J-S64034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HARVEY LEROY DETTERLINE, III               :
                                               :
                       Appellant               :   No. 871 WDA 2019

          Appeal from the Judgment of Sentence Entered May 23, 2019
     In the Court of Common Pleas of Elk County Criminal Division at No(s):
                            CP-24-CR-0000388-2018

BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED DECEMBER 10, 2019

        Harvey Leroy Detterline, III (Detterline) appeals from the judgment of

sentence of 20 to 40 years’ imprisonment imposed by the Court of Common

Pleas of Elk County (sentencing court) after a jury convicted him of third-

degree murder. We affirm.

        Detterline lived in an apartment with Brittany Dilley and her fiancé

Richard Hicks. Because Hicks suspected Detterline of having sexual relations

with Dilley, they did not like each other resulting in some physical altercations.

On August 16, 2018, all three were in the apartment when Dilley and Hicks

got into an argument that ended with Hicks storming out without taking a key

to get back in. While he was gone, Detterline and Dilley locked the apartment

door and had sex.         While the two were having sex, Hicks returned and

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*   Retired Senior Judge assigned to the Superior Court.
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demanded to be let in. Despite Dilley telling him to let Hicks back in, Detterline

would not and said that he would stab Hicks if he got back in because he was

tired of being bullied by him. When Hicks eventually left, Detterline armed

himself with a knife. Hicks soon returned and yelled at Detterline through the

apartment door until he ran to a side window and climbed inside to fight with

Detterline. The fight, however, was short-lived because Detterline stabbed

Hicks in the chest with the knife. The wound punctured Hicks’s heart, causing

him to die within minutes. Detterline was charged with criminal homicide, 18

Pa.C.S. 2501(a).

       Detterline proceeded to a two-day jury trial and testified that he killed

Hicks in self-defense but the jury disagreed and found him guilty of third-

degree murder, 18 Pa.C.S. § 2502(c).1 Because he had a prior record score

of zero, Detterline’s standard range guidelines were 72-SL (statutory limit).

Despite his lack of a criminal record, the sentencing court ordered Detterline

to serve 20 to 40 years’ imprisonment, the statutory maximum for third-

degree murder. Detterline filed a timely post-sentence motion averring that

the sentencing court failed to consider his rehabilitative needs.       After that

motion was denied, Detterline filed this direct appeal to argue that the

sentencing court imposed an excessive sentence.


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1 Detterline was charged with several other lesser-included offenses, but the
trial court’s verdict slip instructed the jury not to consider those offenses if it
found him guilty of third-degree murder.


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      Detterline’s sole issue implicates the discretionary aspects of his

sentence.   “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017).         Before reaching the merits of a

discretionary sentencing issue, we conduct the following four-part analysis:

      (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).

Grays, 167 A.3d at 815-16 (citation omitted).

      Detterline has complied with the first three requirements:      he timely

appealed; he preserved his claim it in a post-sentence motion to modify

sentence; and he has included in his brief a Pa.R.A.P. 2119 statement. We

must thus determine whether his claim raises a substantial question.

      This Court has held that “an excessive sentence claim—in conjunction

with an assertion that the court failed to consider mitigating factors—raises a

substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014) (quotation omitted). Additionally, this Court has held that a

claim that the sentencing court failed to sufficiently state its reasons for the

sentence imposed raises a substantial question.      See Commonwealth v.

Simpson, 829 A.2d 334, 338 (Pa. Super. 2003).




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        Detterline alleges, as he did in his post-sentence motion, that the

sentencing court gave neither adequate consideration to his rehabilitative

needs as required by 42 Pa.C.S. § 9721(b) nor sufficient explanation for its

imposition of the statutory maximum. When coupled with his excessiveness

claim and the sentencing court’s imposition of a statutory maximum sentence,

we conclude Detterline’s challenge presents a substantial question and

address its merits.2

        While Detterline asserts enough for merits review, his argument for why

the sentencing court abused its discretion is largely confined to the following

paragraph at the end of his brief:

        The [sentencing] court in this case failed to give meaningful
        consideration to defendant’s rehabilitative needs, and lack of a
        prior record score. At no time during the sentencing process in
        this case did the court indicate whether or not it considered
        defendant to be a good, or poor, candidate for rehabilitation. The
        court merely said that the sentence imposed should call for the
        minimum amount of confinement consistent with, inter alia, the
        rehabilitative needs of the defendant. In this case the court
        engaged in a checklist type of sentencing where it mentioned in
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2   Our standard of review of an excessive sentence claim is well-settled:

        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. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (citation
omitted).

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      passing the factors necessary to touch upon at time of sentencing,
      (i.e. protection of the public, vindicate the authority of the court,
      failure to show remorse, gravity of the offense, rehabilitative
      needs of the defendant), in order to justify giving defendant the
      maximum sentence allowed by law.

Brief for Detterline at 14.

      Because    Detterline   was   convicted   of   third-degree   murder,   the

sentencing court necessarily had a broad standard range in which to impose

its sentence, ranging from a minimum of six years’ imprisonment up to 20

years. Further, the sentencing hearing transcript reflects that the court had

the benefit of a pre-sentence report, which Detterline’s counsel stated he

reviewed with his client at the sentencing hearing. N.T., 5/15/19, at 2. As

this Court has stated, “where the [sentencing] court imposes a standard-range

sentence with the benefit of a pre-sentence report, we will not consider the

sentence excessive.”    Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.

Super. 2011) (citing Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010)). Under such circumstances, we “presume the sentencing judge

was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Luketic, 162 A.3d 1149, 1165 (Pa. Super. 2017)

(quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)).

      Further, the sentencing court put on the record its reasons for imposing

the statutory maximum:

      Sentence imposed should call for a minimum amount of
      confinement consistent with protection of the public, gravity of the

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      offense and rehabilitative needs of the defendant. I considered
      probation, objected to same because I know - - I feel that you
      knew or you should have known that your conduct would cause
      serious bodily injury or death to another and did result in death;
      that you contemplated that your conduct would cause this type of
      harm with the use of a deadly weapon. You were not acting under
      any strong provocation. There are no grounds tending to excuse
      or justify your conduct in this matter. The victim did not in any
      way induce or facilitate the acts of the defendant since it was his
      home. You’ve not been able to compensate nor will you ever be
      able to compensate the victim or others as a result of your actions.

      I’ve chosen total confinement because I think a lesser sentence
      would seriously depreciate the nature of your crime.

N.T., 5/15/19, at 4-5.

      Based on this statement, the court weighed the facts and circumstances

of the killing over the rehabilitative needs of Detterline, which, in any event,

neither he nor his counsel bothered to highlight at the sentencing hearing. In

fact, their presentation to the sentencing court consisted of defense counsel

pointing out that Detterline cooperated with the police after he killed Hicks

and Detterline briefly apologizing. Id. at 2-3. Accordingly, we find that the

sentencing court did not abuse its discretion in sentencing Detterline to the

statutory maximum for his third-degree murder conviction.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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