J-S10031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICO MANDRELL HERBERT

                            Appellant                 No. 1710 EDA 2014


              Appeal from the Judgment of Sentence April 7, 2014
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001359-2012


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                      FILED FEBRUARY 12, 2015

        Appellant, Rico Mandrell Herbert, appeals from the judgment of

sentence entered in the Monroe County Court of Common Pleas, following

his open guilty pleas to third degree murder, robbery of motor vehicle, and

abuse of corpse.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On February 23, 2012, Appellant broke into the home of eighty-seven-year-

old Joseph DeVivo (“Victim”). At the time of the break in, Victim was in his

bed.     Victim quickly realized that someone had entered his house, and

Victim left the bedroom to confront the intruder. When Victim encountered

____________________________________________


1
    18 Pa.C.S.A. §§ 2502(c), 3702, and 5510, respectively.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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Appellant, Victim became frightened and started to shout.            Appellant

responded by pulling Victim’s t-shirt over his head, smothering Victim to

death. After the killing, Appellant took Victim’s wallet, cell phone, and car

keys.     Appellant loaded Victim’s corpse into the trunk of Victim’s car.

Appellant drove Victim’s car to a local motel, where Appellant spent the

night with his girlfriend.

        On February 24, 2012, Appellant fled in Victim’s car to North Carolina.

On February 25, 2012, Appellant drove Victim’s car to South Carolina. In a

secluded, wooden area, Appellant dumped Victim’s corpse into a ravine.

Also on February 25, 2012, Victim’s daughter first reported Victim as

missing.     Ultimately, police apprehended Appellant in North Carolina by

analyzing data from Victim’s cell phone and the “OnStar” system in Victim’s

car.

        On May 17, 2012, the Commonwealth filed notice of intent to seek the

death penalty against Appellant. On July 5, 2012, the Commonwealth filed a

criminal information charging Appellant with criminal homicide, burglary,

abuse of corpse, robbery of motor vehicle, and two (2) counts of theft by

unlawful taking.    Prior to trial, however, the parties entered into a plea

agreement.      On April 7, 2014, Appellant executed a written guilty plea

colloquy.    That same day, Appellant pled guilty to third degree murder,

robbery of motor vehicle, and abuse of corpse.             In exchange, the

Commonwealth withdrew the remaining charges. Following an oral colloquy,


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the court accepted Appellant’s pleas.            The court immediately sentenced

Appellant to twenty (20) to forty (40) years’ imprisonment for the third

degree murder conviction, ten (10) to twenty (20) years’ imprisonment for

the robbery of motor vehicle conviction, and one (1) to two (2) years’

imprisonment for the abuse of corpse conviction.2          The court ordered the

sentences to run consecutive to each other, resulting in an aggregate term

of thirty-one (31) to sixty-two (62) years’ imprisonment.

       Appellant timely filed post-sentence motions on April 16, 2014. In his

motions, Appellant asked for reconsideration of his sentences in light of

various mitigating factors, including his acceptance of responsibility for the

crimes. Appellant also emphasized that he had taken positive steps toward

rehabilitation while incarcerated. Appellant claimed “the aggravating factors

cited are greatly outweighed by the mitigating factors referenced in court at

the time of sentencing.”          (Post-Sentence Motions, filed 4/16/14, at 4).

Citing the sentencing guidelines, Appellant concluded the court had imposed

unreasonable sentences.         Additionally, Appellant requested an amendment
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2
  With a prior record score (“PRS”) of two (2) and an offense gravity score
(“OGS”) of fourteen (14), the standard range for Appellant’s murder
conviction was ninety-six (96) months to the statutory limit, which was two
hundred forty (240) months. With a PRS of two (2) and an OGS of twelve
(12), the standard range for Appellant’s robbery of motor vehicle conviction
was sixty (60) to seventy-eight (78) months, plus or minus twelve (12)
months for aggravating or mitigating circumstances. With a PRS of two (2)
and an OGS of three (3), the standard range for Appellant’s abuse of corpse
conviction was restorative sanctions to nine (9) months, plus or minus three
(3) months for aggravating or mitigating circumstances.



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of the sentencing order to reflect that he had already served one (1) year

and twenty-three (23) days’ imprisonment.            On May 7, 2014, the court

granted Appellant’s request for a time credit. The court denied Appellant’s

post-sentence motions in all other respects.

