J-S12016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                    v.

DAVID J. HOWARD,

                          Appellant                  No. 1478 EDA 2015


         Appeal from the Judgment of Sentence of March 26, 2015
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000716-2014


BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 18, 2016

      Appellant, David J. Howard, appeals from the judgment of sentence

entered on March 26, 2015, as made final by the denial of his post-sentence

motion on April 16, 2015. We affirm.

      On March 19, 2014, the Commonwealth filed a criminal information

charging Appellant       with one     count each of homicide   (18 Pa.C.S.A.

§ 2501(a)), aggravated assault (18 Pa.C.S.A. § 2702(a)(1)), and conspiracy

(18 Pa.C.S.A. § 903(c)). Thereafter, on February 9, 2015, Appellant entered

an open guilty plea to one count of involuntary manslaughter (18 Pa.C.S.A.

§ 2504(a)).   The Commonwealth offered the following factual recitation to

support Appellant’s plea.

      [THE COMMONWEALTH]

      [Thank you. Your Honor, this incident occurred on or about
      February 1st, 2013. The incident initially began at Freddie’s Bar,

*Retired Senior Judge assigned to the Superior Court.
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     which is located at 222 East Hamilton Street in Allentown, Lehigh
     County. Earlier in the evening the victim in this case, Roman
     Bentley, age 53 at the time, was a patron of Freddie’s Bar, along
     with the mother of his children, April Fernandez. During a period
     of time in which Ms. Fernandez and Mr. Bentley were at the bar,
     Mr. Bentley left for a short period of time to go pick up a friend.]

     The duration for which Mr. Bentley was away to speak with his
     friend, [Appellant] had contact with April Fernandez. They had
     interactions which involved at one point [Appellant] taking food
     from Ms. Fernandez’ plate, as well as $5[.00] off the bar to put
     in a juke box. This ultimately resulted in an argument or
     disagreement between Ms. Fernandez and [Appellant].

     Ultimately, Mr. Bentley came back to the bar, and exchanged
     words and had an argument with [Appellant] regarding his
     contact with Ms. Fernandez.

     At that point, the argument spilled out onto the street, out on
     Hanover Avenue in Allentown, at which time [Appellant] punched
     Mr. Bentley causing Mr. Bentley to fall to the ground.

     Dr. Samuel Land is the doctor who performed the autopsy in this
     case and would ultimately provide an opinion that when Mr.
     Bentley was struck he fell to the ground. It was an unimpeded
     fall. He was not able to brace himself and struck his head on the
     pavement of Hanover Avenue, at which time he sustained a
     crack in his skull which ultimately resulted in the death of Mr.
     Bentley.

     Allentown Police promptly responded and were able to get
     medical assistance for Mr. Bentley, Your Honor.

     He was transported to St. Luke’s Hospital in Fountain Hill and
     ultimately passed away on [February 2nd, 2013, at 9:17 p.m. as
     a result of the crack to his skull which resulted in a bleeding of
     the brain.

     [THE COURT]

     [Appellant], do you acknowledge that that is what you did?

     [APPELLANT]


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       Yes.

N.T. Guilty Plea, 2/9/15, at 7-9.

       After accepting Appellant’s guilty plea, the trial court deferred

sentencing until March 26, 2015, at which time the court ordered Appellant

to serve two and one-half to five years’ imprisonment.           Appellant filed a

timely post-sentence motion challenging the discretionary aspect of his

sentence, including the trial court’s alleged consideration of information not

found in the record. The court denied Appellant’s motion by order entered

on April 16, 2015. This appeal followed.1

       Appellant raises the following question for our review:

       Whether the sentencing court abused its discretion in imposing a
       sentence in the aggravated range based upon conduct not
       charged and matters not of record such as an autopsy report
       and other information unknown to Appellant from which the
       court drew inferences adverse to Appellant?

Appellant’s Brief at 5.

       Appellant’s sole claim pertains to the discretionary aspects of his

sentence. Accordingly, we consider such an argument to be a petition for

permission to appeal.        Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. 2014) (en banc) (citation omitted), appeal denied, 104 A.3d 1

(Pa. 2014). “[A]n appeal is permitted only after this Court determines that

there is a substantial question that the sentence was not appropriate under

____________________________________________


1
 Both Appellant and the trial court have complied with the requirements of
Pa.R.A.P. 1925.



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the sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042

(Pa. 2013) (en banc) (citation omitted).

         Prior to reaching the merits of a discretionary aspect of sentencing

issue,     this   Court   is   required    to   conduct   a   four-part   analysis.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). In this analysis,

we must determine: 1) whether the present appeal is timely; 2) whether

the issue raised on appeal was properly preserved at sentencing or in a

post-sentence motion; 3) whether Appellant has filed a statement pursuant

to Pa.R.A.P. 2119(f); and 4) whether Appellant has raised a substantial

question that his sentence is not appropriate under the Sentencing Code.

Id.

