J-S16037-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

 Appellee

v.

ROCKY MOSKOWITZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1422 MDA 2017

Appeal from the Judgment of Sentence August 31, 2017

in the Court of Common Pleas of Bradford County 

Criminal Division at No.: CP-08-CR-0000107-2017

BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.: FILED APRIL 30, 2018

Appellant, Rocky Moskowitz, appeals from the judgment of sentence 

imposed following his entry of an open guilty plea to two counts each of simple 

assault and recklessly endangering another person.1 Appellant challenges the 

discretionary aspects of his sentence. We affirm.

The trial court aptly set forth the relevant background of this case as 

follows:

[Appellant] was charged with (i) five counts of Aggravated 

Assault, under 18 Pa.C.S.A. §§ 2702(a)(8) and (9), each being 

felonies of the first or second degree, (ii) six counts of Simple 

Assault, under 18 Pa.C.S.A. § 2701(a)(1), each being

misdemeanors of the second degree, and (iii) six counts of 

Recklessly Endangering Another Person, under 18 Pa.C.S.A. §

2705, each being misdemeanors of the second degree. The 

charges arose after police responded to a report from an 

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1 18 Pa.C.S.A. §§ 2701(a)(1) and 2705, respectively.
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elementary school that one of their students disclosed being shot 

by [Appellant] with an air soft bb gun. The investigation soon 

revealed that five of the children in the home had allegedly been 

shot with the air soft gun at close range by [Appellant] or hit with 

the gun itself.

On June 12, 2017, [Appellant] entered a guilty plea to two 

counts of Simple Assault, 18 Pa.C.S.A. § 2701(a)(1), graded as 

misdemeanors of the first degree, with the understanding and

agreement that a deadly weapons enhancement[

2] would apply to 

one of the two counts. [Appellant] also pled guilty to two counts 

of Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705, 

both graded as misdemeanors of the second degree. As part of 

the plea agreement, “[Appellant] can argue based on health 

reasons for non-incarceration.” (N.T. Guilty Plea, 6/12/17, at 2-

3). Counsel for both parties and [Appellant] understood and 

agreed that the deadly weapons enhancement would add six (6) 

months of incarceration to the recommended minimum sentence 

within the standard range. [Appellant] confirmed his intention to

plead guilty after listening to a description of the potential 

penalties he faced for each count.

After some discussion about the nature of the weapon used 

and whether it was a gun or a toy, [Appellant] and his counsel 

acknowledged that the “Airsoft gun” at issue was “like a BB gun,”

and that such gun “could be a deadly weapon” in that it “shoots 

rubber BB’s.” (Id. at 12). While [Appellant] believed it was a 

“toy,” he acknowledged and agreed that the deadly weapon 

enhancement was going to apply to one of the counts. (Id. at 9; 

see id. at 13-14).

At the conclusion of the oral plea colloquy, [Appellant]

having previously completed a written plea colloquy with his 

lawyer, the [trial court] accepted [Appellant’s] guilty plea as 

knowing, voluntary and intelligent.

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2 “The deadly weapon enhancement provisions of the Sentencing Guidelines 

provide that an enhancement ‘shall apply to each conviction offense for which 

a deadly weapon is possessed or used.’ 204 Pa. Code § 303.10(a)(4).” 

Commonwealth v. Tavarez, 174 A.3d 7, 10 (Pa. Super. 2017).
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At the sentencing hearing on August 31, 2017, [Appellant’s]

counsel, as expected, argued against incarceration.

Defense counsel submitted a letter from [Appellant’s doctor]

that stated [Appellant] would have difficulty sleeping if 

incarcerated and that “[u]ndue discomfort is not advised.” (N.T. 

Sentencing, 8/31/17, at 15; see id. at 10). [Appellant] also 

offered a mental health evaluation [stating that he] suffers from 

adjustment disorder with mixed anxiety and depression.

[Appellant] was given an opportunity to speak and confirmed that 

he has had health difficulties since 2014 when he was electrocuted 

at work, testifying that he has no function in three fingers, heart 

damage, and limited use of his left leg. In fashioning an 

appropriate sentence, the [trial court] considered all information 

that was available, including that offered by [Appellant] and his 

counsel.

The Probation Department, acknowledging this was 

[Appellant’s] first contact with the criminal justice system, 

recommended incarceration at the lowest end of the standard 

range of the sentencing guidelines for the simple assault 

conviction with the deadly weapon enhancement, and consecutive 

sentences of probation for the other three convictions. The 

guideline sentence form for simple assault with use of a deadly 

weapon provided a minimum sentence of incarceration of six (6) 

to nine (9) months within the standard range. There is no 

mitigated range identified on the guideline sentence form but the 

minimum in the aggravated range could be as much as twelve 

(12) months.

The Commonwealth agreed with the recommendation of the 

Probation Department in the Pre-sentence Investigation report, 

noting that the affidavit of probable cause described [Appellant]

as perpetrating “a series of cruel acts to the young children.” (Id.

at 14). The Commonwealth also related that the “agreement was 

that the weapons enhancement would apply.” (Id.).

The [trial court] imposed a sentence of total confinement 

and supervision such that [Appellant] would undergo an 

indeterminate period of incarceration for the conviction of simple

assault with a deadly weapon, the minimum of which would be six 

(6) months, and the maximum of which would be twelve (12) 

months. [Appellant] received consecutive orders of probation for 
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an aggregate of eighteen (18) months for the three other counts. 

The sentence was at the lowest end of the standard range.

