J-A20003-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JOHN MACBETH,

                             Appellant                No. 861 WDA 2017


         Appeal from the Judgment of Sentence Entered May 17, 2017
              In the Court of Common Pleas of Jefferson County
                          Criminal Division at No(s):
                           CP-33-CR-0000314-2016
                           CP-33-CR-0000315-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 17, 2018

       Appellant, John MacBeth, appeals from the judgment of sentence of an

aggregate term of 8½ to 17 years’ incarceration, imposed after he pled guilty

to 34 counts of recklessly endangering another person (REAP), 18 Pa.C.S. §

2705. Appellant solely challenges the discretionary aspects of his sentence.

After careful review, we affirm.

       The facts, according to Appellant, are as follows:

             On March 11, 2016, Appellant was a resident in a cabin
       owned by his family. Said cabin was part of a series of cabins
       rented by the family during the summer months.[1] On March
____________________________________________


1 According to unobjected-to statements by the trial court at sentencing,
Appellant was “a caretaker at [the] campground[,]” which is located in Cook
Forest, Pennsylvania. See N.T. Sentencing, 5/17/17, at 27. As stated by
Appellant, the campground is owned by his family, and is called MacBeth
Campground. See Appellant’s Brief at 7.
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       11[th,] his sister and another individual came to the residence and
       encountered Appellant who was intoxicated. Appellant pointed a
       handgun at them and they departed. They called 911 and [the]
       Pennsylvania State Police responded the following day. When
       Appellant refused to come out of the residence[,] a stand-off
       commenced. Thirty-[t]wo [s]tate [t]roopers ultimately arrived at
       MacBeth Cabins. Police used teargas to dislodge Appellant and
       Appellant responded by discharging a firearm.[2]

Appellant’s Brief at 7.

       Appellant was arrested and charged with 32 counts each (relating to all

police officer victims) of attempted homicide, aggravated assault, and REAP.

In a consolidated case, he was also charged with two counts of REAP (relating

to his sister and the other individual with her). Ultimately, he entered a guilty

plea to the 34 REAP counts in both cases, and the remaining charges were

withdrawn. On May 17, 2017, Appellant was sentenced to consecutive terms

of 3 to 6 months’ incarceration for each REAP count, totaling an aggregate

term of 8½ to 17 years’ incarceration. He filed a timely post-sentence motion

for reconsideration of his sentence, which the court denied.

       Appellant then filed a timely notice of appeal, and he also timely

complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Herein, he raises one issue for

our review:

       I.     Did the [t]rial [c]ourt abuse its discretion when it denied
              Appellant’s Motion to Modify Sentence and where the
              sentence that was imposed did not make a meaningful
              inquiry into the factors set forth in 42 Pa.C.S.[] § 9721?
____________________________________________


2Appellant fired approximately 30 shots. See N.T. Sentencing at 13. It is
not clear whether Appellant fired at the state troopers, or at the ceiling and
walls of the cabin. Id. at 11, 13.

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Appellant’s Brief at 5.

      We begin our review of Appellant’s claim by noting that,

      [c]hallenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] 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 [the]
         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).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
      the discretionary aspects of a sentence are generally waived if
      they are not raised at the sentencing hearing or in a motion to
      modify the sentence imposed. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
      exists “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.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Instantly, Appellant filed a timely notice of appeal and preserved his

sentencing claim in a post-sentence motion. In his brief, Appellant sets forth


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a Rule 2119(f) statement in which he avers that his sentence is manifestly

excessive because,

      the trial court failed to adequately consider [his] mental health
      and alcoholism and instead focused on the “what if” question -
      “what if” someone had been injured. The trial court also relied on
      facts not in evidence when it equated shooting in the air or [at
      the] ground with actually shooting AT the state troopers present.
      The trial court also invented the “huge effect on the community”
      [factor] when there were no such facts presented by the
      Commonwealth.

Appellant’s Brief at 10 (emphasis in original).

