J-S70034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

DANIEL SOLER

                             Appellant               No. 2073 EDA 2014


             Appeal from the Judgment of Sentence March 14, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009434-2012


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 02, 2015

        Daniel Soler appeals from the judgment of sentenced entered in the

Court of Common Pleas of Philadelphia County following a jury trial 1 in which

he was convicted of third-degree murder,2 arson,3 criminal conspiracy,4




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Mr. Soler was tried with his sister, co-defendant Jacqueline Soler, who was
convicted of arson, criminal conspiracy, and hindering prosecuting. Ms.
Soler has filed a separate appeal at docket number 2005 EDA 2014.
2
    18 Pa.C.S. § 2502(c).
3
    18 Pa.C.S. § 3301(a)(1).
4
    18 Pa.C.S. § 903.
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possession of a firearm without a license5 and by a prohibited person.6 After

our review, we affirm.

        The trial court summarized the facts of this matter as follows:

        On Saturday, March 31, 2012, Tanisha Carr contacted [Mr.
        Soler], with whom she had two children, in order to meet and
        talk about $500 which she had loaned [Mr. Soler]. Carr and [Mr.
        Soler] shared custody of their daughter, D.S.[,] and their son,
        D.S.J., who stayed with Carr during the week and with [Mr.
        Soler] over the weekends. At approximately 10:30 p.m., before
        going to meet with Carr, [Mr. Soler] called his children into his
        room and stated that he would be going somewhere. While [Mr.
        Soler] was talking with his children, D.S.J. reached into [Mr.
        Soler’s] coat, which permitted D.S. to see a concealed gun. [Mr.
        Soler] stated, “I love you no matter what happens,” gave his
        children a hug and a kiss, and then left the house.

        Carr had arranged to telephone her sister, Tamika McDuffie,
        upon arriving at the meet location, which she did at 11:43 p.m.
        Upon calling McDuffie, Carr stated, “here comes Danny,” and
        then left the phone active, permitting her sister to listen in on
        their conversation. McDuffie was able to hear Carr state, in a
        scared tone, “where are we going?” The last words McDuffie
        heard Carr state [were]: “Never mind, I don’t want the money,
        just give me my keys so I can go home.” Following this
        statement, the phone went dead and repeated calls by McDuffie
        were unanswered. [Mr. Soler] and Carr got into an argument, at
        which point [Mr. Soler] “snapped,” pulled out his gun, and shot
        Carr multiple times. [Mr. Soler] then drove away, while Carr lay
        in the passenger seat dying.

        Thereafter, [Mr. Soler] called his sister, co-defendant Jacqueline
        Soler (“Ms. Soler”), informing her that he had just killed a
        [“man”] and arranged to meet with Ms. Soler at their cousin

____________________________________________


5
    18 Pa.C.S. § 6106.
6
    18 Pa.C.S. § 6105.




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        Freddie’s[7] home. [Mr. Soler] parked the vehicle with Carr’s
        body at 4519 North 3rd Street, Philadelphia, which is a mixed
        commercial and residential area, at 12:30 a.m., April 1, 2012,
        and arrived at Freddie’s home shortly thereafter.

        While at Freddie’s home, [Mr. Soler] repeatedly commented he
        had “fucked up” and that he was “not going to see [his] kids.”
        [Mr. Soler] asked if Aura Bernard, Freddie’s live[-]in girlfriend,
        had any gas, stating that he intended to burn the car to get rid
        of the evidence. Bernard and Ms. Soler left the house and
        bought gas at the local 7-Eleven convenience store. Upon their
        return, Bernard gave the gas to [Mr. Soler], who returned to the
        parked vehicle while everyone else remained at home. [Mr.
        Soler] poured the gas on the car, on the floor of the car, and on
        Carr’s body before using a lighter to light the gas. [Mr. Soler] lit
        the fire at approximately 2:19 a.m.

        Philadelphia Fire Department personnel arrived at the scene of
        the car fire at 2:28 a.m., approximately eight minutes after it
        was lit.   The fire had fully involved the interior passenger
        compartment and the force of the flame had blown out the
        vehicle’s windows. Upon extinguishing the fire, [firefighters
        found] Carr’s body . . . slumped across the passenger seat, so
        badly burned that Fire Department officials could not tell her
        gender. Subsequent investigation revealed that Carr had been
        shot three times in the torso and once in the chin. Carr [had]
        died within two to three minutes.

