J-A27025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

OTILIO COSME,

                            Appellant               No. 1735 WDA 2014


           Appeal from the Judgment of Sentence of October 9, 2014
              In the Court of Common Pleas of Armstrong County
             Criminal Division at No(s): CP-03-CR-0000282-2013


BEFORE: BOWES, OLSON & STABILE, JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 14, 2015

        Appellant, Otilio Cosme, appeals from the judgment of sentence

entered on October 9, 2014, following his guilty plea to involuntary

manslaughter, 18 Pa.C.S.A. § 2504. Upon review, we affirm.

        We briefly summarize the facts and procedural history of this case as

follows.    On March 17, 2013, the Commonwealth charged Appellant with

criminal homicide, simple assault, recklessly endangering another person

and harassment1 as the result of an altercation wherein Appellant and his

co-defendants beat a man to death. On August 6, 2014, the Commonwealth

entered into a plea agreement with Appellant wherein Appellant agreed to



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1
    18 Pa.C.S.A. §§ 2501, 2705, and 2709, respectively.
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plead guilty2 to involuntary manslaughter and the Commonwealth agreed to

nolle pros the original charges. On August 7, 2014, the Commonwealth filed

an amended bill of criminal information conforming to that agreement. On

that same date, Appellant pled guilty to involuntary manslaughter.                   On

October 9, 2014, the trial court sentenced Appellant to an aggravated range

sentence of 18 to 36 months of imprisonment. At the sentencing hearing,

Appellant    objected     to   the   term      of   incarceration   arguing   that   the

Commonwealth admitted that there were no aggravating circumstances in

the case.     He further argued that there was no evidence that he had

manifested an indifference to the victim’s life, an element of the offense of

aggravated assault that was nolle prossed. The trial court denied relief and

entered the sentencing order. This timely appeal followed.3

       On appeal, Appellant presents the following issues for our review:

         1. Did the [trial] court abuse its discretion in moving
            Appellant’s sentence into the aggravated range based
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2
   Appellant believed it was in his best interest to plead guilty, but did so
while maintaining his innocence. See Appellant’s Brief at 4, citing North
Carolina v. Alford, 400 U.S. 25, 38 (1970) (holding “an individual accused
of a crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting a crime.”); see also N.T., 8/7/2014, at
10-11.
3
  On October 22, 2014, Appellant filed a notice of appeal. On the same day,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on November 5, 2014. On December 8, 2014, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).



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             upon a finding that Appellant showed a ‘manifest
             indifference to life’ where no testimony was provided as
             to the events in question, the Commonwealth nolle
             prossed all charges having an intent element, and where
             the Commonwealth’s proffer of underlying events in the
             case did not suggest anything which would indicate
             aggravating circumstances?

          2. Was there any other evidence, outside of the [trial]
             court’s finding that Appellant evidenced ‘a manifest
             indifference to life’ to support moving Appellant’s
             sentence into the aggravated range?

Appellant’s Brief at 3.4

       Initially we note that Appellant’s claims implicate the discretionary

aspects    of    his   sentence,     which     is   not   appealable   as   of   right.

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

Rather, an appellant challenging the trial court's discretion must invoke this

Court's jurisdiction by satisfying a four-part test:

          We 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).

Id. (citation omitted).


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4
  Appellant raised additional issues in his Rule 1925(b) statement, but
concedes that he is only challenging the imposition of an aggravated range
sentence on appeal. See Appellant’s Brief at 3, n.1. Those additional,
abandoned issues are thereby waived.



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      Here, Appellant preserved his claim at sentencing and by including it in

his Rule 1925(b) statement. Appellant also filed a timely notice of appeal

and included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which

he claims that the trial court imposed an excessive sentence and failed to

articulate its reasons for doing so.   We have previously determined that an

appellant raises a substantial question when he alleges that the trial court

failed to state sufficient reasons on the record when imposing an aggravated

range sentence. Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.

2006).   We have also determined that an appellant raises a substantial

question when he alleges that the trial court, in imposing sentence,

considered a charge that was nolle prossed as part of a plea agreement.

