J-A31029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

JASON J. DOMINICK

                             Appellant                No. 60 MDA 2015


             Appeal from the Judgment of Sentence August 1, 2014
              In the Court of Common Pleas of Lackawanna County
               Criminal Division at No(s): CP-35-CR-0002273-2013


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

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 05, 2016

        Jason J. Dominick appeals from the judgment of sentence imposed by

the Court of Common Pleas of Lackawanna County after a jury convicted him

of third-degree murder1 and conspiracy2 to commit third-degree murder.

After careful review, we affirm.

        The underlying facts of this case are as follows.   On July 27, 2013,

Scranton police officers discovered a Jeep Liberty at the bottom of a ravine

near Roaring Brook Step Falls, approximately .72 miles east of the University

of Scranton tennis courts. Tire marks at the top of the embankment were

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 903.
J-A31029-15



consistent with high acceleration, indicating the Jeep had been forced over

the embankment at a high rate of speed. A deceased male, later identified

as Frank Bonacci, was found slumped over the center console with a single

wound to the back of the head from a “wadcutter type bullet” from “a .38

special.”   N.T. Trial, 5/2/14, at 89-91.        A large rock was wedged on the

vehicle’s gas pedal.

       Subsequent investigation revealed that Dominick and Bonacci were

rivals for the affections of Keri Tucker, with whom Dominick had a

tempestuous relationship.

       On July 19, 2013, beginning at 3:00 p.m., Dominick’s best friend, Neil

Pal, hosted a party at which Dominick drank alcohol and took the drug

ecstasy. Bonacci arrived at the party at approximately 2:30 a.m. By 6:00

a.m. Dominick, Pal, Bonacci and Brandon Emily were on the rear deck of

Pal’s house. Emily was waiting for his roommate to pick him up, when Pal

said that he and Dominick were going to take Bonacci home in Bonacci’s

Jeep. At 6:50 a.m., Emily saw Dominick, Bonacci and Pal leave the deck and

walk toward the alley where the Jeep was parked.3

       Emily heard the Jeep start and travel down the alley to Linden Street.

At 6:51 a.m., a University of Scranton surveillance camera filmed Bonacci’s
____________________________________________


3
  At trial, Dominick testified that all times relevant to this case, Pal was in
the driver’s seat of the Jeep, Bonacci was in the front passenger’s seat and
Dominick was in the rear passenger’s seat behind Bonacci. See N.T. Trial,
5/6/14, at 245-46.



                                           -2-
J-A31029-15



vehicle as it crossed nearby railroad tracks and approached the access road

for Step Falls.

        At 7:18 a.m., Pal called his friend Maribeth Cataldi, and asked her to

pick him and Dominick up on the berm of Route 81 South in the vicinity of

Step Falls.

        Dominick and Pal were interviewed by police on July 23, 2013, and

immediately afterward participated in searches for Bonacci that his family

and friends organized.

        Police later determined that the bullet that killed Bonacci was fired

from a .38 owned by Pal. At trial, Dominick’s fellow inmate at the Monroe

County Prison testified that Dominick admitted shooting Bonacci with a gun

that Pal provided to him, and confessed that he and Pal then “put a rock on

the gas pedal and drove the car over a cliff.” N.T. Trial, 5/2/14, at 169-71.

        On March 10, 2014, a jury found Dominick not guilty of first-degree

murder and conspiracy to commit first-degree murder.       However, the jury

convicted him of third-degree murder and conspiracy to commit third-degree

murder.

        On August 1, 2014, the trial court imposed two consecutive sentences

of twenty to forty years’ incarceration, for an aggregate sentence of forty to

eighty years.     Dominick filed post-sentence motions and a motion for

reconsideration of sentence, both of which the court denied on December 5,

2014.




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      This timely appeal followed in which Dominick raises the following

issues for our review.

      1. Whether the trial court erred in failing to find that criminal
         conspiracy to commit third-degree murder is not a cognizable
         offense in the [Commonwealth] of Pennsylvania.

