J-S20010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMES CHARLES ERVIN, III

                            Appellant                 No. 654 WDA 2015


          Appeal from the Judgment of Sentence September 29, 2009
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0000279-2009


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                                  FILED MAY 3, 2016

        Appellant, James Charles Ervin, III, appeals from the judgment of

sentence entered after a jury convicted him of aggravated assault causing

serious bodily injury. Ervin challenges the trial court’s imposition of a term of

incarceration of ten to twenty years as unreasonable. After careful review,

we affirm.

        A jury convicted Ervin of stabbing Justin Salin at least 14 times with a

knife during a pre-arranged altercation between the two. The trial court,

noting the severity of the assault and Ervin’s violent history, imposed a

sentence of incarceration of ten to twenty years, which was the statutory

maximum, and above the aggravated range of the sentencing guidelines.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Ervin filed a post-sentence motion seeking modification of his sentence.

Ervin’s post-sentence motion was denied as a matter of law when the trial

court failed to act upon it within 120 days. However, the clerk of courts did

not issue or serve the necessary order upon Ervin.

        On March 18, 2015, Ervin’s direct appeal rights were restored nunc pro

tunc, and this timely appeal followed. Ervin raises a single issue for our

review: whether the trial court abused its discretion in imposing a sentence

of incarceration above the aggravated range of the sentencing guidelines.

Ervin    concedes   that   this   argument   constitutes   a   challenge   to   the

discretionary aspects of his sentence. See Appellant’s Brief, at 10.

        “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

        “Two requirements must be met before we will review this challenge

on its merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. (citation omitted). “Second, the appellant must show that


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there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.” Id. (citation omitted). That is, “the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Tirado, 870 A.2d at 365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

      In the present case, Ervin’s appellate brief contains the requisite Rule

2119(f) concise statement. Furthermore, he preserved his argument against

the discretionary aspects of his sentence through a post-sentence motion.

Thus, he is in technical compliance with the requirements to challenge the

discretionary aspects of a sentence.

      Ervin argues in his Rule 2119(f) statement that the trial court

considered inappropriate factors in imposing a sentence outside the

guideline ranges. A claim that the sentencing court imposed a sentence

outside of the guidelines without specifying sufficient reasons presents a

substantial question for our review. See Commonwealth v. Holiday, 954

A.2d 6, 10 (Pa. Super. 2008). We therefore turn to the merits of Ervin’s

arguments.


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      Ervin first contends that the trial court improperly opined that Salin

would have died from his wounds had he not been promptly evacuated to a

nearby hospital. As Ervin correctly notes, the jury acquitted him on the

attempted homicide charge. Thus, the trial court could not attempt to

sentence him for attempted homicide under his conviction for aggravated

assault. Next, Ervin asserts that the trial court improperly relied upon an

incorrect count of the number of stab wounds suffered by Salin. Finally,

Ervin argues that the trial court improperly double counted the severity of

the injuries suffered by Salin, as the crime of aggravated assault – serious

bodily injury inflicted already takes into account the severity of the injuries

inflicted.

      Initially, we note that the trial court reviewed a pre-sentence report.

See N.T., Sentencing, 9/29/09 at 12. Where the trial court had the benefit

of reviewing a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court’s discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the


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     position that if a court is in possession of the facts, it will fail to
     apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the trial court in this case had the benefit of a pre-sentence report, we

must presume that it considered all relevant sentencing factors and did not

impose an unreasonable sentence based solely on impermissible factors.

     We are further satisfied that the trial court adequately stated its

reasons for imposing the sentence as follows.

     [Salin’s mother] couldn’t have stated it better than I could after
     my sitting through the trial and review of the facts and
     circumstances and reading the PSI. Clearly, you have anger
     issues. I was taken with your statement in the PSI that you’ve
     been in at least 18 separate fights and never once were you the
     aggressor, that you preferred to negotiate as opposed to fight,
     and yet you admit, at age 20, you’ve been in at least 18
     separate altercations.

     I also was struck by the fact that you had previously been
     adjudicated on issues relative to carrying a knife. You know in
     this particular case, but for the Grace of God, Mr. Salin would
     have died, only by the fact that somebody got you off of him,
     number one, but also the fact that his friends were there and
     quick enough to get him from the scene without waiting for an
     ambulance and get him to the hospital and stop him from
     bleeding to death.

     I mean, the severity of his injuries, you stabbed him, I thought it
     was 14 times. Maybe it was 20 times, in the face, the neck, the
     side, abdomen, arm. He looked like Edward Scissorhands, he
     had so many stab wounds. And the fact that you show absolutely
     no remorse and you somehow believe that somehow it must
     have been somebody else, “I didn’t have a knife. Somebody else
     must have stabbed him as many times as he was stabbed.”




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      Certainly, the jury found you not guilty of attempted homicide. If
      this young man was not taken to the hospital, there would have
      been a homicide. Clearly, there are multiple aggravating factors
      that I’ve set forth on the record here today that I believe – I
      mean, this gentleman was carved up, as I think one of the
      officers may have placed in the PSI. The severity of the attack,
      the wounds sustained by the victim, clearly, I believe that puts
      this in the aggravated range.

      Not only is the [c]ourt going to sentence you in the aggravated
      range, the [c]ourt is going to go beyond the aggravated range
      and the [c]ourt is going to give you the statutory maximum
      sentence of a period of incarceration of not less than 10 to no
      more than 20 years on the Felony 1 Aggravated Assault
      conviction.

N.T., Sentencing, 9/29/29 at 12-14.

      While the trial court does observe that this would have been a

homicide if not for the actions of third parties, it also explicitly recognized

that the jury had acquitted Ervin of the attempted homicide charge.

Furthermore, the jury’s verdict did not necessarily reflect on the severity of

the injuries inflicted; it may have simply reflected a determination that Ervin

lacked a specific intent to kill. See Commonwealth v. Dale, 836 A.2d 150,

152-153 (Pa. Super. 2003) (accused must act with specific intent to kill to

be found guilty of attempted homicide). However, even without a specific

intent to kill, a defendant may be found guilty of third degree homicide. See

18 Pa.C.S.A. § 2502(c). See also Commonwealth v. Santos, 876 A.2d

360, 363–64 (Pa. 2005). Thus, the trial court’s observations do not directly

clash with the jury’s verdict.




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      Furthermore, while the trial court opines that “maybe” Salin suffered

20 stab wounds, this is far from definitive proof that the court relied

exclusively upon such a finding in imposing sentence. Similarly, it is clear

that the severity of the injuries suffered by Salin did not constitute the sole

reason for the departure from the sentencing guidelines. The trial court also

noted Ervin’s extensive history of violence, prior adjudications for carrying a

knife, and Ervin’s failure to accept responsibility for his own actions. These

factors are permissible reasons for deviating from the guideline ranges. We

therefore conclude that Ervin’s sole issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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