J-S61014-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                       Appellee             :
                                            :
                  v.                        :
                                            :
DEVINE A. CAMPBELL,                         :
                                            :
                       Appellant            :     No. 58 WDA 2014

     Appeal from the Judgment of Sentence Entered December 4, 2013,
              in the Court of Common Pleas of Mercer County,
              Criminal Division at No. CP-43-CR-0000121-2012

BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 27, 2015

      I join the Majority Memorandum except for its handling of Appellant’s

challenge to the discretionary aspects of his sentence. As to that issue, the

Majority cites Commonwealth v. Edwards, 71 A.3d 323 (Pa. Super.

2013), for the proposition that allegations that a sentencing court “failed to

consider” and “did not adequately consider” various factors does not raise a

substantial   question    that     a   sentence   was   inappropriate.   Majority

Memorandum at 23-24.          Indeed, Edwards supports such a proposition.

However, as Judge Bowes cogently observed in Commonwealth v. Dodge,

77 A.3d 1263, 1272 n.8 (Pa. Super. 2013), “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[.]”




* Retired Senior Judge assigned to the Superior Court.
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        Recently, this Court has reiterated several times “that an excessive

sentence claim—in conjunction with an assertion that the court failed to

consider       mitigating   factors—raises     a        substantial      question.”1

Commonwealth        v.   Raven, 97   A.3d    1244,   1253 (Pa.        Super.   2014)

(emphasis added; citation omitted) (citing Commonwealth v. Perry, 883

A.2d 599, 602 (Pa. Super. 2005)); Commonwealth v. Samuel, 102 A.3d

1001, 1007 (Pa. Super. 2014); Commonwealth v. Gonzalez, 2015 WL

252446, 15 (Pa. Super. 2015).

        However, this Court has made no such determination regarding an

excessive sentence claim coupled with an assertion that the sentencing court

failed to consider adequately mitigating factors.               For instance, in

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013), DiSalvo

generally claimed that “the trial court abused its discretion by issuing a

sentence that is manifestly excessive[.]”     This Court ultimately concluded

that “a claim of inadequate consideration of mitigating factors does not

raise   a substantial question for    our    review.”    Disalvo, 70       A.3d at



1
  This Court also has distinguished arguments that the sentencing court
failed to consider statutory factors from contentions that the sentencing
court failed to consider facts of record. The Court has concluded that the
former raises a substantial question and the latter does not.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(“[A]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas
a statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721, has been rejected.”)
(quoting Dodge, 77 A.3d at 1272 n.8).

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903 (emphasis added) (quoting Commonwealth v. Downing, 990 A.2d

788, 794 (Pa. Super. 2010)).

      Here, Appellant seems to claim that his sentence is excessive because

the trial court failed to consider adequately certain mitigating factors. Thus,

consistent with this Court’s recent precedent, I too conclude that Appellant’s

claim fails to raise a substantial question worthy of appellate review.

      I also will briefly address Appellant’s sufficiency-of-the-evidence claim.

In my view, the Commonwealth only narrowly presented enough evidence to

meet its burden of proving Appellant guilty of second-degree murder. More

generally, I share the reservations regarding the validity of the felony-

murder rule that our Supreme artfully expressed in Com. ex rel. Smith v.

Myers, 261 A.2d 550 (Pa. 1970). The Court explained, in part, as follows.

            The common law felony-murder rule as thus explicated has
      been subjected to some harsh criticism, most of it thoroughly
      warranted.      It has been said to be ‘highly punitive and
      objectionable as imposing the consequences of murder upon a
      death wholly unintended.’ ‘An effect wholly unexpected and
      unconnected with the intention and act of the party, except by
      accident * * * (is) made the foundation of criminal
      responsibility.’ [Commonwealth v. Redline, 137 A.2d 472,
      476 (Pa. 1958),] related that ‘a widely accepted and quite
      plausible explanation of the origin of the doctrine is that at early
      common law many crimes, including practically all, if not all,
      felonies were punishable by death so that it was of no particular
      moment whether the condemned was hanged for the initial
      felony or for the death accidentally resulting [from] the felony.’
      With a history like that it is hardly surprising that the rule has
      evoked bitter comment referring to it as ‘a hold-over from the
      days of our barbarian Anglo-Saxon ancestors of pre-Norman
      days, [having] very little right to existence in modern society.’




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           A more temperate commentator suggests that the rule
     should be modified, so that a killing committed during the
     perpetration of a felony would create merely a [r]ebuttable
     presumption of intention, rather than the [c]onclusive
     presumption now created. Other opponents of the felony-
     murder rule point out that it is hardly an essential weapon in the
     Commonwealth’s arsenal. Our neighboring state of Ohio has
     managed quite well without a felony-murder rule since
     abolishing it over a century ago.

            In fact, not only is the felony-murder rule non-essential,
     but it is very doubtful that it has the deterrent effect its
     proponents assert. On the contrary, it appears that juries rebel
     against convictions, adopting a homemade rule against
     fortuities, where a conviction must result in life imprisonment. If
     added deterrence is desired, the felony-murder rule is not the
     right approach. The situation was well-analyzed many years
     ago:     ‘To punish as a murderer, every man who, while
     committing a heinous offence, causes death by pure
     misadventure, is a course which evidently adds nothing to the
     security of human life. * * * The only good effect which such
     punishment can produce will be to deter people from committing
     any of these offences which turn into murders what are in
     themselves mere accidents. It is in fact an addition made in the
     very worst way. * * * If the punishment for stealing from the
     person be too light, let it be increased, and let the increase fall
     alike on all the offenders! Surely the worst mode of increasing
     the punishment of an offence is to provide that, besides the
     ordinary punishment, every offender shall run an exceedingly
     small risk of being hanged.’ To similar effect, Justice Oliver
     Wendell Holmes, in The Common Law, argued that the wise
     policy is not to punish the fortuity, but rather to impose severe
     penalties on those types of criminal activity which experience
     has demonstrated carry a high degree of risk to human life….

Myers, 261 A.2d at 553-54 (footnotes omitted).

     Here, Appellant was convicted of second degree murder because his

co-conspirator suddenly shot and killed the proprietor of the establishment

they had conspired to rob. Although Appellant clearly did not intend to kill




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the victim, under the felony-murder rule, he is guilty of second degree

murder.




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