        At approximately 5:30 a.m., April 1, 2012, police contacted
        Carr’s parents, informing them that Carr’s burned vehicle had
        been found with a body inside. Later that day, [Mr. Soler] talked
        with Carr’s step-father, Joseph Coleman Jr., on the phone.
        When Coleman informed [Mr. Soler] that Carr’s body had been
        found, [Mr. Soler] responded, “what that got to do with me?”
        When Coleman confronted [Mr. Soler] about the $500 [Mr.
        Soler] owed Carr, [Mr. Soler] hung up the phone.

        Following his arrest, [Mr. Soler] gave a statement to police,
        admitting that he had shot Carr multiple times [while] she was in
        the vehicle and that she was still breathing as he drove away.
        [Mr. Soler] further confessed to conspiring with Ms. Soler and
____________________________________________


7
    Freddie’s real name is Roberto Soler.



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       Bernard to dispose of Carr’s body and that he did so using the
       gas that Ms. Soler and Bernard [had] purchased.

Trial Court Opinion, 3/9/15, at 2-4 (citations omitted).

       Following trial, Mr. Soler was sentenced on March 14, 2014. Mr. Soler

was sentenced to an aggregate sentence of 45 to 90 years’ incarceration,

including consecutive sentences of 20 to 40 years’ incarceration for third-

degree murder, 10 to 20 years’ incarceration each for arson and conspiracy

to commit arson, and five to ten years’ incarceration for possession of a

firearm by a prohibited person.            Mr. Soler filed a timely post-sentence

motion, which the court denied on June 23, 2014.              This timely appeal

followed.8

       Mr. Soler raises one issue for our review:

       Did the trial court err, and abuse its discretion, in imposing [a]
       consecutive aggregate sentence of 45 to 90 years[’]
       incarceration in that said sentence was unreasonable, excessive,
       and an unwarranted upward departure from the applicable
       sentencing guidelines?

Brief for Appellant, at 2.

       Mr. Soler’s sole claim on appeal is a challenge to the discretionary

aspects of sentencing. We note that an appellant is not entitled to review of
____________________________________________


8
  Mr. Soler initially failed to file a court-ordered concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed
an opinion on September 23, 2014, noting that Mr. Soler had waived his
claim by failing to file the statement. Thereafter, Mr. Soler filed a motion in
this Court, requesting that the matter be remanded so that he could file a
concise statement. The motion was granted on February 10, 2015, requiring
Mr. Soler to file a statement within 21 days. Mr. Soler complied by filing his
concise statement on March 3, 2015.



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the discretionary aspects of sentencing unless he or she satisfies 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.

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en

banc) (quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011)).

        Instantly, Mr. Soler filed a timely notice of appeal and preserved his

issues in a post-sentence motion. Mr. Soler’s brief includes a statement of

the reasons relied upon regarding the discretionary aspects of his sentence

pursuant to Pa.R.A.P. 2119(f).9          Accordingly, we must determine whether


____________________________________________


9
   The Commonwealth argues that Mr. Soler’s Rule 2119(f) statement is
defective because it does not immediately precede the argument portion of
his brief and fails to indicate where his sentences fell in comparison to the
sentencing guidelines, citing Commonwealth v. Dodge, 77 A.3d 1263,
1271 (Pa. Super. 2013) (noting disapproval of appellant’s “failure to indicate
where his sentences fell in the sentencing guidelines and what provision of
the sentencing code was violated”). While Mr. Soler does not specifically
state where each of his sentences fell in comparison to the guidelines, he
indicates that his sentences for arson and conspiracy to commit arson
exceeded the guidelines. Mr. Soler also notes a specific sentencing provision
he believes the court violated and clearly indicates his argument that the
imposition of consecutive sentences is excessive in light of the
circumstances. Thus, we proceed to determining whether Mr. Soler raises a
substantial question.



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Mr. Soler presents a substantial question that the sentence he appeals from

is not appropriate under the Sentencing Code.

      Whether a substantial question has been raised is evaluated on a case-

by-case basis.    Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.

2011).   A substantial question will be determined to exist “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either:     (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Id. In fashioning a sentence, the court “must consider

the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the

public, gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant.      And of course, the court must

consider the sentencing guidelines.” Caldwell, supra at 768.

      We note that “[a] court’s exercise of discretion in imposing a sentence

concurrently or consecutively does not ordinarily raise a substantial

question.”   Id. at 769 (citing Commonwealth v. Mastromarino, 2 A.3d

581, 587 (Pa. Super. 2010)).        However, a “critical distinction [exists]

between a bald excessiveness claim based on imposition of consecutive

sentences and an argument that articulates reasons why consecutive

sentences in a particular case are unreasonable.” Dodge, supra at 1270.

Indeed, the latter case “may raise a substantial question”. Id. (emphasis in

original).




