J. S55025/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                                            :
                    v.                      :
                                            :
JAMES ALVIN JONES,                          :
                                            :
                          Appellant         :     No. 3810 EDA 2015

              Appeal from the Judgment of Sentence May 12, 2014
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0000709-2012

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                        FILED SEPTEMBER 19, 2016

        Appellant, James Alvin Jones, appeals from the Judgment of Sentence

imposed on May 12, 2014, in the Court of Common Pleas of Chester County.

After careful review, we conclude that Appellant’s sentence was not

excessive relative to his co-defendants where (i) the Commonwealth had

stronger evidence against Appellant; (ii) the evidence indicated Appellant

was more culpable than his co-defendants; and (iii) the trial court

sufficiently explained its reasoning behind the sentence imposed.            We,

therefore, affirm on the basis of the trial court’s well-reasoned opinion.

        The trial court summarized the facts underlying Appellant’s convictions

as follows:


*
    Former Justice specially assigned to the Superior Court.
J. S55025/16


     Appellant's conviction is the consequence of a deadly attack
     upon rival gang members that occurred on the night of
     December 3, 2011[,] during the course of a student-arranged
     bonfire parlay at 1641 Baltimore Pike in New Garden Township,
     Chester County, PA. Many in attendance at the party were
     Kennett High School students, and most attendees were not
     gang members. However, gang activity is rampant in parts of
     southern Chester County, the principal gangs being the
     "Surenos" or Sur 13 and its rival, the Vikings, also referred to as
     the "Vaqueros" or "VK", both comprised principally of members
     of Mexican/Spanish ancestry.

     On that night, [Appellant], who was not a Sur 13 gang member,
     but a close acquaintance and member of a gang known as "the
     Bloods", was in the company of several members of Sur 13, who
     were ultimately charged with third[-]degree murder and other
     crimes in this case. During that evening, news of the Vikings
     attendance at the bonfire party became known to Sur 13 gang
     members and to [Appellant], and was disseminated to other Sur
     13 gang members.

     Emboldened with mindless machismo, Sur 13 gang members
     conceived a plan to attack the Vikings who were attending the
     bonfire party. During the evening before the attack, Appellant
     had a knife in his possession which he displayed to Sur 13
     members and passed around. This knife was later identified as
     the knife used to kill both victims.

     [Appellant] and as many as fifteen gang members and hangers-
     on drove in two vehicles to 1641 Baltimore Pike. The two groups
     exited the vehicles and approached the Vikings in two cadres
     around a house trailer located on the property. Circumstances
     became immediately chaotic, with many of the party attendees
     running in fear from the scene. Police believed that three of the
     five Vikings present locked themselves in vehicles to avoid harm,
     but the victims, 27[-]year[-]old Cuahuctemoc Bedolla and 29[-
     ]year[-]old Jose Rodriquez did not reach safety and were
     attacked and murdered. The victims were attacked by as many
     as ten Sur 13 gang members.

Trial Court Opinion, dated 3/10/16, at 5-6 (unpaginated) (paragraph breaks

added).

     The trial court summarized the procedural history as follows:


                                    -2-
J. S55025/16


     On August 23, 2013, Appellant entered into a counseled written
     plea agreement with the Commonwealth in which he pled guilty
     to two counts of murder in the third degree, 18 Pa.C.S.A. §
     2502(c)[,] and one count of criminal conspiracy to commit third
     degree murder, 18 Pa.C.S.A. § 903.

     The written plea agreement provided for a negotiated term of
     imprisonment of 20 years to 40 years for the murder of
     Cuahuctemo Bedolla. See Count 3 of the information. Under
     the terms of the plea agreement, Appellant entered an open
     [plea] of guilty to murder in the third degree in the death of the
     second victim, Jose Rodriguez, stated in Count 5 of the
     information, and to Count 1 of the information charging criminal
     conspiracy. Appellant and the Commonwealth agreed that the
     sentence to be imposed by the sentencing judge in his discretion
     on Count 5 would be consecutive to the sentence imposed on
     [C]ount 3.

     [The trial court deferred sentencing] to allow the Commonwealth
     and the Appellant to submit sentencing memorandums, which
     were filed on November 4, 2013. On November 6, 2013, [the
     trial court] sentenced Appellant as follows: Count 3, 20 to 40
     years imprisonment; Count 5, 20 to 40 years imprisonment
     consecutive to Count 3; and Count 1, 10 years consecutive
     probation.

     Appellant filed a timely motion for reduction of sentence,
     pursuant to which, on April 22, 2014 following hearing on the
     motion, oral argument and consideration of briefs, [the trial
     court] granted Appellant's motion in part, vacated the sentence
     on Count 5, and ordered Appellant to be presented for
     resentencing on May 12, 2014. On the latter date, [the trial
     court] resentenced Appellant on Count 5 to 14 years, 6 months
     to 29 years imprisonment consecutive to Count 3. In all other
     respects, the sentences imposed on November 6, 2013 on
     Counts 1 and 5 remained unchanged. No direct appeal was
     taken from the foregoing judgment of sentence.

