J-S62023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAYCE MARIE LEE                            :
                                               :
                       Appellant               :   No. 508 WDA 2019


      Appeal from the Judgment of Sentence Entered, December 18, 2018,
               in the Court of Common Pleas of Clearfield County,
             Criminal Division at No(s): CP-17-CR-0000194-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 19, 2020

        Kayce Marie Lee appeals from the judgment of sentence imposed

following her guilty plea to third-degree murder.1 We affirm.

        The trial court summarized the factual and procedural history underlying

this appeal as follows.

               The case at bar involves the death of Richard A. Bennett
        (“victim”) on February 5, 2018. No trial was held, but . . . Lee
         . . . accepted a guilty plea and accepted all the facts in the
        affidavit of probable cause as set forth below. [Lee] and victim
        shared a home and a four-year old daughter at the time of the
        incident. At all times relevant to the incident in question, the
        daughter was present.        [Lee] and victim began a verbal
        altercation, which escalated when the victim began slapping [Lee]
        in the head. [Lee] alleges she could not locate her phone, and
        that she could not leave the residence due to the victim blocking
        the doorway. [Lee] alleges the victim pushed her backward and
        punched her in the face. As a result, [Lee] grabbed a kitchen
        knife. Victim then smacked her on the face again, knocking off
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1   See 18 Pa.C.S.A. § 2502(c).
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     her glasses. [Lee] claims she was unsure where she stabbed him,
     but admits to stabbing him. After that, the victim left the home.
     [Lee] claims she searched for victim inside and outside of the
     home, but was unable to locate him. [Lee] then took her daughter
     to her grandmother’s home and slept there. After awakening the
     next morning, [Lee] called family members to see if anyone knew
     where the victim was, which they did not. [Lee] went back to her
     home and was, again, unable to locate the victim. She returned
     to her grandmother’s home and called family members and local
     hospitals with no success. She later telephoned 911.

           The victim was found 30 feet north of the residence between
     the driveway and swing set. It is noted in the affidavit of probable
     cause that [Lee] would have driven past victim’s location at least
     three times before calling the police. Although [Lee] claims that
     victim slapped her in the head and physically assaulted her prior
     to his death, there were no markings or bruises located on [Lee]
     after a physical examination was conducted.

            [Lee] entered an open plea of guilt to murder of the third
     degree on September 18, 2018, which provided the sentencing
     court full discretion in determining sentencing. The standard
     range for murder of the third degree is 120 months to 240 months,
     meaning the minimum must be set within that range in order to
     be within the standard range. [Lee] was originally sentenced on
     December 18, 2018. Probation recommended a sentence of $1.00
     Fine + Costs and 20 to 40 years State Correctional Institute for
     Women at Muncy, PA. This recommendation was within the
     standard range, as the minimum corresponded to the 240 months
     (20 years). Additionally, Probation recommended that [Lee] shall
     have no contact with the [victim’s] immediate family. At the
     original sentencing hearing, defense counsel stated that [Lee] had
     a prior record score of 3 and offense gravity score of 14, and
     confirmed that the standard range was 120 months to 240
     months. Defense counsel argued that the court should ignore the
     recommendation and instead place her minimum at the bottom of
     the standard range due to the background in the case. [Lee]
     testified that she was remorseful for her actions and that she
     suffered from Battered Woman Syndrome. Neither [Lee] nor
     defense counsel put forth any evidence to show [Lee] suffered
     from Battered Woman Syndrome. The court took this testimony
     under advisement, and subsequently [Lee] was sentenced in the
     standard range to 20 to 40 years in the State Correctional Institute
     for Women in Muncy, Pennsylvania. As part of her sentencing, it

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      was ordered by the court that [Lee] have no contact with the
      [victim’s] immediate family.

Trial Court Opinion, 7/2/19, at 1-3 (some capitalization omitted).

      Lee filed a timely post-sentence motion, which the trial court denied on

March 1, 2019. Lee thereafter filed a timely notice of appeal. Both Lee and

the trial court complied with Pa.R.A.P. 1925.

      Lee raises the following issues for our review:

      1. Whether the sentencing court abused its discretion in deviating
         above the applicable standard and aggravated guideline range
         to impose a sentence of twenty to forty years for criminal
         homicide/murder of the third degree without providing any
         statement of reasons for its extreme departure from the
         guideline range?

      2. Whether the sentencing court abused its discretion in imposing
         a manifestly unreasonable sentence above the applicable
         guideline range for the charge of criminal homicide/murder of
         the third degree based solely upon factors already taken into
         account by the guidelines, without giving adequate
         consideration to mitigating factors such as [Lee’s] remorse, her
         cooperation with law enforcement and attempts to locate the
         victim, and her prior history of being abused by the victim?

      3. Whether the sentencing court abused its discretion by imposing
         a no contact with the deceased’s immediate family as a
         condition of sentencing without any supporting evidence that
         such condition is necessary nor was requested by such family,
         specifically [Lee’s] minor child or her legal guardian?

Lee’s Brief at 3-4 (some capitalization omitted).




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         Lee’s issues challenge the discretionary aspects of her sentence.2 As we

have explained, “[c]hallenges to the discretionary aspects of sentencing do

not entitle an appellant to review as of right.” Commonwealth v. Moury,

992 A.2d 162, 170 (Pa. Super. 2010).             Prior to reaching the merits of a

discretionary sentencing issue, this Court conducts a four-part analysis to

determine:

         (1) whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
         has a fatal defect, [see] 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, [see] 42 Pa.C.S.A.
         § 9781(b).

