J-S36037-22
2023 PA Super 27
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DALISHIA DANIKA SALTER :
:
Appellant : No. 253 WDA 2022
Appeal from the Judgment of Sentence Entered November 30, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0016990-2014
BEFORE: STABILE, J., KING, J., and COLINS, J.
OPINION BY COLINS, J.: FILED: February 17, 2023
Dalishia Danika Salter appeals nunc pro tunc from the judgment of
sentence imposed after a jury found her guilty of aggravated assault,
endangering the welfare of a child, simple assault, recklessly endangering
another person, and falsely reporting to law enforcement.1 For these offenses,
Salter was sentenced to a total of seven-and-one-half to fifteen years of
incarceration, with Count I, the aggravated assault conviction, specifically
receiving an aggravated sentence. On appeal, Salter solely contends that the
lower court abused its discretion in determining that an aggravated sentence
was necessary at Count I. In particular, Salter faults the lower court’s reliance
on her apparent failure to display emotion and/or remorse at trial. We affirm.
____________________________________________
Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 2702(a)(9); 18 Pa.C.S.A. § 4304(a)(1); 18 Pa.C.S.A. §
2701(b)(2); 18 Pa.C.S.A. § 2705; and 18 Pa.C.S.A. § 4906(a), respectively.
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As eloquently and completely summarized by the court:
During the late evening of September 12, 2014, [Salter] brutally
assaulted her infant son, [D.B.], who was eleven (11) months old
at the time of the assault. After she beat [D.B.], [Salter] put him
outside in the dark, in a car seat, on the back porch of her
Wilkinsburg home, next to the garbage. [Salter] then sent text
messages to David Bryant, the father of the child at approximately
11:30 p.m., which stated the following:
“Beat df out ya son big ass knot bleedn putn him outside u want
dat piece of shit take em cuz bet ima kill him bitch!!!!!!” (11:34[
p.m.] )
“He will be outside bitch” (11:46[ p.m.] )
“On god! Prob die n too idgaf FUCK U AND HIM STG BETTER TAKE
EM TO DA.” (11:48[ p.m.] )
David Bryant was at a friend's house in Wilkinsburg when he
received the text messages from [Salter]. David Bryant previously
had dated [Salter] for a number of years. The two had a
tumultuous and volatile relationship, and they were no longer
together at the time of the incident. [Salter’s] text messages
caused David Bryant to become concerned for his son, so he went
to [Salter’s] home and found his injured son outside on the back
porch, right where [Salter] had said that she left him.
When he arrived at the back porch of [Salter’s] home, David
Bryant began video recording what he saw on his cell phone. The
video captures [D.B.], alone and crying outside on the porch, as
well as David Bryant's emotional reaction to finding his injured
son. David Bryant can be heard sobbing and banging on the door.
He eventually kicked down the door of [Salter’s] house after she
failed to answer the door. The video captures what happens inside
of the apartment, while the audio reveals David Bryant in a
distressed and panicked state. As he is crying, he is heard
repeatedly saying to [Salter], “you hit my fucking son!?”[,] “you
beat my son like that yo!?[”,] “you hit my son like that!?”[, and]
“you put your hands on my fucking son!?” In response to David
Bryant's questions about beating [D.B.], [Salter] is heard
repeatedly stating, “I don't care,” “Oh well,” “I told you to get
him,” “Bitch I don't care.” David Bryant testified that he was “not
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thinking straight” and left the house. He called an ambulance,
contacted his sister, and spoke with the police on the phone that
night. The text messages sent by [Salter], and the video taken by
David Bryant, were provided to the police that night by Tennille
Webb, David Bryant's sister.
At approximately 1:00 a.m. on the morning of September 13,
2014, multiple officers from the Wilkinsburg Police Department
were dispatched to [Salter’s] residence after receiving a report of
“possible child abuse that had occurred” at the home. When the
officers entered [Salter’s] apartment, they encountered [Salter]
in the living room, which was located approximately 25 to 50 feet
away from the bedroom where [D.B.] was now located. The
officers noticed that, although [Salter’s] lip was bloody and
swollen, she was “very calm” and did not appear to be in any “kind
of distress at that time.” The officers entered the master bedroom
and observed [D.B. lying] on an adult bed, which did not have any
safety railings surrounding it. The child was crying and was in
obvious distress, and officers “immediately noticed he had
bruising about the face [and] head” and that his nose was
bleeding. It was apparent to the officers that the child had been
assaulted and that he required immediate medical attention.
