J-S28019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

BRIAN LEE SCHAFFER

                            Appellant                 No. 1198 WDA 2016


               Appeal from the Judgment of Sentence May 9, 2016
                In the Court of Common Pleas of Clearfield County
               Criminal Division at No(s): CP-17-CR-0000699-2015


BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 24, 2017

       Brian Lee Schaffer appeals from the May 9, 2016 judgment of

sentence entered in the Clearfield County Court of Common Pleas following

his convictions for possession with intent to deliver a controlled substance

(“PWID”) and involuntary manslaughter.1 We affirm.

       The evidence at trial established the following facts.     On January 2,

2015, Schaffer, Ameyanna Sanchez (“Victim”), and Kevin Mongan were at

Victim’s house, along with Victim’s son, who was upstairs in his bedroom.

N.T., 3/28/16, at 86-88, 91. Victim and Schaffer previously had been in a

relationship, but Mongan was Victim’s current boyfriend. Id. at 78, 87. The
____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 2504(a), respectively.
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three       were   at    Victim’s   house      drinking   tequila   and   consuming

methamphetamines provided by Schaffer.                    Id. at 89-90, 102.     At

approximately 3:00 a.m., Mongan and Victim had an argument, after which

Mongan left. Id. at 91-92. Victim, who suffered from a mental illness and

had attempted suicide in the past, began hearing voices.            Id. at 46. She

asked Schaffer, who was aware of her mental health history, to check the

house for people. Id.

        At some point, Schaffer and Victim got into an argument.               N.T.,

3/29/16, at 81.         During the argument, Schaffer retrieved a gun from his

truck “to scare [Victim] and to prove his point that he wasn’t lying.”          Id.

Corporal Matthew Robertson, who interviewed Schaffer, testified that in

Schaffer’s first written statement,2 he admitted that he “removed the

magazine from the weapon, put the gun to his head and sa[id], [‘]If I’m

lying, I’m dying.[’]”      Id.   Schaffer did not pull the trigger, but told Victim

“See, it didn’t go off, I’m not lying.”          Id.   Victim then asked to see the

weapon and, realizing it had no bullets, asked how to load the gun.             Id.

____________________________________________


        2
        Schaffer provided multiple oral and written statements to police.
Those statements were inconsistent in several respects, including who
brought the gun into the house, whether Schaffer gave Victim the gun or
whether Victim took the gun from him, whether he was upstairs when Victim
shot herself or whether she did it in his presence, and whether Schaffer
picked up the gun from the floor and placed it on the coffee table. N.T.,
3/29/16, at 77, 79, 85, 89-93. Due to the earlier inconsistent statements,
Corporal Robertson video-recorded the remainder of his interview of
Schaffer. Id. at 94.



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While Victim held the weapon in her hands, Schaffer loaded the gun. Id. at

82. Victim “put the gun to her head and said you think I won’t do it. She

had a stare in her eyes. She put it to her head and pulled the trigger, right

here.” Id. at 87. Schaffer then called 911. Id. at 93.

      On March 31, 2016, a jury convicted Schaffer of the aforementioned

offenses. On May 9, 2016, the trial court sentenced Schaffer to 2 to 5 years’

incarceration for involuntary manslaughter and 2 to 10 years’ incarceration

for PWID, to be served consecutively.       On May 10, 2016, Schaffer filed a

motion for reconsideration of sentence.      On July 21, 2016, the trial court

denied his motion. Schaffer timely filed a notice of appeal.

      Schaffer raises the following issue on appeal: “Whether the trial court

erred when using an element of the crime to aggravate the sentence.”

Schaffer’s Br. at vi.

      Schaffer   challenges   the   discretionary   aspects   of   his   sentence.

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011).        Before we address such a challenge, we first

determine:

         (1) whether the appeal is timely; (2) whether [a]ppellant
         preserved his issue; (3) whether [a]ppellant’s brief
         includes a concise statement of the reasons relied upon for
         allowance of appeal with respect to the discretionary
         aspects of sentence; and (4) whether the concise
         statement raises a substantial question that the sentence
         is appropriate under the [S]entencing [C]ode.



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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

      Schaffer filed a timely notice of appeal, preserved his claim in a timely

post-sentence motion, and included in his brief a concise statement of

reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f).     We must now determine whether he has

raised a substantial question that the sentence is inappropriate under the

Sentencing Code and, if so, review the merits.

      In his Rule 2119(f) statement, Schaffer argues that the sentence

imposed by the trial court was excessive and inappropriate under the

Sentencing Code because the trial court relied on elements of the crime as

aggravating factors in sentencing him outside the aggravated range of the

Sentencing Guidelines. We conclude that Schaffer has raised a substantial

question for our review.   See Commonwealth v. Dodge, 77 A.3d 1263,

1268 (Pa.Super. 2013) (finding substantial question where defendant raises

“plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process”)

(quoting Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.Super. 2012));

see also Commonwealth v. Fullin, 892 A.2d 843, 848 (Pa.Super. 2006)

(concluding appellant raised substantial question where he argued “that the

trial court improperly based [appellant’s] aggravated range sentence on a

factor that constituted an element of the offense”).


