J-S55009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMES E. SATTERTHWAITE,

                        Appellant                   No. 1943 EDA 2013


           Appeal from the Judgment of Sentence May 31, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0704341-2003


BEFORE: BOWES, SHOGAN, and OTT, JJ.

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 15, 2014

      James E. Satterthwaite appeals from the judgment of sentence of

eighteen to thirty-six years incarceration after the court found him guilty of

third-degree murder and carrying a firearm on a public street. We affirm.

      Appellant shot and killed Norman Vincent Simon on March 24, 2002, at

approximately 2:00 a.m. Police arrested Appellant four days later and

charged him with murder, conspiracy, carrying firearms without a license,

carrying a firearm on a public street in Philadelphia, and possession of an

instrument of crime.    Appellant proceeded to a jury trial.   The jury found

Appellant guilty of third-degree murder and carrying a firearm on a public

street in Philadelphia. The court sentenced Appellant to eighteen to thirty-

six years incarceration on the third-degree murder charge and a concurrent

nine months to eighteen months incarceration for the firearms violation.
J-S55009-14


Appellant   appealed   and   this   Court   affirmed.    Commonwealth      v.

Satterthwaite,     883    A.2d      694     (Pa.Super.   2005)   (unpublished

memorandum).      The Pennsylvania Supreme Court denied allowance of

appeal on December 28, 2005.        Commonwealth v. Satterthwaite, 892

A.2d 823 (Pa. 2005).

     Subsequently, Appellant filed a timely PCRA petition alleging that trial




eyewitness.    The PCRA court awarded Appellant a new trial, and the

Commonwealth appealed. A panel of this Court affirmed the grant of a new

trial, Commonwealth v. Satterthwaite, 15 A.3d 519 (Pa.Super. 2010)

(unpublished memorandum), and our Supreme Court denied allowance of

appeal.     Commonwealth v. Satterthwaite 24 A.3d 864 (Pa. 2011).

Accordingly, Appellant proceeded to a new trial.



Willie May Tramel testified that she observed the victim, Appellant, and

another individual she knew as Roman at an afterhours club.       Ms. Tramel

indicated that the victim appeared angry with Appellant regarding a dispute




seat, Roman in the front passenger seat, and the victim in the back. As she

was walking toward another speakeasy to purchase drugs, she heard four or


                                     -2-
J-S55009-14


five shots. According to Ms. Tramel, she saw the victim fall out of the car.

The victim was bleeding and unresponsive. Several days after the shooting,

Ms. Tramel provided police with a statement and identified photographs of

the victim, Roman, and Appellant.

      Noel Towles also testified.    Mr. Towles was incarcerated and had

                                                                         ctim.

However, he maintained at the second trial that police forced him to provide

that statement by threatening to arrest him. Mr. Towles had also indicated

that the victim and Appellant were arguing over drugs and the use of the

                     ally, the victim had allowed Appellant to use his vehicle

in exchange for drugs and money.            The Commonwealth introduced

Mr. Towles prior testimony that Appellant had shot the victim.

      Another witness, Lesa Ellis, who also was a drug user at the time of

the incident, testified that she saw Appellant, the victim, and Roman inside a

car on the day in question.    She continued that, shortly after seeing the

individuals, she heard gunfire while on the phone with her sister. When she

went outside, she saw the victim lying on the ground and both Appellant and

Roman were gone.

      The court found Appellant guilty of third-degree murder and carrying a

firearm on a public street in Philadelphia. Thereafter, it sentenced Appellant

to eighteen to thirty-six years incarceration for the murder charge and a

concurrent term of two and one-half to five years imprisonment on the


                                    -3-
J-S55009-14


firearm count. Appellant filed a timely motion for reconsideration, which the

court denied. This timely appeal ensued. The court directed Appellant to file

and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant complied, and the trial court authored its decision. The

matter is now ready for our review. Appellant presents two issues for this

                      .

      A.
           conviction    for   third-degree    murder   because    the
           Commonwealth failed to disprove that the killing was not
           committed in the heat of passion where the evidence showed
           and the Commonwealth argued that Appellant killed the
           victim while Appellant was in a rage?

      B. Did the trial court commit an abuse of discretion by failing to

           Appellant had completed several self-improvement courses
           while incarcerated, in violation of the sentencing code?



