J-S39043-16

*Retired Senior Judges assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DUSTIN WILLIAM SIPES,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1988 MDA 2015

Appeal from the Judgment of Sentence September 30, 2015

in the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001180-2013

BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JULY 08, 2016

Dustin William Sipes (Appellant) appeals from the judgment of 

sentence entered following his conviction for simple assault. We affirm.

On August 12, 2015, following a jury trial, Appellant was found guilty 

of the aforementioned offense based on the physical abuse of his former 

girlfriend’s infant son. He was sentenced to a term of incarceration of 24 

months to 60 months. Appellant filed a post-sentence motion to modify 

sentence, which was denied. This appeal followed.

Appellant presents two issues for our consideration:

1. Did the sentencing court abuse its discretion in sentencing 

[Appellant] when the sentence is outside the sentencing 

guidelines and is manifestly excessive and unreasonable 

because the court failed to adequately consider the specific 

and unique circumstances of the case and [Appellant’s] 

background in relation to the requirements of 42 [Pa.C.]S. 

§ 9721(b) and 42 [Pa.C.]S. § 9781(d)?
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2. Did the sentencing court abuse its discretion in sentencing 

[Appellant] when it placed substantial consideration on 

impermissible or inappropriate factors including [Appellant’s] 

lack of remorse and failure to take responsibility for a crime 

he maintained he did not commit and the age of the victim, 

which was already accounted for in the grading of the 

offense?

Appellant’s Brief at 4-5 (suggested answers and emphasis omitted).

Appellant’s issues challenge the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court’s jurisdiction by satisfying a four-part test: 

We 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.[] § 9781(b). 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533 

(Pa. Super. 2006)).

Instantly, Appellant timely filed a notice of appeal, presented his claim 

in a post-sentence motion, and included a statement pursuant to Rule 

2119(f) in his brief. Thus, we now consider whether he has raised a 

substantial question worthy of appellate review.
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The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 

825, 828 (Pa. Super. 2007). “A substantial question exists only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the 

sentencing process.” Griffin, 65 A.3d at 935 (citation and internal quotation 

marks omitted).

In his Rule 2119(f) statement, Appellant argues that his sentence was 

manifestly excessive and unreasonable because it 

was 400 percent greater than the top end of the aggravated 

guideline range. In sentencing [Appellant], the court failed to 

adequately consider factors including the jury’s verdict acquitting 

[him] of the offense of aggravated assault, the characteristics of 

[Appellant] showing that he is a peaceful and law-abiding 

individual, the findings and recommendation of the pre-sentence 

report, and testimony regarding the impact on the victim, 

particularly as these factors relate to the considerations required 

by 42 [Pa.C.]S. § 9721(b) and 42 [Pa.C.]S. § 9781(d). Instead, 

the court focused almost solely on the age and number of 

injuries of the victim. The facts and circumstances noted by the 

sentencing court do not justify such an extreme departure from 

the guidelines. ...

Additionally, the sentencing court abused its discretion by 

relying significantly on impermissible or inappropriate factors in 

imposing an excessive sentence when it considered [Appellant’s] 

alleged lack of remorse and failure to accept responsibility as a 

basis for its determination of sentence and when it relied 

primarily on the victim’s age for determining sentence despite 

the age of the victim already being considered by the grading of 

the offense.
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Appellant’s Brief at 12-13. 

To the extent Appellant argues that the sentencing court failed to 

consider adequately mitigating factors or challenges the weight given to 

certain factors, he has failed to raise a substantial question for our review. 

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his 

Court has held on numerous occasions that a claim of inadequate 

consideration of mitigating factors does not raise a substantial question for 

our review.”) (quoting Commonwealth v. Downing, 990 A.2d 788, 794 

(Pa. Super. 2010)); Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. 

Super. 2014) (“[W]e have held that a claim that a court did not weigh the 

factors as an appellant wishes does not raise a substantial question.”).

