J-S40040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BENJAMIN RANDALL GALMISH                   :
                                               :
                       Appellant               :   No. 251 WDA 2019

        Appeal from the Judgment of Sentence Entered January 3, 2019
     In the Court of Common Pleas of Crawford County Criminal Division at
                       No(s): CP-20-CR-0001144-2017


BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 30, 2019

       Benjamin Randall Galmish (Galmish) appeals from the judgment of

sentence of two and one-half to 10 years’ incarceration imposed by the Court

of Common Pleas of Crawford County (trial court) following his guilty plea to

Involuntary Manslaughter and Delivery of Heroin. He alleges that the 10 year

maximum sentence was excessive and an abuse of the trial court’s discretion.

We affirm.

       Galmish was charged for his role in the death of Brandon McAleer, his

friend of 17 years. On July 1, 2016, Galmish bought heroin from a dealer

that, apparently unbeknownst to him,1 was laced with fentanyl. Galmish sold


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1 At sentencing, the Assistant District Attorney stated, “Factually, what
happened here was the defendant procured some substances. It turned out


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* Retired Senior Judge assigned to the Superior Court.
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McAleer $20 worth of the heroin, who then overdosed and died.          Galmish

called 911 and initially told the responding officers that McAleer had overdosed

on Valium but later said McAleer ingested heroin.

       The Commonwealth charged Galmish with Drug Delivery Resulting in

Death, Involuntary Manslaughter, Delivery of Heroin, and Possession of

Heroin.2 Pursuant to a plea agreement, Galmish pleaded guilty to Involuntary

Manslaughter and Delivery of Heroin, with the remaining two counts

withdrawn. The parties further agreed that the minimum sentence was two

and one-half years’ incarceration but with no agreement as to the maximum

sentence. The trial court accepted the plea and ordered a pre-sentence report.

Galmish received the previously-mentioned sentence3 and timely requested

reconsideration contending that the maximum sentence was excessive. After

the reconsideration was denied, Galmish filed this appeal again alleging his

maximum sentence is excessive.




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to be a heroin mixture with fentanyl. He didn’t know that at the time.” N.T.
Sentencing, 1/3/19, at 6. The ADA later stated, “Again, the defendant did not
know, I believe, that there was a fentanyl mixture in there.” Id.

218 Pa.C.S. § 2506(a); 18 Pa.C.S. § 2504(a); 35 P.S. § 780-113(a)(30); and
35 P.S. § 780-113(a)(16).

3 The trial court imposed a sentence of 15 to 90 months of incarceration at
Delivery of Heroin and a consecutive sentence of 15 to 30 months of
incarceration for Involuntary Manslaughter.


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      Preliminarily, it is well-settled that review of this issue is not of right.

“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.”

Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation

omitted).

      [W]e 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.A. § 9781(b).

Commonwealth v. Barnes, 167 A.3d 110, 122 (Pa. Super. 2017) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      The third part of this test, regarding Pa.R.A.P. 2119, requires that the

appellant “set forth in a separate section of the brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). Galmish’s brief is

non-compliant and the Commonwealth has objected. Commonwealth’s Brief

at 11 (“Appellant has failed to include a Rule 2119(f) statement in his brief

and as such this Court should not entertain the argument as it has been

waived.”). As we may not overlook this defect, we agree that the claim is

waived. “If a defendant fails to include an issue in his Rule 2119(f) statement,

and the Commonwealth objects, then the issue is waived and this Court may




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not review the claim.” Commonwealth v. Karns, 50 A.3d 158, 166 (Pa.

Super. 2012).

      Moreover, Galmish’s argument does not appear to present a substantial

question that this sentence is inappropriate under the Sentencing Code.

Consistent with the parties’ agreement, the judge imposed a minimum

sentence of two and one-half years’ incarceration. Therefore, the maximum

penalty was required to be at least five years’ incarceration. 42 Pa.C.S. §

9756(b)(1) (“The court shall impose a minimum sentence of confinement

which shall not exceed one-half of the maximum sentence imposed.”).

Galmish challenges the trial court’s decision to impose a maximum sentence

of ten years instead.

      In Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super.

2011), we concluded that a challenge to a sentence of 18 to 90 years’

incarceration presented a substantial question where (1) the court failed to

offer specific reasons in support of that sentence, and (2) that the sentence

was manifestly excessive because the trial court demonstrated an intent to

impose a de facto life sentence.