      2. Whether the trial court erred in determining that the
         Commonwealth had not violated discovery rules and the
         holding of Brady v. Maryland, 373 U.S. 83 (1963), by
         delivering a supplemental gunshot residue report to the
         defense after trial and in neglecting to produce any report
         from a blood stain expert consulted by the Commonwealth.

      3. Whether the verdict was against the sufficiency of the
         evidence.

      4. Whether the verdict was against the weight of the evidence.

      5. Whether the trial court abused its discretion by sentencing
         [Dominick] to the maximum penalty allowable by law.

Appellant’s Brief, at 5.

      Prior to trial, and subsequently in a post-sentence motion, Dominick

asserted that conspiracy to commit third-degree murder is not a cognizable

offense in Pennsylvania. He raises the issue again before this Court.

      In Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013), our Supreme

rejected this position, noting:

      The absence of intent to kill does not preclude a defendant from
      being convicted of conspiracy to commit third degree murder.
      Absence of specific intent is not an element of third degree
      murder; the third degree murder statute does not list elements
      or specify a requisite mens rea, but rather categorizes this
      degree of homicide as “[a]ll other kinds of murder” not falling
      within the definition of first or second degree murder. 18
      Pa.C.S. § 2502(c).

                                     ...

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J-A31029-15


      If a defendant acts with his co-conspirators in brutally attacking
      the victim with the intention of killing him, he conspires to
      commit first degree murder; if the defendant performs the same
      action but does not care whether the victim dies or not, he
      conspires to commit third degree murder. In the latter example,
      the defendant did not . . . intend to aid an unintentional murder;
      rather, he intended to aid a malicious act resulting in a killing.
      Malice is not the absence of any intent, just the specific intent to
      kill. Where, as here, the defendant intends the underlying act . .
      . which results in death, the evidence supports the charge of
      conspiracy to commit third degree murder.

Fisher, supra at 1195.

      In light of the dissenting opinion in Fisher, which concludes that

conspiracy to commit third-degree murder is not a cognizable offense, and

pre-Fisher decisions by this Court that reached the same conclusion,

Dominick “asks this Court to re-examine this issue.” Appellant’s Brief, at 10.

“It is beyond peradventure that the Superior Court must follow [the

Supreme] Court’s mandates, and it generally lacks authority to determine

that [the Supreme] Court’s decisions are no longer controlling.”          Walnut

Street Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480

(Pa. 2011). Accordingly, we decline the opportunity to review the issue and

determine that the trial court properly concluded that conspiracy to commit

third-degree murder is a cognizable offense.

      Dominick next argues that the trial court erred when it found that the

Commonwealth did not violate the discovery rules and Brady with respect to

the production of expert reports.

      Pa.R.Crim.P.   573(B)(1)(e)     provides,   in   relevant   part,    “[t]he

Commonwealth shall disclose to the defendant’s attorney . . . any results or


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reports of scientific tests [or] expert opinions . . . that are within the

possession or control of the attorney for the Commonwealth.” “If, prior to or

during trial, either party discovers additional evidence or material previously

requested . . . such party shall promptly notify the opposing party of the

court of the additional evidence, material or witness.” Pa.R.Crim.P. 573(D).

      On April 11, 2014, defense firearms safety and training expert,

Emanuel Kapelsohn, Esquire, prepared a report in which he concluded, “it is

my opinion that the fatal shot could possibly have been fired from either the

driver’s seat or the rear right-side passenger seat, but would more easily

have been fired from the driver’s seat.” Kapelsohn Report, 4/11/14, at 6.

Furthermore, the report discussed gunshot residue (GSR) testing, stating, “I

would strenuously request that properly-directed GSR testing be performed

by [an] independent forensic laboratory facility, such as RJ Lee Group in

Monroeville, Pennsylvania, before this case proceeds to trial.” Id. at 5.