Id. at 1-4 (unpaginated) (some paragraph breaks added).

     On June 11, 2015, Appellant filed a pro se PCRA Petition, which he

amended after the appointment of counsel, seeking the reinstatement of his

direct appeal rights.   The PCRA court granted the Petition and Appellant


                                   -3-
J. S55025/16


timely filed the instant appeal. Appellant raises the following issue for our

review:

      Whether the trial judge abused his discretion and sentenced
      [A]ppellant to an excessive sentence that was unfair when
      compared to the sentences given his [c]o-[d]efendants.

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.      A

challenge to the discretionary aspects of sentencing is not automatically

reviewable as a matter of right. See Commonwealth v. Hill, 66 A.3d 359,

363 (Pa. Super. 2013). Prior to reviewing such a claim on its merits:

       [W]e conduct a four part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court’s jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code . . . .

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. 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.

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008)

(citations and quotations omitted).




                                      -4-
J. S55025/16


      Appellant complied with the first two requirements by filing a timely

Notice of Appeal and preserving his sentencing issues by filing a Petition to

Reconsider Sentence.         Although Appellant did not include in his brief a

separate Rule 2119(f) Statement, the Commonwealth has not objected to

this defect and, thus, we decline to find that the defect is fatal. 1   Finally,

Appellant’s claim—that the trial court imposed a disparate sentence relative

to his co-defendants—does raise a substantial question regarding the

appropriateness       of   Appellant’s   sentence.   See   Commonwealth      v.

Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (concluding that an

appellant raises a substantial question when he avers an unexplained

disparity between his sentence and that of his co-defendant).

      We turn to the merits of Appellant’s claim, bearing in mind the

following standard of review:

      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.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).

1
  This Court may overlook the appellant’s failure to comply with Rule 2119(f)
“where the appellee fails to object to the omission and a substantial question
is evident from the appellant’s brief.” Commonwealth v. Kneller, 999
A.2d 608, 614 (Pa. Super. 2010).



                                         -5-
J. S55025/16


      The law governing our inquiry into allegations of a manifest abuse of

discretion in sentencing multiple co-defendants is well-settled:

      [C]o-defendants are not required to receive identical sentences.
      Generally, a sentencing court must indicate the reasons for
      differences in sentences between co-defendants. This is not to
      say, however, that the court must specifically refer to the
      sentence of a co-defendant. Rather, it requires that when there
      is a disparity between co-defendants' sentences, a sentencing
      court must give reasons particular to each defendant explaining
      why they received their individual sentences.

Mastromarino, 2 A.3d at 589 (citation and quotation marks omitted).

      In Mastromarino, this Court concluded that the trial court adequately

placed on the record its reasons for sentencing Mastromarino to a greater

sentence than his co-defendants, because Mastromarino had a greater role

in the crime. Id. at 590.

      In the instant case, the Honorable Ronald C. Nagle accepted guilty

pleas from Appellant and each of his 11 co-defendants.       Judge Nagle also

presided at all 12 sentencing hearings. At Appellant’s initial sentencing, and

again at his re-sentencing, Appellant’s trial counsel relied on the sentences

imposed on Appellant’s co-defendants to argue for a shorter sentence for

Appellant. See N.T., 11/6/13, at 42-45, 52; N.T., 5/12/14, at 3-5. At both

of Appellant’s sentencing hearings, the Commonwealth argued that the

evidence against Appellant was stronger than that against his co-defendants,

Appellant was more culpable than his co-defendants, and Appellant had a

more extensive record of prior criminal conduct than his co-defendants. See

N.T., 11/6/13, at 28-30, 56; N.T., 5/12/14, at 5-8. Judge Nagle carefully


                                     -6-
J. S55025/16


considered these arguments, along with the report from Appellant’s Pre-

Sentence Investigation and sentencing memorandums from both parties,

before imposing sentence in this case.      See N.T., 11/6/13, at 10, 58-60;

N.T., 5/12/14, at 4-5, 8-10.

        Judge Nagle has authored a comprehensive, thorough, and well-

reasoned Opinion, including a detailed discussion of the 11 other sentences

imposed and an explanation for the higher sentence imposed in Appellant’s

case.    After a careful review of Appellant’s argument and the record, we

affirm the Judgment of Sentence on the basis of that Opinion. Trial Court

Opinion, at 12-17 (unpaginated).         See also N.T., 11/6/13, at 62-65

(explaining the reasons for imposing Appellant’s initial sentence and taking

into account Appellant’s greater admitted culpability); N.T., 5/12/14, at 8-10

(reflecting on the “considerable thought” put into crafting Appellant’s

sentence, and basing the modified sentence on the evidence showing that

Appellant stabbed both victims).

        The parties are directed to attach a copy of the trial court’s March 10,

2016 Opinion to all future filings.

        Judgment of Sentence affirmed. Jurisdiction relinquished.