      We review the sufficiency of the evidence by considering the entire

record and all of the evidence admitted at trial.        Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).          We view such

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth.       Id.   When evidence exists to allow the fact-finder to

determine beyond a reasonable doubt each element of the crimes charged,

the sufficiency claim will fail. Id.




                                       -4-
J-S55009-14


                         need not preclude every possibility of innocence and the

fact-

Id.     In addition, the Commonwealth can prove its case by circumstantial

                         the evidence is so weak and inconclusive that, as a

matter of law, no probability of fact can be drawn from the combined

                                                                             not

                 -weigh the evidence and substitute our judgment for that of

the fact-          Id.

        Appellant argues that the evidence shows that he killed the victim in

the heat of passion and that he should have been convicted of voluntary

manslaughter.     In his view, the Commonwealth failed to establish malice.

He avers that sufficient provocation for voluntary manslaughter may exist

where the cumulative events leading up to the killing cause a sudden and

intense passion.      In support, Appellant relies on Commonwealth v.

Sullivan, 820 A.2d 795 (Pa.Super. 2003), and Commonwealth v.

Whitfield, 380 A.2d 362 (Pa. 1977).

        In Sullivan, the defendant was actually convicted of voluntary

manslaughter and we upheld that conviction.            Sullivan thus offers no

guidance on whether evidence is sufficient for third-degree murder.

Whitfield, however, did involve a third-degree murder conviction.         There,



Whitfield alleged that, at most, she should have been convicted of voluntary


                                        -5-
J-S55009-14


manslaughter.       Our Supreme Court rejected that argument on the grounds

that she did not establish legal provocation.           Specifically, the Whitfield

Court found that the defendant only had trivial arguments with the victim. 1

Hence, that case does not compel reversal herein.

       We add that the trial court in its opinion noted that Appellant did not

argue at trial that he committed the killing in the heat of passion. Rather,

                                                                     was believed,

he acted in imperfect self-defense and that at most he was guilty of

involuntary manslaughter.2

should have been found guilty of voluntary manslaughter waived. Moreover,

for the reasons outlined by the trial court, at pages four through six of its

                                                                           -degree

murder conviction.



sentence.      To adequately preserve a discretionary sentencing claim, the

defendant must present the issue in either a post-sentence motion or raise

the    claim   during   the    sentencing      proceedings.   Commonwealth       v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the

defendant mus                                           -ordered Pa.R.A.P. 1925(b)

____________________________________________


1
    The Commonwealth has failed to file a timely brief in this matter.
2
    Current counsel did not represent Appellant at trial.



                                           -6-
J-S55009-14


                                                            Id. Importantly,

  here is no absolute right to appeal when challenging the discretionary

                        Id           ppeal is permitted only after this Court

determines that there is a substantial question that the sentence was not

                                          Id.

     Appellant preserved his issue in his post-sentencing motion, 1925(b)

concise statement, and included a Pa.R.A.P. 2119(f) statement within his

brief. Therein, he asserts, that the sentencing court failed to consider the

factors delineated in 42 Pa.C.S. § 9721(b), and did not take into account his

rehabilitative needs. Appellant maintains that he had prior record score of

zero, and he successfully completed education and vocational training while

he was previously incarcerated for this case.   According to Appellant, the



needs. Thus, he submits that he has presented a substantial question for

our review.



the sentence was not appropriate under the sentencing guidelines.        See

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003).

However, we find that he is not entitled to relief.      Appellant relies on

Commonwealth v. Caraballo, 848 A.2d 1018 (Pa.Super. 2004), vacated,

933 A.2d 650 (Pa. 2007), in support of the merits of his position. In this

regard, Appellant argues that it is insufficient for a sentencing court to


                                    -7-
J-S55009-14


review the presentence report and state that the crime was horrendous.



considered all of the information presented was insufficient.   According to

Appellant, the sentencing court did not place its reasons for its sentence on

the record.    Appellant continues that he presented numerous mitigating

factors; specifically that he achieved his GED and received additional

educational and vocationa

view, the court did not consider these facts, his sentence must be vacated.

        We consider the merits of a discretionary sentencing challenge under

an abuse of discretion standard. Commonwealth v. Stokes, 38 A.3d 846,

858 (Pa.Super. 2011).       Our review is also dictated by the statutory

mandates of 42 Pa.C.S. § 9781(c) and (d).       Commonwealth v. Macias,

968 A.2d 773, 776 (Pa.Super. 2009). Section 9781(c) provides in relevant

part:


        (c) Determination on appeal. The appellate court shall vacate
        the sentence and remand the case to the sentencing court with
        instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines but applied the guidelines erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.




