structural growth retardation and struggled with 

her academics in normal school. Her stepfather stepped in 

as an advocate for her to get a proper education. [As the 

victim’s stepfather testified, the victim:] is a very 

compassionate and kind individual[;] has difficulty telling 

time and has problems with interspatial recognition[;] 

withdraws and is very shy[; and,] has trouble engaging with 

her peers. As a result of these problems, [the victim’s 

stepfather testified that the victim] had problems at school 
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and was made fun of. Moreover, as a result of her specific 

disabilities, [the victim] has trouble communicating.

. . .

15. [After the alleged rape occurred, but on the same night, 

the victim] told [Susan] Tran that she was alone at times 

with [Appellant] and that [Appellant] had requested to see 

her alone and even requested that her parents drop her off 

at the restaurant to be alone with him. Ms. Tran [testified 

that she] was most alarmed when she found out about that 

information. [Ms. Tran testified that she considered] it [] 

inappropriate for a 16-year-old to be requested to come see 

a grown man alone. . . . Ms. Tran asked [the victim] 

additional questions about her contact with [Appellant] and 

whether he had ever touched her.

16. [The victim] then told Ms. Tran that she had been 

inappropriately touched by [Appellant. However, the victim 

did not tell Ms. Tran that Appellant had raped her earlier in 

the night].

17. Immediately afterwards, Ms. [Tran] told [the victim’s] 

brother about what [the victim had told her]. He was in the 

restaurant at the time. He was furious when he learned 

about the [touching]. He went into the kitchen and started 

yelling at [Appellant]. [That day], he fired [Appellant. 

Evidence at trial demonstrates that Appellant was fired on 

May 15, 2007. See N.T. Trial, 4/10/14, at 90-91 and 154.]

18. Eventually, [the victim] spoke to her sister [M.] about 

[both the inappropriate touching and the alleged rape]. . . . 

[The victim testified] that [M.] was [] upset [] when she 

told her about [what Appellant had done].

19. In 2011, [the victim] finally spoke to her mother about 

these events and that led to her speaking to a police 

detective about the assault and alleged rape. . . . [The 

victim testified that her mother] was upset that she had 

waited so long to tell her about everything that [had] 

happened [].

20. [Ms. Tran] testified that she noticed major changes in 

[the victim’s] personality, mood, and demeanor after the 
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[alleged rape] took place. . . . Ms. [Tran] testified that [the 

victim] was visibly wrestling with a great deal of emotion 

and had exhibited signs of frustration and trauma after the 

assault happened[. Ms. Tran testified]:

I noticed that she – at the time that she told me, I could 

see that she was very scared, like she was holding 

something inside. And then once she told me, I could 

tell she was relieved that she told me. She was letting 

something out but I felt like I should have done more 

and I didn’t. And her mood, she was very – it was very 

up and down all the time . . . she’s a happy girl, sweet 

girl. She’s so kind. And then when I see her just 

completely turn 360, like she’s not even who she is, and 

I wondered what’s wrong, why? Why her? She didn’t 

do anything.

21. Ms. [Tran] also [testified] that [the victim] seemed less 

lively after the [alleged rape]. In addition, [the victim’s 

brother testified] that [the victim] seemed depressed and 

had serious emotional difficulties after the [alleged rape] 

occurred in or around May of 2007. Similarly, [the victim’s] 

mother [testified] that she noticed her daughter’s mood and 

demeanor were noticeably different; she was reportedly 

more angry, moody, and argumentative. Likewise, [the 

victim’s] stepfather [testified] that he noticed his 

stepdaughter’s mood and demeanor change[] after 2007: 

“Something was hounding her. She had nightmares, 

screams at night, and we came over. We tried to wake her 

up and then she was in tears.”

. . .

At the culmination of the evidence presented, . . . [the jury 

found Appellant] not guilty of [] rape, unlawful restraint[,] 

and sexual assault. The jury found Appellant guilty, beyond 

a reasonable doubt, of the indecent assault [], unlawful 

contact with minors [], and corruption of [minors] [] 

charges. . . .

On July 14, 2014, [the trial court sentenced] Appellant [] as 

follows: [one to three years in prison on the indecent 

assault conviction; one-and-a-half to three years in prison 

on the unlawful contact with minors conviction; and, one to 
J-S46024-15

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three years in prison on the corruption of minors conviction. 

The trial court ordered the three sentences to run 

consecutively, resulting in an aggregate sentence of threeand-a-half to nine years in prison. However, during the 

sentencing hearing, the trial court did not provide any onthe-record explanation for its particular sentence.2

]. . . . 