      Galmish’s primary challenge to the trial court’s maximum sentence is

that “the trial court failed to follow the general standards for sentencing set

forth at 42 Pa.C.S.A. 9721(b).” Galmish’s Brief at 2. Such allegations can

present a substantial question.    As stated in Coulverson:     “Although the

process by which a trial judge balances the factors and circumstances bearing


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on the sentence is clearly a discretionary function of the trial court, we find

that the manner in which a trial judge exercises that discretion does raise a

substantial question for appellate review under these circumstances.” Id. at

143. However, as indicated by the reference to “under these circumstances,”

the determination of whether a substantial question exists is “evaluated on a

case-by-case basis.” Barnes, 167 A.3d at 122.

       Under these circumstances, we do not find that Galmish has presented

a substantial question even when viewing the merits of his argument (as

necessitated by the absence of a Rule 2119 statement). Unlike Coulverson,

the maximum sentence here is nowhere near a de facto life sentence; there

is nothing to indicate the judge focused on the severity of the crime and its

impact on the victim’s family; the maximum sentence imposed did not

represent the statutory maximum;4 and the judge placed several reasons on

the record to justify its sentence. Galmish simply disagrees with the manner

in which the judge exercised his discretion, which does not present a

substantial question. “[W]e have held that a claim that a court did not weigh

the factors as an appellant wishes does not raise a substantial question.”

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).




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4The maximum period of incarceration for Involuntary Manslaughter, graded
as a Misdemeanor of the First Degree, is five years. 18 Pa.C.S. § 1104(1).
The maximum penalty for Delivery of Heroin is 15 years. 35 P.S. § 780-
113(f)(1).

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        Finally, Galmish alleges that the judge abused his discretion because

“the maximum sentence was contrary to the Court’s assessment that

Appellant would not ever again engage in criminal activity.” Galmish’s Brief

at 2.     The basis for this complaint is the trial court’s remarks during

sentencing:

        The question becomes what to do about the maximum end. Now,
        for the benefit of Mr. McAleer’s family, the way this works in
        Pennsylvania is a minimum sentence is a minimum sentence. So
        what happens is the offender is instantly eligible for parole after
        they’re served the minimum sentence. Now, the exceptions to
        that would be somebody who has caused troubles within the
        facility, who has been assigned to programming and has failed the
        programming, et cetera. But for an inmate who does everything
        you expect that inmate to do, they will be eligible for release at
        their minimum and that tends to be the way it works.

        The maximum sentence, the period between the service of the
        minimum and then the maximum is basically parole supervision.
        It’s parole supervision. So the parolee’s liberty is not restricted
        unless the parolee is engaged in conduct that would result in a
        necessity for a limitation on that parolee’s liberty. And more often
        than not, the reporting requirements for a parolee who is not a
        violent offender, who is not the type of person who is likely to
        commit a robbery or a burglary or a sexual assault is fairly
        minimal. And so while it might be satisfying to think in terms of,
        well, the Judge gave this man the maximum possible sentence he
        could possibly receive, understand that that would all be on parole
        and you have to ask yourself the question, you know, is that really
        necessary in light of the Court’s responsibilities, again, to the
        community, the expense, the gravity of the offense, the
        rehabilitative needs of the defendant, et cetera. I highly doubt
        Mr. Galmish will engage in criminal conduct, ever. It could
        happen. There’s a possibility that would happen. But I don’t think
        he’s likely to return to this life style knowing the consequences
        and having experienced the consequences so profoundly himself.

        So with that in mind, Mr. Richmond is seeking what would be a
        minimum maximum sentence of five years. I don’t think that’s
        appropriate. I think an appropriate sentence on the maximum

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      end would be something like 10 years. Given Mr. Galmish’s age
      and statistics that indicate the likelihood of recidivism, I don’t – I
      think 10 years on the maximum end is really sufficient. So that
      is what I will be doing here.

N.T. Sentencing, 1/3/19, at 18-19.

      Galmish’s argument appears to be that the trial court was required to

impose the minimum maximum allowed because the court acknowledged that

Galmish was unlikely to reoffend after release.         But in addition to the

rehabilitative needs of the defendant, the trial judge must impose a sentence

that “is consistent with the protection of the public [and] the gravity of the

offense as it relates to the impact on the life of the victim and on the

community[.]”    42 Pa.C.S. § 9721(b).       Galmish’s argument is simply an

alternative way of challenging the trial court’s weighing of the general

sentencing factors and does not present a substantial question. Zirkle. As

nothing in Galmish’s brief persuades us that there is a substantial question

that his sentence is inappropriate under the Sentencing Code, the judgment

of sentence is affirmed.

      President Judge Emeritus Bender joins the memorandum.

      Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2019


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