J-S16023-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LARRY SHOWALTER,

Appellant No. 1049 WDA 2016

Appeal from the Judgment of Sentence entered June 22, 2016,

in the Court of Common Pleas of Bedford County,

Criminal Division, at No(s): CP-05-CR-0000132-2013.

BEFORE: MOULTON, RANSOM, and PLATT,* JJ.

MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 08, 2017

Appellant Larry Showalter appeals from the judgment of sentence 

imposed on June 22, 2016. We affirm.

The pertinent facts and procedural history, as gleaned from our review 

of the certified record are as follows. The multiple charges brought against 

Appellant stem from allegations made by his biological daughter that he 

raped her on multiple occasions when she was between the ages of 8 and 

11. On June 19, 2014, a jury convicted Appellant of two counts of rape of a 

child, two counts of involuntary deviate sexual intercourse (IDSI), two 

counts of aggravated indecent assault, two counts of incest, endangering the 
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welfare children, corruption of minors, and three counts of indecent 

exposure.1 Appellant was found not guilty of an additional fourteen charges. 

After an evidentiary hearing on September 24, 2014, the trial court 

designated Appellant a sexually violent predator and sentenced him to an 

aggregate term of 60-120 years of imprisonment. 

Appellant filed a timely appeal to this Court in which he asserted trial 

court error in its admission of hearsay statements made by the victim, as 

well as a challenge to the discretionary aspects of his sentence. Although 

we concluded that the trial court erred in admitting the statements as an 

excited utterance, we found the error harmless because the victim had 

already made the same statements in her own testimony at trial. We then 

raised sua sponte the issue of whether Appellant’s sentence, which included 

the application of mandatory minimums, was illegal in light of the United 

States Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 

2151 (2013), and subsequent Pennsylvania cases applying the Alleyne 

holding, including Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super. 

2014). Because these cases concluded that the application of the 

mandatory minimums were unconstitutional, we vacated and remanded for 

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3123(b), 3125(a)(7), 4302, 4304(a)(1), 

6301(a)(i), and 3127(a), respectively.
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resentencing. See Commonwealth v. Showalter, 145 A.3d 770 (Pa. 

Super. 2016 (unpublished memorandum).

Upon remand, Appellant was resentenced on June 22, 2016, to an 

aggregate term of 56-120 years. The trial court denied Appellant’s timelyfiled motion for reconsideration of sentence. This appeal follows.2

 Both 

Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issue:

I. WHETHER THE TRIAL COURT COMMITTED AN ABUSE OF 

DISCRETION IN SENTENCING APPELLANT CONSECUTIVELY 

ON SEVERAL COUNTS OUTSIDE THE GUIDELINES, 

FAILING TO PROPERLY CONSIDER MITIGATING FACTORS, 

AND IMPOSING AN OVERALL EXCESSIVE SENTENCE?

Appellant’s Brief at 6. 

A challenge to the discretionary aspects of a sentence is not 

appealable as of right. Rather, Appellant must petition for allowance of 

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856 

A.2d 1254, 1257 (Pa. Super. 2004). When an appellant challenges a 

discretionary aspect of sentencing, we must conduct a four-part analysis 

before we reach the merits of the appellant’s claim. Commonwealth v. 

____________________________________________

2

In a prior memorandum, we remanded the case for the preparation and 

filing of either a petition to withdraw and brief pursuant to Anders v. 

California, 386 U.S. 738 (1967), or an advocate’s brief. Appellant’s counsel 

has filed the latter, and the trial court has addressed the issue raised 

therein. Thus, the appeal is ready for disposition.
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Martin, 611 A.2d 731, 735 (Pa. Super. 1992). In this analysis, we must 

determine: (1) whether the present appeal is timely; (2) whether the issue 

raised on appeal was properly preserved; (3) whether Appellant has filed a 

statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has 

raised a substantial question that his sentence is not appropriate under the 

Sentencing Code. Id. 

In the instant case, Appellant timely filed a notice of appeal and 

properly preserved his claim in a post-sentence motion. Additionally, 

Appellant has complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 11. 

We must therefore determine whether Appellant has raised a substantial 

question for our review.