Id. (citation omitted). When an appellant challenges the discretionary aspects

of his/her sentence, we must consider his/her brief on this issue as a petition

for permission to appeal, as the right to pursue such a claim is not absolute.

See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004).

         We determine the existence of a substantial question on a case-by-case

basis.     See Commonwealth v. Feucht, 955 A.2d 377, 384 (Pa. Super.

2008). A substantial question exists only when “the appellant advances a


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2 As Lee entered an open guilty plea, she retained the right to challenge the
discretionary aspects of her sentence. See Commonwealth v. Luketic, 162
A.3d 1149, 1159 (Pa. Super. 2017) (holding that when a defendant enters a
guilty plea which does not involve a plea bargain designating the sentence to
be imposed, he/she waives the right to challenge all non-jurisdictional defects
except the legality of the sentence and the validity of the plea, but retains the
right to challenge the discretionary aspects of his/her sentence).

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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. Diehl, 140 A.3d 34, 44-45 (Pa. Super. 2016) (internal

citations and quotation marks omitted). Thus, the 2119(f) statement must

specify “where the sentence falls in relation to the sentencing guidelines and

what particular provision of the code it violates.”        Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). Alternatively, the 2119(f)

statement must specify “what fundamental norm the sentence violates and

the manner in which it violates that norm.” Id. If the statement meets at

least one of these requirements, we can decide whether a substantial question

exists.

      In the instant case, Lee filed a timely notice of appeal, preserved her

claims in a timely post-sentence motion, and included in her appellate brief a

Rule 2119(f) statement. As such, she technically complied with the first three

requirements to challenge the discretionary aspects of her sentence.        See

Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we

will proceed to review Lee’s Rule 2119(f) statement to determine whether she

has presented a substantial question for our review.

      The entirety of Lee’s Pa.R.A.P. 2119(f) statement reads as follows:

      [Lee] challenges the discretionary aspects of her sentence as it is
      inconsistent with a specific provision of the sentencing code and
      contrary to the fundamental norms which underlie the sentencing
      process. Specifically, the sentence imposed against [Lee] is

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      manifestly excessive and an abuse of the sentencing court’s
      discretion as the court failed to properly consider all relevant
      factors.     Additionally, the sentencing court erroneously
      interrupted [sic] facts of the case to justify its sentence resulting
      in a misapplication of the law and a distinctly unreasonable
      decision.

Lee’s Brief at 7.

      Limiting our review to Lee’s Rule 2119(f) statement, we conclude that

she has failed to raise a substantial question. Nowhere in her three sentence

Rule 2119(f) statement does she state (1) where the sentence falls in relation

to the sentencing guidelines and what particular provision of the code it

violates; or (2) what fundamental norm the sentence violates and the manner

in which it violates that norm. Goggins, 748 A.2d at 727.

      Instead, the 2119(f) statement merely contains bald assertions of

generalized error. See Commonwealth v. Reynolds, 835 A.2d 720, 733

(Pa. Super. 2003) (holding that bald allegations presented in a Rule 2119(f)

statement do not present a substantial question). Importantly, “this Court is

not persuaded by bald assertions or the invocation of special words in a

concise statement of reasons; [t]o the contrary, a concise statement must

articulate the way in which the court’s conduct violated the sentencing code

or process.” Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super.

2008) (citation omitted).    A Rule 2119(f) statement that simply contains

incantations of statutory provisions and pronouncements of conclusions of law

is inadequate.      See Commonwealth v. Bullock, 868 A.2d 516, 529 (Pa.

Super. 2005); Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super.

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1999). Rather, only where the Rule 2119(f) statement sufficiently articulates

the manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process, will such a statement

be deemed adequate to raise a substantial question so as to permit a grant of

allowance of appeal of the discretionary aspects of the sentence.           See

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002); Bullock, 868

A.2d at 529.

       We additionally observe that the 2119(f) statement makes no reference

whatsoever to the first issue or third issue raised in Lee’s Statement of

Questions Presented. See Lee’s Brief at 3-4. Regarding Lee’s first issue, the

2119(f) statement makes no claim that the trial court imposed a sentence

outside the sentencing guidelines, or that it failed to place a statement of

reasons for its departure from those guidelines. Regarding Lee’s third issue,

the 2119(f) statement makes no mention that the trial court abused its

discretion in imposing a sentencing condition that she have no contact with

the deceased’s immediate family or her minor child.3

       Although the 2119(f) statement references the second issue Lee raised

on appeal, Lee does not identify what factors the trial court allegedly failed to



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3 Had these issues been preserved for our review, we would have concluded
that they lack merit for the reasons expressed by the trial court in its opinion.
See Trial Court Opinion, 7/2/19, at 4-9.

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properly consider. However, even if Lee had identified such factors, this Court

has held on numerous occasions that a claim of inadequate consideration of

mitigating factors does not raise a substantial question for our review.

Bullock, 868 A.2d at 529.

      Based on the foregoing, we conclude that Lee has failed to present a

substantial question that the trial court abused its discretion in fashioning her

sentence. As such, we decline to review her sentencing challenges, and affirm

the trial court’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2020




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