Medical personnel arrived on the scene shortly thereafter, and
[D.B.] was transported to Children's Hospital. [Salter] did not
show or express any kind of emotion or concern for her child
during her interaction with the officers. She did not ask where the
child was being transported[,] and she did not ask to accompany
her child to the hospital.
When asked how [D.B.] had sustained his injuries, [Salter] told
officers that she had been in an altercation with David Bryant
earlier that evening. She stated that she was in her bedroom
sleeping, with [D.B.] asleep at the foot of her bed, when David
Bryant broke into her house. [Salter] further stated that David
Bryant “went around the bed” and “pushed a [flatscreen] TV down
on top of the bed where” she was lying with the child, which
caused the 55-inch television to fall on top of [D.B.]. When officers
entered the bedroom, they noticed that the television was sitting
upright on top of a tall dresser and that the screen had been
broken. The dresser was approximately 5 feet tall.
[Salter] then told police that David Bryant attempted to assault
her and broke her cell phone. When [Salter] tried to reach for
another cell phone on the other side of the bed, David Bryant took
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the phone and “a set of keys, broke some pictures around the
apartment, then fled the residence.” [Salter] told the officers that
after David Bryant left the apartment, she attempted to get her
child dressed, then placed him in the car seat and put him on the
back porch while she “attempted to gather some belongings.”
[Salter] told the officers that she was unsure of what to do next,
so she “sat on the bed for approximately an hour” and did not
contact police or seek medical attention for her child, who,
according to her, had just had a 55[-]inch television fall on top of
him.
[Salter’s] version of events left the officers with “major questions”
surrounding the incident, so [Salter] was asked to accompany the
officers to the police station to answer more questions. In the
meantime, the officers also attempted to locate David Bryant to
ascertain his version of events. The officers went to his sister's
house, where she provided the officers with the text and video
evidence from that evening. Upon reviewing that evidence, the
officers placed [Salter] under arrest for assaulting her child. By
the time the officers reviewed the text messages and video,
approximately an hour and a half had passed since [D.B.] had
been assaulted.
At the Children's Hospital of Pittsburgh, [D.B.] underwent a CT
scan of his head and additional x-rays. He was then admitted to
the pediatric ICU unit. [D.B.] was placed in a neck collar, and he
“had to have an abdominal CT because he had evidence of
abdominal injury.” Dr. Jennifer Wolford, the attending physician
in the Division of Child Advocacy at Children's Hospital, was
consulted to evaluate [D.B.] due to the nature of his injuries. Her
primary responsibility is the “evaluation and assessments of child
abuse and child maltreatment.”
Upon her examination of [D.B.], it was clear to Dr. Wolford that
he had sustained numerous and serious injuries. Dr. Wolford
noted that [D.B.] had “significant bruising to both sides of his
face,” and that he was in the “third percentile for his age[ ]” [with
respect to his weight.] Dr. Wolford also observed that [D.B.] had
bruising and swelling across his nose, and that he was bleeding
underneath his right eye. [D.B.] had “bursted blood vessels” in
“the inner part of his right eye,” which indicated blunt trauma.
[D.B.] had suffered a “subconjunctival hemorrhage,” and he had
“skull fractures in the rear sides of his head above his ears on both
sides.” The bruising and inflammation that he suffered also
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extended into his hairline and ears. [D.B.] suffered “trauma on
both sides of his face” and had “multiple bruises” in “multiple
planes of his body.” Dr. Wolford also was concerned that [D.B.]
had been the victim of hair pulling because there was obvious
thinning of his hair on the right side of his head.
The x-rays conducted revealed that [D.B.] had “two rib fractures
of different ages.” One was a healing rib fracture of his 10th rib
on the right side of his body, and the other was a rib fracture of
the 5th rib on the right side of his body. Dr. Wolford noted that
rib fractures “are highly concerning and usually associated with
physical child abuse.” The rib fractures were approximately two
(2) to three (3) weeks old. Dr. Wolford also determined that [D.B.]
had suffered significant “abdominal trauma, specifically [to] the
liver.” [D.B.'s] liver enzymes were 20 times the normal limit,
which indicated a liver contusion and showed that “he had clearly
taken blunt trauma to the abdomen.” Dr. Wolford explained that,
in order to sustain a liver contusion, “[g]reat force” had to be
inflicted on the liver. She further explained that air bags being
deployed as a result of a car accident would not even cause that
type of injury.