      Based on Kapelsohn’s request, the Commonwealth arranged for the RJ

Lee Group to perform several tests on the front passenger seat cover. The

Commonwealth paid for the testing, and on April 22, 2014, the RJ Lee Group

forwarded to the Commonwealth a report that stated, “it can be concluded

that the reactions on the seat cover are consistent with reactions observed

on a surface that was in the vicinity of a firearm discharge.” RJ Lee Group

Report, 4/22/14, at 5.     As the trial court noted, the report “offered no

opinions as to the directionality of the discharge or the location of the




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J-A31029-15



shooter.”    Trial Court Memorandum, 12/5/14, at 20.       The Commonwealth

provided a copy of the report to the defense upon receipt.

      Trial began on April 28, 2014. The Commonwealth rested its case on

May 6, 2014.     The defense opened its case-in-chief on May 6, 2014, and

rested on May 7, 2014. “Immediately prior to Kapelsohn’s testimony on May

7, 2014, Kapelsohn spoke with the RJ Lee Group scientists regarding their

testing and conclusions.     RJ Lee Group did not advise Kapelsohn of any

anticipated revision to its report of April 22, 2014.” Id. (citations omitted).

      However, in a report dated May 7, 2014, but signed by the forensic

experts on June 3 and 5, 2014, the RJ Lee Group revised its observation

with respect to the positive reaction for nitrates on the back of the seat

cover. The April 22, 2014 report states, “[t]he positive reaction observed on

the back of the seat cover was located in the upper right corner (near the

passenger window if looking at the back of the seat cover from the back of

the car).”    RJ Lee Group Report, 4/22/14, at 4 (emphasis added).            In

contrast, the revised report states, “[t]he positive reaction observed on the

back of the seat cover was located in the upper left corner (closer to the

middle edge of the seat if looking at the back of the seat cover from the

back of the car).” RJ Lee Group Report, 5/7/14, at 4 (emphasis added).

      The RJ Lee Group did not notify the Commonwealth that it was going

to issue a revised report.     The revised report was not delivered to the

Commonwealth until June 10, 2014, which was thirty-one days after the jury

reached its verdict.    The Commonwealth provided the revised report to

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J-A31029-15



Dominick on July 30, 2014, thus allowing Dominick to include it in his post-

sentence motions.

      We agree with the trial court that because the Commonwealth was

unaware of the revised report until 31 days after the verdict, the

Commonwealth could not have violated Rule 573(B) or 573(D).         For the

same reason, Dominick’s assertion of a Brady violation must fail.

      In order to establish a Brady violation, a defendant must show
      that: (1) evidence was suppressed by the state, either willfully
      or inadvertently; (2) the evidence was favorable to the
      defendant, either because it was exculpatory or because it could
      have been used for impeachment; and (3) the evidence was
      material, in that its omission resulted in prejudice to the
      defendant.

Commonwealth v. Willis, 46 A.3d 648, 656 (Pa. 2012).

      Because the Commonwealth did not have the revised report, it could

not have suppressed it either willfully or inadvertently, and thus no Brady

violation occurred.

      Dominick next asserts that the Commonwealth violated the rules of

criminal procedure and Brady by failing to provide an expert report or

opinion from blood-stain analyst Paul Kish.

      At trial, Detectives Joseph Castellano, Dennis Lukasewicz and Michael

Fueshko testified that they provided police reports and investigative

materials to Kish, whose office is in Corning, New York. However, Kish did

not prepare a report or opinion. Rather, prior to trial, the Commonwealth

decided to have Detective Fueshko, the lead crime scene investigator on the



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J-A31029-15



case, and an expert in blood pattern and stain analysis, render an expert

opinion.

      Detectives Lukasewicz and Fueshko testified that law enforcement had

no contact with Kish after delivering the materials to him. Furthermore, the

investigators’ interaction with Kish was documented in reports that the

Commonwealth provided to Dominick.