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      Schaffer contends that, in imposing a sentence outside the aggravated

range of the Sentencing Guidelines, the trial court did not state any

aggravating factors. Schaffer argues that the only factor mentioned by the

trial court during sentencing was the “death of another,” which it stated on

two occasions, and which is already an element of the crime.         Schaffer

further argues that the trial court attempted to remedy its error by relying

on the term “recklessness” in its Rule 1925(a) opinion, but that this also is

an element of the crime.

      “Sentencing is a matter vested within the discretion of the trial court

and will not    be    disturbed absent     a manifest abuse   of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010).              “An

abuse of discretion requires the trial court to have acted with manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. “A sentencing court need not

undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.” Id. at 1283.

      In determining whether the trial court relied on factors that are

already an element of the crime in imposing a non-guideline sentence, we

have explained that

         [t]he guidelines were implemented to create greater
         consistency and rationality in sentencing. The guidelines

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         accomplish the above purposes by providing a norm for
         comparison, i.e., the standard range of punishment, for
         the panoply of crimes found in the crimes code and by
         providing a scale of progressively greater punishment as
         the gravity of the offense increases . . . .

            The provision of a “norm” also strongly implies that
         deviation from the norm should be correlated with facts
         about the crime that also deviate from the norm for the
         offense, or facts relating to the offender’s character or
         criminal history that deviates from the norm and must be
         regarded as not within the guidelines contemplation. Given
         this predicate, simply indicating that an offense is a
         serious, heinous or grave offense misplaces the proper
         focus. The focus should not be upon the seriousness,
         heinousness or egregiousness of the offense generally
         speaking, but, rather, upon how the present case deviates
         from what might be regarded as a “typical” or “normal”
         case of the offense under consideration.

Fullin, 892 A.2d at 848 (quoting Commonwealth v. Walls, 846 A.2d 152,

158 (Pa.Super. 2004)).

      At sentencing, the trial court explained its reasons for sentencing

Schaffer outside the aggravated range of the Sentencing Guidelines.     The

trial court stated:

            With what happened here, the extremely high level of
         recklessness and general indifference that was exhibited
         here by [Schaffer] in going out to that vehicle and bringing
         that loaded gun back into that house and handing it to
         somebody who had not only been doing methamphetamine
         for days, probably was suffering from sleep deprivation,
         had mental health problems, had prior suicide attempts, it
         was just a guaranteed recipe for a disaster.

             I just can’t understand why a loaded handgun would be
         introduced into the middle of what was already an
         exceedingly high-risk drug addiction/mental health recipe.
         I just don’t understand it. . . .




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              You know, you’re doing these kind of hard drugs, you’re
           putting yourself at a tremendous risk for overdoses and
           problems and just in general for a disaster. And then you
           factor into it use, as they had indicated, over an extended
           period of time, you throw past suicide attempts into it, you
           throw mental health problems into it, there’s a gigantic
           level of instability; and then you take a loaded gun and
           throw that in the middle of it, and the gentleman’s actions
           in taking that gun and purportedly holding it up to his
           head, where he knew it wasn’t going to go off, that’s
           certainly what appeared to me, and then handing it to her,
           I absolutely cannot understand it.

N.T., 5/2/16, at 4-6. Further, the trial court stated on the record that it was

aware that it was sentencing Schaffer outside the aggravated range of the

Sentencing Guidelines, but that after considering all of the facts in this case,

as well as the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and the community, and Schaffer’s

rehabilitative needs, it did not consider the Sentencing Guidelines to be

appropriate given the atypical nature of the crime.         Id. at 5; Opinion,

10/21/16, at 4.

       Moreover, the trial court

           had the benefit of a pre-sentence          investigation   in
           determining an appropriate sentence.[3]

                                           ...
____________________________________________


       3
         “Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).



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         [T]he Court indicated clearly its reasons for sentencing
         outside the guidelines, namely the high level of
         recklessness that made this case atypical and which did
         not include the death of another.

                                     ...

         [T]he Court maintains that the reasons for imposing the
         aforementioned sentence upon [Schaffer] were consistent
         with the protection of the public, the gravity of the offense
         as it related to the impact on the life of the victim and the
         community, and the rehabilitative needs of [Schaffer].
         Further, based on the extreme recklessness exhibited in
         this case, as previously mentioned, this Court believes that
         the sentence imposed was appropriate given the atypical
         circumstances of the case.

Opinion, 10/21/16, at 3-4.

      Contrary to Schaffer’s claim, the trial court did not merely focus on the

“death of another” and the “recklessness” of Schaffer’s actions; rather, it

properly considered all of the evidence and adequately stated its reasons on

the record.   That the trial court mentioned an element of the crime in

fashioning Schaffer’s sentence does not demonstrate that it improperly relied

on that element when imposing a sentence outside the aggravated range of

the Sentencing Guidelines.

      Accordingly, we conclude that the trial court did not abuse its

discretion.

      Judgment of sentence affirmed.

      Judge Olson joins the memorandum.

      Judge Strassburger concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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