1

 

To the extent Appellant argues that the sentencing court failed to state 

adequate reasons on the record and considered impermissible factors in 

imposing sentence, such claims do raise a substantial question. See 

Commonwealth v. Galletta, 864 A.2d 532, 534 (Pa. Super. 2004) 

(concluding that claim “that the trial court ‘failed to state on the record 

adequate reasons for imposing a sentence in excess of the aggravated 

 

1 Moreover, the sentencing court had the benefit of a pre-sentence 

investigation report (PSI). “Where the sentencing court had the benefit of a 

[PSI], we can assume the sentencing court ‘was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.’” Griffin, 65 A.3d at 

937 (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).
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range’ as set forth in the sentencing guidelines” raises a substantial 

question); Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009) 

(“This Court has recognized that a claim that a sentence is excessive 

because the trial court relied on an impermissible factor raises a substantial 

question.”). Thus, we address the merits of Appellant’s latter claims.

If this Court grants appeal and reviews the sentence, the 

standard of review is clear: sentencing is vested in the discretion 

of the trial court, and will not be disturbed absent a manifest 

abuse of that discretion. An abuse of discretion involves a 

sentence which was manifestly unreasonable, or which resulted 

from partiality, prejudice, bias or ill will. It is more than just an 

error in judgment. ...

When reviewing a sentence outside of the guideline range, 

the essential question is whether the sentence imposed 

was reasonable. An appellate court must vacate and 

remand a case where it finds that “the sentencing court 

sentenced outside the sentencing guidelines and the 

sentence is unreasonable.” 42 Pa.C.S.[] § 9781(c)(3). In 

making a reasonableness determination, a court should 

consider four factors:

(1) The nature and 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 presentence 

investigation.

(3) The findings upon which the sentence was 

based.

(4) The guidelines promulgated by the 

commission.

42 Pa.C.S.[] § 9781(d). A sentence may be found 

unreasonable if it fails to properly account for these four 
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statutory factors. A sentence may also be found 

unreasonable if the “sentence was imposed without 

express or implicit consideration by the sentencing court of 

the general standards applicable to sentencing.” These 

general standards mandate that a sentencing court impose 

a sentence “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.” 42 Pa.C.S.[] 

§ 9721(b).

Crork, 966 A.2d at 590-91 (some citations omitted).

At the sentencing hearing, the court provided the following reasons for 

Appellant’s sentence:

All right. Well, certainly, I did preside over the trial in this 

case and heard the evidence in detail. I spent considerable time 

reviewing my notes of the testimony, so that it would be fresh in 

my mind today, so that I could impose sentence thoughtfully and 

carefully.

 

Certainly the jury found [Appellant] guilty of simple 

assault, a misdemeanor of the first degree. And ... the grading 

[of a] misdemeanor of the first degree certainly does take into 

consideration the fact that this was a child. The statute 

discusses a child less than twelve. Certainly, in this case, we 

have an infant, very different than a child less than twelve, 

potentially.

What I also recall was Dr. Crowell’s testimony regarding 

the level of force necessary in order to inflict the 18 or 19 broken 

bones in the arm fractures, leg fractures, rib fractures.

I recall the testimony of Trooper [C]achara and Trooper 

Rush detailing the statements given by [Appellant] repeatedly 

accepting responsibility for causing harm to [the victim] in 

various ways.

I recall testimony regarding biting in order to hold the child 

still. 
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I recall the taped statements that were played for the 

jury’s consideration.

I recall that [Appellant] was placed in a level of trust and 

had a role of caretaker.

I recall that these injuries were alleged to have occurred 

over a span of dates, not just on one occasion.

I also recall [Appellant’s] testimony contesting that he 

was, in fact, responsible for these injuries and providing his 

reasoning, which I didn’t find to be credible.

Now, I’ll contrast that evidence with what I reviewed in the 

pre-sentence report about [Appellant]. Multiple letters of 

reference from individuals that have known [Appellant] over the 

span of his life. A prior record score of zero. No criminal 

history. He was only 21 years old at the time of this offense, a 

relatively young man. He’s certainly still a young man.