Appellant’s [counsel filed a timely] motion for 

reconsideration of the above sentence. . . . [On September 

18, 2014, following oral argument, the trial court denied 

Appellant’s post-sentence motion].

Trial Court Opinion, 1/16/15, at 1-7 (some internal capitalization and 

citations omitted). 

Appellant raises the following claims to this Court:

[1.] Did the trial court commit an abuse of discretion by 

failing to charge the jury in accordance with 23 [Pa.C.S.A.] 

§ 6311, which requires certain persons to report suspected 

child abuse?

____________________________________________

2 Specifically, during Appellant’s sentencing hearing, the trial court declared:

Okay, the jury has spoken in this case. Of course they did 

not find you guilty of the most serious charge of rape but 

you were found guilty of unlawful contact, corruption of 

minors[,] and indecent assault. 

I’ll sentence you to the following:

On the unlawful contact charge I sentence you to one and a 

half to three years. Consecutive to that corruption of 

minors one to three years. Consecutive to that on indecent 

assault one to three years. 

That’s the order of the Court. . . .

N.T. Sentencing, 7/14/14, at 38-39.
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[2.] Did the sentencing court commit an abuse of discretion 

by imposing sentences outside the recommended 

guideline[] ranges without providing adequate reasons for 

doing so?

[3.] Did the sentencing court commit an abuse of discretion 

by improperly considering offenses Appellant was found not 

guilty of committing in structuring Appellant’s sentence?

[4.] Did the sentencing court commit an abuse of discretion 

by imposing sentences that were unreasonable and 

excessive under the circumstances and which failed to take 

into account Appellant’s rehabilitative needs?

Appellant’s Brief at 4 (some internal capitalization omitted). 

First, Appellant claims that the trial court erred when it “refus[ed] a 

defense request that the jury be charged in accordance with 23 [Pa.C.S.A.] 

§ 6311, which requires certain persons to report suspected child abuse.” 

Appellant’s Brief at 10. This claim fails.

As this Court explained:

In reviewing a challenge to the trial court’s refusal to give a 

specific jury instruction, it is the function of this Court to 

determine whether the record supports the trial court's 

decision. In examining the propriety of the instructions a 

trial court presents to a jury, our scope of review is to 

determine whether the trial court committed a clear abuse 

of discretion or an error of law which controlled the outcome 

of the case. A jury charge will be deemed erroneous only if 

the charge as a whole is inadequate, not clear or has a 

tendency to mislead or confuse, rather than clarify, a 

material issue. A charge is considered adequate unless the 

jury was palpably misled by what the trial judge said or 

there is an omission which is tantamount to fundamental 

error. Consequently, the trial court has wide discretion in 

fashioning jury instructions. The trial court is not required 

to give every charge that is requested by the parties and its 

refusal to give a requested charge does not require reversal 

unless the Appellant was prejudiced by that refusal.
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Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) 

(internal quotations and citations omitted). Further, “Pennsylvania law 

makes [it] clear that the court is bound to charge the jury only on the law 

applicable to the factual parameters of a particular case and that it may not 

instruct the jury on inapplicable legal issues. Consequently, where the 

record evidence fails to satisfy the elements of a particular legal doctrine, 

the court may not discuss that doctrine in its charge.” Geise v. 

Nationwide Life & Annuity Co., 939 A.2d 409, 422 (Pa. Super. 2007) 

(internal quotations, citations, and corrections omitted).

We will explain the basis for Appellant’s current argument.

During Appellant’s cross-examination of the victim, the victim testified 

that she “told [her] emotional support [teacher] at [school] in [] between 

the fall of [2007] and the spring of [2008] that [she] had been raped.” N.T. 

Trial, 4/9/14, at 141. However, during Appellant’s trial, Appellant introduced 

the victim’s school records into evidence; and, as Appellant noted during 

trial, there was “no mention anywhere in any [school] record about a 

complaint to a teacher.” N.T. Trial, 4/10/14, at 220. As Appellant argued to 

the trial court, if the victim had informed an employee of her high school 

about the alleged rape, 23 Pa.C.S.A. § 6311 would have required – under 

penalty of criminal prosecution – that the school employee report the 

suspected child abuse. See N.T. Trial, 4/10/14, at 251-254 and N.T. Trial, 

4/11/14, at 4-5 and 39-41. Appellant claimed that the absence of such a 

report in the victim’s school records cast doubt upon the victim’s credibility. 
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Based upon the above argument, Appellant requested that the trial 

court instruct the jury on 23 Pa.C.S.A. § 6311. The trial court refused. Now 

on appeal, Appellant claims that the trial court’s refusal to instruct the jury 

on Section 6311 constituted prejudicial error and requires a new trial. 