                                     -8-
J-S55009-14


     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

     42 Pa.C.S. § 9781(c).

  Concomitantly, in considering the record we examine:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d); Commonwealth v. Dodge, 77 A.3d 1263,

1274 (Pa.Super. 2013).    Furthermore, we are aware that pursuant to 42

Pa.C.S. § 9721(b):

     the court shall follow the general principle that the sentence
     imposed should call for confinement that is consistent with 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. The court shall also
     consider any guidelines for sentencing and resentencing adopted
     by the Pennsylvania Commission on Sentencing and taking effect
     under section 2155 (relating to publication of guidelines for
     sentencing, resentencing and parole and recommitment ranges
     following revocation). In every case in which the court imposes a
     sentence for a felony or misdemeanor, modifies a sentence,
     resentences an offender following revocation of probation,
     county intermediate punishment or State intermediate
     punishment or resentences following remand, the court shall
     make as a part of the record, and disclose in open court at the
     time of sentencing, a statement of the reason or reasons for the
     sentence imposed.

     We begin by pointing out that the Caraballo decision relied on by

Appellant was vacated by our Supreme Court in light of Commonwealth v.


                                     -9-
J-S55009-14


Walls, 926 A.2d 957 (Pa. 2007).            Thus, that decision has no precedential

value. Additionally, in Caraballo the sentencing court imposed a sentence

well outside the aggravated range for the crimes charged.               Here, the

sentencing court imposed a guideline range sentence.3             Only where the

sentence is clearly unreasonable will we vacate.           Cf. Walls, supra; 42

Pa.C.S. § 9771(c)(2).



court had the aid of a presentence investigation and is presumed to have

considered that report. Dodge, supra. The court noted that it considered



Further, in its opinion, the sentencing court set forth that it considered



infractions while incarcerated outweighed any efforts he expended in



Appellant is not entitled to relief.

       Judgment of sentence affirmed.




____________________________________________


3
   The guideline range for third-degree murder includes the statutory
                                                        as below that
range.



                                          - 10 -
J-S55009-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2014




                          - 11 -
           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                            CRIMINAL TRIAL DIVISION


COMMONWEALTH OF PENNSYLVANIA                                 NO. CP-SI-CR-0704341-2003


               VS.

JAMES E. SA TTERTHWAITE
                                                                             F~LED
                                                                              MAR Ii 7 2014
                                              OPINjON                    Criminal Appaals Unit
                                                                       First Judicial Districj· t:;f PA
PROCEDURAL HISTORY


        Defendant, James E. Satterthwaite, was charged with, inter alia, murder, criminal·

conspiracy, carrying firearms without a license, carrying as firearm on a public street, and

possessing an instrument of crime, generally. These charges were lodged against defendant as a

result of all incident that occurrd on March 24, 2002, during which appellant shot and killed

Norman Simon during an argument.

        Appellant was first tried in tried in July of 2004, before the Honorable Katherine Streeter
                        .
Lewis and was convicted of third-degree murder and carrying as firearm on a public street.

Appellani, who thereafter received.a state sentence of inca.-ceration, filed a direct appeal to the

Superior Court, which on July 13, 3005, issued a memorandum and order affirming the judgment

of sentence. Commonwealth v. Satterthwaite, 2758 EDA ·2004. A petition for allowance of

appeal was denied by the Pennsylvania Supreme Court on December 28, 2005, l~ 415 EAL

2005.




                                                 1


                                  ~xn-'!          BI T               A>
                                                               ;

       After his petition for allowance of appeal was denied, defendant filed a timely petition

pursuant to the Post-Conviction Relief Act. 42 l'a.C.S. § 9541 el seq. Said petition wa~ a~signcd

to the Honorable Benjamin Lerner, Judge of the Court of Common Pleas for disposition. Judge

Lerner granted the petition on February 6, 2009, and awarded defendant a new trial.            The

Commonwealth unsuccessfully appealed to the Superior .Court, which, on October 7, 2009,

affirmed Judge Lerner's order. Commonwealth v. Satterthwaite, 679 EDA 2009. A subsequent

petition filed by the Commonwealth was denied by the Supreme Court on July 27, 2011. (582

EAL 2010).