Based on her examination of [D.B.], and based on her training,
education, and experience, Dr. Wolford concluded that [D.B.'s]
injuries were inconsistent with him receiving “one strike or one
blow of some kind” because he had “multiple impacts across his
head” that caused substantial bruising. Based on the nature and
location of his injuries, it was her opinion that [D.B.] had “clearly
been the victim of inflicted trauma.” The fact that [D.B.] had
“multiple hits in multiple planes of the head across both sides” led
her to conclude that he was the “victim of child physical abuse.”
Dr. Wolford rejected the notion that [D.B.’s] injuries could have
been the result of an accident because, although accidental
bruising happens to children, “the most common sites of
accidental bruises are shins, knees and foreheads.” She
determined that [D.B.'s] injuries were “not anywhere near” the
type of accidental bruising that occurs in some children. Dr.
Wolford explained that [D.B.'s] injuries were very serious and
necessarily would have caused him “[s]ignificant” and “very
substantial pain.” It was clear that [D.B.] had sustained “multiple
repeated hits to the face” and that there was “no way that [his
injuries were caused] in one shot.”
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Dr. Wolford's overall diagnosis was that [D.B.] “had been the
victim of physical child abuse on more than one occasion [ ] [a]nd
likely repeatedly.” Dr. Wolford firmly rejected the idea that a
television set falling on a child could cause “two parietal skull
fractures, one healing rib fracture, one acute rib fracture, bruising
and hemorrhaging about the head, tissue damage around the eyes
and a liver contusion.” Dr. Wolford estimated that [D.B.] suffered
“at least 20 blows to the head.” She confirmed that “there is no
way” that [D.B.'s] injuries were “caused by an accidental single
event,” and her opinions were rendered to a reasonable degree of
medical certainty. Dr. Wolford explained that as a child abuse
physician, it is her duty to assess whether injuries are caused
accidentally or as a result of abuse. Based on her evaluation of
[D.B.], Dr. Wolford testified persuasively that “there is absolutely
no accidental explanation for the extent of [his] injuries.”
At trial, [Salter] testified on her own behalf and denied that she
was the cause of [D.B.'s] injuries. She recounted the volatile
relationship that she had with David Bryant, as well as the
altercation that had transpired between them on the day of the
incident. She maintained that the significant injuries suffered by
her son were caused by a 55-inch television falling off the dresser
when David Bryant broke into her apartment on the night of the
incident and assaulted her. [Salter] also disputed the validity of
the video recording taken by David Bryant and denied that the
text messages were sent by her.
[Salter’s] friend, Tiesha Griffin, also testified on her behalf. Ms.
[Griffin] had previously babysat [D.B.], but she had stopped
babysitting him in August of 2014. Ms. [Griffin] admitted that she
did not have any medical training, and she testified that, during
the course of her watching [D.B.], she had never noticed any
bumps or bruises on his head.
Trial Court Opinion, 10/3/17, at 2-10 (record citations omitted) (emphasis
added).
Following a jury trial and sentencing, which included the presentation of
a pre-sentence investigation report, Salter filed a timely post-sentence motion
that raised both weight and sufficiency of evidence claims. After a hearing,
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the court denied her motion. Salter timely appealed this determination, but
only raised a weight of evidence claim with this Court. Ultimately, we affirmed
her judgment of sentence on August 7, 2018.
Several weeks after our decision, Salter filed a pro se petition pursuant
to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.
Thereafter, appointed counsel amended that petition to assert trial counsel’s
failure to properly preserve a claim challenging the discretionary aspects of
her sentence. Correspondingly, the court granted relief, and Salter’s post-
sentence and appellate rights, as to this specific issue, were reinstated nunc
pro tunc.
Salter then filed a post-sentence motion, which was denied. In response,
Salter filed a timely appeal, but ultimately, that appeal was dismissed by this
Court due to counsel’s failure to file a brief on her behalf.
Thereafter, Salter filed another pro se PCRA petition. After appointed
counsel amended this later petition, which sought reinstatement of her right
to appeal the discretionary aspects of sentencing issue, the lower court
granted the relief sought. After this grant, Salter timely pursued the present
appeal, and relatedly, the parties have complied with their obligations under
Pennsylvania Rule of Appellate Procedure 1925. As such, this matter is ripe
for review.
On appeal, Salter presents one question:
1. Did the trial court abuse its discretion in imposing an
aggravated-range sentence at Count I based in part on Salter’s
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failure to display emotion and remorse at her trial,
consideration of which impermissibly burdens her federal and
state constitutional privileges against self-incrimination?
Appellant’s Brief, at 8.
Given that Salter’s sole issue on appeal is a challenge to the
discretionary aspects of her sentence, we utilize a well-settled standard of
review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and 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.
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. An appellant must satisfy a four-part test to
invoke this Court's jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant's brief has a fatal
defect[, see 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.