Appellant claims that knowledge of the statute “would have permitted the 

jury to consider the lack of a report by a school official in the school records 

in its assessment of the credibility of [the victim; the] lack of a report of 

child abuse in a situation where one was statutorily required strongly implies 

that no such complaint was made.” Appellant’s Brief at 13. 

Appellant’s claim fails. Indeed, the mere fact that a child abuse report 

was not found in the victim’s school records is irrelevant on the issue of 

whether the victim “told [her] emotional support [teacher] at [school] in [] 

between the fall of [2007] and the spring of [2008] that [she] had been 

raped.” See N.T. Trial, 4/9/14, at 141.

In “the fall of [2007] and the spring of [2008]” – which is when the 

victim testified that she told informed her emotional support school teacher 

of the alleged rape – the relevant portions of the Child Protective Services 

Law read:

§ 6311. Persons required to report suspected child 

abuse.

(a) General rule.—A person who, in the course of 

employment, occupation or practice of a profession, comes 

into contact with children shall report or cause a report 

to be made in accordance with section 6313 (relating 

to reporting procedure) when the person has reasonable 
J-S46024-15

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cause to suspect, on the basis of medical, professional or 

other training and experience, that a child under the care, 

supervision, guidance or training of that person or of an 

agency, institution, organization or other entity with which 

that person is affiliated is a victim of child abuse, including 

child abuse by an individual who is not a perpetrator. . . .

(b) Enumeration of persons required to report.—

Persons required to report under subsection (a) include, but 

are not limited to, any licensed physician, osteopath, 

medical examiner, coroner, funeral director, dentist, 

optometrist, chiropractor, podiatrist, intern, registered 

nurse, licensed practical nurse, hospital personnel engaged 

in the admission, examination, care or treatment of 

persons, Christian Science practitioner, member of the 

clergy, school administrator, school teacher, school nurse, 

social services worker, day-care center worker or any other 

child-care or foster-care worker, mental health professional, 

peace officer or law enforcement official.

(c) Staff members of institutions, etc.—Whenever a 

person is required to report under subsection (b) in the 

capacity as a member of the staff of a medical or other 

public or private institution, school, facility or agency, that 

person shall immediately notify the person in charge of the 

institution, school, facility or agency or the designated 

agent of the person in charge. Upon notification, the person 

in charge or the designated agent, if any, shall assume the 

responsibility and have the legal obligation to report or 

cause a report to be made in accordance with section 

6313. This chapter does not require more than one report 

from any such institution, school, facility or agency.

23 Pa.C.S.A. § 6311 (effective May 29, 2007 to December 30, 2014) (some 

emphasis added).

Section 6313 then provided:

§ 6313. Reporting procedure.

(a) General rule.—Reports from persons required to report 

under section 6311 (relating to persons required to report 

suspected child abuse) shall be made immediately by 
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telephone and in writing within 48 hours after the oral

report.

(b) Oral reports.—Oral reports shall be made to the 

department[3] pursuant to Subchapter C (relating to 

powers and duties of department) and may be made to 

the appropriate county agency.

[4]

 When oral reports of 

suspected child abuse are initially received at the county 

agency, the protective services staff shall, after seeing to 

the immediate safety of the child and other children in the 

home, immediately notify the department of the receipt of 

the report, which is to be held in the pending complaint file 

as provided in Subchapter C. The initial child abuse report 

summary shall be supplemented with a written report when 

a determination is made as to whether a report of 

suspected child abuse is a founded report or an unfounded 

report or an indicated report.

(c) Written reports.—Written reports from persons 

required to report under section 6311 shall be made 

to the appropriate county agency in a manner and on 

forms the department prescribes by regulation. The written 

reports shall include the following information if available . . 

. .

23 Pa.C.S.A. § 6313 (effective July 1, 1995 to December 30, 2014) (some 

emphasis added).

____________________________________________

3 At the time, the Child Protective Services Law defined the term “the 

department” as “the Department of Public Welfare of the Commonwealth.” 

23 Pa.C.S.A. § 6303 (effective July 1, 1995 to December 30, 2014).

4 At the time (and still today), the Child Protective Services Law defined the 

term “county agency” as “[t]he county children and youth social service 

agency established pursuant to section 405 of the act of June 24, 1937 (P.L. 

2017, No. 396), known as the County Institution District Law,[] or its 

successor, and supervised by the Department of Public Welfare under Article 

IX of the act of June 13, 1967 (P.L. 31, No. 21), known as the Public Welfare 

Code.” 23 Pa.C.S.A. § 6303 (effective July 1, 1995).
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Finally, Section 6331 of the Child Protective Services Law, entitled 

“establishment of pending complaint file, Statewide central register and file 

of unfounded reports,” provided:

There shall be established in the department:

. . .

