J-A10025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS WALTER LETTEER, JR.

                            Appellant                No. 1551 MDA 2014


              Appeal from the Judgment of Sentence May 1, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001415-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                FILED MAY 15, 2015

        Appellant, Thomas Walter Letteer, Jr., appeals from the May 1, 2014

judgment of sentence of two to five years’ imprisonment, imposed after he

entered an open guilty plea to one count of accidents involving death or

personal injury.1 After careful review, we affirm.

        The trial court summarized the relevant factual history of this case as

follows.

              On December 21, 2012, at approximately 10:56
              p.m., five year old [K.M.] was leaving a Christmas
              party with his parents and siblings. [K.M.], while
              holding his father’s hand, was in the process of
              crossing West North Street in the City of Wilkes-
              Barre (city), Luzerne County. At this point a vehicle
              struck the young boy who tragically succumbed to
              multiple traumatic injuries at approximately 11:28
____________________________________________
1
    75 Pa.C.S.A. § 3742(a).
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          p.m. in the Geisinger Wyoming Valley Hospital. The
          driver of the vehicle fled the scene.

                The Wilkes-Barre Police Department (WBPD)
          conducted an initial investigation and they were
          unable to physically locate the vehicle on the date in
          question. In due course, the WBPD obtained camera
          images from the King’s College camera system and
          the city Hawkeye camera system, each entity having
          video surveillance facilities located in the area
          surrounding the accident scene.          The images
          depicted a red Pontiac Grand Am with a sun roof
          [sic]. The vehicle information was released to the
          public by the WBPD in an effort to secure assistance
          in identifying the vehicle and driver.

                During the course of the investigation,
          [Appellant] came into contact with the WBPD,
          because his father was the registered owner of a car
          matching the general description of the vehicle.
          When the WBPD arrived at the registered owner’s
          place of residence in a neighboring community,
          [Appellant] opted to speak with investigating officers
          and thereafter provided misleading information.
          While [Appellant] did acknowledge operating his
          father’s 1999 red four-door Pontiac Grand Am on the
          evening in question, he denied traveling into Wilkes-
          Barre. More specifically, [Appellant] represented he
          never travels into Wilkes-Barre. By way of history,
          [Appellant] told police he was at a party in West
          Wyoming on the evening in question and thereafter
          drove to a female friend’s home in Pittston Township.
          The police acquired additional information from
          [Appellant], to include the cell phone number of
          [Appellant] and his female friend.

                 The WBPD investigated various other leads,
          but ultimately the mounting evidence directed their
          attention to [Appellant] who became the principle
          [sic] focus, notwithstanding his untrue statements.
          As a result, WBPD obtained a search warrant and
          pursuant thereto seized the vehicle registered to
          [Appellant]’s father.


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                  The WBPD also interviewed the social host of
           the party [Appellant] attended.        This individual
           informed them that when the attendees left the West
           Wyoming address they were going to congregate at
           Rodano’s, a bar and restaurant located on Public
           Square in Wilkes-Barre. The location of the accident
           is within a few city blocks of Rodano’s and presents a
           logical route when traveling from West Wyoming to
           the Rodano location.

                  In addition, the WBPD secured a warrant for
           cellular telephone records which demonstrated
           [Appellant] used his cell phone to call his female
           friend on December 21, 2012, and that the calls
           were received by cell towers on the King’s College
           Campus and Public Square between the hours of
           10:55 p.m and 10:57 p.m.

                 Forensic analysis was obtained pursuant to a
           search warrant and thereafter reduced to a report
           dated March 21, 2013, wherein the expert opined it
           was indeed [Appellant]’s father’s vehicle that struck
           the child. The opinion was further corroborated by
           the Pennsylvania State Police who opined the
           damage on the top passenger side hood of the
           subject vehicle is consistent with the height of the
           victim and was caused when the victim made contact
           with the vehicle.

Trial Court Opinion, 9/16/14, at 1-3 (footnotes omitted).