So given all of that information that the court has to 

weigh, certainly the sentence guidelines calling for a standard 

range of RS or restorative sanctions to three months, an 

aggravated range of six months, I have concluded that a 

sentence of 24 months to 60 months in the state correctional 

institution is appropriate in this case.

There’s no remorse. There’s no acceptance of 

responsibility, which I know comes hand-in-hand with your 

denial of responsibility for this case, and you’ve asserted that 

you’re innocent. The jury found otherwise, and I found the 

evidence to be credible and overwhelming in this case.

You’ve demonstrated to me a complete lack of disregard 

[sic] for [the victim’s] care and well-being, and you violated the 

trust that was placed in you in caring for this little boy.

The extreme pain that this child must have suffered over 

the course of months that these injuries were inflicted is 

unconscionable to me, and I believe all of these things justify a 
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sentence not only in excess of the aggravated range, but clearly 

outside of the guidelines.

I know I will have to justify this sentence again, and I ‘m 

prepared to do so. I believe it is appropriate.

***

I failed to mention, and I should have, I have also 

considered the success that you’ve had complying with pre-trial 

supervision and I take that into account.

I have no concern that you’ll be successful with respect to 

following the terms and conditions of your sentence. But in 

order to address the needs of the victim, the needs of the 

community, and your needs, the sentence is appropriate.

N.T., 9/30/2015, at 11-15 (unnecessary capitalization omitted).

Appellant claims that the sentencing court improperly considered his 

lack of remorse and failure to accept responsibility as significant factors in 

imposing sentence, relying upon Commonwealth v. Bowen, 975 A.2d 

1120 (Pa. Super. 2009). Therein, Bowen chose to remain silent at trial and 

during sentencing. Id. at 1121. In justifying its aggravated-range 

sentence, the trial court cited, inter alia, Bowen’s failure to show remorse for 

his crimes or to take responsibility for them, even after the jury’s verdict. 

Id. at 1121-1122. On appeal, this Court observed that “it is undoubtedly 

appropriate for a trial court to consider a defendant’s lack of remorse as a 

factor at sentencing, provided that it is specifically considered in relation to 

protection of the public, the gravity of the offense, and the defendant’s 

rehabilitative needs.” Id. at 1125. Nevertheless, it held that “a court may 
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not consider a defendant’s silence at sentencing as indicative of his failure to 

take responsibility for the crimes of which he was convicted” and “silence at 

sentencing may not be the sole factor in determining a defendant’s lack of 

remorse.” Id. at 1121, 1127. 

Here, unlike Bowen, Appellant allocuted at sentencing:

All that I would say is if I had done this, I would be 

remorseful about it. I’m sorry that all the injuries that happened 

[sic] to him.

Also I do have one semester of college to finish, which I’m 

so close to getting that done. All I have to do is enroll or reenroll, and it’s only about four or five classes to take. And I’d 

like to continue my career of what I’ve been studying, I already 

completed three-and-a-half years.

N.T.,9/30/2015, at 7-8.

Additionally, Appellant testified at trial, over which the sentencing 

court also presided. Thus, the court did not rely on Appellant’s silence to 

determine that he lacked remorse and failed to take responsibility for his 

crimes. A review of the court’s comments at sentencing indicate that, after 

observing Appellant at trial and sentencing, it considered his lack of remorse 

and failure to accept responsibility “in relation to protection of the public, the 

gravity of the offense, and [his] rehabilitative needs.” Bowen, 975 A.2d at 

1125. Moreover, the sentencing court considered numerous other factors in 

imposing sentence, such as the nature an circumstances of the offense, the 

age of the victim, and Appellant’s role as caretaker for the child. Thus, we 
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discern no abuse of discretion on this basis. See Bowen, 975 A.2d at 1127-

28 (concluding that, because the trial court relied upon several other 

legitimate aggravating factors in imposing sentencing, Bowen was not 

entitled to relief on his discretionary-aspects-of-sentence claim). 