         In the instant case, Appellant filed a timely notice of appeal, and

properly preserved his claim in a post-sentence motion.               Additionally,

Appellant complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 15-16.

We must therefore determine whether Appellant raised a substantial

question for our review.

         “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “A substantial question exists only when the appellant advances

a colorable argument that the sentencing judge’s actions were either:           1)

inconsistent with a specific provision of the Sentencing Code; or 2) contrary

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to the fundamental norms which underlie the sentencing process.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”    Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      Within his Rule 2119(f) statement, Appellant asserts that a substantial

question exists because “the sentencing court relied upon matters not of

record from which the court drew assumptions that Appellant committed

more egregious acts than the offense of [i]nvoluntary [m]anslaughter to

which he pled guilty.” Appellant’s Brief at 15. Specifically, Appellant argues

that the sentencing court improperly considered an autopsy report, as well

as allegations that Appellant encouraged other individuals to attack the

victim.   Appellant maintains that neither the autopsy, nor the allegations

against him, were made a part of the record in this case and that he is

unaware of the source of the adverse allegations. Id. at 15-16.

      This Court has held that an appellant raises a substantial question

where he alleges that the sentencing court relied upon impermissible factors

such as matters outside the record. See Commonwealth v. Rhoads, 990

A.2d 732, 745 (Pa. Super. 2009), appeal denied, 14 A.3d 827 (Pa. 2010).

Thus, we will address the merits of this claim.

      This Court has stated:

          The standard employed when reviewing the discretionary
          aspects of sentencing is very narrow. We may reverse
          only if the sentencing court abused its discretion or

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         committed an error of law.          We must accord the
         sentencing court’s decision great weight because it was in
         the best position to review the defendant’s character,
         defiance, or indifference, and the overall effect and nature
         of the crime.

Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005) (citations

omitted).

      Appellant concedes that his sentence, while in the aggravated range of

the guidelines, fell within the statutory maximum punishment applicable to

involuntary manslaughter. See Appellant’s Brief at 10-11. “When imposing

a sentence, the sentencing court must consider the factors set out in 42

Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense

in relation to impact on victim and community, and rehabilitative needs of

the defendant....”    Id.   Furthermore, “[a] trial court judge has wide

discretion in sentencing and can, on the appropriate record and for the

appropriate reasons, consider any legal factor in imposing a sentence in the

aggravated range.” Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.

Super. 2005) (citation omitted). Because Appellant’s sentence fell within the

guidelines, we may vacate the sentence only if we determine that this case

involves circumstances where the application of the guidelines was clearly

unreasonable. 42 Pa.C.S.A. § 9781(c).

      Our review of the record refutes Appellant’s claim that the trial court

relied on sources outside the record in fixing the punishment imposed in this

case. During the proceedings before the trial court, Appellant filed a pretrial

motion to compel discovery together with a petition for habeas corpus. To

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resolve Appellant’s motion, the trial court convened a hearing and reviewed

the transcript of Appellant’s preliminary hearing. Based upon its review of

the preliminary hearing transcript, the court found that Ms. Fernandez

witnessed a verbal altercation between Appellant and Mr. Bentley.          This

dispute continued outside Freddie’s Bar.        At this time, Appellant was

accompanied by two African American males.          Ms. Fernandez witnessed

Appellant strike Mr. Bentley, who fell to the ground.    Ms. Fernandez then

testified that she heard Appellant say, “kick his f**king a**.”     She then

viewed Appellant and the two African American males begin to kick Mr.

Bentley while he was lying on the ground.       Dr. Samuel Land prepared an

autopsy report that assigned blunt force trauma to the head as the cause of

the victim’s death. Trial Court Opinion, 9/16/14, at 2-4. The witnesses at

Appellant’s   preliminary   hearing     would    have    been    subject     to

cross-examination by Appellant’s counsel. Moreover, contrary to Appellant’s

claims, the preliminary hearing transcript and the trial court’s opinion were

part of the record in this case at the time of sentencing. Thus, Appellant and

his counsel should have been aware of these materials.

      We also conclude that the trial court did not abuse its discretion when

it imposed an aggravated range sentence in this case.           In its opinion

disposing of Appellant’s post-sentence motion, the trial court listed the

following reasons for its sentencing choice: “(1) [Appellant] has a long prior

arrest record of violent crimes; (2) [Appellant] was on parole at the time the

crime was committed; (3) [Appellant] previously failed on supervision and is

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a poor candidate for rehabilitation; (4) a lesser sentence would depreciate

the seriousness of the crime; and, (5) [Appellant] is a danger to the

community.” Trial Court Opinion, 4/16/15, at 3. The trial court also noted

that Appellant committed the instant offense approximately eight months

after completing a federal supervised release program for possessing a

firearm despite a felony conviction, that Appellant has virtually no work

history, and that Appellant has had contact with the criminal justice system

for over 24 years and is only 36 years of age.     Id.   Appellant does not

dispute these assessments and we conclude that they support the

aggravated range sentence imposed in this case. Accordingly, we conclude

that Appellant is not entitled to relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2016




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