…
A substantial question will be found where an appellant advances
a colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the Rule 2119(f) statement must
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articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted) (some brackets in original).
In reviewing the record, despite the prior procedural irregularities,
Salter has filed both a timely notice of appeal and adequate post-sentence
motion, satisfying the first two components of our four-part analysis. In
addition, as to the third factor, her brief contains a statement pursuant to Rule
2119(f), which provides, at least facially, the rationale as to how she has
invoked this Court’s jurisdiction. As such, with it being the only analytical
component remaining, we must ascertain whether she has raised a substantial
question.
Stated succinctly, “Salter contends that the trial court imposed its
sentence based in part upon an improper factor: her failure to display emotion
and remorse at her trial.” Appellant’s Brief, at 19. This Court has found, on
many occasions, such a contention to constitute a substantial question capable
of review. See, e.g., Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa.
Super. 2005) (holding that a claim asserting “the sentencing court considered
improper factors in placing the sentence in the aggravated range … presents
a substantial question on appeal[]”).
Substantively, the gravamen of Salter’s argument is that “the trial court
abused its discretion … [by] imposing a harsher sentence on the ground that
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she failed to display emotion or remorse at her trial[.]” Appellant’s Brief, at
20. Salter avers that aggravating her sentence in this manner “impermissibly
burden[ed] her federal and state constitutional privilege[s] against self-
incrimination.” Id.
As background, the court, in imposing a sentence of total confinement,
must consider, inter alia, “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.A. §
9721(b).
Salter concedes that “a trial court is free to impose a harsher sentence
on the ground that a defendant has not been remorseful[.]” Appellant’s Brief,
at 20. However, Salter believes that displaying a lack of remorse at trial
implies that there is “a lack of desire to incriminate oneself.” Id., at 21. Stated
differently, showing remorse during trial proceedings is “expressive conduct
communicating to the jury that [one] is guilty.” Id. Salter tethers this
supposition to the constitutional privileges a defendant has, both federally and
in the Commonwealth of Pennsylvania, against self-incrimination. See U.S.
Const., amend. V; Pa. Const. art. I. § 9. Salter then provides authority to
demonstrate instances where a defendant’s silence, at varying points of
criminal proceedings, was impermissibly used against him in some capacity.
See Appellant’s Brief, at 21-22, citing, e.g., Griffin v. California, 380 U.S.
609 (1965).
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Distilled down, while acknowledging that the present matter is different
because she testified on her own behalf, Salter questions whether a lack of
emotion or remorse exhibited through her testimony during trial is a fact that
can be used as an aggravating factor at sentencing. In other words, as Salter
frames it, penalizing someone for testifying with no emotion is nonsensical
and illegitimate, as such testimony could have been given pursuant to a
genuine belief of innocence or at the advice of counsel.
Salter claims that the cases the court relies upon in stating that it
appropriately considered her emotions and lack of remorse do not involve
what happened at trial, but were at other phases of the judicial criminal
process, such as during a sentencing allocution. Moreover, Salter declares that
the court’s consideration of an illegitimate factor, despite also relying upon
legitimate factors, warrants remand for the record to be cleared of the taint
of that illegitimate factor. Finally, as to the notion that Salter waived her self-
incrimination privilege, she argues that this waiver in taking the stand did not
mean “she was required to display emotion and remorse – i.e., guilt –
throughout the trial on pain of a higher sentence.” Appellant’s Brief, at 26
(italics omitted).
In imposing an aggravated-range sentence, the lower court is permitted
to consider any legal factor. See Commonwealth v. Stewart, 867 A.2d 589,
592-93 (Pa. Super. 2005). “The trial court is vested with broad discretion in
determining the defendant’s sentence since the court is in the best position to
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view the defendant’s character, displays of remorse, defiance or indifference,
and the overall effect and nature of the crime.” Commonwealth v. Begley,
780 A.2d 605, 643 (Pa. 2001) (citation omitted). Moreover, “[l]ack of remorse
is an appropriate sentencing consideration.” Commonwealth v. Summers,
245 A.3d 686, 695 (Pa. Super. 2021).
Prior to imposing its sentence, the court stated:
I had the opportunity to watch you throughout the entire trial. I
got an opportunity to sit there, and I have a great view of the
defense table from where I sit. And during that entire trial while
pictures were shown of your son with horrible injuries, while
testimony was proceeding about how this child was found
abandoned on a pile of trash on the back porch, while cell phone
video and audio was played of just screaming, you sat there
without a shred of emotion. Never once during the course of this
entire trial did you show the slightest bit of emotion for what your
child had suffered; whether at your hands as the jury found or at
someone else’s as you continue to maintain. Not once. The only
emotion you ever showed during that entire trial was for yourself
at the point when you were convicted. That was it.