Commonwealth v. Miller, 965 A.2d 276, 276 (Pa. Super. 2009).              Thus,

we turn to Appellant’s claims.

      Appellant’s issues are interrelated so we will examine them together.

In his first issue presented, Appellant contends that the trial court manifestly

abused its discretion when it enhanced his sentence based upon charges

that were nolle prossed as part of the guilty plea negotiation.     Appellant’s

Brief at 10.    More particularly, Appellant argues “the [trial] court, in

imposing sentence, specifically found that [Appellant] evidenced a ‘manifest

indifference to life[,]’ [thereby] adopting the specific language of the nolle




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prossed charge of aggravated assault.”5 Id. at 12. Appellant maintains that

the factual basis underlying the plea “is devoid of any mention of the type of

strike, how many strikes, how quickly this event unfolded, and whether

[Appellant] had any indication that the victim was unconscious.”          Id.

Appellant posits that the Commonwealth acquiesced and allowed Appellant

to maintain his innocence as part of his plea and, thus, he did not admit to

“any of the factual circumstances as presented by the Commonwealth in its

charging documents, or most importantly as suggested by the sentencing

court.” Id. (footnote omitted).

       Next, Appellant claims that there was no other evidence to support an

aggravated range sentence. Appellant argues that his prior record score and

the impact of the victim’s death on the victim’s family are factors already

taken into consideration under the sentencing guidelines.      Id. at 16-17.

Moreover, Appellant avers that there was no evidence that Appellant is a

threat to the community, as set forth in the pre-sentence investigation (PSI)

report. Id. at 17. As such, Appellant contends that there were “no factors

upon which the [trial] court could have, without abusing its discretion, used




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5
    In pertinent part, a person is guilty of aggravated assault if he: “(1)
attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]”          18 Pa.S.C.A.
§ 2702(a)(1) (emphasis added).



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to move the sentence into the aggravated range.” Id. at 18. Accordingly,

Appellant requests vacating his sentence. Id.

      In reviewing a sentencing claim:

        We must accord the sentencing court great weight as it is in
        the best position to view the defendant's character, displays
        of remorse, defiance or indifference, and the overall effect
        and nature of the crime. An appellate court will not disturb
        the lower court's judgment absent a manifest abuse of
        discretion. In order to constitute an abuse of discretion, a
        sentence must either exceed the statutory limits or be so
        manifestly excessive as to constitute an abuse of discretion.
        Further, a sentence should not be disturbed where it is
        evident that the sentencing court was aware of sentencing
        considerations and weighed the considerations in a
        meaningful fashion.

Miller, 965 A.2d at 277 (internal citation omitted).

      In formulating a sentence, “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

the protection of the public, the gravity of offense as it relates to the impact

on life of the victim and on the community, and the rehabilitative needs of

the defendant.” Id., citing 42 Pa.C.S.A. § 9721(b). “A court is required to

consider the particular circumstances of the offense and the character of the

defendant.” Id. at 277-278 (citation omitted).

      Furthermore,

        [42 Pa.C.S.A. §] 9781(c) specifically defines three instances
        in which the appellate courts should vacate a sentence and
        remand: (1) the sentencing court applied the guidelines
        erroneously; (2) the sentence falls within the guidelines, but
        is “clearly unreasonable” based on the circumstances of the
        case; and (3) the sentence falls outside of the guidelines
        and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42

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        Pa.C.S.A. § 9781(d), the appellate courts must review the
        record and consider the nature and circumstances of the
        offense, the sentencing court's observations of the
        defendant, the findings that formed the basis of the
        sentence, and the sentencing guidelines. The weighing of
        factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the
        sentencing court, and an appellate court could not
        substitute its own weighing of those factors. The primary
        consideration, therefore, is whether the court imposed an
        individualized sentence, and whether the sentence was
        nonetheless unreasonable for sentences falling outside the
        guidelines, or clearly unreasonable for sentences falling
        within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).

