J-S72040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :         IN THE SUPERIOR COURT OF
                                            :               PENNSYLVANIA
                  Appellee                  :
                                            :
                  v.                        :
                                            :
PATRICIA ANN PARTHE,                        :
                                            :
                  Appellant                 :         No. 718 MDA 2016

            Appeal from the Judgment of Sentence March 9, 2016,
                in the Court of Common Pleas of Berks County,
             Criminal Division, at No(s): CP-06-CR-0004500-2015

BEFORE:     GANTMAN, P.J., DUBOW, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:             FILED NOVEMBER 22, 2016

      Patricia Ann Parthe (Appellant) appeals from the judgment of sentence

imposed after she pled guilty to theft by unlawful taking. Upon review, we

affirm.

      The   Commonwealth       summarized       the    factual   history   underlying

Appellant’s guilty plea as follows.1

             At the sentencing hearing, the lower court heard testimony
      from two of the victims in the instant matter. Victim Leianne
      Cunningham Munch (hereinafter “Mrs. Cunningham Munch”)
      testified that the company, Munch Mechanical and Industrial,
      Inc., (hereinafter “the company”) hired [Appellant] in April 2015
      to handle the company’s payroll.         [Appellant’s] initial job
      performance was satisfactory. During the first months of her
      employment, [Appellant] earned Mrs. Cunningham Munch’s trust
      by attending church with her and her [family], caring for her

1
 Only the Commonwealth has provided this Court with a detailed recitation
of the factual history of this case, consisting mostly of testimony provided by
one of the victims during the March 9, 2016 sentencing hearing. We further
note that this Court has not received a copy of the guilty plea transcript.

*Retired Senior Judge assigned to the Superior Court.
J-S72040-16


     dogs, and running small errands. The company eventually hired
     [Appellant’s] husband.

            Beginning in July 2015, [Appellant’s] attendance became
     sporadic to such a degree that Mrs. Cunningham Munch
     considered terminating [Appellant’s] employment. In reviewing
     her job performance, Mrs. Cunningham Munch discovered that
     [Appellant] had embezzled over $20,000 from the company by
     inflating her own pay and that of [Appellant’s] husband. The
     loss led the company to hire accountants in order to keep the
     “small ma-and-pa business afloat.”

            When Mrs. Cunningham Munch confronted [Appellant] with
     her crimes, [Appellant] calmly admitted her guilt. In so doing,
     she expressed no remorse and made no offer to repay the stolen
     money. [Appellant] further admitted that the company was not
     her first victim, showing no remorse for her past crimes. Finally,
     Mrs. Cunningham Munch reviewed [Appellant’s] Facebook page
     which revealed that [Appellant] had gone on an extensive
     vacation and had a “wonderful summer.” In addition to live
     testimony, two letters written by [Appellant’s] victims from
     previous cases were reviewed by the court prior to the
     imposition of sentence.

            In support of her request for a county jail sentence,
     [Appellant’s] daughter testified that [Appellant] “always provided
     for” her and her brother. [Appellant’s] husband Robert [Parthe]
     testified that he was unaware that [Appellant] was stealing from
     the company and that [Appellant] is extremely remorseful.
     Robert Parthe further testified that he forgives Mrs. Cunningham
     Munch for “causing a lot of drama” for their family by
     “harassing” them after [Appellant’s] felonious activities were
     revealed.      Speaking on [Appellant’s] behalf, [Appellant’s]
     counsel described her mental health issues which prevented her
     from attending court on a prior occasion because she had
     “checked herself into Schuylkill Medical Center for psychological
     problems she was having.”[2]


2
 Counsel averred Appellant was “extremely remorseful” and had voluntarily
committed herself following an attempted suicide after learning about the
death of Jim Munch, a co-owner of Munch Mechanical and Industrial, Inc.
N.T., 3/9/2016, at 15-16.


                                   -2-
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           Prior to imposing sentence, the lower court reviewed
     [Appellant’s] incomplete PSI. In addition to the 18 misdemeanor
     and felony priors reflected in the PSI, the parties agreed that
     several more offenses were not included for some unknown
     reason.    The overwhelming majority of [Appellant’s] prior
     convictions, which included at least four felonies of the 3rd
     degree, are for theft offenses or other offenses involving
     fraud/dishonesty in financial matters. Furthermore, 17 of the
     counts for which [Appellant] was convicted resulted in
     concurrent sentences. Finally, of the $106,454.06 in restitution
     ordered in [Appellant’s] previous cases since 2003, she paid only
     $10,081.01 at the time of her sentencing in the instant matter.