       The matter was then assigned to this Court for trial. After defendant waived his right to a

jury trial, his trial commenced on January 22, 2013. At the conclusion of the trial, this Court

convicted defendant of third-degree murder and carrying a firearm on a public street Sentencing

was deferred \ll1til May 31, 2013, on which date this Comt imposed conCUITent sentences of

eighteen to thirty-six years' and two and one-half to five years' incarceration on the third-degree

murder and weapons offenses respectively.

       Following the imposition of sentence, defendant filed a motion for reconsideration of

sentence. On June 25, 2013, this COllrt denied that motion after which defendant filed a notice of

appeal as well as a requested Pa.R.A.P. 1925(b) statement.

FACTS

       On March 2,1, 20()2, al approxin"lldy 2:00 a.m., ddC!ndalll, Ih~ viclim, and ·s"I11C(ln~

named Roman were together when defendant and the victim began arguing about defendant'S

use ofMr. Simon's car. Mr. Noel Towles was standing at \he comer of Hoops and Fallon Streets

in Philadelphia and witnessed the argument.          Towles knew defendant and the victim and


                                                 2
indicated that defendant "rented" the victim's car and used it to sell drugs. As defendant and the

victim argued, Towles heard defendant tell the victim that be was not going to give the victim

any morc drugs and that be was not going to use the victim's car anymore.

        The argument between the two men soon became physical and defendant and the victim

exchanged shoves. Defendant then withdrew a firearm trom his pants pocket and fired five

shots, two of which struck the victim killing him.' Defendant then fled the scene of the incident

in a vehicle.

DISCUSSION

        In his 1925(b) statement, defendant first asserts that the evidence was insufficient to

sustain his conviction of Third-Degree Murder.         Specifically, defendant asserts that the

Commonwealth failed to disprove that the killing was not committed in the heat of passion

because even the prosecutor conceded during his closing speech that defendant acted in a fit of

rage when he shot the victim. (N.T. 1/28/1 3, 23).

        In assessing the sufficiency of evidence, the court must view the evidence in the light

most favorable to the verdict winner - in this case, the Commonwealth. Commonwealth v.

Boczkowski, 846 A.2d 75, 80 (Pa. 2004). Both direct and circumstantial evidence, along with all

reasonable inferences arising therefrom from which the finder of fact could properly have based

its verdict, must be accepted as true and sufficient to support tbe challenged conviction.

Commonwealth v. Perez, 931 A.2d 703, 706-7 (pa. Super. 2007); Commonwealth v. Johnson,


1 At the second trial, Mr. Towles repeatedly disavowed his previous testimony as well as whal
was conlained in his statement to police. Previously, Towles identified defendant as the man he
saw arguing with the victim and the person who shot him. While on direct examination, Mr.
Towles claimed that his earlier statements and testimony were products of police coercion.
When confronted with his prior statement and testimony by the District Attorney, Mr. Towles
stated that "if that's what was written, then that's what I told them" (Nrr p. 74 1/22/20\3).
                                                   3
719 A.2d 788 (Pa. Super. 1998), appeal denied. The finder.offact may believe all, part, or none

of the evidence regarding the question of whether reasonable doubt existed, and the facts and

circumstances need not be incompatible with the defendant's innocence. Commonwealth v.

Derr, 841 A.2d. 558,559 (Pa. Super. 2004). An appellate court may only award a new trial if the

evidence was so unreliable and contradictory that it would be incapable of supporting a guilty

verdict. Commonwealth v. Karkaria, 625 A.2d 1167, 1167 (Pa. 1993).

           "Third-degree murder is            estab]jsh~d   when a killing is committed wilh malice

aforethought, but without specific intent." 18 Pa.C.S. § 2502(a), (c); Commonwealth v. Solano,

906 A.2d i 180, 1]90 (Pa. 2006) (citation omitted). Malice is the distinguishing factor between

murder and manslaughter and consists of a "wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of so~ial duty, although a particular person
                                                          ,
may not be intended to.be injured." Commonwealth v. Young, 431 A.2d 230, 232 (Pa. 1981).

Malice may be found to exist not only in an intentional killing, but also where the perpetrator

"consciously disregarded an unjustified and extremely high risk that his actions might cause

death or serious bodily harm." Id. (citation omitted).

