J-S66022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                                            :
             v.                             :
                                            :
                                            :
BRYAN D. ANTHONY                            :
                                            :
                    Appellant               :    No. 156 WDA 2017

         Appeal from the Judgment of Sentence November 22, 2016
  In the Court of Common Pleas of Washington County Criminal Division at
                      No(s): CP-63-CR-0001250-2015


BEFORE:    BENDER, P.J.E., DUBOW, J., and PLATT*, J.

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 11, 2017

      Appellant, Bryan D. Anthony, appeals from the Judgment of Sentence

entered   after   the   revocation   of   his   probation.   He   challenges   the

discretionary aspects of his sentence.     We affirm.

      On May 6, 2015, Appellant pled guilty to Involuntary Manslaughter, 18

Pa.C.S. § 2504, Aggravated Assault by Vehicle, and related summary

offenses, in connection with the death of Bryan Anselmino resulting from a

multiple-vehicle traffic collision caused by Appellant on February 22, 2014.

      On June 8, 2016, the court sentenced Appellant to concurrent terms of

county Intermediate Punishment (“IP”) for 23 months under the supervision

of the Washington County Adult Probation Office, with the first 90 days of

the sentence to be served on an electronic home monitor, in addition to fines

on the summary offenses and restitution.



____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        On August 16, 2016, the Washington County Adult Probation Office

filed a Petition for Revocation of Probation or Parole, indicating that

Appellant had committed two violations of his IP probation. The Probation

Officer averred that Appellant had lied to officers and had left his home at

least four times without authorization, including four visits to Meadows

Racetrack and Casino during the month of July 2016.

        On October 13, 2016, the court held a Gagnon II1 revocation hearing

at which Appellant and the Commonwealth stipulated that Appellant had

committed a technical violation of his probation.        Appellant also stipulated

that he had visited Meadows Casino on four different days without

authorization from the probation office and had failed to reveal that fact

when questioned by a probation officer.          The court revoked Appellant’s IP

sentence, and ordered a presentence investigation.

        On November 22, 2016, the court held a resentencing hearing at

which the Commonwealth presented the presentence investigation report

and testimony from Appellant’s probation officer.         Appellant and his wife

testified on Appellant’s behalf. The court imposed a sentence of one to five

years’ incarceration on the Involuntary Manslaughter conviction, and a

consecutive term of one to five years’ incarceration for the Aggravated

Assault by Vehicle conviction, after stating the following:


____________________________________________


1   Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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     Mr. Anthony, the Court has reviewed the presentence
     investigation and the comprehensive information that has been
     provided both through the adult probation office, the
     Commonwealth, and your counsel in this matter.

     There are factors within that investigation that bear in your
     favor, being no prior record, a minor driving record which
     resulted in a suspension some 14 years ago.

     You have certain stability factors, which are also in your favor.
     The Court recognizes that you have certain treatment needs due
     to both your mental health conditions that have been diagnosed,
     your physical illnesses, and your physical injuries.

     The Court also recognizes that you broke a promise to me in this
     courtroom. And you did that not by doing something for your
     wife, who works two jobs, or your kids.        You engaged in
     impulsive behavior on four separate occasions within two months
     after telling me that you would follow the conditions of the
     Intermediate Punishment Program.

     I don’t view that as a mere lapse in judgment. And I am still
     concerned that I don’t really see in you genuine empathy for the
     gravity of the offense and the harm that you caused to the
     Anselmino family.

     The revocation of probation is controlled by statute. You have
     not been convicted of another offense. But I find that the
     conduct you’ve engaged in indicates that you’re likely to commit
     another crime and that your rehabilitative needs are not served
     by a sentence less than total confinement.

     That sentence of total confinement is also necessary to vindicate
     the authority of this Court because I take seriously the promise
     that defendants make to me that you will abide by your
     conditions of your probation.

     In this case, an electronic monitor is a substitute for jail. If you
     walked off on a furlough or you walked off on work release, you
     would find another charge of escape that you would be facing.

     Considering that and considering the need to protect the public,
     the gravity of the offenses you committed, the impact on the
     Anselmino family and the community that Bryan Anselmino

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       served, considering your rehabilitative needs, including your
       need for both mental health treatment, and also treatment for
       your physical illnesses and injuries, this Court sentences you as
       follows[.]

       [Court then imposed sentences noted supra].

       Both of these sentences are set forth in the sentencing
       guidelines, and I’ve given extensive consideration of those
       guidelines and what I feel is appropriate here.