      Dominick argues that “it is simply unbelievable that several detectives

would transport materials to an out of state expert, but not one of those

detectives, or any member of the prosecution, had any sort of subsequent

contact with that expert in any form.” Appellant’s Brief, at 21.

      Ultimately, the trial court concluded, “Dominick has not demonstrated

that the Commonwealth withheld any information that was provided by Mr.

Kish, nor that any such blood stain evidence was favorable to the defense.”

Trial Court Memorandum, 12/5/14, at 25. Our review of the record indicates

that the trial court did not err or abuse its discretion in reaching this

conclusion. Accordingly, Dominick is not entitled to relief on his claim that

the Commonwealth violated Pa.R.Crim.P. 573(B)(1)(e) or committed a

Brady violation with respect to an expert opinion or report by Kish.

      Dominick next claims that the Commonwealth presented insufficient

evidence to support his convictions for third-degree murder and conspiracy.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying [the above] test,

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J-A31029-15


     we may not weigh the evidence and substitute our judgment for
     the fact-finder.    In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] of fact while passing upon the credibility of witnesses
     and the weight of the evidence produced, is free to believe all,
     part or none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa. Super. 2014) (citations

omitted).

     With respect to the crime of third-degree murder, our Supreme Court

has stated:

     Section 2502 of the Crimes Code defines the three degrees of
     murder. This section sets forth the mens rea for first degree
     murder, see 18 Pa.C.S. § 2502(a) (an intentional killing), and
     defines second degree murder as that occurring during the
     perpetration of a felony. See id., § 2502 (b). Regarding third
     degree murder, however, the statute simply states, “All other
     kinds of murder shall be murder of the third degree.” Id., §
     2502 (c). Importantly, § 2502(c) does not set forth the requisite
     mens rea for third degree murder; however, § 302(c) of the
     Crimes Code provides, “When the culpability sufficient to
     establish a material element of an offense is not prescribed by
     law, such element is established if a person acts intentionally,
     knowingly or recklessly with respect thereto.” Id., § 302(c)
     (emphasis added).

     Case law has further defined the elements of third degree
     murder, holding:

        [T]o convict a defendant of the offense of third[ ]degree
        murder, the Commonwealth need only prove that the
        defendant killed another person with malice aforethought.

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J-A31029-15


         This Court has long held that malice comprehends not only
         a particular ill-will, but . . . [also a] wickedness of
         disposition,  hardness     of   heart,  recklessness   of
         consequences, and a mind regardless of social duty,
         although a particular person may not be intended to be
         injured.

      Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005)
      (alteration in original) (internal citation, quotation, and emphasis
      omitted); see also Commonwealth v. Drum, 58 Pa. 9, 15
      (1868) (defining malice as quoted above).

Fisher, supra at 1191.

      Dominick argues that the evidence at trial was insufficient to establish

that he shot and killed Bonacci.      He notes that his expert, Kapelsohn,

concluded “the fatal shot could possibly have been fired from either the

driver’s seat or the rear right-side passenger’s seat, but would more easily

have been fired from the driver’s seat.       This is especially so given that

Dominick is right-hand dominant, and is reportedly not an experienced or

trained shooter.” Kapelsohn Report, 4/11/14, at 6. Based on Kapelsohn’s

conclusion, Dominick suggests “the more likely scenario is that [Pal] shot the

victim.” Appellant’s Brief, at 25.

      However, at trial, Detective Fueshko testified that the shot had to have

been fired from the back seat of the vehicle based on several factors,

including the void pattern in the blood on the center console and the

passenger seat. N.T. Trial, 5/5/14, 202-03. Dr. Wayne Ross, an expert in

biomechanics, kinematics, blood stain analysis and forensic pathology also

testified for the Commonwealth.      He concluded that based on the blood

stains, Bonacci was seated in the passenger seat, facing forward, with his


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arm resting on the center console when he was shot. Id. at 243-67. He

also testified that the shot had to have been fired by the back seat

passenger.    Id. at 257.   Dominick admitted that he was the back seat

passenger. N.T. Trial, 5/6/14, at 246.