      Appellant timely filed a notice of appeal on May 23, 2014. On May 27,

2014, the court ordered Appellant to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b).                    Appellant

subsequently complied.

      Appellant raises one issue for our review:

         WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
         BY SENTENCING APPELLANT OUTSIDE THE GUIDELINES,
         WHEN   SUCH   SENTENCES   WERE    THE  MAXIMUM
         ALLOWABLE    UNDER    THE    STATUTE    WITHOUT
         CONSIDERING RELEVANT SENTENCING FACTORS AND
         WITHOUT STATING ADEQUATE REASONS FOR ITS
         SENTENCE.

(Appellant’s Brief at 7).

      On appeal, Appellant contends the court imposed an aggravated range

sentence for his abuse of corpse conviction, and the court exceeded the

aggravated range for his robbery of motor vehicle conviction.              Appellant

argues the court imposed unduly harsh sentences based upon factors

already included in the sentencing guidelines, namely the seriousness of the

offenses.    Appellant insists his sentences are unreasonable.              Further,

Appellant   claims   the    court   did    not   articulate   specific   aggravating

circumstances to justify sentences in-and-above the aggravated range.


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Appellant concludes the court abused its discretion by imposing manifestly

excessive sentences for the robbery of motor vehicle and abuse of corpse

convictions.     Appellant’s challenge is to the discretionary aspects of his

sentences.3 See Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002)

(stating claim that sentence is manifestly excessive challenges discretionary

aspects of sentencing).

       Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.            Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).          Prior to reaching the merits of a discretionary

sentencing issue:

          [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
          (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).

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3
  “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his…sentence other
than to argue that the sentence is illegal or that the sentencing court did not
have jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary aspects of
the sentence.”     Commonwealth v. Tirado, 870 A.2d 362, 365 n.5
(Pa.Super. 2005) (emphasis in original). “An ‘open’ plea agreement is one
in which there is no negotiated sentence.” Id. at 363 n.1. Here, Appellant’s
pleas were “open” as to sentencing. (See N.T. Plea/Sentencing Hearing,
4/7/14, at 7.) Thus, Appellant can challenge the discretionary aspects of his
sentences.



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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of a sentence are generally waived if

they are not raised at the sentencing hearing or raised in a motion to modify

the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness    of   the   sentence     under   the   Sentencing     Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f).   “The requirement that an appellant separately set forth the

reasons relied upon for allowance of appeal ‘furthers the purpose evident in

the Sentencing Code as a whole of limiting any challenges to the trial court’s

evaluation of the multitude of factors impinging on the sentencing decision

to exceptional cases.’”   Commonwealth v. Phillips, 946 A.2d 103, 112

(Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174 L.Ed.2d

240 (2009) (quoting Commonwealth v. Williams, 562 A.2d 1385, 1387

(Pa.Super. 1989) (en banc) (emphasis in original)).

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.       Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the


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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.” Sierra, supra at 912-13 (quoting Commonwealth v.

Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567

Pa. 755, 790 A.2d 1013 (2001)).                “A claim that the sentencing court

imposed an unreasonable sentence by sentencing outside the guideline

ranges raises a ‘substantial question’ which is reviewable on appeal.”

Commonwealth v. Davis, 737 A.2d 792, 798 (Pa.Super. 1999).

       Here, Appellant’s post-sentence motions did not mention his current

contention     that     the   court   failed   to   articulate   specific   aggravating

circumstances.        Appellant also failed to raise his current argument at the

sentencing hearing.        Instead, Appellant asserts the argument for the first

time on appeal.         Thus, the argument is waived.            See Mann, supra.

Nevertheless, Appellant’s post-sentence motions and Rule 2119(f) statement

did preserve his claim regarding the reasonableness of the court’s departure

from the sentencing guidelines for the robbery of motor vehicle conviction. 4

As presented, Appellant’s claim appears to raise a substantial question as to

the discretionary aspects of his sentence. See Davis, supra.
____________________________________________


4
  The court imposed an aggravated-range sentence for Appellant’s abuse of
corpse conviction, which did not exceed the guidelines. Thus, Appellant’s
argument on the court’s departure from the guidelines does not implicate
the sentence for the abuse of corpse conviction.



