J-S01018-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRY NEIL VANSKIVER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1313 MDA 2018

Appeal from the Judgment of Sentence Entered June 25, 2018

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

No(s): CP-59-CR-0000118-2017

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 04, 2019

Terry Neil Vanskiver (Appellant) appeals from the judgment of sentence 

imposed after he pled guilty to rape of a child, aggravated indecent assault, 

and endangering the welfare of a child.1 After careful review, we affirm. 

The charges in this case arise from Appellant’s rape and sexual abuse 

of his then-girlfriend’s eight-year-old daughter. A criminal complaint against 

Appellant was filed on February 17, 2017. On March 16, 2018, Appellant 

appeared before the trial court and pled guilty to the above crimes. That same 

day, the trial court ordered a pre-sentence investigation. 

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1

 18 Pa.C.S.A. §§ 3121(c), 3125(a)(7), and 4304(a)(1). 
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On June 25, 2018, Appellant was sentenced to 20 to 40 years of 

incarceration for rape of a child.

2

 Appellant filed a timely post-sentence 

motion, which the trial court denied. Appellant filed this timely appeal on 

August 9, 2018. Both the trial court and Appellant have complied with 

Pennsylvania Rule of Appellate Procedure 1925. 

Appellant presents one issue for our review: 

DID THE SENTENCING COURT ERR IN SENTENCING THE 

[APPELLANT] TO THE STATUTORY LIMIT FOR THE OFFENSE OF 

RAPE OF A CHILD, EVEN THOUGH THE STATUTORY LIMIT FOR 

THAT OFFENSE IS ALWAYS ENCOMPASSED WITHIN THE 

STANDARD SENTENCING GUIDELINE RANGE, WHEN THE 

[APPELLANT] (1) HAD A MINIMAL PRIOR CRIMINAL RECORD, (2) 

WAS OF GOOD BEHAVIOR DURING THE PENDENCY OF THE CASE, 

(3) DID NOT EXHIBIT UNUSUAL CRUELTY OR SADISTIC 

BEHAVIOR IN THE COMMISSION OF THE CRIME, AND (4) WAS 

NOT FOUND BY THE PENNSYLVANIA SEXUAL OFFENDERS 

ASSESSMENT BOARD (SOAB) TO BE A SEXUALLY VIOLENT 

PREDATOR IN PART BECAUSE THE FACTORS ANALYZED BY SOAB 

SUGGESTED A LOW LIKELIHOOD OF RE-OFFENDING? 

Appellant’s Brief at 4.

In his sole issue, Appellant challenges the discretionary aspects of his 

sentence, averring that:

[t]he sentence herein at the statutory limit of [] twenty (20) to 

forty (40) years for [Appellant] with a minimal prior record, who 

was of good behavior during the pendency of the case, who was 

noted by SOAB to have exhibited no unusual cruelty or sadistic 

behavior during the commission of the crime, and who was 

determined not [to] be a Sexually Violent Predator in part because 

of a low likelihood of reoffending, is manifestly unreasonable and 

should not be allowed to stand. 

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2

 For the purposes of sentencing, the remaining two counts merged with 

Appellant’s rape of a child conviction. 
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Appellant’s Brief at 10. 

“The right to appellate review of the discretionary aspects of a sentence 

is not absolute, and must be considered a petition for permission to appeal.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), 

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a fourpart test to invoke this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.” Id. We conduct this four-part test to determine 

whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a 

substantial question when he sets forth a plausible argument that the 

sentence violates a provision of the sentencing code or is contrary to the 

fundamental norms of the sentencing process.” Commonwealth v. Dodge, 

77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted), appeal denied, 

91 A.3d 161 (Pa. 2014).

Appellant has complied with the first three prongs of this test by raising 

his discretionary sentencing claims in a timely post-sentence motion, filing a 

timely notice of appeal, and including in his brief a Rule 2119(f) concise 
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statement. See Appellant’s Brief at 8-9. Therefore, we examine whether 

Appellant presents a substantial question for review.

Appellant argues that the trial court imposed an excessive sentence 

where it failed to consider Appellant’s criminal history, good behavior during 

the pendency of his case, and the findings of the Pennsylvania Sexual 

Offenders Assessment Board. Appellant’s Brief at 10. This argument presents 

a substantial question. See Commonwealth v. Swope, 123 A.3d 333, 340 

(Pa. Super. 2015) (“This Court has also held that an excessive sentence claim-

-in conjunction with an assertion that the court failed to consider mitigating 

factors--raises a substantial question.”) (citations omitted). We thus review 

Appellant’s sentencing claim mindful of the following: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge. The standard employed when reviewing the 

discretionary aspects of sentencing is very narrow. We may 

reverse only if the sentencing court abused its discretion or 

committed an error of law. 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. We must accord 

the sentencing court’s decision great weight because it was in the 

best position to review the defendant’s character, defiance or 

indifference, and the overall effect and nature of the crime. 

