Com. v. Bernal, G.
138 WDA 2016
| Pa. Super. Ct. | Dec 19, 2016Background
- Bernal lived with his girlfriend, her children, and repeatedly sexually assaulted the girlfriend’s then-8-year-old daughter in 2003, threatening harm to the child’s disabled brother to secure her silence.
- He was tried and convicted of unlawful contact with a minor (18 Pa.C.S. § 6318.1), indecent assault of a person under 13 (18 Pa.C.S. § 3126(a)(7)), and corruption of minors (18 Pa.C.S. § 6301(a)(1)); acquitted of child rape.
- Initial sentence (9–18 years) was vacated on appeal because unlawful contact had been misgraded; case remanded for resentencing.
- On remand the court imposed consecutive maximum statutory terms: 2–7 years (unlawful contact), plus consecutive 2–5 and 2–5 years for the other two counts (aggregate 6–17 years).
- Bernal appealed, arguing the sentence was excessive, the court failed to consider the sentencing guidelines and statutory factors (42 Pa.C.S. § 9721(b)), did not obtain or rely on an updated PSI, and improperly double-counted factors and failed to individualize the sentence.
- The Superior Court vacated the resentencing judgment and remanded again: it found the court did not demonstrate consideration of the guidelines, failed to order or explain declining an updated PSI, and did not adequately address rehabilitative factors; double-counting claim rejected.
Issues
| Issue | Plaintiff's Argument (Bernal) | Defendant's Argument (Commonwealth / Trial Court) | Held |
|---|---|---|---|
| Whether consecutive maximum sentences (6–17 yrs) were manifestly excessive | Sentence was excessive, not individualized, deviated from guidelines without adequate reasons | Sentencing judge emphasized offense seriousness, victim impact, and public protection to justify maximum consecutive terms | Vacated and remanded for resentencing (substantial question shown) |
| Whether court failed to consider/appreciate sentencing guidelines before departing | Court did not acknowledge guideline ranges or explain departure from them | Court relied on seriousness and prior on-the-record remarks to justify sentence | Court failed to demonstrate on-record consideration of guidelines; remand required |
| Whether failure to order/update PSI violated sentencing rules and denied consideration of rehabilitative needs | No updated PSI or on-the-record reason for declining; rehabilitative factors not considered | Court relied on earlier PSI (from 2013) and testimony presented at resentencing | Court found no indication judge reviewed the earlier PSI or adequately considered rehabilitative needs; remand required |
| Whether judge ‘‘double-counted’’ offense seriousness or showed bias / failed to individualize | Sentencing reflected retribution and patterned use of maximums by judge; indicates lack of individualized sentencing | Judge emphasized victim impact, threats, danger to society, lack of remorse — legitimate sentencing factors | Double-counting claim rejected, but court expressed concern over lack of individualized record and allowed recusal motion on remand if Bernal seeks it |
Key Cases Cited
- Provenzano v. Commonwealth, 50 A.3d 148 (Pa. Super. 2012) (standard for abuse of discretion in sentencing)
- Bowen v. Commonwealth, 55 A.3d 1254 (Pa. Super. 2012) (trial court must demonstrate awareness of sentencing guidelines and state reasons for departure)
- Rodda v. Commonwealth, 723 A.2d 212 (Pa. Super. 1999) (record must show court considered guidelines rationally before departing)
- Goggins v. Commonwealth, 748 A.2d 721 (Pa. Super. 2000) (essential elements of a PSI report and its role in informed sentencing)
- Flowers v. Commonwealth, 950 A.2d 330 (Pa. Super. 2008) (when omission to order PSI can be harmless if court elicits adequate information)
- L.N. v. Commonwealth, 787 A.2d 1064 (Pa. Super. 2001) (presumption that a sentencing judge with a PSI was aware of appropriate factors)
- Whitmore v. Commonwealth, 912 A.2d 827 (Pa. 2006) (appellate courts may not sua sponte order judge recusal)