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      Our standard of review concerning the discretionary aspects of

sentencing 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. 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. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011)

(quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999)

(en banc)).

      “[A] court is required to consider the particular circumstances of the

offense and the character of the defendant.”        Commonwealth v. Griffin,

804 A.2d 1, 10 (Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S.Ct.

2984, 162 L.Ed.2d 902 (2005). “In particular, the court should refer to the

defendant’s prior criminal record, his age, personal characteristics and his

potential for rehabilitation.” Id. “If the court imposes a sentence outside of

the sentencing guidelines, it must provide a written statement setting forth

the reasons for the deviation and the failure to do so is grounds for re-

sentencing.” Commonwealth v. Walls, 592 Pa. 557, 567, 926 A.2d 957,

963 (2007).     A court’s “on-the-record statement of reasons for deviation

stated   in   the   defendant’s   presence”   satisfies   the   requirement   of   a




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contemporaneous written statement. Commonwealth v. Styles, 812 A.2d

1277, 1278 (Pa.Super. 2002).

     “[U]nder the Sentencing Code an appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to

assess    whether   the   sentencing   court       imposed   a     sentence     that   is

‘unreasonable.’”    Walls, supra at 568, 926 A.2d at 963.               In making this

“unreasonableness” inquiry, this Court must consider four factors:

          § 9781. Appellate review of sentence

                                   *    *      *

            (d) Review of record.—In reviewing the record the
          appellate court shall have regard for:

                  (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)(1)-(4).

     In    Walls,   supra,   our   Supreme         Court   said,   “the    concept     of

unreasonableness” is “inherently a circumstance-dependent concept that is

flexible in understanding and lacking precise definition.”          Id. at 568, 926

A.2d at 963.


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         Thus, given its nature, we decline to fashion any concrete
         rules as to the unreasonableness inquiry for a sentence
         that falls outside of applicable guidelines under Section
         9781…. We are of the view, however, that the Legislature
         intended that considerations found in Section 9721 inform
         appellate review for unreasonableness. That is, while a
         sentence may be found to be unreasonable after review of
         Section 9781(d)’s four statutory factors, in addition a
         sentence may also be unreasonable if the appellate court
         finds that the sentence was imposed without express or
         implicit consideration by the sentencing court of the
         general standards applicable to sentencing found in
         Section 9721, i.e., the protection of the public; the gravity
         of the offense in relation to the impact on the victim and
         the community; and the rehabilitative needs of the
         defendant.    42 Pa.C.S. § 9721(b).       Moreover, even
         though the unreasonableness inquiry lacks precise
         boundaries, we are confident that rejection of a
         sentencing court’s imposition of sentence on
         unreasonableness grounds would occur infrequently,
         whether the sentence is above or below the
         guideline       ranges,      especially      when        the
         unreasonableness inquiry is conducted using the
         proper standard of review.

Id. at 568-69, 926 A.2d at 964 (emphasis added).

      Instantly, Appellant waived his right to a pre-sentence investigation

(“PSI”) report and proceeded immediately to sentencing following the court’s

acceptance of the guilty pleas. Prior to the imposition of sentence, Appellant

presented testimony from Deborah Belknap, a capital mitigation specialist

who researched Appellant’s case in preparation for a potential capital

proceeding.     Ms. Belknap conceded that Appellant has a “fairly extensive”

arrest record in South Carolina. (See N.T. Plea/Sentencing Hearing at 37.)

Nevertheless,     Ms.   Belknap   highlighted   mitigating   factors,   including

Appellant’s impoverished childhood, poor academic record, physical abuse

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inflicted by his father, a diagnosis of attention deficit hyperactivity disorder,

and a history of drug and alcohol addiction.                    Ms. Belknap also noted

Appellant’s positive relationships with his son, daughter, and grandparents.

After receiving argument from defense counsel, Appellant addressed the

court.     Specifically, Appellant apologized to the court and Victim’s family

members; and he asked the court to show mercy on him.

         The Commonwealth presented Victim’s son, who read a statement on

behalf of Victim’s family.       The statement addressed the positive impact

Victim had made as a father and an elementary school teacher.                        The

prosecutor supplemented the statement with his own argument, indicating

that Victim was a proud World War II veteran who remained active and

socially    engaged,   despite   his       advancing     age.     The   prosecutor   also

emphasized the various lies Appellant told investigators after his arrest. In

conclusion, the prosecutor asked the court to depart from the guidelines and

impose maximum sentences for all three convictions.