      Notably, Appellant does not identify what provisions of the Sentencing

Code the court violated, nor cite any case law to demonstrate that the

arguments he presents constitute substantial questions for our review. More

problematically, Appellant’s assertions in his Rule 2119(f) statement were not

preserved in his Rule 1925(b) statement. Therein, Appellant presented the

following, single issue:

      a. The trial court abused its discretion when it sentenced
         [Appellant] to an aggregate period of incarceration of [8½] to
         [17] years[’] incarceration by sentencing [Appellant] to three
         to six months[’] incarceration for each count of conviction [sic]
         and then running all said counts consecutively[.]

Rule 1925(b) Statement, 6/15/17, at 1 (single page).

      Appellant did not claim, in his concise statement, that the court failed

to consider the mitigating circumstances of his mental health issues and

alcoholism, or his rehabilitative needs regarding these issues. He also did not

contend that the court improperly considered that he shot at the state

troopers, or that the court erred by concluding there was a ‘huge effect’ on


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J-A20003-18



the community. Therefore, the trial court did not address these claims in its

Rule   1925(a) opinion.          See Trial     Court Opinion,    1/10/18, at 1-2.

Consequently, Appellant has waived these arguments for our review.              See

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.”).3

       Nevertheless, even if Appellant’s arguments had been properly

preserved in his concise statement, and if they constituted substantial

questions for our review, we would deem his claims meritless. First, in the

argument portion of his brief,4 Appellant avers that the trial court failed to

consider his mental health issues and alcoholism. The record belies this claim.

Defense counsel provided the trial court with a sentencing memorandum

detailing these issues, and the court stated that it had “read it several times,

as well as the presentence [report defense counsel] reference[d] in it.” N.T.

Sentencing at 3. Defense counsel also discussed Appellant’s mental health

and alcohol problems at the sentencing proceeding.              Id. at 4-6.   Before

____________________________________________


3 We point out that Appellant was notified, in the court’s order directing him
to file a concise statement, that “[a]ny issue not properly included in this
statement, timely filed with the Prothonotary, and served on the trial judge …
shall be waived.”     Rule 1925(b) Order, 6/9/17, at 1 (citing Pa.R.A.P.
1925(b)(4)).

4 The claims presented in Appellant’s Rule 2119(f) statement do not exactly
align with the assertions set forth in the argument portion of his brief. In our
alternative analysis, we address only the claims presented in Appellant’s
argument, despite that some of those assertions were not set forth in his Rule
2119(f) statement.

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imposing Appellant’s sentence, the court took a short break and, when it

returned, it stated that it had again “reviewed the sentencing memorandum

provided by [defense counsel]…, the presentence investigation report

provided by Jefferson County Adult Probation, the notes taken of the argument

and statements from this morning, [and 42 Pa.C.S. §] 9721 regarding the

statutory bases for sentencing.”    Id. at 22-23.    The court stressed that it

“considered everything contained [in] each of those documents.” Id. at 23.

The court also acknowledged that the psychologist who had examined

Appellant prior to sentencing opined that Appellant’s actions were triggered

by “a mixture of [his] new medication and alcohol.” Id. at 25. The court

ultimately imposed mitigated-range sentences for 32 of Appellant’s 34 REAP

counts, and standard-range terms for his other two REAP convictions,

“because of [Appellant’s] drug and alcohol and mental health problems….” Id.

at 33. Obviously, this record demonstrates that the trial court not only took

into account, but also weighed in Appellant’s favor, his mental health issues

and his alcoholism in fashioning his sentence.      Therefore, we would deem

Appellant’s first argument meritless.