                                      -7-
J. S55025/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2016




                          -8-
                                                                              Circulated 08/26/2016 09:20 AM
                                                                                                                                 I
     S:\Admin\NAGLE\James   Jones, Rule 1925 Opinion.docx                                                                        I

       COMMONWEALTH OF PENNSYLVANIA                          IN THE COURT OF COMMON ~lEAS. _.·                              .1
                                                             CHESTER COUNTY, ~~~-.NSY~¥jNIA··;I
                                                                                   ,r.       .                             J
                            vs.                              NO. CP-15-CR-0000709:2012 ·
                                                                                '...,· '. .
                                                                                                            o              f_J
                                                                                                                           ,·r'
                                                                                                            -0             "r:
                    JAMES JONES                                                      "' . :.
                                                                                     ,....                  _.;.
                                                                                                             -·-            ·;.;,-
                                                                                                                            \    \'

                                                             CRIMINAL ACTION
                      Defendant
                                                                              ';. :\.; -;J
                                                                                      CJ·-

                                                                                                 (.;)            :----.:
                                                                                                                                ,I-;
                                                                                                                                      ..




     Nicholas J. Casenta, Jr., Chief Deputy District Attorney for the Commonwealth !
     Robert P. Brendza, Esquire, Attorney for the Defendant



     BY:     NAGLE, S.J.                                             March      /Q               I   2016
                                                                                                        !

                            OPINION PURSUANT TO Pa.R.A.P. 1925


            Appellant,       James Alvin          Jones     appeals the aggregat~                           sentence

     imposed upon him by the undersigned following his pleas of g~ilty to two

     counts of third .degree murder and one count of conspiracy! to comrit

     third degree murder. The instant direct appeal was filed on: December
..                                                   .                  I


     21, 2015. In his Rule 1925(8) statement, filed on January 18, 2016,

     Appellant alleges that we abused                        our    sentencing           discretion . by
                            .                                                               !
     unreasonably imposing an aggregate sentence that is substantially mre

     severe than the sentences we imposed on his co-defendants.                                                             :

     Procedural History.

            On August 23, 2013, Appellant entered into a counseled wri,en

     plea agreement with the Commonwealth in which he pied g~ilty to two

     counts of murder in the third degree, 18 Pa.C.S.A.                         §2502(c) and ~me
           .                                   .                 '
count of criminal conspiracy to commit third degree murder, 1 aj Pa. C.S.A.

§ 903. The written plea agreement provided for a neqotiated term of
                                                                 I

imprisonment of 20 years to. 40. years for the murder of cJahuctemo

Bedolla. See Count 3 of the information. Under the terms ,f the pita

agreement, Appellant entered an open of guilty to murder im the third

degree in the death of the second victim, Jose Rodriguez, stated in

Count 5 of the information
                         , and to Count 1 of the informatio11 charging
          .                                              I
criminal conspiracy. Appellant and the Commonwealth agreet that the
                                                                         I
sentence to be imposed by the sentencing judge in his discretion         in
                                                                         13.
Count 5 would be consecutive to the sentence imposed or\ count
               .                                                 I
Sentencing was deferred to allow the ~ommonwealth and the! Appellant

to submit sentencing memorandums, which were filed on November 4,

2013. On November 6, 2013, we sentenced Appellant as follo1ws: Count

3, 20 to 40 years imprisonment; Count 5, 20 to 40 years imJ.risonmJnt
                                                            1probatiJn.

consecutive to Count 3; and Count 1, 10 years consecutive

Appellant filed a timely motion for reduction of sentence, pursuant Ito

which, on April 22, 2014 following hearing on the motion, oral argument

and consideration of briefs, we granted Appellant's motion in palrt,
                                                             I            I
vacated the sentence on Count 5, and ordered Appellant to be lpresent~d
                                                                          .
for resentencing on May 12, 2014. On the latter date, we resentenckd
                                                                  I


                                                                          I
                                                                                 I


                                                                                 I
Appellant on Count 5 to 14 years, 6 months to 29 years imprisonmLt

consecutive to Count 3. In all other respects, the sentences imposed bn

November 6, 2013 on Counts 1 and 5 remained unchangedj No dirLt
                                                                      I

appeal Was taken from the foregoing judgment of sentence.

      On June 11, 2015, Appellant filed a non~compliant        prol se PCrA

petition, seeking the appointment of counsel and reinstatement of his

right to file a direct appeal. On June 12,      2015,
                                                                  I
                                                        we appoi~ted PC,~
                                                                              I
counsel and gave him 90 days to file a PCRA petition that complied 1ith