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations 

omitted). 

The relevant portion of 42 Pa.C.S.A. § 9721(b) states: 
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In selecting from the alternatives set forth in subsection (a), the 

court shall follow the general principle that the sentence imposed 

should call for confinement that is consistent with 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. . . . In every case in which 

the court imposes a sentence for a felony or misdemeanor . . . the 

court shall 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.

Id.

This Court has also held, “[w]hen a sentencing court has reviewed a 

pre[-]sentence investigation report, we presume that the court properly 

considered and weighed all relevant factors in fashioning the defendant’s 

sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893 

A.2d 758, 767 (Pa. Super. 2006)). Additionally: 

[i]n imposing sentence, the trial court is required to consider the 

particular circumstances of the offense and the character of the 

defendant. The trial court should refer to the defendant’s prior 

criminal record, age, personal characteristics, and potential for 

rehabilitation. However, where the sentencing judge had the 

benefit of a presentence investigation report, it will be presumed 

that he or she was aware of the relevant information regarding 

the defendant’s character and weighed those considerations along 

with mitigating statutory factors. 

Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149, 

154 (Pa. Super. 2004)) (some citations omitted). 

At the June 25, 2018 hearing, the trial court acknowledged that it was 

in receipt of, and considered, the pre-sentence investigation report completed 

in anticipation of Appellant’s sentencing. N.T., 6/25/18, at 1, 19. Before 

imposing Appellant’s sentence, the trial court commented: 
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[I]t is my responsibility and my duty to fashion and impose 

sentences; and [Defense Counsel] has advanced, I think, the best 

and most logical arguments that one might advance on behalf of 

your circumstance. And as he notes, it is the responsibility of us, 

as professionals, to reflect upon the individual cases and to be 

governed by reason, by the law, and not necessarily by passion -

certainly not by passion or some sense of vengeance. There are 

a couple of things that I would say to you at the outset. Obviously, 

this is - this is behavior which is not acceptable; it’s a crime - and 

it is a very, very serious crime. And it is, I think, as life goes on 

and time advances, we appreciate more and more just what a 

serious crime this is. The impact - the lingering impact or trauma 

and the consequences that will be borne by this young lady 

throughout the course of her life. 

This - there are - well, as [Defense Counsel] noted, there 

are certainly some circumstances regarding your ability to 

function, and an argument to be made that you have some, some 

recognition of the harm that you caused and recognized, and 

didn’t go out of your way to inflict pain. We do have to 

understand, and the Court has to take into consideration, that this 

is an - this was an eight-year-old child. This is an eight-year-old 

child, whether she was either, nine, ten, twelve, she was a child, 

a young child, who was entrusted to you by, by a parent who was 

faced with a terrible crisis involving her other child. And this 

young lady, the victim, obviously, had some sort of relationship 

with you, viewed you favorably; I presume knew you, trusted you. 

Her mother trusted you, obviously, or the conditions that led to 

this would have never occurred or arisen. And that trust, the trust 

that this young lady has, and apparently everyone around her, is 

now shattered, and the effort to put that back together will be 

arduous for her and for all of those around her. 

And while it is my responsibility to take into account 

information regarding your likelihood to recidivate and to 

contemplate, and reflect on your criminal history, which is taken 

into the guidelines, you nonetheless do have it. And it is my 

responsibility to also hold you accountable. And as [Defense 

Counsel] referenced, and I said earlier, these are all individual 

cases. They are individual, unique, and specific. They are fact 

driven. And frankly, this is a - this is a circumstance where I 

believe the accountability requires and is such that a sentence 

should be imposed that’s going to incarcerate you in the State 

Correctional System for a very significant period of time. And I’m 
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going to stay in the standard range, but the reality is, this will not 

be at the bottom end of the standard range, but rather will be at 

the upper end. The standard range is the presumptive range, and 

in your case, and in the circumstances that you bring to the table, 

and that this case brings to the table, in fact, the maximum 

sentence allowed by law, is within the standard range, and that is 

what I believe is appropriate in this case. 