Sentencing Hearing, 11/30/16, at 23.
In its corresponding opinion, the court elaborated on its explanation
given during the sentencing hearing:
[I]t was not just the lack of remorse exhibited by [Salter]
throughout the trial to which this court referred during sentencing,
but it was, perhaps more importantly, the lack of remorse and
callous disregard for human life that [Salter] displayed at the time
that she brutally assaulted her baby and left him outside in a
garbage pile for dead that substantially weighed in favor of an
aggravated range sentence. Additionally, [Salter’s] conduct
immediately after the assault, as captured by the text messages
that she sent to the baby’s father, as well as the video recording
that the father took of [Salter] when he arrived at the residence,
also factored heavily into the sentencing determination. Indeed by
[Salter’s] own words, she was aware that the assault she had just
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committed was so heinous that her baby was probably dying
outside next to the trash, but she did not care. It was all but an
attempted murder committed by a mother against her own
innocent and defenseless son.
Trial Court Opinion, 5/4/22, at 7 (record citations omitted). Next, the court
proceeded to discuss the other bases it relied upon in determining the
necessity of an aggravated sentence. See id., at 7-8 (illuminating Salter’s
“failure to seek or render aid, her attempted concealment of her crime to
investigating authorities, and her attempt to shift blame for the assault on the
baby’s father”). The court then concluded that “these factors clearly illustrated
the danger that [Salter] posed to the public in general and her potential for
rehabilitation.” Id., at 8-9 (citation omitted) (stating, further, that its
conclusions “were informed by careful observation and attention at trial, a
thorough and painstaking review of the [pre-sentence investigation report] in
this case, and additional observations and consideration of evidence and
argument presented at sentencing”). Finally, the court emphasized that Salter
testified on her own behalf and, unlike other cases she has relied upon, that
through her providing that testimony, there is absolutely no indication that
the court used her own silence against her.
“[T]he trial court may base its findings regarding remorse on … its own
observations of the defendant.” Commonwealth v. Bowen, 975 A.2d 1120,
1127 (Pa. Super. 2009) (citation omitted). Despite contesting the
constitutional validity of whether a court can make sentencing determinations
inherently stemming from Salter’s decision to testify on her own behalf, she
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has presented no authority to show that relinquishment of the right against
self-incrimination provides any sort of special benefit or should be considered
differently in sentencing determinations. More importantly, Salter has shown
no basis to deviate from the court’s assessment that she lacked remorse,
which was derived from its own permissible observations of her throughout
trial. The court did not infringe on her constitutional protections against self-
incrimination. To the extent that Salter, instead, argues that she effectively
had to admit to the charged crimes at trial to lessen her ultimate sentence,
such a contention is not congruent with what the court stated at sentencing.
The court specifically indicated that even if the acts leading to D.B.’s injuries
were not, in fact, perpetrated by Salter, she did not, among other things, show
any type of empathy or acknowledgement of the precarious situation she had
put her own child in by not rendering aid thereafter.
While Salter’s brief is replete with many cases in which those defendants
invoked their right against self-incrimination, in the absence of any case law
provided by Salter clearly showing it to be impermissible when a court
considers lack of remorse at trial when juxtaposed against a defendant
testifying on her own behalf, it is unclear how the court was then not able to
rely upon the observations it made both during her testimony and the trial
more broadly. In other words, as silence, or her invocation thereof, was not
used against Salter, there is no obvious constitutional dimension to her claim,
and accordingly, there is no compelling reason to hold that the court relied
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upon an impermissible factor in deviating from the standard sentencing
guidelines as to her aggravated assault conviction.
Finally, we note that even if a sentence is predicated on an
impermissible sentencing factor, as long as independently valid reasons exist
for imposing an aggravated sentence, it must be affirmed. See
Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super. 2006). Here, the
record reflects that the court, having also considered the pre-sentence
investigation report, delved into all of the necessary factors and considerations
that it needed to in order to impose the sentence that it did. See Sentencing
Hearing, 11/30/16, at 24-25 (discussing aggravating and mitigating factors,
such as, inter alia, the horrific nature of the crimes she committed,
defenselessness of the victim as well as the victim’s familial relationship with
her, and Salter having been a victim, herself, of domestic abuse).
In finding no reason to conclude that the court abused its discretion
when it crafted Salter’s sentence, we affirm her judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2023
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