Pa.Rs.Cr. P. 902(-A) through (E). However, on June 15, 201s! Appellant
                                                                  1he
filed a second, prose form PCRA petition (OC-198) in which                alle~d

ineffective assistance of trial counsel, a plea of guilty unlawfully induc11ed
                             . .                                  I
which caused him to plead guilty in the face of his innocence,
                                                                  ;
unavailability of exculpatory evidence at the time of his pleas, and a
                                                                              I
violation of his right to competent counsel under the Sixth Am!ndmenJ of
                                            .   .                 I           I I
the United States Constitution. In the latter petition, Appellant claimed hls
                                                                             !
trial counsel were ineffective in allowing him to plead guilty when counsel

knew he was taking medication prescribed by a prison psychiatrist at Jhe
                                                                  I

time his pleas were entered. In this appeal, Appellant claims that five of

his co-defendants who each pied guilty to two counts of tliird degriee

murder pursuant to plea agreements
                              .
                                   received disproportionately lesser
                                                                   .
 sentences than did he. Appellant also claims that those co-defenda~ts

 entered.   into plea agreements     with the Commonwealth         tor lighJer

 ~entences in order to shift direct blame for the murders from tfhlJemselvls
                                                            -      .                  I
 to him for the purpose of "framing" him.

       On October 7, 2015, PCRA counsel filed an amended PC7A
                                                                                      I
 petition on Appellant's behalf seeking an evidentiary hearin&. allegihg
                                                                   I                  I
 ineffective assistance of trial counsel. The petition asserted trail counle1
                                                                   I                  I
 failed to file a direct appeal, upon an. allegation of abuse of discretion by

 the sentencing judge in imposing unreasonable and disparate senten~es

 in relation to those i_mposed on. Appellant's co-defenda1ts. PCj

 counsel specifically declined to pursue Appellant's other pro se clai1s,

 finding them to be meritless. On December 9, 2015, we enter~d an orsler

  permitting Appellant to file a direct appeal, nunc pro tune withi'n 30 days,
                              .                                    I       I
                                                                   I       I
· upon the Commonwealth's notification that it did not oppose such relief..

       Jurisdiction.   Appellant's judgment of sentence became -final on

 June 11, 2014, thirty days after we re-imposed sentence and his time for
                            '                                                     .
 filing a timely direct appeal expired. Therefore, he had one year from tKat




                                                                              I
                                                                              I
                                                                              !
                                                                          .   I
                                                                                                        II
                                                                                                        I
date to file a petition for collateral relief, specifically                       until JunJ 11, 2015.

See Pa. R.A.P.               903(a);     42 Pa.C.S.A.     §9545(b)(3).
                                                                                             I
                                                                                  Appellant's first pro
                                                                                                        I
se PCRA petition was timely filed on June 11,                          2015,     giving us Lrisdictibn
                                                                                             I
to consider it.                                                                              I
                                                                                             I
                                                                                             I




         Facts.         Appellant's conviction·           is the consequence                ofj a deadly

attack upon rival gang members that occurred on the night of December

3, 2011 during the course of a student-arranged bonfire pajy at 1611
                                                            .                                I
Baltimore Pike in New Garden Township,                              Chester County, Pf. Many in
                                                                                              I


attendance at the party were Kennett High School students, and m?st                           I
                                                                                              I

attendees were not gang members. However, gang activity is rampant in
                                                                                              I
                                                                                              I         I
parts    of southern                 Chester    County,    the       principal      gangs     being    the
                                                                                              I         I .
"Surenos" or Sur 13 and its rival, the Vikings,                            also referred! to as the
                                                                                              I

"Vaqueros"             or     11VK",     both   comprised           principally     of   members             of
                                                                                              I
Mexican/Spanish                    ancestry. On that night, the Appellant, who .was not, a
                                                                .                             .    I
Sur 13 gang member,                     but a close acquaintance and               member I of a gang
              11the
                   .                                                                          I    I
known as                    Bloods",     was in the company of several memb:ers of Sur

13, who were ultimately charged with third degree murder land otJer

crimes in this case. During that everiing, news of the Vikings JttendanL

at the bonfire party became known to Sur 13 gang memblrs and Ito

Jones,     and was                   disseminated   to other           Sur .13       gang         members.
 Emboldened with mindless machismo, Sur 13 gang members conceived

 a plan to attack the Vikings who were attending the bonfire pahy. Durlg

 the evening before the attack, Appellant had a knife in his Jossessitn

 which he displayed to Sur 13 members and passed around. !This
                                                                         !          I
                                                                                 knife

 was later identified as the knife used to kill both victims.      ThJ. Appelljnt

 and as many as fifteen gang members and hangers- on dr;we in Jo

 vehicles to 1641 Baltimore Pike. The two groups exited the v+icles a~d

 approached the Vikings in two cadres around a house trailer iocated bn
                                                                         I

 the property. Circumstances became immediately         chaotic, with many of

 the party attendees running in fear from the scene. Police believed that
                                                                         I
 three of the five Vikings present locked themselves in vehiclJs to avLd

·. harm, but the victims, 27 year old Cuahuctemoc Bedolla and            Jg   year 0\ld
                                  .                                      :          I     I
 Jose Rodriquez did not reach safety and w~re attacked and !murdered. I

 The victims were attacked by as many as ten Sur 13 gangl members
                                                                    .    I          I·
                       .
with sticks and clubs and by the Appellant, who carried the killing knife.
                                                                                    I
                                                                                    I
 See,    Sentencing Transcript, 11/6/2013",      pp.   18   -33,        Prosecuto~'s

 Description of the Attack. See Sentencing Transcript 11/6/201;3, forent

 crime scene testimony of Detective Kenneth Beam, pp.11-18.