(2) A Statewide central register of child abuse which shall 

consist of founded and indicated reports.

23 Pa.C.S.A. § 6331 (effective July 1, 1995 to June 30, 2014) (emphasis 

added).

Again, on appeal, Appellant claims that the trial court erred when it 

refused to charge the jury on 23 Pa.C.S.A. § 6311, as there was no report of 

child abuse in the victim’s school records and “the lack of a report of child 

abuse in a situation where one was statutorily required strongly implies that 

no such complaint [to the victim’s emotional support teacher] was made.” 

Appellant’s Brief at 10-13.

A review of the above-quoted statutes demonstrates the fallacy in 

Appellant’s argument. Certainly, from the above statutes, it is clear that, 

even if the victim’s “emotional support teacher” were an “enumerated 

person required to report” child abuse under Section 6311(b), any such 

report would have gone to either the Department of Public Welfare of the 

Commonwealth or the county children and youth social service agency – not 

the victim’s school. 23 Pa.C.S.A. § 6313 (effective July 1, 1995 to 

December 30, 2014). Further, the report would not have been maintained 
J-S46024-15

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by the victim’s school – instead, the Child Protective Services Law required 

that such reports be maintained by the Department of Public Welfare. 23 

Pa.C.S.A. § 6331 (effective July 1, 1995 to June 30, 2014). Therefore, the 

lack of a report in the victim’s school records does not (as Appellant 

claims) “impl[y] that no such complaint was made.” Appellant’s Brief at 13. 

Rather, the lack of a mandated report of child abuse in the victim’s school 

records is irrelevant on the issue of whether the victim “told [her] 

emotional support [teacher] at [school] in [] between the fall of [2007] and 

the spring of [2008] that [she] had been raped.” N.T. Trial, 4/9/14, at 141. 

Therefore, Appellant was not entitled to a jury instruction regarding 23 

Pa.C.S.A. § 6311. Geise, 939 A.2d at 422 (“the court is bound to charge 

the jury only on the law applicable to the factual parameters of a particular 

case and that it may not instruct the jury on inapplicable legal issues”) 

(internal quotations, citations, and corrections omitted). Appellant’s claim to 

the contrary fails.

Next, Appellant claims that the trial court abused its discretion at 

sentencing because it sentenced him outside of the sentencing guideline 

ranges on one conviction and in the aggravated sentencing guideline range 

on the remaining two convictions, and yet did not provide any rationale for 

its sentence. We are constrained to agree. Therefore, we must vacate 

Appellant’s judgment of sentence and remand for resentencing.

Appellant challenges the discretionary aspects of his sentence. 

“[S]entencing is a matter vested in the sound discretion of the sentencing 
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judge, whose judgment will not be disturbed absent an abuse of discretion.” 

Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). 

Moreover, pursuant to statute, Appellant does not have an automatic right to 

appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. 

§ 9781(b). Instead, Appellant must petition this Court for permission to 

appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

In the case at bar, Appellant satisfied the first three requirements, as 

he filed a timely notice of appeal, properly preserved his discretionary 

challenge in a post-sentence motion, and facially complied with Pennsylvania 

Rule of Appellate Procedure 2119(f). We must now determine whether 

Appellant presented a “substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code.” Cook, 941 A.2d at 11. 

Generally, to raise a substantial question, an appellant must “advance 

a colorable argument that the trial judge’s actions were: (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.” 

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993); 

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en 

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining 

whether an appellant has raised a substantial question, we must limit our 

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726. 

This limitation ensures that our inquiry remains “focus[ed] on the reasons 

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

which are necessary only to decide the appeal on the merits.” Id. at 727 

(internal emphasis omitted).

Appellant claims that the trial court abused its discretion because it 

sentenced him outside of the sentencing guideline ranges on his unlawful 

contact with a minor conviction and in the aggravated guideline ranges on 

his corruption of minors and indecent assault convictions – and yet did not 

provide any rationale for its sentence. This claim raises a substantial 

question under the Sentencing Code, as it asserts that the trial court’s action 

was “inconsistent with a specific provision of the Sentencing Code.” 

