J-A22028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JACQUELINE ROSE HARRIGAN

                             Appellant                No. 2798 EDA 2016


             Appeal from the Judgment of Sentence June 28, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000353-2014


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 20, 2017

        Jacqueline Rose Harrigan appeals from the judgment of sentence

entered in the Court of Common Pleas of Monroe County, after she entered a

plea of guilty to one count of criminal homicide – murder in the third degree1

as an accomplice. On appeal, Harrigan challenges the discretionary aspects

of her sentence. Upon careful review, we affirm.

        Harrigan pled guilty to acting as an accomplice to the shooting death of

the father of an individual who Harrigan and her friends blamed for stealing

money from Harrigan’s friend during a drug deal gone bad. She did so while



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2502(c).
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out on bail for charges related to her involvement in another homicide. As a

part of her plea bargain in this case, Harrigan testified for the Commonwealth

in trials related to both crimes.

      Harrigan was sentenced on June 28, 2016 to a term of 10 to 40 years’

incarceration. Harrigan filed a motion to reconsider sentence and the court

held a hearing on August 1, 2016, after which the motion was denied. This

timely appeal follows, in which Harrigan claims that the trial court imposed a

“manifestly unreasonable” sentence.

      Harrigan raises a challenge to the discretionary aspects of her sentence.

Such a claim does not entitle an appellant to review as a matter of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before this Court can address such a discretionary challenge, an appellant

must comply with the following requirements:

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
      (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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).

      Here, Harrigan filed a post-sentence motion raising her sentencing

claim, followed by a timely notice of appeal to this Court.       She has also



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included in her brief a concise statement of reasons relied upon for allowance

of appeal with respect to the discretionary aspects of her sentence pursuant

to Pa.R.A.P. 2119(f). Accordingly, we must now determine whether she has

raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      In her Rule 2119(f) statement, Harrigan asserts that her sentence was

contrary to the fundamental norms of the sentencing process because it was

inconsistent with the sentencing scheme of her codefendant, and there existed

no facts to warrant the disparity.    This Court has previously held that a

disparity between sentences imposed upon co-defendants touches upon the

fundamental norms which underlie the sentencing process and, therefore,

raises a substantial question. Commonwealth v. Canfield, 639 A.2d 46, 49

(Pa. Super. 1994), overruled on other grounds by Commonwealth v.

Mouzon, 812 A.2d 617 (Pa. 2002). Accordingly, we will address the merits

of Harrigan’s claim.

      We begin by noting our standard of review:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted).

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      Our analysis requires a brief recitation of the facts leading to the murder

in this case, which the trial court set forth as follows:

      On January 13, 2014, Kaylynn Bunnell and her boyfriend Matt
      Flores arranged to purchase Percocet from Brandon Kravchenko
      at the Big Star [Drive-In Restaurant] in Stroudsburg. Upon arrival
      at the Big Star, Flores left Bunnell’s vehicle and entered the
      vehicle of an unknown male identified as “Jordan.” When Flores
      returned to Bunnell’s car he indicated that “Jordan” had pulled a
      gun and robbed him.

      Bunnell, very upset and seeking to be consoled, called her friend,
      [Harrigan]. [Harrigan] was asleep and her boyfriend, Bruce
      Murray, answered. Bunnell told Murray about the robbery and
      Murray asked her if she wanted to do anything about getting her
      money back. Bunnell answered, “of course.” Murray then asked
      Bunnell where Kravchenko lived.

Trial Court Opinion, 10/28/16, at 1 (citation to record omitted). Ultimately,

Bunnell drove a car containing Harrigan and three others to the trailer park

where Kravchenko lived.      Bunnell and Harrigan knocked on Kravchenko’s

trailer door; he was not at home, but “Jordan” was inside. Subsequently, as

Bunnell drove slowly past the trailer, two other individuals shot at the trailer

from inside the vehicle, hitting and killing Kravchenko’s father.