        Appellant's GuiltyPlea.
        As part of the facts to which Appellant    pied guilty: he ad~itted +it

he was directly and actively involved in the assault on the victims.            He
                                                                                 I
· admitted that the knife used to kill the victims was hi{ and he
      .                                                     I       I
  confessed that he stabbed Cuahuctemo Bedolla to death wit~ the knife.

As a consequence, he agreed to a 20 to 40 year prison sentencefor Jis aime.      L
                                                                       I
noted, Appellantentered an open guiltyplea to third degree murderin the death of
                                                            .       I
Jose Rodriquez, · admltting he was also criminally responsibile for Nlr.
                                              .                        I         I
Rodriguez' death, although he did not confess that he was thJ~ one who .

inflicted · Rodriguez' fatal knife wounds.        None of· his co-conspirators ·

admitted to doing so. Defendant confessed, however, that thj knife t~at
    .                                    .                             !       . I
inflicted the fatal wounds on both of the victims was brought. by him to the

scene of the crimes, and was wielded by him during the asjaults. T~e

evidence also demonstrated        that the killing    knife was imiedded                  in
                     .                                 .
Bedolla's vertebrae, but was somehow dislodged and found at the murder
                                                                       I
scene near a pool of Bedolla's blood. A blood trail ultimate!) led polile

to Rodriguez'     body,   a distance   away from the        location       in whibh

Bedolla's blood pool and the murder knife were found. Because the knire

was imbedded       for a time in Mr. Bedolla,        the investigatinlg officers

theorized that Rodriquez was stabbed first during the assaull when               t
                                                                                 I




came to Mr. Bedolla's aid. Inferentially, it is therefore logical t~ concluf e

                                                                       j
                                                                       .
                                                                                     I!
that Appellant, who admitted to stabbing and killing Bedolla, also stabbed

Rodrequez. Police were unable to place a knife in the hand~ of any .of
                           .                                             .       .
                                                                                 ;
                                                                                 '
the other defendants, and none admitted to employing a knife :during .t\1e
                                                                         •       I

attack. DNA evidence            proved that Rodriquez' blood wasl found on

Defendant's sneakers. During Defendant's sentencing proceiding, Te

Court asked whether the DNA of anyone other than the Appellant had

been found on the knife, and the Commonwealth responded: that whlile

minor or less intense alleles (genetic markers) other than Appellants were

found· on the handle of the killing knife, they were too mixe~ to pertit

another .actor's DNA profile to be identified. App e 11 ant's DiNA expert

testified that in her opinion, forensic DNA examination revealed that at

some time at least 2 other people had gripped the handle of the knife.

      Our    April   22,       2014   footnoted   Order   granting   sentencing

reconsideration for Mr. Rodrequez' death includes a general ,6iscussibn

of DNA evid.ence and genetic structures, and need not be repeated hefe.

The State Police Forensic Laboratory Report issued in thisi case wbs

introduced at the post-sentence hearing. Exhibit D-2.          This documJnt

was not provided to the court at Appellant's original sente,ncing, Lr

did the Commonwealth produce the report's author to te~tify to· J1is

findings. A discussion of the Report's scientific findings is contained in our
         .                                                           l       I
                                                                             ;
                                                                             I
    April 22, 2014 Order. The State Police Forensics' expert concluded in his

    report that 11 of the genetic loci DNA markers found on the !killing knife

    matched Defendant's DNA. His conclusions were threefold: (1) the major

    component of DNA profile in terms of alleles taken from the handle of the
                                                                                          I
    knife matched the Defendant 's DNA profile; (2) additional                 ~inor 1Jss
                                                                               I
                                                                               I



    intense alleles also present in genetic loci could not be interpreted due to

    the complexity of the mixture; (3) the probability of selecting ari unrelated

    individual exhibiting        Defendant's                                   I
                                                  DNA found on the knife handle is

    approximately     1     in    390   billion    from   the    Caucasian     ~,opulation,

    approximately 1 in 757 billion from the African American population,                ahd
                                                                               I
                                                                               I

    approximately    1 in 1.7 trillion from the Hispanic          population. ~ppellant is
                                                                               I
    an African American. Defendant's forensics' expert opined that from tier

    examination of the State Police Forensics expert's report,               a!    least Jo
                                    .                                          :          I
    other people had contact with the handle of the killing knife besides the

    Defendant; however,          she agreed that as to "touch"           DNA :· the type
                                                                                          I
                                                                               ;          I
    ·measured by the forensic DNA examination                   of the knife handle - the
                                                                               !          I
    person who      handled the knife handle the most would deposit                      the
                                                                               I

    greatest amount of identifiable DNA.
                                                                               I
          Discussion: The penalty for third degree murder is provided for in

    Section 1102( d) of the Crimes Code, which pertinently states.:            I




I
                                                                              I
                                                                              I



 111102
          (d) Third degree.- Notwithstanding section
                                                                              I
                                                                  1103, a person who

 has been convicted of murder of the third degree ..... shall be sentenced

 to a term which shall be fixed by the court at not more than                 fo   years".