A substantial question will be found where an appellant advances a 

colorable argument that the sentence imposed is either inconsistent with a 

specific provision of the Code or is contrary to the fundamental norms 

underlying the sentencing process. Commonwealth v. Ventura, 975 A.2d 

1128, 1133 (Pa. Super. 2009) (citations omitted). Here, Appellant argues 

that the trial court erred in sentencing him consecutively on several counts, 

including the statutory maximum on two counts of incest. See Appellant’s 

Brief at 10. He also asserts that the trial court “did not properly consider 

mitigating factors such as the fact that the victim did not report the assaults 

until five years after it ceased and [he] had no legal troubles whatsoever 

during those five years.” Id. Additionally, Appellant claims that the trial 

court failed to consider his “excellent institutional behavior as shown by the 
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updated PSI.” Id. Finally, Appellant argues that his overall sentence is 

excessive because it amounts to a life sentence for him. Id.

This Court has held that a challenge to the imposition of consecutive 

sentences as unduly excessive, together with a claim that the trial court 

failed to consider a defendant’s rehabilitative needs when fashioning its 

sentence presents a substantial question. Commonwealth v. Bonner, 135 

A.3d 592 (Pa. Super. 2016). Thus, we will consider the merits of Appellant’s 

claim. 

Sentencing is a matter vested in the sound discretion of the sentencing 

court, and a sentence will not be disturbed on appeal absent a manifest 

abuse of discretion, which in this context, 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. Shull, 148 A.3d 820 

(Pa. Super. 2016).

Before resentencing Appellant, the trial court noted for the record that 

it had re-read the original sentencing transcript, which included the victim’s 

statement, as well as an update on Appellant’s behavior while incarcerated. 

The court then heard argument from counsel for both parties and granted 

Appellant allocution. The trial court then stated the following:

THE COURT: Okay, All right. Well, I’ll note my view on the 

sentencing. It really hasn’t changed in any way in the case. I’ll 

still give the same reasons I gave at the prior sentencing.
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***

And [the original sentence] I imposed - - although, I imposed 

it mainly due to mandatory minimums that were applicable at 

the last time at sentencing, I still think that’s an appropriate 

sentence given the circumstances here. 

For those reasons being: The age of the victim. [] I know 

the Rape of a Child takes that into consideration that she’s under 

the age of 13. In this case the victim was very, very young at 

the time of the offense. She was in third grade. She was eightyears-of-age [sic]. There was also testimony regarding that at 

various points she complained [to Appellant] that the acts that 

were committed on her caused her pain. And nonetheless 

[Appellant] continued to do it.

Also, also [sic] the big point: None of these, the Rape of a 

Child, and the IDSI, do not take into consideration the 

relationship between [Appellant] and the victim which was a big 

part of the reason for the reasons [sic] for my lengthy sentence 

at the time. [Appellant] not only broke down the barriers of an 

adult male and a female child, but also the very strong barrier 

that one, that a person should have in a civilized society of not 

molesting your own children. 

The other aspect [is] that we found [Appellant] to be a 

Sexually Violent Predator. That standing has not been disturbed 

by the Appellate Courts. So, there’s a finding here that he not 

only suffers from a mental abnormality, but [Appellant’s] likely 

to [re]offend in our opinion, and also the opinion of the Sex 

Offender’s Assessment Board.

N.T., 6/22/16, at 13-14.

The trial court also expounded on Appellant’s lack of remorse:

And the other reason that I think I may be touched on, in 

general his lack of remorse. I’ll stress that a little bit stronger 

today because while it’s completely [Appellant’s] Constitutional 

right to take to, to take the matter to trial, I’m not going to 

punish him, or sentence him in any way based on that. 

But I have a hard time believing as I said I think at the last 

sentencing proceeding just a complete denial of anything when 

especially one of the statements on the tapes made was that his 
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discussion with his own daughter that when she wanted to 

question him about the allegations. And [Appellant’s] statement 

was that he didn’t stick it all the way up inside of her.

I have a hard time rectifying that there’s no grasp of any

remorse, or anything like that. Like I said: I’ll stress that more 

today because apparently [Appellant] to date here wants to talk 

about things that are completely extraneous even to this case. 

[Appellant] wants to take about things such as accepting value 

for other things, and doesn’t even want to discuss the case.

So, I find there’s even more, a complete lack of remorse, and 

even a grasp of the seriousness of what he did in this case. So, 

I think essentially the same sentence is appropriate in this case.