         Based upon the foregoing, the court provided the following statement

of reasons for the sentences it imposed:

           In any case like this, in every case, you have to balance
           many things when imposing sentence. And I think what
           strikes me in this case is that immediately prior to this
           incident…there was a plea in another burglary case….

                                       *      *      *

           And [Appellant] did not appear for sentencing in that case
           which resulted in the issuance of a warrant for [Appellant]
           on that case.

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       It’s really troubling to me that anyone can reach the age of
       87, having lived a good life, and then have [his] life end in
       this manner.       You know, most of our World War II
       veterans, we have reached that sort of time in history
       where many are passing now by natural causes just from
       the age. And [Victim] by all recitations was one of those
       people who kept going and continued to be active and
       lived a good life. It should never have ended in this
       manner. For what? A wallet, some credit cards, a car,
       and I guess some money.

       But what’s really disturbing to me is―and, [Appellant], I
       know that today you allocuted to these charges. But I also
       recognize…that was done in order to spare [Victim’s]
       family and friends from having to sit through what would
       have proven to be a very lengthy and disturbing trial with
       evidence that I know is gruesome and disturbing.

       But I suspect that if that was really the reason, we would
       have been here sooner rather than the day that we have
       the 170 people sitting in another courtroom waiting [for
       jury selection].

                               *     *      *

       I look at what I believe are mitigating circumstances here
       which is also something the court has to balance, and
       obviously it appears as though your life as a child was not
       very good and that perhaps you suffered at the hands of
       your parents.

       But there was also a lot of drug and alcohol use. There
       was also opportunity where the courts have been involved
       before with you to change your life around. And at some
       point, it’s up to you to do that. You know, when you
       look―and I have the old PSI here, and you certainly have
       had those opportunities in the past.

       And you have children. You know, I find it interesting as
       well that at some point you did have a good household
       because you talk about your grandparents being
       supportive and being there for you and having a nurturing
       household with your grandparents, and so I have to

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          balance all of these things.

          But, again, I do find as an aggravating circumstance the
          fact that you were on bail pending sentencing in the prior
          case during the commission of this. You were out―there
          was a bench warrant for your arrest during the commission
          of this.    You know, [Victim] was an…87…year old
          gentleman who was a World War II veteran. You had
          apparently been in his home before.

          To me, these actions really show an incredible indifference
          to human life.

                                       *       *    *

          Just the progression of this whole thing and how it
          occurred. You go into the home, and then you know
          there’s an opportunity. So [Victim’s] startled, but then
          there’s an opportunity for you to do the right thing, either
          to walk away or to…do something else, but you don’t.

          And then you throw him in the car. And then there’s still
          an opportunity because then you stop somewhere else,
          and you’re with your girlfriend or girlfriends, and you still
          have an opportunity, but you don’t, and then you’re on
          your way to South Carolina.

(Id. at 53-57).

       Here, the court stated with particularity its reasons for imposing

Appellant’s sentence.5         Regarding the “reasonableness” of Appellant’s

sentence, the court considered the nature and circumstances of the

offenses. The court noted that Appellant had the opportunity to walk away

after Victim confronted him.          The court recognized Appellant’s history of
____________________________________________


5
   Thus, even if Appellant had preserved his claim regarding the court’s
failure to provide specific aggravating circumstances, it would not have
warranted relief.



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burglaries, emphasizing that Appellant committed the current offenses while

awaiting sentencing in another case.           The court mentioned that previous

attempts at rehabilitation had proven unsuccessful.               Finally, the court

elaborated on the circumstances of Victim, an elderly veteran.

      After weighing these considerations against the mitigating factors

mentioned by Ms. Belknap, the court elected to exceed the guidelines for the

robbery of motor vehicle conviction.           The court observed Appellant and

evaluated the testimony from the mitigation specialist.               The court also

announced     its   findings   at   the    time    of   sentencing.     Under   these

circumstances, the court’s upward departure from the sentencing guidelines

for the robbery of motor vehicle was reasonable under Section 9781(d).

See Walls, supra. Based upon the foregoing, we see no cause to disturb

the judgment of sentence.           See Coulverson, supra.            Accordingly, we

affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/2015




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