 18 Pa.C.S.A. §1102(d).          Instantly, Appellant used a deadly -v~eapon in

 the murder of Jose Rodriquez, thereby implicating the deadly weapon
                                                                              I
                                                                              I     .
 enhancement, warranting at the minimum a sentence of 90 jmonths to

 240 months. See Sentencing             Guidelines.         §303.1 O(a)(2)   & §303. 8.
                                                                              I

 However,     in fixing       the penalty,       we   are    not constrainec!j     by the

      t ·
 .sen encmg gutid e 1·mes , since
                             ·    t h e gu1id e 1·mes h ave no b.in d.!mg effec ,        It
 create no presumption in sentencing,. and do .not predominate~11Ver otJer
                          ·                  ·                                i          I
 sentencing factors. Commonwealth v. Walls, 926 A.2d 957 (Pa. ,2007).

 The murders were especially barbaric and the victims suffe~ed brulal
                                                                              I              .

· ·deaths. Rodriquez is reported to have suffered 5 stab wounds from 4

 stabbing motions, causing gruesome injuries. His blood was fo~nd on tre

 blade of the killing knife and his DNA was found on the A~pell_ant's

 sneakers. App e 11 ant          brought the killing knife to the sce:ne of             tre
 crimes, and was a primary actor in the deadly assaults, alt~ough n!ot

 the only· one. Based on the evidence,                it is reasonable to bilieve thlat

 Rodriquez came to Bedolla's aid and was stabbed in the proces;s of tryilg

 to help him. Bedolla suffered 7 stab wounds, one of which oenetrated
                                                                             ~'.         I
                                                                                         I
                                                                                         I
                                                                              I
                                                                    '         I



into his vertebrae. As noted above, the knife was found approLmatel)              8
                                                                    t
feet from a pool of Bedolla's blood, giving credence to ~he pole
                                                                    I

conclusion that it became dislodged from his body before he was taken by

a companion from the crime scene. Rodriquez was found dlad at the
                                             .                      I         I
scene, at the end of a blood trail, his body lying a substant+          distaTe

from where the knife was recovered. Although the CommonJealth was
                                                                    !         I
unable to prove by direct evidence that App e 11 ant inflicted the fatal

wounds to Rodriquez, the circumstantial evidence is sufficient to!warrant lhe
                                                                    :         I .
conclusion that he was immediately and directly complicit                 in the

administration of the fatal knife wounds that resulted in the djath of
                                                                    :
                                                                             t.I
Rodriquez. The DNA evidence,        taken in conjunction with lall of Te

'other evidence, was strongly corroborative of the conclusidn that the
                                                                    I         I
Appellant wielded the knife when       Mr. Rodriquez was statbed.           The

Commonwealth      has likened the difficulty of the investiqatioj       of thelse

crimes to the "fog of war" due to the difficulty of proving thef individJ1al

complicity of the multiple co-conspirators       prosecuted for these deatf s.

Of the multiple defendants prosecuted for the deaths of these tf o victi1s,

none received a sentence as severe as the one we imposed on tpe
                                                                              '
Appellant for these killings, precisely because the Commonwealth's proofs
                                                                                           l
                                                                                           1·
                                                                                           i
                                                                                     I     I
    and assessments of individual conspiratorial culpability varie,j with                ealch
                                                                  I                        I
                                                                                           I

    defendan~ but were greatest when tt cameto Appellant's culpability..                   I
          Alleged Sentence Disparity. ·
                                                                                 iI        I
                                                                                           I
          The undersigned · judge was· assigned all of the cases brought
                                                                                 !         I
                                                                                 !
                                                                                           I
    against 12 defendants in the death of the two victims. Each of the
·                                                                            .
                                                                                 I.        .I
    sentences imposed on these defendants necessarily varied in Jproportii:m

    to the degree of culpability the Commonwealth                was able toi establiJh.

    Each sentence was imposed upon the courts' approval of ~egotiatld
                                                                                 '

    written plea agreements, with the facts admitted by each deferldant as to
                                                          .                      I
    his involvement in the killings spread upon the record. ~he; extent of

    proven and admitted culpability of each defendant varied, as reflected in

    the sentences       imposed.     Each of the Appellant's          11 co-defendants

