J-S34043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

SCOTT RAYMOND KUNKLE

                           Appellant                   No. 1722 MDA 2014


     Appeal from the Judgment of Sentence entered August 25, 2014
            In the Court of Common Pleas of Bradford County
            Criminal Division at No: CP-08-CR-0000719-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED SEPTEMBER 11, 2015

     Appellant Scott Raymond Kunkle appeals from the judgment of

sentence entered in the Court of Common Pleas of Bradford County (“trial

court”), following his guilty plea to involuntary manslaughter. Upon review,

we affirm.

     The     facts   and   procedural   history   underlying   this   appeal   are

uncontested. On August 26, 2013, Appellant was charged, inter alia, with

involuntary manslaughter in connection with the death of his wife.             The

affidavit of probable cause accompanying the complaint reveals in part that

Appellant and the victim had an argument that turned violent. Specifically,

Appellant and the victim had been taking bath salts for a couple of days.

When they ran out of the bath salts, the victim wanted Appellant to

replenish them.      Appellant, however, refused, because he did not want to
J-S34043-15



take any more bath salts. A fight ensued, during which, at some point, the

victim attempted to bite Appellant’s left middle finger, which she had in her

mouth. To free his finger, Appellant “slammed [the victim’s] head against

the wall” using his forearm.1 Affidavit of Probable Cause, 8/26/13, at 2.

       Following the trial court’s denial of his omnibus pretrial motion,

Appellant pled guilty to involuntary manslaughter on June 9, 2014. At the

plea hearing, Appellant admitted the foregoing facts. Appellant particularly

admitted he slammed the victim’s head against the wall.            See N.T. Trial,

6/9/14, at 6-7. On August 25, 2014, the trial court sentenced Appellant to

12 to 60 months’ imprisonment.             Appellant filed a post-sentence motion,

challenging the discretionary aspects of his sentence.          Following the trial



____________________________________________


1
  In an interview with the police following the victim’s death, Appellant
recounted:

       [The victim] bit me. And right, right there are teeth marks. And
       right there, she tried to bite my fucking finger off. And that was
       after I got at the top of the steps, cause she tried to push me,
       grabbed the bannister, I pushed her back, she threw the beer
       bottle hit me with the beer bottle and I climbed around the beer
       bottle and she grabbed my hand and stuck it in her fucking
       mouth and bit. And I bounced her head of [sic] the wall a
       couple of times because she tried to bite my finger off. And
       there was just bop, bop, bop. And she dropped down and she
       grabbed me, I kicked at her [in her stomach], and I went into
       the other room.

                                       ***

       I hit the wall pretty hard.

Appellant’s Interview with Pennsylvania State Police, 7/14/13, at 11, 16.



                                           -2-
J-S34043-15



court’s denial of his post-sentence motion, Appellant timely appealed to this

Court.

       On appeal, Appellant argues only that the trial court abused its

discretion in failing to consider “significant facts and circumstances favorable

to the defense,” Appellant’s Amended Brief at 11,          when it imposed a

statutory maximum sentence of 60 months’ imprisonment.2

       When reviewing a challenge to the trial court’s discretion, our standard

of review is as follows:

       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. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial
       court will not be found to have abused its discretion unless the
       record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-
       will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002), appeal denied, 64 A.3d 630 (Pa. 2013)).

       “Initially, we note that when a defendant enters a guilty plea, he or

she waives all defects and defenses except those concerning the validity of

the plea, the jurisdiction of the trial court, and the legality of the sentence

imposed.”     Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.
____________________________________________


2
  To the extent Appellant challenges the trial court’s remark at sentencing
that he rejected his family’s support in the past, such a challenge is waived,
because Appellant did not raise it before the trial court. See Pa.R.A.P.
302(a). In any event, even if this challenge were not waived, Appellant fails
to explain its relevance to the issue on appeal.



                                           -3-
J-S34043-15



2012) (citation omitted). “Our law presumes that a defendant who enters a

guilty plea was aware of what he was doing. He bears the burden of proving

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011) (citation omitted).        “However, when the plea agreement is open,

containing no bargained for or stated term of sentence, the defendant will

not be precluded from appealing the discretionary aspects of h[is]

sentence.”3 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super.

1999) (citation omitted).

       It is well-settled that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.”         Commonwealth v. Dunphy, 20 A.3d 1215,

1220 (Pa. Super. 2011).             Rather, where an appellant challenges the

discretionary aspects of a sentence, an appellant’s appeal should be

considered as a petition for allowance of appeal.         Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).                As we stated in

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:
          [W]e 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
____________________________________________


3
  The record in this case reveals that Appellant entered into open guilty
pleas.



                                           -4-
J-S34043-15


          (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.     See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.4           We, therefore, must determine only if

Appellant’s sentencing issue raises a substantial question.

       We have found that a substantial question exists “when the appellant

advances a colorable argument that the sentencing judge’s actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”     Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super.

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009).           This

Court does not accept bald assertions of sentencing errors.                 See

____________________________________________


4
  Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



                                           -5-
J-S34043-15



Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying

the appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory   provisions   and   pronouncements   of   conclusions   of   law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted).

      Nonetheless, “[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.” Commonwealth v. Disalvo, 70 A.3d

900, 903 (Pa. Super. 2013) (citations omitted); see also Commonwealth

v. Berry, 785 A.2d 994, 996 (Pa. Super. 2001) (explaining allegation that

sentencing court failed to consider a certain sentencing factor generally does

not raise a substantial question); see also Commonwealth v. Cruz-

Centeno, 668 A.2d 536, 545 (Pa. Super. 1995) (“[a]n allegation that a

sentencing [judge] ‘failed to consider’ or ‘did not adequately consider’

certain factors does not raise a substantial question that the sentence was

inappropriate,”), appeal denied, 676 A.2d 1195 (Pa. 1996); see also

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)

                                    -6-
J-S34043-15



(finding absence of substantial question where appellant argued the trial

court failed to adequately consider mitigating factors and to impose an

individualized sentence).

      Here, as revealed by Appellant’s Rule 2119(f) statement, he argues

only that the trial court failed to consider certain factors when it fashioned

the sentence. Specifically, Appellant’s Rule 2119(f) statement states:

      It is the contention of [Appellant] that in giving him the
      maximum sentence statutorily permitted by law the [trial] court
      failed to adequately consider all relevant sentencing
      factors. It ignored the nature and circumstances of the offense
      of [sic] wit: [Appellant] was attempting to act in self-defense,
      twice the victim tried to push [Appellant] down a flight of stairs;
      and when [Appellant] slammed the victim against the wall,
      causing her death, the victim held a beer bottle raised high,
      seeking to strike [Appellant] over the head with it, and she was
      also biting a finger of [Appellant] and would not let go. The
      [trial court] also disregarded the fact that [Appellant] had a zero
      prior record score.


Appellant’s Amended Brief at 3 (emphasis added). Thus, given the nature of

his Rule 2119(f) statement, we cannot conclude he has raised a substantial

question. See Disalvo, Berry, Cruz-Centeno, and Bershad, supra. We,

therefore, deny Appellant’s petition for allowance of appeal.




                                     -7-
J-S34043-15



     Judgment of sentence affirmed.

     Judge Bowes joins the memorandum.

     Judge Ott concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2015




                                    -8-
