J-S22012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGELINA JAY TATEM                         :
                                               :
                       Appellant               :   No. 1855 MDA 2019

        Appeal from the Judgment of Sentence Entered October 9, 2019
     In the Court of Common Pleas of Wyoming County Criminal Division at
                       No(s): CP-66-CR-0000052-2019


BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.:                                   FILED MAY 22, 2020

        Appellant, Angelina Jay Tatem, appeals from the judgment of sentence

entered on October 9, 2019, as made final by the denial of her post-sentence

motion on October 22, 2019, following her guilty plea to drug delivery

resulting in death.1 We affirm.

        The trial court accurately summarized the relevant factual and

procedural history of this case as follows.

        On or about March 14, 2018, [police authorities filed a criminal
        complaint against Appellant for possession of a controlled
        substance and possession of drug paraphernalia.] According to
        the affidavit of probable cause, in February [] 2018[, the
        Tunkhannock Borough Police received] numerous complaints . . .
        from neighbors of a residence located [along] Maple Avenue in
        Tunkhannock     Borough,   Wyoming     County,     Pennsylvania
        (hereafter[,] “the residence”)[. Specifically, the neighbors
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2506(a).
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     complained] of suspicious activity . . . consisting of numerous
     different vehicles frequenting the residence, entering the same,
     staying for a minute then leaving, all at extremely late hours. At
     that time, the residence was occupied by Levi McDermott
     (hereafter[,] “McDermott”) and his girlfriend, [Appellant]. The
     affidavit of probable cause [also stated] that in March [] 2018,
     subsequent investigation revealed the existence of a bench
     warrant for [Appellant] by Luzerne County Court of Common Pleas
     for her failure to appear relative to numerous violations of the
     Controlled Substance, Drug, Device and Cosmetic Act. On March
     14, 2018, the Tunkhannock Borough Police Department, together
     with the affiant of the affidavit of probable cause, attempted to
     execute arrest warrants for McDermott and [Appellant] at the
     residence. Upon arrival, the second-floor lights were observed to
     be on and there was fresh snow on the ground, which revealed no
     [footprints], indicating that [no one had recently departed] the
     residence. The officers repeatedly knocked on the residence, to
     no avail. As such, [the] Tunkhannock Borough Police Officer[s]
     remained close to the residence while the affiant prepared a
     search warrant and search warrant affidavit. A search warrant
     was [eventually] obtained[.]

                                     ***

     [Thereafter,] the affiant[,] with the assistance of Tunkhannock
     Borough Police Department again knocked on the door of the
     residence. [Receiving] no response, the affiant contacted the
     landlord, who opened the front door with a key. However, the
     occupants of the residence [] secured the door with a chain. The
     officers used a bolt cutter to obtain access [and] found [Appellant]
     located in a bedroom of the residence. [Appellant] was taken into
     custody on the bench warrant and placed in the back of a police
     cruiser while [they] executed the search warrant[.] As a result of
     the search[,] officers located numerous knives, hundreds of bags
     of heroin packets, syringes, cash, [and] various cell phones,
     among other things. Based upon the search warrant, [the police
     charged Appellant with drug-related offenses.]

     On April 4, 2018[,] following a preliminary arraignment, bail in the
     matter was set for [$10,000.00] unsecured by Magisterial District
     Judge Carl Smith, with a condition that [Appellant] refrain from
     criminal activity.     On or about December 20, 201[8], the
     Commonwealth filed a motion for bail modification which alleged
     that[,] while on bail, [Appellant] admitted to selling heroin to five
     [] people, with some of those deliveries involving Fentanyl and

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J-S22012-20


       one of those deliveries resulting in a death[.] [Appellant] did not
       deny the allegations in said motion . . . and[,] as such, [Appellant’s
       bail was reset in the amount of [$1,000,000] by court order dated
       December 20, 2018.

       [In April 2019,] another criminal information was filed against
       [Appellant] charging [her] with [multiple] offenses based upon her
       course of conduct between [] October 8, 2018 and [] December
       20, 2018. … According to the criminal information, [Appellant]
       intentionally delivered [] controlled substance[s], namely
       Fentanyl and heroin, to Samantha Delesky[, resulting in] her
       death[.] On August 1, 2019, [Appellant] entered a guilty plea
       agreement wherein she pleaded guilty to drug delivery resulting
       in death[. Appellant’s other charges were nolle prossed or
       withdrawn].

       [Appellant] was sentenced on October 9, 2019 to pay the cost of
       prosecution, pay a fine [of $5,000 and pay $5,498.95 in
       restitution. The trial court also sentenced Appellant to 90 to 240
       months’ incarceration. Appellant filed a post-sentence motion on
       October 17, 2019, which the trial court denied on October 22,
       2019. This timely appeal followed.2]

Trial Court Opinion, 12/16/19, at 1-4 (superfluous capitalization omitted)

(footnote added).