      Second, we would reject Appellant’s claim that the court improperly

concluded that he fired shots at the state troopers. At the sentencing hearing,

defense counsel and the Commonwealth clearly disagreed about this fact, with

defense counsel’s arguing that there was no evidence that Appellant fired at

anything but the floor, ceiling, and walls of the cabin he was in, id. at 13, and

the Commonwealth’s maintaining that Appellant fired in the direction of the

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officers outside his home, id. at 17.    Ultimately, in stating its reasons for

Appellant’s sentence, the court did not focus on the fact that Appellant fired

at the officers; instead, the court stressed that all of the officers present at

the scene heard the shots being fired, which could have caused them to be

“scared and worried about injury[,]” regardless of “[w]hether [the shots] were

fired in the ceiling, the ground, at the troopers, or at anything….” Id. at 26.

Thus, the court did not rely on Appellant’s firing at the state troopers when

fashioning his sentence.

      We would also discern no abuse of discretion in the court’s considering

that Appellant’s conduct “had a huge effect on the community.” Id. at 27.

The Commonwealth stressed that Appellant engaged in an eight-hour standoff

with police during which 32 officers responded and Appellant fired at least 30

gunshots. Id. at 10, 11, 19. The Commonwealth argued that Appellant’s

conduct “put the whole community in chaos” and “terrorized his family.” Id.

at 15. While defense counsel attempted to minimize the event, characterizing

it as being only “tremendously inconvenient for the Cook[] Forest community,”

id. at 8, the trial court disagreed. Instead, aligning with the Commonwealth’s

position, the court stressed that 32 officers had responded to this incident,

which occurred in a small community.       Id. at 25, 26.    The court further

explained that the cabin in which Appellant was shooting was in “a camping

place where people go” year-round, and that Appellant was “a caretaker” at

that public campground. Id. at 27. Additionally, the court pointed out that

the incident occurred “right along Route 36, which is the main artery for that

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area….” Id. For these reasons, the court concluded that this event “had to

be a shock to the individuals involved or the citizens around there….” Id. In

light of the circumstances of this case, we discern no abuse of discretion in

the trial court’s characterizing Appellant’s conduct as having a “huge effect on

the community.” Id. at 26-27.

       Finally, to the extent that Appellant argues that the court abused its

discretion in imposing his sentences consecutively (a claim which was

preserved in his Rule 1925(b) statement, but was not set forth in his Rule

2119(f) statement), we would disagree. In explaining its decision to fashion

such a sentence, the court explained:

       [THE COURT]: I do think, as I said, for each person, there should
       be a separate sentence because each person had that individual
       danger o[r] fear. I’m not going to guess whether it could have
       been a ricochet or it could have been other means. I don’t know
       if [the officers] shot back without injuring themselves or things
       like that. I … just think when you use a gun and you start shooting
       shots, whether it’s in the ceiling or the floor or the woods, you’re
       causing a danger and you’re causing a danger to the people that
       are there. So each person should have their own sentence.

              Now, because the [deadly weapon enhancement] guidelines
       are so high, steep, I don’t think you deserve a life sentence,
       because I could go fifteen months in the standard range on each
       shot. That would put you above your actuary life.[5] I don’t think
       that’s appropriate either.

            But … I am going to, taking the matters up in the sentencing
       memorandum, give you a mitigated sentence at each of the
       counts.

____________________________________________


5Appellant was 48 years old at the time of the sentencing proceeding. Id. at
23.


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Id. at 27-28. After imposing mitigated-range sentences of 3 to 6 months’

incarceration for each count involving a police officer, and 3 to 6 month

standard-range sentences for the two other individuals victimized by

Appellant’s conduct, the court concluded by stating:

      [THE COURT:] … [A]lthough on each of these counts I gave you a
      mitigated sentence because of your drug and alcohol and mental
      health problems, the reasons I set forth earlier and the reasons
      they are consecutive, and just the overall violent nature of the
      action -- I think that sentence is appropriate.

Id. at 33-34.

      In light of this record, it is clear that the trial court took into account the

mitigating circumstances of this case and imposed lighter sentences on each

REAP count.     However, the court chose to run those counts consecutively

because of the danger each victim faced, the seriousness of Appellant’s

offenses, and the impact on the community as a whole. We would ascertain

no abuse of discretion in the court’s sentencing decisions.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/17/2018




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