          The parties agreed that [Appellant’s] prior record score is
     4. The offense gravity score for the theft charge is 5, placing the
     standard range at 9 to 16 months, with an aggravated range of
     19 months.

Commonwealth’s Brief at 3-5 (citations removed).

     Appellant entered an open guilty plea to the aforementioned crime on

January 5, 2016. She was sentenced on March 9, 2016, to the statutory

maximum: a term of three and one-half years to seven years of

imprisonment.

     On March 24, 2016,3 Appellant filed post-sentence motions requesting,

inter alia, to modify her sentence, which the trial court denied following a

hearing on April 14, 2016.   This appeal followed, wherein Appellant’s sole

issue is “[w]hether the [sentencing court] imposed an impermissibly



3
  Following her sentencing hearing, Appellant expressed a desire to file an
ineffectiveness claim against trial counsel.      The trial court thereafter
appointed new counsel and granted Appellant an additional ten days to file
post-sentence motions. Therefore, Appellant’s post-sentence motions, filed
fifteen days after her sentencing hearing, were timely-filed.


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excessive sentence beyond even the aggravated sentencing guidelines

without a sufficient basis in the record for doing so?” Appellant’s Brief at 6.

      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 [or her] 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).

      Here, Appellant filed timely post-sentence motions and a notice of

appeal, and included a statement pursuant to Rule 2119(f) in her brief. On

appeal, Appellant alleges the reasons given by the sentencing court for

imposing the statutory maximum “may [have justified] an aggravated

sentence, but they are hardly so unusual as to justify a total departure from

the guidelines.” Appellant’s Brief at 9. She further argues that

             Appellant’s theft of approximately $22,000.00 is not
      unusually high as felony theft cases go, and is not an amount so
      high that it would be effectively impossible for a person to make
      restitution payments towards in the course of their supervision.
      The Assistant District Attorney made some remarks about
      pending restitution in other cases in other counties, but those




                                     -4-
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      remarks are not evidence and were not, apparently, considered
      by the sentencing court.

            The sentencing court pointed to [A]ppellant’s risk of
      recidivism and undersigned counsel does not disagree that risk
      can reasonably support an escalation of sanctions. But the
      sentencing guidelines are not inadequate to the task of
      escalating sanctions as the sentencing court indicates.[4] Instead
      of a standard range sentence of, for example, 9 to 23 months in
      county jail (which is a standard range sentence in this case) the
      sentencing court could reasonably have entered an aggravated
      range sentence of 19 to 84 months in state prison.

Id. at 12.

      Because the discretionary-aspects claim Appellant presents on appeal

is not identical to one she presented in her post-sentence motion, we must

determine if Appellant’s claim is properly preserved for our review.        In so

doing, we observe that

      challenges to a court’s sentencing discretion must be raised
      during sentencing or in a post-sentence motion in order for this
      Court to consider granting allowance of appeal. Moreover, for
      any claim that was required to be preserved, this Court cannot
      review a legal theory in support of that claim unless that
      particular legal theory was presented to the trial court. Thus,
      even if an appellant did seek … to attack the discretionary
      aspects of sentencing in the trial court, the appellant cannot
      support those claims in this Court by advancing legal arguments
      different than the ones that were made when the claims were
      preserved.




4
  The sentencing court also cited Appellant’s lack of remorse, based on her
“demeanor.”      Appellant argues that “to generally reference a person’s
‘demeanor’ is little different than saying, ‘I don’t like your face.’” Appellant’s
thomasfoster@example.org.



                                      -5-
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Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations

omitted).

