J-S40044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY A. FOLEY, JR.                         :
                                               :
                       Appellant               :   No. 3094 EDA 2017

             Appeal from the Judgment of Sentence August 11, 2017
     In the Court of Common Pleas of Northampton County Criminal Division
                       at No(s): CP-48-CR-0001424-2016


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

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 25, 2018

        Gary A. Foley, Jr., appeals from the judgment of sentence, entered in

the Court of Common Pleas of Northampton County, after he pleaded guilty

to murder of the third degree.1 After careful review, we affirm.

        On February 24, 2015, the Lehigh Township Police Department

responded to a distress call regarding a female child (K.D.), then 17 months

old. Upon arriving at the scene, police observed Foley performing CPR on K.D.

Foley informed the officers that the child had begun choking on a hot dog

while he was changing her diaper. First responders transported K.D. to a local

hospital, where she succumbed to her injuries. An autopsy revealed that the

infant’s cause of death was blunt force trauma, resulting from multiple severe

injuries to her head.     K.D.’s death was ruled a homicide.

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1   19 Pa.C.S.A. § 2502(c).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Foley was arrested on March 17, 2016 and charged with one open count

of criminal homicide and four counts of endangering the welfare of a child. He

filed an omnibus pre-trial motion which included a claim for Habeas Corpus

relief, which was denied on January 12, 2017. After a series of continuances

and before the scheduled criminal trial, Foley was presented with a proposed

guilty plea to murder in the third degree with a minimum sentence of fourteen

years, which the trial court again denied. However, on June 30, 2017, Foley

pleaded guilty to murder in the third degree with no sentence bargain.

      On August 11, 2017, the trial court sentenced Foley to twenty to forty

years’ incarceration in a state correctional facility. On August 21, 2017, Foley

filed a post-sentence motion for reconsideration of sentence, which the trial

court denied. This timely appeal followed. Both the trial court and Foley have

complied with Pa.R.A.P. 1925.      On appeal, Foley argues his sentence is

manifestly excessive because the trial court did not consider certain mitigating

factors:   (1) his employment history; (2) lack of prior criminal record; and

(3) his poor living conditions, which he alleges caused him severe stress.

      Our standard of review regarding challenges to the discretionary aspects

of sentencing is well settled:

      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.


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Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

        The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004). To determine if this Court may review the discretionary aspects of a

sentence, we employ a four-part test: “(1) [W]hether appellant has filed a

timely notice of appeal; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify [the] sentence; (3)

whether appellant’s brief has a fatal defect; and (4) whether there is a

substantial question that the sentence appealed from is not appropriate under

the Sentencing Code.” Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (internal citations omitted).

        Here, Foley preserved his issues in his motion for reconsideration and

timely filed a notice of appeal. His issues were also properly raised in his

Pa.R.A.P. 1925(b) statement. Furthermore, Foley included in his appellate

brief a Pa.R.A.P. 2119(f) concise statement of reasons relied upon for

allowance of appeal, asserting “the Trial Court’s imposition of the maximum

sentence for third-degree murder, despite Foley’s lack of a prior criminal

record, is manifestly excessive.” Brief of Appellant, at 9-10.

        An appellant raises a substantial question if he can show “actions by the

trial court inconsistent with the Sentencing Code[2] or contrary to the

____________________________________________


2   42 Pa.C.S.A. §§ 9701 – 9799.75.

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fundamental norms underlying the sentencing process.” Commonwealth v.

Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (citation omitted).             “The

determination of whether a particular issue raises a substantial question is to

be evaluated on a case-by-case basis.” McAfee, 849 A.2d at 274.

      “[T]his Court has held on numerous occasions that a claim of inadequate

consideration of mitigating factors does not raise a substantial question for

our review.” See, e.g., Commonwealth v. Downing, 990 A.2d 788, 903

(holding appellant did not raise substantial question where he alleged the trial

court failed to consider the mitigating factors of his employment history,

education background, and his struggles with family).          However, if the

appellant alleges the trial court erroneously relied on factors not of record, we

will hold the appellant raises a substantial question. See Commonwealth v.

Druce, 796 A.2d 321, 334 (Pa. Super. 2002) (holding appellant raised a

substantial question by alleging the trial judge imposed a sentence “not based

on evidence that was presented to him but based on comments reportedly

made by [appellant] to a newspaper[.]”).

      Here, Foley’s claim that the trial court failed to consider his employment

history, lack of prior criminal record, and his poor living conditions does not

amount to a substantial question. Foley’s sentence was within the sentencing

guidelines, and his alleged mitigating factors were all on the record and were

considered by the trial judge. The trial court properly formulated a sentence

“individualized to that particular case and that particular defendant.”

Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004).

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       Therefore, Foley’s claim that the trial court failed to consider mitigating

factors does not raise a substantial question, and he cannot invoke our

jurisdiction to review the merits of his case. We affirm Foley’s judgment of

sentence.3

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/18




____________________________________________


3 Even had Foley raised a substantial question for our review, his claim is
without merit. If the trial court had the benefit of a presentence investigation
report (“PSI”) and imposed a standard-range sentence, “we will not consider
the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011). Here the trial court had the benefit of a PSI, which included
“information about [Foley’s] age, his educational background, prior arrests,
employment history, military involvement, and familial background.” Brief of
Appellee, at 9. The court also imposed a standard range sentence. Foley is
entitled to no relief.

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