     On July 3, 2013, the Commonwealth filed an information, charging

Appellant with one count of accidents involving death or personal injury,

graded as a second-degree felony. Appellant entered an open guilty plea to

said charge on March 10, 2014. The trial court imposed a sentence of two to

five years’ imprisonment on May 1, 2014. On May 12, 2014, Appellant filed




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a timely motion to extend the time upon which to file his post-sentence

motion.2     That same day, the trial court granted Appellant’s motion,

extending the deadline to June 2, 2014.3         Appellant filed his timely post-

sentence motion on June 2, 2014. On June 10, 2014, the trial court entered

an order denying Appellant’s post-sentence motion without a hearing.          On

June 20, 2014, Appellant filed a timely notice of appeal.4

       On appeal, Appellant raises one issue for our review.

              I.     Whether the trial court abused its discretion in
                     sentencing [] Appellant[?]

Appellant’s Brief at 1.

       At the outset, we note that Appellant’s sole argument on appeal

pertains to the discretionary aspects of his sentence. 5 It is axiomatic that in


____________________________________________
2
  Pennsylvania Rule of Criminal Procedure 720 requires a post-sentence
motion to be filed within 10 days of the date on which the sentence was
imposed in open court. Pa.R.Crim.P. 720(A). However, the 10 th day was
Sunday, May 11, 2014. When computing the 10-day filing period “[if] the
last day of any such period shall fall on Saturday or Sunday … such day shall
be omitted from the computation.” 1 Pa.C.S.A. § 1908. Therefore, the due
date for Appellant’s post-sentence motion was Monday, May 12, 2014, and
Appellant’s request for an extension was timely.
3
 Curiously, the trial court’s order gives the new deadline as June 1, 2014,
which was a Sunday. See generally 1 Pa.C.S.A. § 1908.
4
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
5
  Generally, our cases state that “by entering a guilty plea, the defendant
waives his right to challenge on direct appeal all nonjurisdictional defects
except the legality of the sentence and the validity of the plea.”
(Footnote Continued Next Page)


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this Commonwealth, “[t]here is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards

an argument pertaining to the discretionary aspects of the sentence, this

Court considers such an argument to be a petition for permission to appeal.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n

[a]ppeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.

Super. 2013) (en banc) (internal quotation marks and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether    a   petition      for   permission     to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.


                       _______________________
(Footnote Continued)

Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014). However, our cases also
hold that the entry of an open guilty plea does not waive the discretionary
aspects of the sentence “because there was no agreement as to the
sentence Appellant would receive.” Commonwealth v. Hill, 66 A.3d 365,
367 (Pa. Super. 2013) (citation omitted).



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              (1) [W]hether appellant has filed a timely notice of
              appeal, Pa.R.A.P. 902, 903; (2) whether the issue
              was properly preserved at sentencing or in a motion
              to reconsider and modify sentence, Pa.R.Crim.P.
              [720]; (3) whether appellant’s brief has a fatal
              defect, Pa.R.A.P. 2119(f); and (4) whether there is a
              substantial question that the sentence appealed from
              is not appropriate under the Sentencing Code, 42
              [Pa.C.S.A.] § 9781(b).

Id.

       In the case sub judice, we note that Appellant filed a timely post-

sentence motion and notice of appeal.            We further observe that Appellant

has included a Rule 2119(f) statement in his brief. In this case, Appellant

avers that the trial court abused its discretion in sentencing him in the

aggravated range when it “rel[ied] on testimony … that [] Appellant

consumed alcoholic beverages on the day of the incident[.]”            Appellant’s

Brief at 3. Appellant also argues that the trial court erred by considering his

“lack of remorse and by considering his pre-arrest conduct in configuring a

sentence.” Id. Finally, Appellant argues that the sentence imposed by the

trial court was “vindictive.”6 Id.

       To the extent Appellant argues that the trial court’s sentence was

vindictive, we note Appellant did not raise this argument in his post-


____________________________________________
6
  To the extent Appellant argues for the first time in the argument section in
his brief that the trial court wrongfully considered the publicity surrounding
his case, we note that argument was not raised in his Rule 1925(b)
statement or post-sentence motion, and is therefore waived on appeal. See
Hill, supra; Pa.R.A.P. 1925(b)(4)(vii); Pa.R.A.P. 302(a).