    entered written plea agreements, pied guilty and was sentenced, as
                                                                                 :         I
                                                                                 !         I
    follows:
                                                                                 '
    Cristian Eumana: Conspiracy to commit 3d degree murder]" (6 yea.rs
    consecutive probation) and 2 counts of 3d degree murder (11 to 22 ye~.rs
    concurrent) - aggregate 11 to 22 years imprisonment, plu(s 6 ye~rs
    consecutive probation.                                       ·       I
    Edwin Romero: Conspiracy to commit 3d degree murder J(10 yeJ.rs
    probation consecutive), 2 counts third degree murder (9 to1 20 ye~.rs
    concurrent on each) - aggregate 9 to 20 years imprisonment, plus                      ro
    years consecutive probation.
 I
 1·   Stephen Andrew Daddezio: Conspiracy to Commit 3d degree murder,
 i
 i    and 2 counts of third degree (8 Yi to 17 concurrent on all) -- a~gregatd 8
 I    Yi to 17 years imprisonment.
 i
 I
.I    Rafael Lopez Alvarado: Conspiracy to commit 3d degree murder and 2
                                                                    I
      counts of 3d degree murder (8 to 16 concurrent on all) -- aggriegate 8 to
      16 years imprisonment.
                                                                     i
      Manuel · Salvador . Mora Chavez - Conspiracy to commit 3d  I
                                                                      degree
                                                                          I
      murder (10 years probation consecutive), and 2 counts 3d degree
                                                                 I        I
      murder (7 to 18 years concurrent on each) -- aggregate 7 tc;> 18 years
      imprisonment, plus, 10 years consecutive probation.        !   I
                                                                     I




      Orlando Diaz: Conspiracy to commit Aggravated. Assault (5? Yi to 115
      years), and 2 counts of Aggravated Assault ( 5 Yi to i 15 years
      concurrent) - aggregate 5 Yi to 15 years imprisonment.

      Fabian Cortez; Conspiracy to commit Aggr?lvated Assault (3 tp 6 year1s ),
      and .2 ·counts Involuntary Manslauqhter (1 to 2 concurrent or1l each but
      consecutive to conspiracy) - aggregate 4 to 8 years imprisonment.
                 .                                                   I
      Jorge Ramirez Torres: Conspiracy to commit Aggravated A~sault (8 Yi
      to 23 months - but waived credit for approx. 32 months of tinie servep),
      2 counts of Aggravated Assault (8 Yi to 23 months - but waiveb credit for
      32 months of time served - concurrent with conspiracy), 2j counts of
      Involuntary Manslaughter (2 years consecutive probation or,1 each) --
      aggregate 8 Yi to 23 months plus 4 years consecutive probation.

      Junior Noel Lopez Moreno: Conspiracy to commit Aggravated Assault (8
      Yi to 23 months - but waived credit for approx. 32 months of tir1ne
      served), 2 counts of Aggravated Assault (8 Yi to 23 months - but waived
      credit for 32 months of time served - concurrent with conspiracy), 2
      counts of Involuntary Manslaughter (2 years consecutive prbbation on
      each) -- aggregate 8 Yi to 23 months plus 4 years cpnsecutive
      probation.                                                             I
                                                                             I

      Ken Fitzsimons: Conspiracy to commit Aggravated Assault (1.1 Yi to 2·3),
      2 counts of involuntary Manslaughter (2.5 years probation on each) 2
      counts .ot Aggravated Assault (11 /12 to 23 months concurrent) 1 --
                                                                                   I
aggregate 11 Yi to 23 months imprisonment plus 5 years consecutive
probation.

Domenic Daddezio - Decertified and handled in juvenile court.
                                                                                   I
      The Appellant's           admitted   and proven       conduct     was I the mbst

serious, as was his criminal history. In sentencing Appellant, Jve had Jhe
                                                                            I      I
benefit     of    a   lengthy    sentencing     memorandum        submitted     by ihe
                                                                            .       !
Commonwealth and heard testimony. We respectfully direct the
                                                         I
                                                             Courts
                                                                I


attention to the Commonwealth's                memorandum,      particularly pages 4

through 7, which we do not wish to repeat at length here. Thpse pages

aptly express the conclusions we reached after giving full considerati~n
                                                                                       I
to defense counsels'            memorandum       and arguments        as respects the
                                                                                       I
Appellants culpability in the death of the two victims.
                                                                                       .
      Given that Appellant agreed to our imposition of a prison sentete

of 20 to 40 years for the murder of Mr. Bedolla, and a· c/Jnsecutre

sentence in the murder of Mr. Rodrequez, the issue now before the
                                                               I



Court implicates only an alleged abuse of our discretion in sentencihq

Appellant to 14 and 1/2 to 29 years imprisonment for the mu;der of ~r
                                                                                       I
Rodriquez. See Hearing Transcript, 1/16/2014.               In our view, asldescribed
                                                                                       I

above,    there       was   compelling     circumstantial    evidence     proving t~at

Appellant        was directly    responsible    for the stabbing       murder of Mr.
                                                                                       .
Rodriquez, thereby warranting a sentence disproportionate to the otrier
                                                                                       I
 •
.'

                                                                    I


     defendants. The Commonwealth sought a consecutive 6 tf 12 yyr

     prison sentence on the Conspiracy conviction which we declined,
                                                                  I
                                                                     instead

     imposing a consecutive 10 year probationary sentence.