           When a person kills another either under the mistaken belief that deadly force was

necessary to save his iife or under "a sudden and internal passion resulting from serious

provocation" by the victim, the killing is without malice lind the crime committed is voluntary

manslaughter. See 18 Pa.C.S. § 2503 2; Commonweallh ~. While, 424 A2d 1296, 1297 (Pa.




2   18 Pa.C.S. § 2503 provides, in pertinent part:
           (a) GENERAL RULE. -- A person who kills an individual without lawful justification
commits voluntary manslaughter ifat the time of the killing he is acting under a sudden and intense passion rt!sulling
from serious provocation by:                                           .
                                                            4
1981) ("Voluntary manslaughter is killing committed with(lut malice, in the heat of passion or

under unreasonable belief that it was justified.").

         A person is guilty of "heat of passion" voluntary 'manslaughter "if at the time of the

killing [he or she] reacted under a sudden and intense passion resulting from serious provocation

by the victim." Commonwealth v. Ragan, 743 A.2d 390, 396 (Pa. 1999). "'Heat of passion'

includes emotions such as anger, rage, sudden resentment or terror which renders the mind

incapable of reason." Commonwealth v. Mason, 741 A.2<:1 708, 713 (Pa. 1999). An objective

standard is applied to determine whether the provocation was sufficient to support the defense of

"heat of passion" voluntary manslaughter. Commonwealth v. Laich, 777 A.2d 1057, 1066 (Pa.

2001).      "'111<:: ultimate           te~t for adequate provocation l'fIllains whethel' a reasonllbJc man,

confronted with this series of events, became impassion~d to the extent that his mind was

incapable of cool reflection." Commonwealth v. Thomton,431 A.2d 248, 252 (Pa. 1981). The

Supreme Court of Pennsylvania has indicated that both passion and provocation must be

established. and that "if there be provocation without passion, or passion without a sufficient

cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will

be murder." Commonwealth v. Hutchinson. 25 A.3d 277, 315 (Pa. 2011). (quoting

Commonwealth v. Bamoskv. 258 A.2d 512, 515 (Pa. 1969)).




         (I) the individual kilted; or

         (:.)   ilJlo(ll~r Wll\t,ll III': <ll'rOl'CJltk:lyors to l.;ill, hUlbl.: I1t;gligt:Jl!ly or

         accidentally causes the death of the individual killed.

         (b) UNREASONABLE BEUEF KILLING JUSTIFIABLE. -~ A person who intentiollally
or knowingly kills an individual commits voluntary manslaughter ifat the time of the killing he believes lilt!
circumstances to be such that, if they eXIsted, would justify the kIlling under Chapter 5 of this time, but his bcliefis
unreasonable.
                                                                            5
         Instantly, while the prosecution argued that defendant was in a rage when he killed the

victim, the evidence presented at trial indicated that any such rage emanated from a mere

argument and a minor tussle between defendant and the victim over the use of the victim's car.

Rage emanating out of a mere dispute is not sufficient to render a person incapable of cool

reflection. In Hutchinson, supra, the Supreme Court found 'that evidence showing that the victim

and Hutchinson were arguing when the murder occun'ed was insufficient to establish adequate

provocation to reduce murder to' manslaughter even where tllere were other factors present. In

addition, the fact that defendant may have been angry with the victim on account of the dispute

over the use of the victim's car and that the two men were arguing and the victim may have

pushed defendant is not the type of anger society recognizes as sufficient to reduce murder to

manslaughter. See Commonwealth v. Cartagena, 416 A.2d 560 (Pa. Super. 1979) (holding that

fact that victim punched defendant insufficient to dispel conclusion that defendant acted with

malice). Accordingly, it is suggested that reliefbe denied with respect to this claim. 3

         Defendant next asserts that this Court committed an abuse of discretion by imposing an

excessive sentence. In addition, defendant alleges that this Court failed to consider defendant's

rehabilitative needs as well as his efforts in improving himself while incarcerated.

