J-S01030-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                              Appellee         :
                                               :
                     v.                        :
                                               :
EDDIE QUICK                                    :
                                               :
                              Appellant        :   No. 2115 EDA 2019

     Appeal from the Judgment of Sentence Entered October 17, 2017
              in the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0002718-2015

BEFORE:       BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:                    Filed: April 15, 2020

      Although I join the Majority, I do so reluctantly as to the discretionary

aspects of Quick’s sentences.          The Majority determines that the alleged

excessiveness of Quick’s consecutive sentences for robbery does not present

a substantial question. It is true that this Court has held that “[a] challenge

to the imposition of consecutive rather than concurrent sentences does not

present a substantial question regarding the discretionary aspects of

sentence.”      Commonwealth v. Zirkle, 107 A.2d 127, 133 (Pa. Super.

2014).     I must follow this proposition even though I do not agree with it.

See id. (Strassburger, J., concurring). As I explained in my concurrence in

Zirkle, our limited ability to review discretionary aspects of sentences

provides     trial   courts   with   “nearly   unfettered   discretion”   to   impose

consecutive or concurrent sentences. Id. at 134. I believe that this limited



*Retired Senior Judge assigned to the Superior Court.
J-S01030-20


review of sentencing discretion is at odds with Article V, Section 9 of the

Pennsylvania Constitution, which provides criminal defendants with “an

absolute right to appeal.”   Id. (citing Commonwealth v. Franklin, 823

A.2d 906, 908 (Pa. Super. 2003)).

      In the instant case, while I agree with the Majority that Appellant’s

robbery crimes technically do not merge for sentencing purposes, the trial

court’s decision to run the robbery sentences consecutively results in an

aggregate sentence that is more than a sentence for third-degree murder.

If the trial court had imposed the sentences concurrently, Appellant’s actions

of stealing a car at knifepoint would have resulted in a ten to twenty year

sentence.   But since the trial court imposed the sentences consecutively,

those same actions resulted in a twenty to forty year sentence. To be clear,

“carjacking,” as it is known colloquially, is a very serious crime, but in this

case, no one suffered physical injury.     Yet the law in this Commonwealth

prevents us from even considering whether the trial court exercised its

discretion appropriately in imposing a sentence that exceeds the sentence

that would be warranted for a loss of life.      This, to me, is unjust and

unconstitutional.




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