      In her post-sentence motion, Appellant alleged “that her statutory

maximum sentence is manifestly excessive and that it was an abuse of

discretion on the part of the [s]entencing [c]ourt.”   Post-Sentence Motion,

3/29/2016, at 1 (unnumbered). At the hearing on Appellant’s motion, her

counsel requested Appellant be sentenced within the guideline range,

arguing that even if Appellant’s additional convictions which were not taken

into account in her PSI were accounted for, the aggravated sentence would

still be significantly lower than that of the statutory maximum imposed. See

N.T., 4/14/2016, at 3-4.    Appellant did not include a claim based on the

sentencing court’s alleged failure to provide adequate reasons for the

sentence within in her motion nor did she argue such a claim at the hearing.

Therefore, we find her claim waived. Rush, 959 thomasfoster@example.org.

      Even if we were to address the merits of the claim, Appellant would

not be entitled to relief. At the outset, we recognize that “[t]his Court has

found a substantial question exists where the sentencing court failed to

provide sufficient reasons for imposing a sentence outside of the guidelines.”

Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) quoting

Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa. Super. 2005).

      Here, Appellant’s counsel admitted “there are aggravating factors in

this case” and further stated he wouldn’t “pretend that there are significant



                                    -6-
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mitigating factors.”     N.T., 4/14/2016, at 3.      Additionally, in her 2119(f)

statement, Appellant sets forth all the reasons provided by the sentencing

court for sentencing Appellant to the statutory maximum: (1) “[a]n

extensive prior record of theft-type offenses which [were] not adequately

accounted     for   by   the   sentencing   guidelines’”   (2)   “[a]   likelihood   of

recidivism;” (3) “[t]he impact of the offense on the victims;” (4) “Appellant’s

lack of remorse as evidence by her undescribed ‘demeanor” and; (5) “[a]

lesser sentence would depreciate the seriousness of the case.” Appellant’s

Brief at 5.

      Nevertheless, Appellant attempts to argue that such reasons may be

adequate for imposing a sentence in the aggravated range, but cannot

support a statutory maximum sentence. We disagree.

      The statute requires a trial judge who intends to sentence a
      defendant outside of the guidelines to 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. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

removed; emphasis added; brackets in original). Furthermore, “[w]here 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



                                        -7-
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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)).

     As acknowledged by Appellant, the sentencing court set forth ample

reasoning for sentencing Appellant to the statutory maximum:

            The [sentencing court] is not impressed by the fact we
     were scheduled for sentencing and conveniently a day before
     sentencing [Appellant] checks herself in to self-report another
     issue prior to sentencing. [The sentencing court] finds she is a
     danger to society, a danger to society in the fact that she has a
     history of going and getting people and confide[s] in them then
     stealing from people who she befriends and taking families and
     putting them in financial distress. [The sentencing court] has no
     doubt [Appellant] will continue to do this as long as she is
     allowed to do this.

           [Appellant] has multiple current convictions. She has[,] as
     I said[,] a repeat criminal pattern. She is a habitual offender. I
     find her to be a career criminal. I don’t find she show[s] any
     remorse whatsoever. I am completely disturbed by the fact that
     [] these victims had to sit there and watch her spend their hard
     earned money while she traipse[d] through the country on
     vacation.

            There are multiple victims involved in this case, a lesser
     sentence would depreciate the seriousness of the case. She has
     a long prior adult misdemeanor record which is not accurately
     reflected by the guidelines in this case. And it’s interesting to
     the [sentencing court] that she received probation after
     probation and then was sent to jail.

N.T., 3/9/2016, at 20-21.5     Here, the sentencing court set forth the

applicable guidelines and provided several reasons why the court felt a


5
 The sentencing court echoed its reasoning at Appellant’s post-sentence
motion hearing.


                                   -8-
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deviation from the guidelines was necessary.     Appellant has provided no

case law to support her argument that the reasons relied upon by the trial

court “may justify an aggravated sentence” but cannot support “a total

departure from the guidelines.”    Appellant’s Brief at 9.   In light of the

foregoing, we discern no abuse of discretion in the trial court’s decision to

impose the statutory maximum sentence in this case.

     Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016




     As I stated before, my concern here, which I believe is a
     legitimate concern, is that [Appellant] has perfected a craft of
     deceiving people, of knowing how to get into people’s lives,
     making them trust her. She has done this as a career and her
     prior record does not in any way reflect the amount of damage
     that she is doing to people’s lives. There is just no way.

N.T., 4/14/2016, at 7.


                                    -9-

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