      This incident occurred while Harrigan was on bail for her involvement in

another homicide. In that case, Harrigan’s then-boyfriend, William McRae,

robbed and killed Brandon Fraser using a gun given to him by Harrigan. The

trial court set forth the circumstances surrounding that murder as follows:

      [O]n the night of the homicide, McRae told [Harrigan] to text with
      Mr. Fraser, keep him busy, and to flirt with him. “Jus spin him,
      laugh at his jokes alil; Don’t meet wit him tho. . Stall him and say
      you wanna hook up later on tonight!! Your doin stuff w/ your gurl
      rite now” [sic] The two continued to text until Mr. Fraser asked

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      for her to pick a place for them to meet up. At that point Mr.
      Fraser ceased texting. The following day, after the discovery by
      police of Mr. Fraser’s body, McRae gave [Harrigan] a used shell
      casing wrapped in tissue and was told to deliver it to a “guy named
      Smily because [McRae and Smiley] were having differences.”
      [Harrigan] delivered said shell casing to “Smiley” saying
      “compliments of Will.” That shell casing would later be identified
      as having been fired from the murder weapon.

Id. at 6 (citations to record omitted). After being interviewed by police in

connection with that case, Harrigan contacted McCrae to warn him that there

was a warrant for his arrest and assisted him in retrieving his vehicle during

the period of time he was wanted by the police. She ultimately pled guilty to

one count of hindering apprehension.

      Harrigan was sentenced on both cases on June 28, 2016. In addition to

the 10 to 40 year term she received on the instant matter, she was sentenced

to a term of 3 to 12 months’ incarceration on the hindering charge, to run

concurrently to the sentence imposed in the instant matter.

      Bunnell, the driver in the Kravchenko murder, also pled guilty to criminal

homicide – murder in the third degree as an accomplice and, like Harrigan,

was sentenced to 10 to 40 years’ incarceration. However, after Bunnell filed

for reconsideration, her sentence was reduced to 10 to 25 years in prison.

Harrigan claims that her sentence, when compared to that of Bunnell, is

unsupported by the facts. Harrigan asserts that numerous factors favorably

distinguished her from Bunnell, and that, as a result, she should have received

a lower minimum sentence than Bunnell.        Specifically, Harrigan noted the

following:   (1) unlike Bunnell, Harrigan provided testimony in two murder


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trials; (2) Bunnell was the “direct catalyst” in the Kravchenko homicide,

whereas Harrigan “was led into trouble” by Bunnell; (3) Harrigan was a victim

of abuse and manipulation by the more culpable co-conspirators, unlike

Bunnell; (4) Harrigan’s father died after she wished him dead during an

argument, causing her to suffer a “teenage crisis”; (5) unlike Bunnell,

Harrigan immediately embraced her incarceration as an opportunity to correct

the course of her life. See Brief of Appellant, at 18-19. In light of these

mitigating factors not present in Bunnell’s background, Harrigan argues that

her sentence, when compared to Bunnell’s, is manifestly unjust. We disagree.

     The law is well-settled that co-defendants are not required to
     receive identical sentences. Generally, a sentencing court must
     indicate the reasons for differences in sentences between co-
     defendants. This is not to say, however, that the court must
     specifically refer to the sentence of a co-defendant. Rather, it
     requires that when there is a disparity between co-defendants’
     sentences, a sentencing court must give reasons particular to each
     defendant explaining why they received their individual sentences.

Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(internal citations and quotation marks omitted).

     Here, Harrigan challenges her sentence for criminal homicide – third

degree murder as an accomplice. She had a prior record score of zero and an

offense gravity score of 14.    Accordingly, the standard guideline range

sentence is 72 months to the statutory limit, ± 12.     Harrigan received a

sentence of 120 to 480 months, which is well within, and toward the lower

end of, the standard range.




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     The sentencing court provided specific reasons for sentencing Harrigan

in the manner it did. At sentencing, the court made the following statement:

     THE COURT: Well, Ms. Harrigan, I don’t need to tell you that these
     two cases for a variety of reasons were some of the most
     disturbing cases I have had . . . mostly because they involved
     extremely young people doing some of the worst things that we’re
     able to see which is killing other people, randomly, purposely, for
     reasons that still in my mind are really inexplicable.

     I recognize that you come before the [c]ourt with a clean record.
     I mean, there is a couple – there’s a little juvenile – I think it was
     like a summary or an M3 theft that was nolle prossed, and then
     your other issues before that were drug related.