Commonwealth v. Grace, 2015 WL 6108065, at *3 (Pa. Super. 2015).

      Additionally, we are mindful that when a sentencing court has the

benefit of a PSI, we must presume that the sentencing judge was aware of,

and duly considered, any character-related information contained therein.

Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super. 2014),

citing Commonwealth v. Devers, 5546 A.2d 12 (Pa. 1988).

      Finally, with regard to Appellant’s contention that the trial court

improperly relied upon the nolle prossed aggravated assault charge in

fashioning its sentence, our decision in Miller, supra, is instructive. In that

case, Miller pled guilty to third-degree murder after the Commonwealth

agreed to nolle pros additional criminal charges including, inter alia, arson.

Miller argued that the trial court abused its discretion when it considered the

arson charge at sentencing.    More specifically, Miller averred that the trial

court’s reference to “[t]he tragedy of the fire as well as the lives of [the]

firefighters and police and everyone else that were risked in putting out that

fire [was] something [the trial court] consider[ed] because [] there could


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have been even more lives either injured or taken.”       Miller, 965 A.2d at

279-280. Upon review in Miller, we examined the trial court’s rationale in

imposing sentence, as stated on the record, and concluded:

        [the trial court] carefully reviewed the PSI and [three victim
        impact] letters presented, and considered many factors in
        imposing sentence, including: the seriousness of the
        offense; the situation that faced firefighters and police when
        they arrived at [the victim’s] residence; the manner in
        which the murder of [the victim] impacted her family and
        friends     and    [Miller’s]   family;    [Miller’s]  apparent
        unwillingness to accept responsibility for his actions; and
        [Miller’s] misconduct while incarcerated. Contrary to
        [Miller’s] assertion that the trial court improperly considered
        the charge of arson that was nolle prossed as part of the
        plea agreement, we do not find that the court's mere
        reference to the fact that the lives of firefighters and police
        were at risk due to [the victim’s] residence being ablaze
        when these individuals arrived on the scene indicates that
        the court specifically considered the charge of arson and
        enhanced      [Miller’s]    sentence    based     thereon.  Cf.
        [Commonwealth v.] Stewart, 867 A.2d [589,] 593 [(Pa.
        Super. 2005)] (trial court specifically indicated that it was
        sentencing the appellant in the aggravated range because
        of three (3) counts that were nolle prossed).

Miller, 965 A.2d at 280.

      In this case, at the guilty plea hearing, while Appellant maintained his

innocence, he stated he was “aware of the case that the Commonwealth

would be prepared to present at trial.”    N.T., 8/7/2014, at 10.    Appellant

agreed the evidence against him was sufficient to convict him of the charge

of involuntary manslaughter beyond a reasonable doubt.             Id. at 13.

Appellant further agreed that the facts would show that a co-defendant

struck the victim and caused him to fall to the ground, fracturing the victim’s



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skull, and rendering him unconscious. Id. at 8. Appellant and his two co-

defendants then struck the victim causing the victim’s vena cava aorta to

rupture. Id. Medical evidence showed “that the fractured skull and/or the

ruptured aorta [] was the cause of death[.]” Id.      Thus, the Commonwealth

contended, “[t]he basis of the charge of involuntary manslaughter [was] the

striking of [the victim] by [Appellant] []as a cause of the ruptured aorta and

subsequent death as a result of that ruptured aorta.” Id.

      Just prior to sentencing, the trial court heard victim impact testimony

from two of the victim’s sisters and the victim’s mother. N.T., 10/9/2014, at

15-21.   At sentencing, the trial judge stated that he had considered the

following factors in imposing Appellant’s sentence:

         [] I have been provided with the [PSI report] and I have
         read and studied that document.          I’ve considered in
         formulating a sentence, your age, the information about you
         and in the [PSI report]. I’ve also reviewed the sentencing
         guideline form[.]