     The Commonwealth also presented evidence regarding Dominick’s

hatred of Bonacci, who dated Keri Tucker while she and Dominick were not

together. The evidence included a text message from Dominick to Pal sent

two months before the murder, stating, “just so you know Neil, I’m cool with

your boy Frank [Bonacci], but if he ever gets cocky around me I’ll just snuff

him.” N.T. Trial, 5/1/14, at 262.

     The jury also heard testimony that Bonacci and Dominick had a verbal

altercation over Tucker at a sports bar during the early morning hours of

June 8, 2013, less than six weeks before the murder. Id. at 263. At that

time, Dominick unsuccessfully attempted to fight Bonacci by trying to

convince him to meet at Step Falls, an area close to where Bonacci’s body

was found. Id. at 263-66.

     Anthony Rusielewicz, who was an inmate at the Monroe County

Correctional Facility with Dominick, testified that Dominick confided details

about the murder to him. Dominick told him that he shot the victim with a

gun that “the Indian kid” (Pal) provided to him. After the killing, they put a

rock on the gas pedal and drove the Jeep over a cliff. N.T. Trial, 5/2/14, at

163-71.




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      Viewed in the light most favorable to the Commonwealth as verdict

winner, see Best, supra, the trial court properly concluded that the

Commonwealth established that Dominick killed Bonacci and did so with

malice. See Fisher, supra.

      Dominick also challenges the sufficiency of the evidence to support his

conviction for conspiracy to commit third-degree murder. A person is guilty

of conspiracy to commit a crime if, with the intent of promoting or

facilitating its commission, he agrees with another person that they will

engage in conduct that constitutes such crime. 18 Pa.C.S. § 903(a)(1).

      Dominick’s sole argument is that the Commonwealth did not establish

beyond a reasonable doubt that he shot and killed Bonacci.      Because the

Commonwealth failed to establish the existence of an underlying crime, he

reasons there could be no conspiracy. However, we have determined that

the trial court properly held that his conviction for third-degree murder is

supported by the record. As the trial court noted, “the evidence presented

at trial sufficiently demonstrated that Dominick agreed with Pal to kill

Bonacci, while acting with a shared criminal intent, and committed an overt

act in furtherance of that crime by shooting Bonacci.”           Trial Court

Memorandum, 12/5/14, at 41. Accordingly, no relief is due on this claim.

      Dominick next asserts that the verdict was against the weight of the

evidence.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

set forth the following standard of review for such claims:

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      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court’s decision has record support.
      Where the record adequately supports the trial court, the trial
      court has acted within the limits of its discretion.

                                      ...

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the
      role of the trial judge is to determine that notwithstanding all the
      facts, certain facts are so clearly of greater weight that to ignore
      them or to give them equal weight with all the facts is to deny
      justice.

                                      ...

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court. Appellate review of a weight
      claim is a review of the exercise of discretion, not of the
      underlying question of whether the verdict is against the weight
      of the evidence. Because the trial judge has had the opportunity
      to hear and see the evidence presented, an appellate court will
      give the gravest consideration to the findings and reasons
      advanced by the trial judge when reviewing a trial court’s
      determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Id. at 1054-55 (citations and quotations omitted).

      Our review of the record leads us to conclude that the trial court did

not abuse its discretion when it determined that “[t]he evidence of

Dominick’s guilt was not so attenuated and ambiguous that the jury verdict

shocked the conscience of the court.” Trial Court Memorandum, 12/5/14, at

43.


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         As noted by the trial court:

         [T]he direct and circumstantial evidence established that
         Dominick shot and killed Bonacci with malice and conspired with
         Pal to commit that criminal act. Based upon the evidence of
         Dominick’s drugged and intoxicated condition and fragile
         emotional state, there was an evidentiary basis for the jury to
         conclude that Dominick was incapable of forming the specific
         intent to kill, and to find him not guilty of first-degree murder
         but guilty of third degree murder and conspiracy to commit that
         offense.