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sentence motion, or in his Rule 1925(b) statement. As a result, we deem

this argument waived.     See generally Commonwealth v. Hill, 16 A.3d

484, 494 (Pa. 2011) (stating, “[a]ny issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived[]”); accord Pa.R.A.P. 1925(b)(4)(vii);

Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal[]”). As to the balance of

Appellant’s arguments on appeal, we proceed to determine whether they

raise substantial questions for our review.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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.”          Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”       Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      As noted above, Appellant’s remaining arguments on appeal are that

the trial court improperly considered Appellant’s pre-trial statements, his




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remorse, and his drinking alcohol on the date of the offense.7             The

Commonwealth counters that the trial court properly considered all relevant

factors when it decided to sentence Appellant in the aggravated range.

Commonwealth’s Brief at 8-11.             This Court has held that an argument

alleging the trial court considered an improper factor raises a substantial

question for our review. Commonwealth v. Dowling, 990 A.2d 788, 792

(Pa. Super. 2010). As a result, we grant Appellant’s petition for permission

to appeal the discretionary aspects of his sentence, and we proceed to

address the merits of these claims.

       We begin by noting our well-settled 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

       This Court has previously explained the trial court’s task in sentencing

in the following terms.


____________________________________________
7
  Appellant does not couch these arguments in terms of being sentenced in
the aggravated range.



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                 The sentencing court is given broad discretion
          in determining whether a sentence is manifestly
          excessive because the sentencing judge is in the
          “best position to measure factors such as the nature
          of the crime, the defendant's character and the
          defendant's display of remorse, defiance, or
          indifference.” Commonwealth v. Andrews, 720
          A.2d 764, 768 (Pa. Super. 1998) (quoting
          Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.
          Super. 1997)). In order to find that a trial court
          imposed an “unreasonable” sentence, we must
          determine that the sentencing court imposed the
          sentence irrationally and that the court was “not
          guided by sound judgment.” Commonwealth v.
          Walls, 926 A.2d 957, 961 (Pa. 2007).

                The sentencing code offers general guidelines
          with respect to the imposition of a particular
          sentence. Reasonableness of the sentence imposed
          by the trial court is based on:

               (1) The nature and circumstances of the
               offense and the history and characteristics of
               the defendant.

               (2) The opportunity of the sentencing court to
               observe   the    defendant,   including   any
               presentence investigation.

               (3) The findings upon which the sentence was
               based.

               (4) The guidelines       promulgated    by   the
               commission.

          42 Pa.C.S.A. § 9781(d).        The sentencing code
          guidelines also require the sentence to be “consistent
          with the protection of the public, the gravity of the
          offense as it relates to the impact on the life of the
          victim and on the community, and the rehabilitative
          needs of the defendant.” [Commonwealth v.]
          Ahmad, 961 A.2d [884,] 888 [(Pa. Super. 2008)]
          (citing 42 Pa.C.S.A. § 9721(b)).


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Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (parallel

citation omitted), appeal denied, 63 A.3d 776 (Pa. 2013).

      In announcing the reasons for its sentence, the trial court stated the

following on the record.

                  I    have    reviewed    the     [pre-sentence
            investigation report (PSI)] and all the information
            contained in there having to do with [Appellant’s]
            background and so forth. There’s also been some
            supplemental testimony. I’ve considered the letters
            that were submitted on [Appellant’s] behalf.

                  I’m troubled by what I perceive to be a lack of
            remorse. And I’m only speaking of the time period
            from the guilty plea forward. I read [Appellant’s]
            statement that’s outlined in the [PSI]; and when I
            read it , when I received the PSI a couple weeks ago,
            I was struck by the lack of any remorse because it
            seemed to be inconsistent with some of the letters I
            got from those who submitted them on [Appellant’s]
            behalf.    And it relates to [Appellant’s], to my
            assessment, of [his] character, and [Appellant’s]
            chances of being rehabilitated.