       Appellant raises the following issue on appeal:

       Did the sentencing court err in [imposing] an aggravated [range]
       sentence that is clearly unreasonable based upon the stated
       reasoning of the sentencing court?

Appellant’s Brief at 8.




____________________________________________


2 Appellant filed a notice of appeal on November 8, 2019. On November 13,
2019, the trial court entered an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 16, 2019.

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      Appellant argues that the trial court abused its discretion “when it

sentenced    [her]   to    an    [a]ggravate[d       range]   sentence”   based   upon

“insufficient” reasoning.       Id. at 13.   Specifically, Appellant claims that her

aggravated range sentence was clearly unreasonable in view of her many

expressions of remorse, her issues with opioid addiction, her tandem drug use

with the victim, and her prior record score of zero.

      Appellant’s issue implicates the discretionary aspects of sentencing. As

this Court previously explained:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of [her] sentence must invoke this
      Court's jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (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, 42
         Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

case citations omitted).

      Herein, Appellant filed a timely notice of appeal, preserved her challenge

by filing a post-sentence motion on October 17, 2019, and included a Rule

2119(f) statement in her appellate brief. Moreover, a claim alleging that the

trial court offered insufficient reasons to support the imposition of an

aggravated    range       sentence     raises    a    substantial   question.     See

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Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008), appeal

denied, 13 A.3d 474 (Pa. 2010).         Thus, Appellant met the “threshold

requirements” which enables us to exercise jurisdiction and we may “accept

the appeal and proceed to the merits.” Commonwealth v. Flowers, 149

A.3d 867, 870–872 (Pa. Super. 2016).

      Our standard of review in sentencing matters 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.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted). Additionally, our review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S.A. §§ 9781(c)

and (d). Subsection 9781(c) provides:

      The appellate court shall vacate the sentence and remand the case
      to the sentencing court with instructions if it finds:

         (1) the sentencing court purported to sentence within the
         sentencing   guidelines   but   applied  the   guidelines
         erroneously;

         (2) the sentencing court sentenced within the sentencing
         guidelines but the case involves circumstances where the
         application of the guidelines would be clearly unreasonable;
         or

         (3) the sentencing court sentenced outside the sentencing
         guidelines and the sentence is unreasonable.



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     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

     In reviewing the record, we consider:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

     Upon review of the certified record, we conclude that the trial court did

not abuse its discretion in sentencing Appellant in the aggravated range. In

imposing Appellant’s sentence, the trial court relied upon her pre-sentence

investigation (“PSI”) report. Trial Court Opinion, 12/16/19, at 5. Thus, we

may presume that the trial court “was aware of relevant information regarding

[Appellant’s] character   and weighed those      considerations along    with

mitigating statutory factors.”   Commonwealth v. Hill, 210 A.3d 1104,

1116-1117, appeal denied, 220 A.3d 1066 (Pa. 2019). In addition, during

sentencing, the trial court stated the following reason for Appellant’s

sentence:

     [Appellant] acted in careless disregard for human life and any
     lessor o[f] a sentence would depreciate the seriousness of
     [Appellant’s] actions.




                                    -6-
J-S22012-20



Sentencing Hearing, 10/9/19, at 14. Here, the record reflects that the trial

court considered Appellant’s history of involvement with narcotics,3 the impact

of her criminal activity upon the community and the life of the victim, and the

justifications for a lengthier sentence to address Appellant’s rehabilitative

needs in view of the tragic consequences of her behavior. As such, the record

supports the cogent and persuasive reasons the trial court offered for

imposing an aggravated range sentence. Accordingly, we perceive no abuse

of discretion.

       Judgement of sentence affirmed.




____________________________________________


3  It is undisputed that Appellant’s prior record score was zero. It is also
undisputed, however, that the events leading up to her guilty plea involved
significant involvement in drug-related activity. As stated above, prior to
Appellant’s arrest, preliminary investigation revealed that Luzerne County
Court of Common Pleas issued a bench warrant after she failed to appear for
“numerous violations of the Controlled Substance, Drug, Device and Cosmetic
Act.” Trial Court Opinion, 12/16/19, at 2. After Appellant’s arrest, the
Tunkhannock Borough Police Officers executed a search warrant at the
residence, which resulted in Appellant being criminally charged with
possession of a controlled substance and possession of drug paraphernalia.
Then, while Appellant was on bail, she engaged in more drug-related activity,
which included selling drugs to multiple individuals, resulting in Samantha
Delesky’s death. Accordingly, despite Appellant’s prior record score of zero,
it is clear that she has a “history of drug-related [] offenses” that caused the
trial court to impose a sentence in the aggravated range. Id. at 5.

                                           -7-
J-S22012-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/22/2020




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