Id.

         The trial court thoroughly reviewed the testimony of the lay and expert

witnesses, and concluded that Dominick’s version of the shooting was not

“so clearly of greater weight,” see Clay, supra, than was the proof of his

guilt.     As the trial court did not abuse its discretion in reaching this

conclusion, Dominick is not entitled to relief.

         Dominick’s final claim is that the trial court’s imposition of sentences

totaling forty to eighty years’ incarceration was manifestly unreasonable,

and therefore an abuse of discretion. As such, he challenges a discretionary

aspect of his sentence.

         To reach the merits of a discretionary sentencing issue, an appellate

court must 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.



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Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

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

2011)).

       Here, Dominick filed a timely notice of appeal and preserved the

sentencing issue in his motion for reconsideration. In his brief to this Court,

he included a statement of reasons relied upon regarding the discretionary

aspect of sentence, as required by Pa.R.A.P. 2119(f).

       A substantial question exists “only when the appellant advances a

colorable argument that the sentencing judge’s actions were either:                (1)

inconsistent with a specific provision in the Sentencing Code; or (2) contrary

to   the    fundamental   norms       which   underlie   the    sentencing   process.”

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999) (en

banc).

       “When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant.                    In

particular, the court should refer to the defendant’s prior criminal record, his

age,     personal   characteristics     and   his   potential    for   rehabilitation.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (citations

omitted).

       Dominick argues that the imposition of consecutive sentences is

excessive, especially in light of the fact that the sentences for each offense

were the maximum allowable by law. He further asserts that the trial court

acted unreasonably by failing to consider the following factors:

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      [Dominick] had a prior record score of zero at the time of
      sentencing, is a very young man with a strong family support
      system, was under the influence of alcohol and mind altering
      substances at the time of the incident, was experiencing a
      mental health breakdown at the time of the incident and
      demonstrated      appropriate    remorse   and   acceptance    of
      responsibility at the time of sentencing. Evidence of his remorse
      and character was presented through trial counsel, family
      members who spoke on his behalf, and through [Dominick]
      himself, who addressed the court.”

Appellants’ Brief, at 30-31.

      In reviewing the factors considered when determining sentence, the

court stated that the victim was essentially defenseless at the time of the

murder, having been taken to a strange place while intoxicated.              N.T.

Sentencing Hearing, 8/1/14, at 47. The court noted that immediately after

the murder, Dominick exhibited seemingly normal behavior, appearing calm,

joking, going out to breakfast with friends, and later in the day sending

playful text messages to Tucker. Id. at 47-50. The court found that such

actions were not those of “someone who is racked with guilt or filled with

remorse.” Id. at 50. Lack of remorse has long been a legitimate sentencing

factor in Pennsylvania. Commonwealth v. Ellis, 700 A.2d 948, 959 (Pa.

Super. 1997).

      The trial court also properly weighed Dominick’s criminal background

as a sentencing factor.    In 2012, he was charged with theft by unlawful

taking of movable property. He pled guilty and was on probation at the time

of the murder. As probation was not a deterrent in the past, the court had a

proper basis for concluding that a lesser sentence would not be effective.



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       A sentencing court “generally has discretion to impose multiple

sentences concurrently or consecutively, and a challenge to the exercise of

that   discretion   does   not   ordinarily   raise   a   substantial   question.”

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

imposition of consecutive, rather than concurrent sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of the punishment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa. Super. 2012).

       In support of the imposition of consecutive sentences, the trial court

noted the following factors: the nature of the crimes; Dominick’s character

and background; and the fact that the sentence was within the standard

range of the guidelines. Trial Court Memorandum, 12/5/14, at 48.

       Because Dominick has failed to raise a substantial question with regard

to the discretionary aspect of his sentence, no relief is due.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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