We now turn to Appellant’s contention that the sentencing court 

improperly relied on the victim’s age as a significant factor in imposing 

sentence. Appellant argues that, “while the specific age of a victim is a 

factor that may be considered by a sentencing court, the grading of this 

offense as a first degree misdemeanor is already based on the victim’s age 

and contemplates increased penalty at sentencing,” as “[t]he offense of 

simple assault becomes a first degree misdemeanor when the victim is less 

than twelve years of age.” Appellant’s Brief at 21-22.

In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), Walls pled 

guilty to rape of a victim less than thirteen years old, involuntary deviate 

sexual intercourse (“IDSI”) with a victim less than thirteen years old, and 

incest based upon the repeated sexual abuse of his seven-year-old 

granddaughter. Id. at 959. Walls received the statutory maximum for the 

rape and IDSI convictions. Id. at 960. One of the reasons cited by the 

sentencing court for Walls’s sentence included “the tender and young age of 

the victim.” Id. In vacating Walls’s judgment of sentence, this Court 

reasoned that the tender age of the victim did not justify the imposition of 
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the maximum sentence permitted by law, as “the crime itself made a 

distinction with respect to certain classes of victims, such as minors and the 

elderly, and thus, the sentencing guidelines reflect the Crimes Code’s 

provision of greater punishment of certain crimes committed against certain 

victims.” Id. at 960-61. Our Supreme Court, however, disagreed: 

Contrary to the Superior Court, we find that the sentencing court 

was permitted to rely on [inter alia, the victim’s age] to justify 

Walls’ sentence. As noted by the Commonwealth and the 

Superior Court, the precise age of the victim, i.e., the fact that 

the victim was only seven-years-old at the time of the sexual 

abuse, was not an element of rape or IDSI of a victim less than 

thirteen years old and could justify an above-guideline sentence. 

While the Superior Court found that this factor could not justify 

the sentence in this case, in light of the deferential standard of 

review, we disagree. Additionally, we agree with the 

Commonwealth that Walls has offered no legitimate basis to 

presume that these factors, the victim being entrusted to Walls’ 

care and was his granddaughter, are subsumed within the 

sentencing guidelines. Thus, we conclude that the findings upon 

which Walls’ sentence was based were legally permissible.

Id. at 967.

With respect to the offense at issue herein, the Crimes Code provides 

that “[s]imple assault is a misdemeanor of the second degree unless 

committed[] against a child under 12 years of age by a person 18 years of 

age or older, in which case it is a misdemeanor of the first degree.” 18 

Pa.C.S. § 2701(b)(2). In sentencing Appellant, the court understood that 

“the grading misdemeanor of the first degree certainly does take into 

consideration the fact that this was a child. The statute discusses a child 
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less than twelve.” N.T., 9/30/2015, at 11. However, the court went on to 

note that “in this case, we have an infant, very different than a child less 

than twelve, potentially.” Id. As the trial court was permitted to consider 

the victim’s infancy in imposing sentence, Appellant is not entitled to relief.2

Appellant has failed to demonstrate that the trial court abused its 

discretion in imposing sentence. Accordingly, we affirm the judgment of 

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/2016

 

2 To the extent Appellant presents any argument with respect to the trial 

court’s failure to state adequate reasons for its sentence, he only does so in 

the context of his challenge to the trial court’s inadequate consideration of 

mitigating factors and weighing of other factors. See Appellant’s Brief at 15 

(“Upon appropriate consideration of the guidelines and these factors, it is 

evident that a sentence of 24-60 months [of] incarceration is not consistent 

with the protection of the public, the gravity of the offense, and the 

rehabilitative needs of the defendant, and the court did not state sufficient 

reasons for exceeding the sentencing guidelines in relation to these 

considerations. Instead, the court focused almost solely on the age and 

number of injuries to the victim.”). As demonstrated above, the record 

belies Appellant’s bald claim; the court thoroughly stated its reasons and 

explained why it deemed Appellant’s sentence appropriate under the 

circumstances. See N.T., 9/30/2015, at 11-15.