J-S41001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                           :    IN THE SUPERIOR COURT
  PENNSYLVANIA                              :       OF PENNSYLVANIA
                                            :
                          Appellee          :
                                            :
                     v.                     :
                                            :
  TREV BOWIES JACKSON, II                   :
                                            :
                          Appellant         :    No. 597 MDA 2018


           Appeal from the Judgment of Sentence April 25, 2017
  in the Court of Common Pleas of York County Criminal Division at No(s):
                        CP-67-CR-0005766-2016,
                         CP-67-CR-0005767-2016

BEFORE:    LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

                                                 FILED SEPTEMBER 04, 2019

        I join the Majority, except for its conclusion that Jackson is not entitled

to relief on his discretionary aspects of sentencing claim because concurrent

sentences would “provide a ‘volume discount.’” Majority Memorandum, at 5.

Instead, I conclude that Appellant has not raised a substantial question and

offer the following analysis.

        Relevant to this issue, Jackson was convicted of both assault of a law

enforcement officer and attempted murder for shooting at a police officer

three times. He was sentenced to an aggregate term of 30 to 60 years of

incarceration, which included consecutive sentences for his assault of a law

enforcement officer and attempted murder convictions. On appeal, Jackson

* Retired Senior Judge assigned to the Superior Court.
J-S41001-19


argues, inter alia, that the trial court abused its discretion in sentencing him

to consecutive, rather than concurrent, sentences for those two crimes.

Relying on Commonwealth v. Foust, 180 A.3d 416 (Pa. Super. 2018),1 the

Majority concludes that this issue raises a substantial question, and that

Jackson is not entitled to relief on this discretionary-aspects-of-sentencing

claim because Jackson is not entitled to a “volume discount.”

         While this Court has utilized the “volume discount” language under

circumstances similar to those presented here, I believe that such language

should be more limited. The concept that a criminal defendant should not be

entitled to a volume discount is better applied in circumstances where crimes

are committed serially or over a period of years, months, or even days or

hours. See, e.g., Commonwealth v Mastromarino, 2 A.3d 581 (Pa. Super.

2010) (referencing that Mastromarino is not entitled to a volume discount for

his   convictions    for   selling   human     body   parts   from   244   corpses);

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011) (holding Prisk was

not entitled to a volume discount after being convicted of 314 offenses for

sexually abusing his stepdaughter for six years).

____________________________________________
1 In that case, the trial court was tasked with re-sentencing Foust, who was
17 years old when he open fired on an automobile killing two individuals and
was previously sentenced to life in prison without parole. The trial court re-
sentenced Foust to two consecutive terms of 30 years to life in prison. On
appeal, Foust argued this amounted to an unconstitutional de facto life
sentence. This Court concluded that the trial court did not abuse its discretion
because the sentence did not amount to a de facto life sentence. In doing so,
this Court pointed out that “Pennsylvania has long disavowed the concept of
volume discounts for committing multiple crimes.” Foust, 180 A.3d at 436.

                                           -2-
J-S41001-19


        Thus, instead of concluding that Appellant raised a substantial

question, I would conclude that Appellant has not presented a substantial

question because an aggregate sentence of 30 to 60 years of incarceration for

attempted murder and assault of a law enforcement officer does not appear

on “its face to be [] an excessive level in light of the criminal conduct at issue.”

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598-99 (Pa. Super.

2010) (holding consecutive sentences amounting to 20 to 40 years of

incarceration for kidnapping, robbery, and conspiracy did not raise a

substantial question). See also Commonwealth v. Dodge, 77 A.3d 1263,

1271 (Pa. Super. 2013) (cautioning defendants that a substantial question will

not be raised where “the facts of the case do not warrant the conclusion that

there is a plausible argument that the sentence is prima facie excessive based

on the criminal conduct involved”).




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