         Whe:u scatencing an individual convicted of a crime. a Court must consider 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. 18 Pa.C.S. § 9721 (b). Here, the

sentence imposed on the defendant's third-degree murder conviction was within the standard

range of the applicable Sentencing Guidelines, so the Superior Court is required to affirm unless


, It is noted that defendant did not argue allriallhat lhe killing was co~milted in the heat of passion and other than
the argument presenled by lhe prosecutor, there was no evidence upon which such a claim could be predicated.
                                                           6
it finds that the guidelines were clearly applied unreasona,bly. 42 Pa.C.S. § 9781(c);3 see also

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The standard of review is whether the

sentencing comt abused its discretion, which requires more than an error in judgment; the record

must show that "the judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will."         Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996).                          A

sentencing court may commit an abuse of discretion if it considers improper factors when

determir>jng the    s~ntence.     Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004) (citing

Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998)). The Pennsylvania Supreme Court

has subsequently stated, though, that if the sentencing court relies on an improper factor but also
                                                            ,
offers other, proper reasons for its sentencing decision, it should be affinned. Smith, 673 A.2d at

896-97.

        R(.:'gardil1g ']('ft'n<i;!Jll's claim thnl the sc'ntl;:"!1c('"   WHS   excessive, tl~l'" law provick:. 111:11 n

mere claim alleging that a sentence is excessive does not                 r~ise   a substantial question for review.

See Commonwealth v. Harvard, 04 A.3d WO, 70 I (l'a.Super.l0 13) (slating, "a bald ass<orlillJl Ihm

a sentence is excessive does not by itself raise a substantiul questioll jllstilYing tltis                    CUUrl'~

review of the merits of the underlying claim []"). A defendant must establish that the sentence

imposed is excessive given the facts of the case and the criminai conduct underlying the

conviction. Commonwealth v. Dodge, 77 AJd 1263, '1271 'Cpa. Super. 2013).

l Section 9781 (c) states:
(c) Detennination On Al'l'eal.-- The appellate court shall vacate the sentence and remand the case to the sentencing
court with instructions if it finds:
  (l) (ile scntt!ncing court purported to sentence within the senrencing guidelines but applied the gllidelines
erroneously;
  (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumslances where the
application of the guidelines would be clearly unreasonable; or
  (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
In aJ[ other cases the appellate court shall afflrm the sentence imposed by the sentencing court.
42 Pa.C.S. § 97& I(c).
                                                            7
          Instantly, no relief is due on defendant's excessive sentencing claim. Apart from the fact

that defendant has failed to state why he believes that the sentence is excessive under the

circumstances, in deciding upon the sentence ultimatel)' imposed on defendant, this Court

reviewed the evidence adduced at trial, the statutory maximum and the applicable guidelines

range of 90 to 240 months, plus or minus twelve months, and the pre-sentence repOtts prepared

for this matter as well as the underlying criminal conduci,4 Having conducted this review this

court deter.z:,l;>ed .:11"t a s;,;;]ifi.::ant sentence was warrinted givcn that defendant shot the

unanned victim after a minor dispute and that while incarcerated, defendant had numerous

infractions thereby demonstrating that he had difficulty in following the rules. (N.T. 5/31113,11-

12). Accordingly, it is respectfully recommended that defendant's excessive sentencing claim be

denied.

          Regarding defendant's claim that this Court did not consider his rehabilitative needs, as

noted in the discussion of the previous issue, this Court considered numerous factors, incitlding

appellant's actions and behavior while incarcerated. Where the sentencing comt had the benefit

of a pre-sentence investigation report, the law presumes that the court was aware of and weighed

relevant infomlation         regarding      a defendant's chara,cter and              any    mitigating      factors.

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

          [n addition, in this Court's view, the fact that defendant had numerous infractions while

incarcerated outweighed any efforts he expended in rehabilitating himself. Having considered

all relevant factors, this Court complied with the law and, defendant's claim should be deemed

4Defendant had a prior record score of zero. 1n calculating the applicable guidelines ranges this Court noted that Ihe
offense gravity for third-degree murder is fourteen, and that the deadly weapon used enhancement applied. ~ 204
Pa. Code § 303.15.



                                                          8
lacking in merit. Commonwealth v. Zurburg, 937 A.2d 1131, 1136 CPa. Super. 2007) (holding

that claim that sentencing court erred by not considering defendant's rehabilitative needs was

without merit because court considered all relevant factors in deciding upon a sentence).

CONCLUSION

       For the foregoing reasons, defendant's assertions of error should be dismissed for lack of

merit and the judgment of sentence should be affimled.



                                                             By the Court,



Date:J!dq




                                                 9
