Com. v. Fatta, P.
2026 MDA 2015
| Pa. Super. Ct. | Sep 29, 2016Background
- Patrick E. Fatta pled guilty (open plea) to multiple offenses arising from possession of child pornography and related sexual offenses, including: two counts under 18 Pa.C.S.A. § 6312(d) for possession of child pornography (186 videos, 1,532 still images), one count criminal use of a communication facility, and one count (F2) for possession of three videos depicting indecent contact; separate docket for indecent assault/corruption of a minor for acts against a victim born in 2004.
- The Commonwealth charged the images collectively (one count for 1,532 images rather than thousands of individual counts; each video counted as 50 images under the guidelines).
- Defense filed objections to the sentencing guideline computation the day after plea; trial court dismissed objections and sentenced on October 16, 2015 to aggregate 2.5–5 years’ incarceration plus a consecutive five-year probation term (with other sentences concurrent and consecutive as noted).
- Appellant appealed, arguing (1) the trial court applied an incorrect Offense Gravity Score (OGS) of 7 on two counts, (2) the court applied an incorrect 18-month enhancement (should have been 6 months) on the F2 count for three videos depicting indecent contact, and (3) cumulative relief based on those errors.
- The Superior Court deferred to the trial court’s factual finding that the “overwhelming majority” of images depicted children under 13 (supporting the OGS), rejected the OGS challenge, but agreed the sentencing enhancement applied to the F2 count was erroneous (Commonwealth and trial court conceded the correct enhancement is 6 months).
- Because the incorrect (higher) enhancement may have affected the overall sentencing scheme (the F2 sentence became the de facto lead sentence), the Superior Court vacated the sentence and remanded for resentencing so the trial court can reconsider using the correct enhancement.
Issues
| Issue | Appellant's Argument | Commonwealth/Trial Court Argument | Held |
|---|---|---|---|
| Whether OGS 7 was improperly applied to Counts 1 & 2 (possession of images) | OGS 7 improper because only “some” images involved children under 13; collective charging doesn’t require majority to qualify | Trial court found overwhelming majority (≈80%+) depicted <13 and has discretion to make that factual determination | OGS 7 upheld; no abuse of discretion in trial court’s factual finding |
| Whether an 18-month guideline enhancement was improperly applied to Count 4 (F2: 3 videos with indecent contact) | Enhancement should be 6 months (based on number of images/videos) not 18 months | Commonwealth and trial court conceded the correct enhancement is 6 months but argued error was harmless because sentence was within standard range and court considered other factors | Error acknowledged; not harmless given effect on overall sentencing scheme — vacated and remanded for resentencing |
| Whether cumulative sentencing relief is warranted based on the OGS and enhancement errors | Repeats above claims and seeks relief | Trial court defended OGS and minimized enhancement error as harmless; Superior Court required resentencing due to potential impact | Court declined to grant relief on OGS but granted resentencing because of enhancement error |
| Whether Appellant preserved issues and raised substantial question for discretionary review | Appellant timely appealed, preserved issues, included Rule 2119(f) statement; misapplication of Guidelines presents substantial question | Commonwealth did not dispute preservation/substantial question | Appeal permitted; merits reviewed |
Key Cases Cited
- Commonwealth v. Downing, 990 A.2d 788 (Pa. Super. 2010) (standard of review for sentencing discretion)
- Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012) (review of OGS application and guideline-range sentencing)
- Commonwealth v. Mastromarino, 2 A.3d 581 (Pa. Super. 2010) (no automatic right to discretionary-sentencing appeals)
- Commonwealth v. Malovich, 903 A.2d 1247 (Pa. Super. 2006) (four-part analysis for discretionary-sentencing review)
- Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (misapplication of Guidelines presents a substantial question)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (sentence within standard range is presumptively appropriate)
- Commonwealth v. Hennigan, 753 A.2d 245 (Pa. Super. 2000) (remand for resentencing where an error could alter the sentencing scheme)