                           *         *           *

         I’ve considered all of your personal information, your
         educational background, your marital status.        I’ve
         considered the nature of this offense, the affidavit of
         probable cause. I’ve considered the plea agreement. And
         the plea agreement essentially is that the Commonwealth
         would proceed only with this involuntary manslaughter
         charge and the remaining charges that were contained on
         the information, criminal homicide, aggravated assault,
         simple assault, recklessly endangering another person,
         these were not prosecuted in the case. That was the plea
         agreement.

                           *         *           *


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       I’ve considered the statements of family members [of the
       victim] here in the courtroom as well as a statement [] that
       was provided to me and it was put into the [PSI report].
       I’ve considered your prior criminal history and the
       evaluative history that was prepared by the Adult Probation
       Office. […T]he sentencing guideline form does reveal a
       standard range of sentence of three to 12 months. The
       mitigated range is restorative sanctions, which is probation.
       The aggravated range is 18 months which is six months
       added onto the standard range higher end.

       As far as mitigating factors, I think that you do have a prior
       record score of zero. And [I take] that into account in
       imposing a sentence.       However, I don’t find it as a
       mitigating factor. I simply find it as something that needs
       to be computed in the guideline form.          You had prior
       involvements. It’s my understanding that you have a prior
       DUI and have a pending drug charge, although that may be
       disposed of. […] But, I’m not holding that against you. I’m
       just saying I don’t find any mitigating factors because there
       have been prior involvements even though your prior record
       score is in fact a zero.

       In computing a sentence, [the trial court] considers     that
       this is a misdemeanor charge that [] you have pled to.   And
       we went through at great lengths at the pleas that        you
       entered your plea based upon the fact that was the       only
       remaining charge.

       That being said, [the trial court] also finds that the victim
       involved here was unconscious when the fatal blow was
       delivered. [The trial court] takes that as evidence of a
       manifest indifference to life. [The trial court] views the
       circumstances surrounding the killing of this victim as
       extreme. The victim was rendered unconscious by a skull
       fracture. But he was further victimized by you and others
       causing a ruptured aorta. In other words, an unconscious
       victim was beaten to death by three individuals.

       All right. I’ve found a factual basis for the guilty plea to
       involuntary manslaughter as stated at the plea proceeding.
       After considering all of these factors, I find that you are in
       need of correctional treatment that can be provided most
       effectively by your commitment to an institution and that

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        any lesser sentence would depreciate the seriousness of this
        crime.

Id. at 23-28. The trial court then imposed an aggravated range sentence of

18 to 36 months of incarceration. Id. at 28.

      In reviewing the totality of circumstances, we discern no abuse of

discretion or error of law in imposing Appellant’s sentence. Initially we note

that the sentencing court specifically stated that it was not considering the

nolle prossed charges in fashioning sentence.       Similar to our decision in

Miller, here, a mere passing reference to the language used in the

aggravated assault statute does not indicate that the court specifically

considered that charge in enhancing Appellant’s sentence.       The trial court

was required to consider the particular circumstances of the offense and

Appellant’s character in imposing sentence, which it did.     Furthermore, on

the record at sentencing, the trial court specifically balanced the protection

of the public, the gravity of offense as it relates to the impact on life of the

victim and on the community, and the rehabilitative needs of the defendant

under Section 9721. The trial court determined that an aggravated sentence

was appropriate because Appellant’s conduct was extreme.              Appellant

ganged up with two others to strike an unconscious victim, causing an injury

that ultimately contributed to the victim’s death. As previously noted, the

court heard victim impact testimony from the victim’s family. In its written

opinion, the trial court described that impact as a “quite drastic effect that

the victim’s resultant death has caused on his family.” Trial Court Opinion,

12/8/2014, at 10.    Moreover, the trial court had the benefit of a PSI report

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and, thus, we presume it was aware of, and duly considered, any character-

related information contained therein. Based upon all of the foregoing, we

conclude the trial court did not improperly rely upon the nolle prossed

aggravated assault charge in sentencing Appellant. The trial court fashioned

an individualized sentence for Appellant and clearly articulated its reasons on

the record at sentencing. Hence, both of Appellant’s appellate claims fail.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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