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      Here, Mr. Soler asserts that the imposition of consecutive sentences,

including   arson    and   conspiracy   sentences   exceeding   the   guidelines,

combined with the sentencing court’s failure to consider his rehabilitative

needs raises a substantial question.       We have held that a challenge to

“consecutive sentences as unduly excessive, together with [a] claim that the

court failed to consider [the] rehabilitative needs” of the appellant presents a

substantial question. Caldwell, supra at 770. Thus, we conclude that Mr.

Soler raises a substantial question.

      We review a challenge to the discretionary aspects of sentencing that

raises a substantial question to determine whether the trial court abused its

discretion. Id.

      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.

Id. (quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014)).

       We note that where the sentencing court reviewed a presentence

report, the court is considered to have appropriately weighed the requisite

sentencing factors.     Commonwealth v. Naranjo, 53 A.3d 66, 72 (Pa.

Super. 2012).       The sentencing guidelines “are merely one factor among

many that the court must consider in imposing a sentence” and are “purely


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advisory in nature.” Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa.

2007). Indeed, we “cannot disturb a sentence that exceeds the sentencing

guideline recommendations unless it is unreasonable.” Naranjo, supra at

73 (citing 42 Pa C.S. § 9781(c)). Furthermore, an appellant is “not entitled

to a volume discount for numerous and serious crimes.” Caldwell, supra at

772 (citing Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super.

2010)).

      Mr. Soler asserts that the sentencing court considered the impact of

his crimes on the victims to the exclusion of considering his rehabilitative

needs. He argues that “the sentence imposed was in reality a life sentence .

. . without regard for how fulfilling the conditions of the sentence imposed

would benefit the public and/or Mr. Soler.” Brief for Appellant, at 10.

      The record reveals that, contrary to Mr. Soler’s assertions, the court

took into account both the impact on the victims and Mr. Soler’s

rehabilitative needs. The court reviewed a presentence investigation report

prior to sentencing.   At the sentencing proceedings, Mr. Soler’s counsel

requested that Mr. Soler receive mental health treatment, vocational

training, and assistance in obtaining his GED, as suggested in the report.

The court agreed, stating, “I’ll recommend these conditions to the

Department of Corrections:     That you earn your GED, that you receive

vocational training, complete anger management counseling, that you

receive mental health treatment and substance abuse treatment.”           N.T.

Sentencing, 3/14/14, at 40.       Thus, the court not only reviewed the

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presentence report, indicating that the sentencing factors were properly

weighed, Naranjo, supra, the court also granted Mr. Soler’s requests

regarding rehabilitative measures to take place during his incarceration.

      Turning to the length of Mr. Soler’s sentence, we note that Mr. Soler

has a long history of arrests and convictions, including for violent crimes.

This indicates that despite multiple opportunities to become rehabilitated,

Mr. Soler has not been successful; rather, his violent behavior has increased.

As the court stated in choosing to sentence Mr. Soler above the guidelines

for arson and conspiracy to commit arson:

      You have a history of violence. You have a robbery conviction
      which I see in your record and the extensive nature of your
      record is taken into account by your prior record score, but in
      terms of aggravation, I do see that there is violence in your
      history.

      This is not a garden variety arson. The arson was to cover up a
      murder. That’s not reflected in the guidelines. And for that
      reason I think a departure above the guidelines is appropriate on
      the arson charge and on the conspiracy to commit arson charge.

      It also is not a garden variety arson in that the guidelines don’t
      take into account that you desecrated the body of the mother of
      your children when you burned up that car in order to protect
      yourself to destroy evidence. That’s another factor that leads
      me to believe that a departure above the guidelines is
      appropriate on the arson charge and on the conspiracy to
      commit arson charge.

N.T. Sentencing, 3/14/14, at 39. Based upon the reasoning provided by the

court, sentencing Mr. Soler beyond the guidelines for arson and conspiracy

to commit arson was clearly not unreasonable. Naranjo, supra.




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     Finally, we turn to the imposition of consecutive sentences for Mr.

Soler’s crimes.   The trial court indicated it would impose the sentences

consecutively “to reflect the fact that [there] are separate crimes and to

achieve an aggregate sentence that . . . is fair under all the circumstances

because it’s commensurate with the terrible crime [Mr. Soler] committed in

this case.” N.T. Sentencing, 3/14/14, at 41. Based upon the serious nature

of Mr. Soler’s actions and the multiple, separate crimes he committed, we

discern no abuse of discretion in imposing the sentences consecutively.

Caldwell,   supra;   see   Mastromarino,    supra,   at   591   (consecutive

sentences not imposed in error where sentencing court determined that

charges represented separate, distinct wrongs and aggregate sentence was

commensurate with culpability).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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