***

THE COURT: Again, I’m not sentencing in accordance [with] 

what the mandatory minimums were, but given the effect on the 

victim, the relationship to the actions that [Appellant] did, and 

all of those things wrapped up into the protection of the public, 

the gravity of the offense, and then [Appellant’s] rehabilitative 

needs.

N.T., 6/22/16, at 13-16.

The trial court then imposed its new sentence on all of the counts and 

made the following additional comments:

The sentence is a standard-range sentence on all of the other 

counts except for Incest. And my reasons for that are that the 

Incest Counts do not take into account - - they take into account 

[Appellant’s] relationship with the victim. But, as I stated at the 

prior sentencing hearing, they do not take into account the 

victim’s age.

So in other words [Appellant] could have been convicted of 

[incest] even if the victim was 21, and it was consensual. So, 

that Guideline range does not take that into account. And given 

the victim’s very young age in this case, and that she couldn’t 

consent, I think that warrants a departure from the Guidelines 

on, on that offense from [sic]. It’s a standard range Guideline 

sentence in all other respects.
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It is the intended aggregate sentence of the Court to be fifty-six 

(56) years to one-hundred twenty (120) years.

And my reason for the overall sentencing structure of that is, 

again, the very young age of the victim which is not necessarily 

taken into account on the Guideline ranges for the Rape, the 

IDSI, and the Aggravated Indecent Assault. It does take into 

account she’s under 13. But, again, she was eight–years-of age 

[sic]. [Appellant] is a Sexually Violent Predator.

Again, there were circumstances that she testified to that caused 

her pain. And nonetheless [Appellant] still continued in this 

course of conduct, his lack of remorse here today, and the fact 

that the Rape of a child, the IDSI, and the Aggravated Indecent 

Assault, don’t take into accounts [sic] that this was his own 

daughter.

As far as the overall sentencing structure, the fifty-six (56) to 

one-hundred twenty [(120)] years that I’ve run a lot of these 

consecutive to one another. I feel that I’m just giving a force 

and effect to the jury’s verdict in the case on several accounts 

that the jury found him not guilty [sic].

I think given her testimony in the case, but there was clear 

testimony each one of the counts that they did convict him on 

were separate instances. In fact [the victim] testified to about 

[sic] separate counts of the Aggravated Indecent Assault, the 

Rape of a Child, and IDSI. 

So, I think just to give effect to the length [of time] that the 

molestation took, took place in, and given her age, I think this is 

an appropriate sentence. And, again, in consideration with the 

protection of the public, [Appellant’s] rehabilitative needs, and 

the gravity of the offenses.

So, the intended aggregate sentence is fifty-six (56) to onehundred-twenty (120). The remaining counts of the information 

are nolle prossed. Bail is revoked.

N.T., 6/22/16, 20-22.

Given these lengthy comments, the trial court provided ample reasons 

for its sentencing choice. Our review of the sentencing transcript confirms 
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the trial court’s finding regarding the lack of remorse. When addressing the 

court, Appellant, rather than discussing the case and the effect of his crimes 

on his daughter, he stated that that he would “accept for value any offers 

that are presented to me,” and then he “formally request[ed] that [the trial 

court] specify to him on the record exactly what statute, or statutes, 

authorize you to impose the sentence you are imposing at this time.” Id. at 

11. 

Moreover, as the trial court noted, except for the incest convictions, 

the sentence imposed fell within the standard range. When the trial court 

has the benefit of a PSI, “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.” See 

Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) 

(discussing Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)). 

Finally, the instant case is not one in which the imposition of 

consecutive sentences results in an overall excessive sentence. “[T]he 

imposition of consecutive, rather than concurrent, sentences may raise a 

substantial question in only the most extreme circumstances, such as where 

the aggregate sentence is unduly harsh, considering the nature of the crimes 

and the length of imprisonment.” Commonwealth v. Austin, 66 A.3d 798, 

808 (Pa. Super. 2013) (citation omitted). No such extreme circumstances 

are present here. Indeed, the trial court ran several counts concurrent to 

those it imposed consecutively. See N.T., 6/22/16, at 18-19. The court 
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also provided its reasons for departing from the guideline ranges for the 

incest convictions. 

In sum, given consideration of the trial court’s reasons for imposing 

the new sentence upon Appellant, we discern no abuse of discretion and 

affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/8/2017