J-S53029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID BISCARDI-LUCAS,                      :
                                               :
                       Appellant               :   No. 3781 EDA 2017

            Appeal from the Judgment of Sentence October 17, 2017
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0004419-2017,
                            CP-09-CR-0004482-2017


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 09, 2018

        David Biscardi-Lucas appeals from the judgment of sentence imposed

on October 17, 2017, in the Court of Common Pleas of Bucks County, following

his guilty plea to two counts of simple assault and two counts of harassment.1

Biscardi-Lucas received an aggregate sentence of 18 to 48 months’

incarceration. In this timely appeal, Biscardi-Lucas claims he was sentenced

outside of the guideline ranges2 without proper justification. After a thorough



____________________________________________


   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 2701(a)(1) and 2709(a)(1), respectively. Harassment was a
summary offense.

2The highest aggregate minimum sentence, in the aggravated range, for the
two simple assault charges, was eight months. See Trial Court Opinion,
3/14/2018, at 3.
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review of the submissions by the parties, relevant law, and the certified

record, we affirm.

     Our recitation of the facts underlying this matter is taken from the trial

court’s Pa.R.A.P. 1925(a) opinion.

     With respect to Information 4482 of 2017, the facts are as follows:
     Your affiant in this case is Officer Anthony Durle of the Bristol
     Township Police Department. If called to testify, he would testify
     that on June 3, 2017, at approximately 1:25 hours he was
     dispatched to [ ], Bristol Township, Bucks County.

     Your affiant met with Anthony Dorazio and the victim[.] The
     victim was crying and upset.         Dorazio stated that David
     Biscardi-Lucas and [the victim] were involved in a verbal
     argument that led to a physical altercation.

     Dorazio stated David struck [the victim] multiple times in the face
     and body and choked her around the neck. [The victim] stated
     that her ex-boyfriend David was punching her in the face. [The
     victim] stated that the defendant “choked me to the point I
     couldn’t breathe.” [The victim] tried to get up and leave and the
     defendant grabbed her and threw her to the ground. During the
     altercation the defendant broke the victim’s glasses. Defendant
     also broke the victim’s phone when she tried to call the police.

     [The victim] sustained a swollen bloody lip, cut on her elbow,
     scrapes on her [c]hest and red marks on her neck.

     The defendant – it should be noted the defendant committed an
     assault while out on bail on Information 4419, an assault involving
     the same victim.

     The facts on Information 4419 of ’17 are as follows: Your … affiant
     is Officer Bausch of the Bristol Township Police Department. If
     call[ed] to testify, he would testify to the following: On December
     25, 2016, he was dispatched at 22:35 hours to[ ], Apartment D,
     Bristol Township, Bucks County. There he met with [the victim]
     who stated that the defendant had punched her in the face and
     threw her to the ground, choking her with her [his] hands.



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     The victim had dr[ied] blood around her mouth and contusion to
     the left side of her face underneath her eye. While speaking with
     the victim, the defendant interrupted [] the conversation. The
     defendant stated that he has anger problems and that the victim
     got into the defendant’s face yelling.

     The defendant advised the victim that he was about to punch her
     and then proceeded to punch her in the face. The defendant
     stated … that he then choked her out.

Trial Court Opinion, 3/14/18 at 1-2.

     Before we begin our analysis, we note:

     Our well-settled 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.” [Commonwealth v.] Anderson, [830 A.2d 1013
     (Pa. Super. 2003)], supra, at 1018. “In this context, an abuse of
     discretion is not shown merely by an error in judgment.” Id.
     “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.” Id.

Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017).

     Additionally,

     In every case where a sentencing court imposes a sentence
     outside of the sentencing guidelines, the court must provide in
     open court a contemporaneous statement of reasons in support of
     its sentence. 42 Pa.C.S.A. § 9721; see also Commonwealth v.
     Eby, 784 A.2d 204, 205-206 (Pa. Super. 2001).

         The statute requires a trial judge who intends to sentence
         a defendant outside of the guidelines to demonstrate on
         the record, as a proper starting point, [its] awareness of
         the sentencing guidelines. Having done so, the sentencing
         court may deviate from the guidelines, if necessary, to
         fashion a sentence which takes into account the protection
         of the public, the rehabilitative needs of the defendant, and
         the gravity of the particular offense as it relates to the


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         impact on the life of the victim and the community, so long
         as [it] also states of record the factual basis and specific
         reasons which compelled [it] to deviate from the guideline
         range.

     Commonwealth v. Gibson, 716 A.2d 1275, 1276-1277 (Pa.
     Super. 1998) (internal quotations omitted).

         When evaluating a challenge to the discretionary aspects
         of sentence ... it is important to remember that the
         sentencing guidelines are advisory in nature. Id. at 1277.
         If the sentencing court deems it appropriate to sentence
         outside of the guidelines, it may do so as long as it offers
         reasons for this determination. Id. “[O]ur Supreme Court
         has indicated that if the sentencing court proffers reasons
         indicating that its decision to depart from the guidelines is
         not unreasonable, we must affirm a sentence that falls
         outside those guidelines.” Id. (citations omitted, emphasis
         in original).