                                  ****
N.T. Resentencing, 11/22/16, at 11-13.

       The court also ordered Appellant to pay restitution still owed and

prohibited him from visiting any casino during the course of his sentence.

Id. at 14-15.

       Appellant filed a Post-Sentence Motion, which the trial court denied on

December 12, 2016. Appellant soon thereafter filed a Motion for Leave to

Appeal nunc pro tunc, which the trial court granted on January 19, 2017.

Appellant timely filed his Notice of Appeal. Both Appellant and the trial court

complied with the mandates of Pa.R.A.P. 1925.

       Appellant presents the following issue for our review:

       Discretionary Aspects of Sentencing: Defendant avers that the
       sentence was excessive, in light of all of the circumstances.

Appellant’s Brief at 6.2
____________________________________________


2 Appellant also included a challenge to the sufficiency and weight of the
evidence in his Statement of Questions Involved, but he abandoned the
claim by not addressing it in his Brief. See Commonwealth v. Bullock,
948 A.2d 818, 823 (Pa. Super. 2008) (finding claim abandoned when
appellant did not develop claim in his brief). See also Pa.R.A.P. 2119(a).




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      Appellant avers that the “punishment exceeded the severity of the

violations and the crimes.”   Appellant’s Brief at 8. He argues that the court

did not take into account the fact that he had pled guilty in exchange for no

confinement when the charges were first brought, and he had shown

“genuine empathy and appreciated the harm caused by his actions.” Id. at

9.

      Initially, we note that Appellant’s claim implicates the discretionary

aspects of sentencing.    See Commonwealth v. Hornaman, 920 A.2d

1282, 1283-84 (Pa. Super. 2007) (concluding that a claim that trial court

imposed an excessive and unreasonable sentence implicated a discretionary

aspect of sentence).

      Challenges to the discretionary aspects of sentence are not appealable

as of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super.

2015).   Rather, an appellant challenging the sentencing court’s discretion

must invoke this Court’s jurisdiction by satisfying a four-part test: “(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.[] § 9781(b).”       Id.

(citation omitted).




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      Here, Appellant has not provided a Rule 2119(f) Statement per se. He

instead provided a “Summary of Argument” as follows:

      There is a substantial question that the sentence imposed is not
      appropriate under title 42 Pa.C.S. § 9781. This was the first
      violation by Defendant and the punishment exceeded the
      severity of the violations and the crimes.

Appellant’s Brief at 8.

      Even if we were to consider Appellant’s “Summary of Argument” to be

an attempted Rule 2119(f) Statement, we would conclude it fails to provide

an adequate basis on which to invoke this Court’s jurisdiction. Our Supreme

Court held in Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)

(plurality), that a claim that a sentence, which is within the statutory limits,

is excessive can raise a substantial question. However, the Court cautioned:

      This does not mean, however, that the Superior Court must
      accept bald allegations of excessiveness. Rather, only where the
      appellant's Rule 2119(f) statement sufficiently articulates the
      manner in which the sentence violates either a specific provision
      of the sentencing scheme set forth in the Sentencing Code or a
      particular fundamental norm underlying the sentencing process,
      will such a statement be deemed adequate to raise a substantial
      question so as to permit a grant of allowance of appeal of the
      discretionary aspects of the sentence. See Koehler, 737 A.2d
      [225,] 244 [(Pa. 1999)] (party must articulate why sentence
      raises doubts that sentence was improper under the Sentencing
      Code); Saranchak, 675 A.2d [268,] 277 n. 18 [(Pa. 1996)]
      (“Appellant must, at a minimum, explain specifically why he
      thinks his sentences were improper”); Goggins, 748 A.2d [721,]
      7 [(Pa. Super. 2000)] (appellant need only make a plausible
      argument that a sentence is contrary to the Sentencing Code or
      the fundamental norms underlying the sentencing process).

Id. at 627-28.



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      We cannot conclude that Appellant’s “Summary of Argument” can

stand in as the required Rule 2119(f) Statement: it fails to provide the

necessary information to invoke this Court’s jurisdiction.     The Summary

provides conclusory statements, but does not articulate why the sentence

raises doubts that it was proper under the Sentencing Code, and does not

“at a minimum, explain specifically why he thinks his sentences were

improper.” Id. In fact, Appellant’s two-sentence “Summary of Argument”

presents no plausible argument that the sentence is contrary to the

Sentencing Code or improper under the fundamental norms of the

sentencing process.

      Accordingly, we conclude that Appellant has failed to provide a Rule

2119(f) Statement and, thus, has failed to invoke our jurisdiction so as to

allow us to review the discretionary aspect of his sentence.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2017




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