                   I’m troubled by [Appellant’s] conduct during
            the investigation of this case when [Appellant was]
            questioned by law enforcement. [Appellant] had the
            right to say nothing … [He] could have told the truth;
            but instead, [Appellant was] deceitful and untruthful,
            and I’m troubled by that. Again, it goes to my
            assessment of [Appellant’s] character.

                  I’m also concerned by the fact that in the
            [PSI], [Appellant] indicated that [he] had no history
            of drug usage and [he] presently [was not] using
            drugs or alcohol.

                  I placed [Appellant] under supervision of
            Pretrial Services and [he was] testing positive for
            marijuana; [he was] diluting [his] samples; and [he]
            admitted to diluting [his] samples and using

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                marijuana. It was a violation of my [c]ourt [o]rder,
                a violation of the law and maybe most importantly of
                all, it impugns [Appellant’s] veracity and [his]
                truthfulness with respect to the statements you
                made in the PSI.

                      I do believe that all those reasons just outlined
                support an aggravated range sentence.           I also
                believe that the young age of the victim in this case
                and the impact of the offense on the victim, the
                victim’s family and the community is another reason
                for allowing for an aggravated range sentence. I
                think the impact has been atypical in this case.

N.T., 5/1/14, at 74-76.

        We first address Appellant’s argument concerning the trial court’s

consideration of his misleading statements to the police. In this case, the

trial   court    concluded    that   Appellant’s   conduct   during   the   police’s

investigation in this case, including statements that were “deceitful and

untruthful” went to its assessment of Appellant’s character. Id. at 75. Our

Supreme Court has held that a failure to cooperate with authorities is

generally indicative of a defendant’s character and his or her potential for

rehabilitation. Commonwealth v. Bagley, 780 A.2d 605, 644 (Pa. 2001)

(citations omitted). The only legal authority Appellant cites in support of his

argument is Commonwealth v. Scott, 860 A.2d 1029 (Pa. Super. 2004),

appeal denied, 889 A.2d 1215 (Pa. 2005), in which this Court held that the

trial court could not consider a defendant’s failure to cooperate with the

Commonwealth in an unrelated case in fashioning a sentence.                  Id. at

1031. Here, the trial court found that Appellant’s misleading information to


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the police during its investigation of the instant case went to Appellant’s

character in fashioning the instant sentence. Trial Court Opinion, 9/16/14,

at 7. As a result, Scott affords Appellant no relief.

      As to Appellant’s lack of remorse, Appellant concedes that this is a

legitimate   sentencing    factor.     Appellant’s    Brief    at   9;   see   also

Commonwealth v. Bowen, 975 A.2d 1120, 1124 (Pa. Super. 2009)

(stating, “lack of remorse is a permissible factor at sentencing[]”).

Appellant’s argument appears to focus more on his amount of remorse, or

the trial court’s failure to believe Appellant was remorseful. See generally

Appellant’s Brief at 9. The trial court was not required to accept Appellant’s

proffered remorse as genuine. See Commonwealth v. Matroni, 923 A.2d

444, 455 (Pa. Super. 2007) (stating, “it is clearly within the trial court's

sound discretion to assess a defendant’s remorse, or lack thereof[]”)

(citations omitted), appeal denied, 952 A.2d 675 (Pa. 2008). Therefore, this

argument also does not warrant relief on appeal.

      Finally, as to Appellant’s argument that the trial court improperly

considered Appellant’s consumption of alcohol on the day of the incident, the

trial court unequivocally stated in its Rule 1925(a) opinion that it did not

consider such a factor in fashioning its sentence.            Trial Court Opinion,

9/16/14, at 6 n.12.     Our review of the sentencing transcript confirms the

trial court’s assertion, as the trial court did not include this in its reasons for

sentencing Appellant in the aggravated range in this case. See generally


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N.T., 5/1/14 at 74-76. Based on these considerations, we conclude the trial

court did not abuse its discretion in sentencing Appellant in the aggravated

range. See Raven, supra.

     Based on the foregoing, we conclude Appellant’s arguments on appeal

are either waived or devoid of merit. Accordingly, the trial court’s May 1,

2014 judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2015




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