     Commonwealth v. Bowen, 55 A.3d 1254, 1263-64 (Pa. Super.
     2012). See also Commonwealth v. Rodda, 723 A.2d 212 at
     216 (Pa. Super. 1999) (holding record must demonstrate “with
     clarity that the court considered the sentencing guidelines in a
     rational and systematic way and made a dispassionate decision to
     depart from them”); Commonwealth v. Gause, 442 Pa. Super.
     329, 659 A.2d 1014, 1017 (1995) (noting it is not enough for court
     to pay “token lip service” to sentencing guidelines simply as
     prerequisite to impose whatever sentence it may choose;
     departure sentence reasonable where particular facts differentiate
     case from typical case of same offense).

Commonwealth v. Shull, 148 A.3d 820, 835-36 (Pa. Super. 2016).

     Finally,

     This Court may reach the merits of an appeal challenging the
     discretionary aspects of a sentence only if it appears that a
     substantial question exists as to whether the sentence imposed is
     not appropriate under the Sentencing Code.

     A substantial question will be found where the defendant advances
     a colorable argument that the sentence imposed is either
     inconsistent with a specific provision of the code or is contrary to

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     the fundamental norms which underlie the sentencing process. A
     claim that the sentencing court imposed an unreasonable
     sentence by sentencing outside the guideline ranges presents a
     “substantial question” for our review.

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) (citation

omitted).

     Our review of the certified record and Biscardi-Lucas’s Pa.R.A.P. 2119(f)

statement convinces us that he has both preserved his claim by filing the

appropriate post-sentence motion and has raised a substantial question.

Therefore, we will consider the merits of his argument.

     Contrary to Biscardi-Lucas’s claims, the trial judge, the Honorable

Wallace H. Bateman, appropriately explained his reasoning for imposing the

sentence. Once again, we quote from the trial court opinion:

     A sentence of confinement must be “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 on the community, and the
     rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). A
     sentencing court may determine a defendant’s potential for
     rehabilitation by considering his demeanor, apparent remorse,
     manifestation of social conscience, and cooperation with law
     enforcement agents. Commonwealth v. Begley, 780 A.2d 605,
     644 (Pa. 2001); Commonwealth v. Constantine, 478 A.2d 39
     (Pa. Super. 1984); Commonwealth v. Gallagher, 442 A.2d 820
     (Pa. Super. 1982). Additionally, the Court must consider the
     sentencing guidelines as produced by the Pennsylvania
     Commission on Sentencing. 42 Pa.C.S.A. § 9721(b). Turning to
     common law, “[w]hen imposing a sentence, a court is required to
     consider the particular circumstances of the offense and the
     character of the defendant.” Commonwealth v. Moury, 992
     A.2d 162, 171 (Pa. Super. 2010) (quoting Commonwealth v.
     Griffin, 804 A.2d 1, 10 (Pa. Super. 2002). The sentencing court
     should refer to defendant’s criminal record, age, personal
     characteristics, and potential for rehabilitation. Griffin, 804 A.2d
     at 10 (citing Commonwealth v. Burns, 765 A.2d 1144, 1151
     (Pa. Super. 2000)).

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      This Court considered the impact on the victim, the need to
      protect the community and any impact thereon. N.T 10/17/17, pp.
      18-22; Court’s Exhibits 1-3. This Court also addressed [Biscardi-
      Lucas’s] rehabilitative needs. N.T. 10/17/17, p. 22. Finally, this
      Court weighed the sentencing guidelines and reasons for an
      upward departure from the guidelines. N.T. 10/17/17, p. 21. The
      Court thoroughly discussed all considerations mandated by
      statute. See 42 Pa.C.S.A. § 9721(b). The only mandated
      consideration under common law – the circumstances of the
      offense and [Biscardi-Lucas’s] personal characteristics – were also
      discussed on the record. N.T. 10/17/17, pp. 18-20; Court’s
      Exhibits 1-3 (circumstances of offense); N.T. 10/17/17, pp. 20-
      21; Court’s Exhibit 3 (personal characteristics). This Court also
      considered the information in [Biscardi-Lucas’s] Domestic
      Violence Investigation Report. N.T. 10/17/17, p. 2, Court’s
      Exhibit 3.

Trial Court Opinion, 3/14/2018, at 6-7.

      Additionally, we note the specifics found in the record that formed the

basis of the trial court’s reasoning, such as the fact that Biscardi-Lucas

assaulted the victim the second time while he was out on bail from the first

assault; he twice choked the victim to the point of causing her to blackout; he

showed no remorse, telling his mother “She needed her fucking face tumbled

in”; and he tried to excuse his behavior to the police by telling the responding

officer that he had anger problems and the victim got into his face yelling at

him, he then advised her he was about to punch her, and he did.

      Our review of the certified record finds no abuse of discretion on the

part of the trial court in sentencing Biscardi-Lucas outside the guidelines.

Accordingly, he is entitled to no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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