J-S55012-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                                         :
                   v.                    :
                                         :
GINA MARIA MARCHESE,                     :
                                         :
                        Appellant             No. 39 MDA 2017

         Appeal from the Judgment of Sentence December 12, 2016
            in the Court of Common Pleas of Lycoming County,
             Criminal Division at No. CP-41-CR-0000629-2015
                         CP-41-CR-0001773-2015

BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                               FILED SEPTEMBER 11, 2017

      I join the Majority’s holding that, under the circumstances of this case,

Appellant has failed to establish that her sentencing claim warrants relief

from this Court.        I write separately to express my disquiet about the

amorphous and inconsistent categorization of an issue as one that does or

does not raise a substantial question.

      As recognized by this Court in Commonwealth v. Dodge,

      it is apparent that this Court’s determination of whether an
      appellant has presented a substantial question in various cases
      has been less than a model of clarity and consistency[.]
      Compare Commonwealth v. Montalvo, [641 A.2d 1176, 1186
      (Pa. Super 1994)] (“allegation that the sentencing court ‘failed
      to consider’ or ‘did not adequately consider’ facts of record” does
      not present substantial question); Commonwealth v. Rivera,
      [637 A.2d 1015, 1016 (Pa. Super. 1994)] (same);
      Commonwealth v. Nixon, 718 A.2d 311, 315 (Pa. Super.

*Retired Senior Judge assigned to the Superior Court.
J-S55012-17


      1998), overruled on other grounds by Commonwealth v.
      Mouzon, [812 A.2d 617 (Pa. 2002)] (“ordinarily, allegations that
      a sentencing court ‘failed to consider’ or ‘did not adequately
      consider’ various factors” does not raise a substantial
      question)[.] … with Commonwealth v. Boyer, 856 A.2d 149,
      151–152 (Pa. Super. 2004) (finding substantial question where
      defendant argued “that his sentence was manifestly excessive
      and that the court erred by considering only the serious nature
      of the offenses and failing to consider mitigating factors such as
      his age (19) at sentencing, his rehabilitative needs, his limited
      education, his years of drug dependency, and his family
      dysfunction.”); Commonwealth v. Perry, 883 A.2d 599, 602
      (Pa. Super. 2005) (failure to consider mitigating factors and
      excessive      sentence       raised      substantial    question);
      Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super.
      2009) (“Ventura further asserts that the trial court imposed his
      sentence based solely on the seriousness of the offense and
      failed to consider all relevant factors, which has also been found
      to raise a substantial question.”); Commonwealth v.
      Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (failure to
      consider rehabilitative needs and the protection of society in
      fashioning a sentence raises a substantial question).

Dodge, 77 A.3d 1263, 1272 n.8 (Pa. Super. 2013).

      Indeed, despite the passage of time, this Court has continued to

struggle with defining what claims raise substantial questions and often it is

only minute distinctions that separate those claims that are deemed

reviewable versus those that are not.            Compare Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (“Generally, a bald

excessiveness   claim   does   not   raise   a   substantial   question.”)   with

Commonwealth v. Haynes, 125 A.3d 800, 807–08 (Pa. Super. 2015)

(“While a bald claim of excessiveness does not present a substantial

question for review, a claim that the sentence is manifestly excessive,

inflicting too severe a punishment, does present a substantial question.”).

*Retired Senior Judge assigned to the Superior Court.
J-S55012-17


      This practice has resulted in the inconsistent grant or denial of the

review of sentencing claims based upon which contradictory precedent a

panel decides to apply.   Because of this, I am of the opinion that every

criminal defendant, who preserves a sentencing issue for appeal, has the

constitutional right to have this Court decide the merits of the claim. See

Commonwealth v. Zirkle, 107           A.3d 127, 135      (Pa. Super. 2014)

(Strassburger, J., dissenting) (“Indeed, not only is the disparate treatment

of sentencing discretion unwarranted and unreasonable, it is also at odds

with our Constitution. Under Article V, Section 9 of the Pennsylvania

Constitution, an accused has an absolute right to appeal. However, under

42 Pa.C.S. § 9781 and Pa.R.A.P. 2119(f), this Court is permitted to grant

allowance of appeal to review the discretionary aspects of a sentence only if

we, in our discretion, find that the appellant filed the appropriate statement

raising ‘a substantial question that the sentence imposed is not appropriate’

under the Sentencing Code. …      Section 9781(b) clearly infringes upon a

defendant’s absolute right to an appeal.”)      (some quotation marks and

citations omitted).




*Retired Senior Judge assigned to the Superior Court.