     I understand the impact that the loss of your father would have
     on you, and certainly the timing of your decline is directly related
     to that. How during that period of time, however, there was not
     either something within your family, your friends, someone,
     school, anywhere, that would have helped you is kind of beyond
     me, and I’m still puzzled by that.

     And there’s no doubt that you have done well during your period
     of incarceration, much better than anybody else we’ve seen, and
     that you have taken advantage of your situation currently.

     I did sit through both of these trials and did all the pretrial work.
     I have seen your testimony firsthand, and I agree with Mr.
     Mancuso [counsel for the Commonwealth] on the impact of that
     testimony as well as your proffers which I’ve read. So you’ve done
     this from the very beginning of the case, and I think that counts
     for something.

     When I also look at the verdicts after trial, particularly in the
     Wilson case, I think I factored that in with respect to your plea in
     this case as well. And as Mr. Mancuso said, you try to fit that in
     to the larger scheme of sentencing depending upon what each of
     the other individuals has in their background as well as where you
     are here.

     You can’t ignore the fact that you were an integral part in the
     killing of Mr. Fraser because of that weapon as well as the texting
     aspect of that. With respect to the texting, I’m not sure I believe
     that you had no idea what was going on there. With respect to

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      [the Kravchenko murder], again, you were very much of a catalyst
      in this entire event and outcome.

      So these are all of the things that have to be balanced. . . . I do
      not believe a mitigated range sentence is appropriate in this case
      at all. While I recognize that the gang hierarchy – and it’s true
      that women – I remember because they kept calling them shorties
      – are treated like absolute garbage, like dirt, and definitely are
      subject to abuse and are essentially property of the gang.

      And I also recognize that there is not only a need to belong to this
      family of a gang but also probably a fear that is part and parcel of
      what could happen to you if you don’t go along with what’s going
      on. So I’m trying to reconcile all of that and balance it.

      So I think your cooperation, all of the good that you’ve been able
      – that you did up until the time of this thing happening, the drug
      involvement, all of that, plays a part in the sentence I’m going to
      give you, but I don’t think a mitigated sentence is an appropriate
      sentence in this case.

      We do have the aggravating factor that you were on bail. It was
      posted, I believe, when the offense in the criminal homicide
      occurred.

N.T. Sentencing, 6/28/16, 16-19.

      As demonstrated by the foregoing, the trial court took both mitigating

and aggravating factors into consideration in fashioning Harrigan’s sentence.

However, as the court noted in its opinion, Harrigan’s

      mitigating factors must be weighed against all other factors. One
      cannot ignore [the] fact that [Harrigan] played an integral part in
      the killing of Mr. Kravchenko, [and] was involved in the murder of
      Mr. Fraser. This speaks to the major aggravating circumstance
      present only in [Harrigan’s] case, that she was on bail, having
      posted surety set at $20,000[,] secured[,] in the [Fraser case],
      when she committed the offense [in this matter].

Trial Court Opinion, 10/28/16, at 10-11 (internal citations to record omitted;

emphasis in original).




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       In light of the foregoing, we cannot say that the court committed an

abuse of discretion in fashioning Harrigan’s sentence. The sentence itself fell

in the lower end of the standard range of the guidelines, and the trial court

adequately explained its reasoning for sentencing Harrigan in the manner it

did, which is all that is required when a trial court imposes disparate

sentences2 on co-defendants for the same criminal acts.       Mastromarino,

supra.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/20/2017




____________________________________________


2 We would note that the sentences imposed upon Harrigan and Bunnell are
not, in fact, disparate, in that they received the same minimum sentence.
Further, although the court ultimately reduced Bunnell’s maximum sentence
on reconsideration, Harrigan did not seek reduction on her maximum. Indeed,
at the hearing on Harrigan’s motion for reconsideration, her counsel stated:
“I’m not in any way looking to touch the top end of the [c]ourt’s [o]rder. I
recognize essentially Ms. Harrigan through her conduct while incarcerated will
decide how long she remains in the custody of the Department of Corrections,
and it could be up to 40 years if she does not demonstrate an understanding
of her behavior and continue to operate on the right side of the law and do
the right things.” N.T. Motion for Reconsideration, 8/1/16, at 2-3.

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