(Trial Court Opinion, 11/30/17, at unnumbered pages 1-3) (citation formatting 

provided; some record citations omitted). This timely appeal followed.3

Appellant raises one issue for our review: “[Whether] [t]he [trial] [c]ourt 

erred in not considering Appellant’s health issues when imposing the deadly 

weapons enhancement[] [b]ecause it believed that there was no mitigated

sentence or departure allowed under enhancement sentence[?]” (Appellant’s 

Brief, at VI). He argues that the trial court “appeared confused as to the 

application of the enhancement” and believed that it was required to sentence 

him without taking into consideration the mitigating factors of his electrocution 

and the resultant injuries and pain. (Id. at 10; see id. at 7-8).

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

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Rather, Appellant must 

first meet his burden of satisfying the following four elements 

before we will review the discretionary aspect of a sentence:

(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.[ ] § 9781(b).

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3 Appellant filed a timely, court-ordered concise statement of errors 

complained of on appeal on September 27, 2017. The trial court entered its 

opinion on November 30, 2017. See Pa.R.A.P. 1925.
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Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017), 

appeal denied, 174 A.3d 1029 (Pa. 2017) (case citations and quotation marks 

omitted).

In the instant case, Appellant met the first three elements by filing a 

timely notice of appeal, preserving his issue at sentencing, and including a 

Rule 2119(f) statement in his brief. Because “[o]ur case law has established 

that application of the deadly weapons enhancement presents a substantial 

question[,]” we will review the merits of his claim. Commonwealth v. Shull, 

148 A.3d 820, 831 (Pa. Super. 2016) (citations omitted).

Our standard of review is as follows:

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.

Johnson-Daniels, supra at 28 (citation omitted).

We begin by noting that where “the trial court has the benefit of a presentence report [PSI], we presume that the court was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with any mitigating factors.” Commonwealth v. 

Johnson, 125 A.3d 822, 827 (Pa. Super. 2015) (citation omitted). We further 

note that the sentencing guidelines are not mandatory, and sentencing courts 

retain broad discretion in sentencing matters. See Commonwealth v. 
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Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275

(Pa. 2014). Likewise, “[[a]lthough] [t]he trial court lacks the discretion to 

refuse to apply the deadly weapon sentencing enhancement, [t]he court’s 

discretion comes into play when it is time to impose a sentence, once the court 

determines the adjusted sentencing guideline ranges.” Commonwealth v. 

Kneller, 999 A.2d 608, 614 (Pa. Super. 2010), appeal denied, 20 A.3d 485

(Pa. 2011) (citation omitted).

Here, at the sentencing hearing, the trial court heard from defense 

counsel and Appellant regarding his numerous health ailments and financial 

problems stemming from his work-related electrocution in 2014. (See N.T. 

Sentencing, at 10-14). The Commonwealth noted that Appellant’s offenses 

involved a series of cruel acts against children, and that the plea agreement 

contemplated application of the weapons enhancement. (See id. at 14). The 

trial court noted that it had reviewed the PSI, and explained its rationale for 

the sentence as follows:

. . . [T]he Commonwealth was apparently insistent that . . . 

in order to reach the plea agreement, that one of the counts would 

have a deadly weapon enhancement. Otherwise, it wouldn’t have 

been there. The fact that it’s there, and now it’s just being asked 

to be essentially ignored, by [Appellant], I think is really not giving 

. . . it’s really not honoring the agreement that was reached. . . . 

The health concerns of [Appellant], I understand those. The 

doctor suggests that you are going to have difficulty sleeping on 

a mattress. Undue discomfort is not advised. Being in jail is not 

a comfort to anybody, you know. And so, certainly I am 

sympathetic to your health concerns but these are pretty serious 

charges[.] . . . I agree with the probation department that 

because of your history, because of your health situation, you 

don’t deserve anything above what would be the standard, the 
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lowest end of the standard range and that would be in each of the 

other counts, probation. But with the one count that was, that 

has the deadly weapon enhancement I think you need the six 

months. I mean that’s what everybody contemplated, that’s what 

was expected, based on what everybody knew about the case. So 

I think that is what is appropriate and that’s what I’m going to 

impose today. . . .

(Id. at 14-16; see id. at 1).

Following imposition of the sentence, defense counsel asked for 

clarification and the following exchange took place:

[Defense counsel]: [Is] the court under the belief that it has no 

authority to override the sentence as it pertains to him?

[Trial court]: No. I’m not under that impression. The guidelines 

are simply guidelines. They are advisory.

[Defense counsel]: And the enhancement is not a mandatory 

sentence.

[Trial court]: I understand that as well. . . .

(Id. at 19).

In its opinion, the trial court further explained that, in formulating an 

appropriate sentence for Appellant, it took into consideration his health 

difficulties, history, character, and rehabilitative needs; the nature and 

circumstances of the crime, which involved violent acts against young 

children; the impact on the multiple victims; the need to protect the 

community; and the sentencing guidelines. (See Trial Ct. Op., at unnumbered 

pages 3-4). Thus, the record reflects that the court was not confused 

regarding application of the deadly weapons enhancement, and that it 

thoroughly considered Appellant’s background, including his health issues, 
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and the circumstances of the offense, and sentenced him accordingly. 

Because we discern no abuse of discretion in the court’s imposition of 

Appellant’s sentence, his issue on appeal merits no relief. See JohnsonDaniels, supra at 28. Therefore, we affirm the judgment of sentence. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/30/2018