Specifically, Appellant asserts that the trial court acted in contravention of 

42 Pa.C.S.A. § 9721(b), which states in relevant part:

In every case in which the court imposes a sentence for a 

felony or misdemeanor, modifies a sentence, resentences 

an offender following revocation of probation, county 

intermediate punishment or State intermediate punishment 

or resentences following remand, the court shall make as a 

part of the record, and disclose in open court at the time of 
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sentencing, a statement of the reason or reasons for the 

sentence imposed. In every case where the court imposes 

a sentence or resentence 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 to 

the commission, as established under section 2153(a)(14)

(relating to powers and duties). Failure to comply shall be 

grounds for vacating the sentence or resentence and 

resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

Further, as this Court held:

when sentencing a defendant beyond the ranges 

recommended by the sentencing guidelines, the trial court 

must state its reasons for departing from the guidelines on 

the record. When doing so, a trial judge must demonstrate 

on the record, as a proper starting point, its awareness of 

the sentencing guidelines. Having done so, the sentencing 

court may deviate from the guidelines, if necessary, to 

fashion a sentence which takes into account the protection 

of the public, the rehabilitative needs of the defendant, and 

the gravity of the particular offense as it relates to the 

impact on the life of the victim and the community, so long 

as it also states of record the factual basis and 

specific reasons which compelled it to deviate from 

the guideline range.

Commonwealth v. Warren, 84 A.3d 1092 (Pa. Super. 2014) (internal 

quotations, citations, and corrections omitted) (emphasis in original); see 

also Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa. Super. 2012) 

(“Appellant maintains that the sentencing court violated the Sentencing 

Code by failing to state sufficient reasons for imposing a sentence outside 

the sentencing guidelines. This raises a substantial question”); 

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009) 
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(same); see also Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. 

Super. 2008) (“an allegation that the [trial] court failed to state adequate 

reasons on the record for imposing an aggravated-range sentence . . . raises 

a substantial question for our review”); Commonwealth v. Fullin, 892 

A.2d 843, 850 (Pa. Super. 2006) (same).

Since Appellant raised a substantial question, we may reach the merits 

of Appellant’s claim that, at sentencing, the trial court failed to adequately 

state the reasons for sentencing Appellant outside of the guideline ranges on 

one conviction and in the aggravated guideline range on the other two 

convictions. 

Appellant is correct that the trial court sentenced him outside of the 

sentencing guideline ranges on his unlawful contact with minors conviction 

and in the aggravated guideline ranges on his corruption of minors and 

indecent assault convictions.5 Appellant is also correct that the trial court 

provided no reason for its sentence. As such, the trial court abused its 

discretion by failing to “make as a part of the record, and disclose in open 

____________________________________________

5 At sentencing, the parties and the trial court agreed that the sentencing 

guideline ranges for Appellant’s three convictions were all “[restorative 

sanctions] to nine [months in prison], plus or minus three [months].” N.T. 

Sentencing, 7/14/14, at 9. The trial court then sentenced Appellant to oneand-a-half to three years in prison on the unlawful contact with minors 

conviction (an outside-the-guideline-range sentence); one to three years in 

prison on the corruption of minors conviction (an aggravated range 

sentence); and, one to three years in prison on the indecent assault 

conviction (an aggravated range sentence).
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court at the time of sentencing, a statement of the reason or reasons for the 

sentence imposed.” 42 Pa.C.S.A. § 9721(b). We must, therefore, vacate 

Appellant’s judgment of sentence and remand for resentencing.6, 7

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Judge Musmanno joins.

Judge Mundy concurs in the result.

____________________________________________

6 Within the Commonwealth’s brief to this Court, the Commonwealth claims 

that the trial court cured its error by stating the reasons for its sentence 

during Appellant’s post-sentence motion hearing. This argument fails, as 

Section 9721(b) plainly requires that the trial court “make as a part of the 

record, and disclose in open court at the time of sentencing, a 

statement of the reason or reasons for the sentence imposed.” 42 Pa.C.S.A. 

§ 9721(b). The post-sentence motion hearing was not “at the time of 

sentencing;” therefore, the Commonwealth’s argument fails. See also 

Commonwealth v. Warren, 84 A.3d 1092, 1097-1098 (Pa. Super. 2014) 

(at sentencing, the trial court did not “evince an awareness of the 

sentencing guidelines or explain [its] decision to deviate therefrom, as was 

required;” however, “[t]he trial court attempted to ameliorate [its] error in 

its subsequent Pa.R.A.P. 1925(a) opinion by stating additional reasons for 

the sentence;” this Court held that the trial court’s after-the-fact attempt to 

rectify its error “does not suffice” because Section 9721(b) “requires that the 

trial court state its reasons for the sentence in court at the time of 

sentencing”). 

7 Given our disposition, we will not consider Appellant’s remaining two claims 

on appeal.
J-S46024-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/9/2015