Id. at 16-18. 

In its opinion, the trial court further explained: 

In [Appellant’s] case he pled guilty to one count of [r]ape of 

a [c]hild, along with other charges that merged for sentencing 

purpose[s] under a negotiated plea. The charge stemmed from 

[Appellant’s] rape, and additional sexual abuse, of his then 

paramour’s eight year old daughter. The abuse began after the 

victim’s brother was diagnosed with cancer. The victim’s mother 

had to travel to Geisinger Medical Center in Danville for extended 

periods of time so her brother could receive the cancer treatment 

he needed. During mother’s absence, [Appellant] was entrusted 

with the care of the victim. Instead of caring for her he sexually 

abused and raped her. 

Prior to imposing sentence, the court, on the record, went 

over the sentencing guidelines with [Appellant] as prepared by the 

Tioga County Probation Department as part of its [p]re-[s]entence 

[i]nvestigation. [Appellant] had a prior record score of a two (2) 

for sentencing purposes and the charge of [r]ape of a [c]hild has 

an offense gravity score of fourteen (14). This resulted in 

standard range guidelines of ninety-six (96) months to two 

hundred forty (240) months. The mitigated range is eight[y]-four 

(84) months and there is no aggravated range as the statutory 

maximum sentence is encapsulated in the standard range. 

Neither the Defense nor the Commonwealth objected to these 

calculations. 

After the court went over the sentencing guidelines, the 

Commonwealth called the victim’s mother to the stand. She 

testified how the victim changed after the abuse. The victim went 

from an outgoing and loving child to one who is scared, untrusting, 

and depressed. The Assistant District Attorney also read a letter 

from the victim where she describes the abuse, specifically two 

occurrences where the [Appellant] raped her. The letter also 
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stated the [Appellant] threatened the victim that if she told 

anyone he would come back and kill her. The Commonwealth also 

submitted a letter from the victim’s counselor. 

The Defense argued for a sentence at the lower level of the 

sentencing guidelines range. In making this argument, [Defense 

Counsel] noted factors in [Appellant’s] favor. These factors 

included [Appellant’s] good behavior while released on bail in this 

case, the fact his prior record score is solely the result of a juvenile 

adjudication, [Appellant’s] low risk of recidivism (as determined 

through the SOAB evaluation), [Appellant] taking responsibility 

for his crimes by pleading guilty, along with other reasons. 

[Appellant] also gave a brief statement saying he loved the victim 

and her brother, cared for them when the victim’s brother was 

sick, and parented the children when their mother worked or was 

unavailable.

In handing down it[s] sentence[,] the court obviously 

considered the sentencing guidelines as it went over them on the 

record and noted the sentence was within the standard range of 

the guidelines. The court also considered [Defense Counsel’s]

arguments that [Appellant] deserved a sentence in the lower 

range of the guidelines. The court then noted, however, the victim 

was eight years old at the time of the rape and abuse, the victim’s 

mother entrusted [Appellant] with caring for the victim during a 

time of family crisis, and the victim herself had a close relationship 

and trusted [Appellant]. The court took all of these factors into 

consideration in arriving at the sentence imposed on [Appellant]. 

The court looked at the individual circumstances of [Appellant] 

and the facts of the specific case in handing down its sentence and 

did not merely reflexively sentence [Appellant] to the statutory 

maximum sentence. In addition, the sentence imposed by the 

court is “consistent with the protection of the public, the gravity 

of the events as it relates to the impact on the life of the victim 

and on the community, and the rehabilitative needs of the 

[Appellant].” 42 Pa.C.S.[A.] § 9721(b). As such, the sentence 

should be upheld. 

Trial Court Opinion, 9/17/18, at unnumbered 3-5 (citations to notes of 

testimony omitted). 
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Based on our review of the record, particularly the notes of testimony 

from the sentencing hearing, we conclude that the trial court properly 

considered all relevant factors when imposing Appellant’s sentence. In 

addition to reviewing Appellant’s pre-sentence investigation report, the trial 

court considered all potential mitigating factors raised by Appellant. See N.T., 

6/25/18, at 16 (“[Defense Counsel] has advanced, I think, the best and most 

logical arguments that one might advance on behalf of your circumstance.”). 

Ultimately, and in its discretion, the trial court determined that Appellant’s 

crimes necessitated a period of 20 to 40 years of incarceration. Accordingly, 

we discern no abuse of discretion by the trial court. 

For the foregoing reasons, Appellant’s sole issue is without merit, and 

we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/04/2019