           The right to appeal the discretionary aspects of a sent,nce is J°t

     absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
            '
     2004), appeal denied, 860 A.2d 122 (Pa. 2004). When
                                                                    I        I
                                                                  an! appellant

     challenges the discretionary aspects of the sentence imposeJ. he mJst

     present "a substantial question as to the appropriatene!s          of t~e
                                                                    I       I
                                                                    .       I
     sentence. Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super.
      '                                                             I       I
     2003) (citations omitted). An appellant must, pursuant to Pehnsylvania
                                                                    I       I
     · Rule of Appellate Procedure 2119(f), articulate "a colorablel argument

     that the sentence violates a particular provision of the Sentefing co6e

     or is contrary to the fundamental norms underlying the ~entenc1g

     scheme." Commonwealth v. Kimbrough, 872 A.2d 1244, 11263 (Pia.
                                                                    I       I
                                                                    I       I
     Super. 2005) (en bane), appeal denied, 887 A.2d 1240 (Pa. 2005)

     (citation omitted). Instantly, Appellant cannot claim that the lentencihg

     court unreasonably imposed a consecutive sentence, since h~ agreed to

     its imposition in his written plea agreement. Even had he no~ done ~o,
                                                                    .       I
                                                                            '
     Pennsylvania law "affords the sentencing court discretion to impose ·its

     sentence concurrently or consecutively to other sentences being
                                                                            I
                                                                            I
..
 I




                                                                                               I

                                                                                               I
         imposed   at the same time or to sentences             already      imposed.        ~ny
                                                                                 I




     challenge to the exercise of this discretion ordinarily does riot .raisJ a
                          .                                                      I             I
     substantial question."         Commonwealth     v. Pass, 914 A.2d 44~. 44617

     (Pa.Super.         2006) (citation omitted); see also Cotnmonweetth                 v. Hoag,

     665 A. 2d 1212,           1214 (Pa. Super. 1995) (holding that appeilant is Lt
                                                                                 I             I
     entitled to "volume discount" by having sentences run concurre.ntly).                     I
                                                                                 I
              A claim         that a defendant   received   a grossly disprc~portionche
                                                                                 !             I
     sentence relative to co-defendants may raise a substantial q~1estion,                     'as
     .             ..                                                            I             I
     required to reach merits of a discretionary sentencing issue: however,
                                                                                 l                 I
     sentencing is a matter vested in the sound discretion                of the J,entencirg
                                                                                 I                     .
     judge, and a sentence will not be disturbed on appeal absent ~ manifest

     abuse of discretion. In this context, an abuse of discretion is hot sholn
                                                                                     ,             I
                                                                                     I             I
     merely by an error in judgment. Rather, the appellant must establish, by

     reference to the record, that the sentencing court ignored or ~isapplit
                                                                                     .
     the law, exercised its judgment for reasons of partiality, prejudice, bias or
                                                                                     I             .
                                                                                                   I
                                                                                     I             •


     ill will, or arrived at a manifestly unreasonable        decision.     Commonwealth
                                                                                                   I
     v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.2003)              ( quotation pmitted),.

             The law is well-settled that co-defendants            are not required Ito
                                                                                     !             I       .



     receive identical sentences. Commonwealth               v. Mastromarin~,             2 A.~~d
                                                                                                   I



     581 (Pa. Super. 2010) citing Commonwealth               v. Krysiak, 369 'Pa.SupJr.
                                                                                                       I
                                                                                                       I
                                                                                                       I
293, 535 A.2d    165,   167 (1987).Generally,       a sentencing     court must

indicate the    reasons for differences     in sentences
                                                                      :
                                                               bet;ween co-
                                                                               I
defendants. Id. "This is not to say, however, that the dourt mlst

specifically refer to the sentence of a co-defendant. Rather, lit requirls
                                                                      I

that when there is a disparity between co-defendants' s~ tences, a   1I


sentencing court must give reasons particular to each )defendant

explaining why they received their individual sentences."     Commonwealth
                                                                               I
v. Mastromarino, citing Commonwealth v. Cleveland, 703 t\.2d 1046,

1048 (Pa.Super.1997).
                                                                      I
                                                                      I

      Instantly, in sentencing Appellant we concluded that his conduct

was the most egregious relative to the proven conduct of the otJer

murder defendants. We also gave due consideration to fppellan:t's

criminal history and prior conduct. See Commonwealth's Sentencing
                                                                      I        !
                                                .                     I        i
Memorandum, filed 11 /4/2013 and· Prosecutor's Sentencing Statement,
                                                                      !        1.
Sentencing Transcript, 11/6/2013, pp.      18 -33. And, we stated our

sentencing rationale on the        record at Appellant's           res~ntenciJg,
                                                                      I        t

incorporating our rationale stated in our April 22, 2014 Orde,.           See Re-
                                                         l       I
Sentencing Transcript, 5/12/2014. For these reasons, we rrspectfui"y

recommend that the judgment of sentence be affirmed.                           J




                                    BY THE COURT
