J-A15005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRADLEY MCMULLEN                           :
                                               :
                       Appellant               :   No. 1731 MDA 2017

              Appeal from the Judgment of Sentence July 20, 2017
              In the Court of Common Pleas of Huntingdon County
              Criminal Division at No(s): CP-31-CR-0000018-2017


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

MEMORANDUM BY PANELLA, J.                           FILED DECEMBER 20, 2018

        Bradley McMullen appeals from the judgment of sentence of five to ten

years of confinement, which was imposed after he pleaded guilty to theft by

unlawful taking–movable property.1 We affirm.

        The facts underlying this appeal are as follows. Appellant traded his

mother’s firearm in exchange for drugs. That firearm was later used to kill

Pennsylvania State Police Trooper Landon Weaver.2

        Prior to sentencing, the trial court ordered and received a pre-sentence

investigation (“PSI”). On July 20, 2017, the trial court sentenced Appellant to



____________________________________________


1   18 Pa.C.S. § 3921(a).
2 All parties agree that, at the time of the trade, Appellant was unaware and
could not have foreseen that this murder would be committed with the
firearm.
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the statutory maximum. Appellant filed a timely post-sentence motion, which

the trial court denied. Appellant later had his appellate rights reinstated nunc

pro tunc. This timely appeal follows.

      Appellant presents the following issue for our review:

      Did the court below err by imposing the maximum sentence
      allowed for [Appellant]’s crime, based solely on the resulting
      consequences,     which   were   unforeseeable  and   beyond
      [Appellant]’s control?

Appellant’s Brief, at 3. Appellant thus challenges the discretionary aspects of

his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct 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, 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).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(some citations omitted; formatting altered).

      Appellant filed a timely notice of appeal, properly preserved this issue

in his post-sentence motion, and included a concise statement of the reasons

relied upon for allowance of appeal with respect to the discretionary aspects

of his sentence in a separate section of his brief to this Court pursuant to

Pa.R.A.P. 2119(f). We therefore turn to the final requirement: whether the




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question raised by Appellant is a substantial question meriting our

discretionary review.

      In his rule 2119(f) statement, Appellant argues that, when sentencing

him, the trial court only considered the seriousness of the crime and did not

take into account his character or rehabilitative needs. These claims raise

substantial questions for our review. See Commonwealth v. Bricker, 41

A.3d 872, 875 (Pa. Super. 2012); Commonwealth v. Luketic, 162 A.3d

1149, 1160–1161 (Pa. Super. 2017); and Commonwealth v. Swope, 123

A.3d 333, 340 (Pa. Super. 2015).

      By raising a substantial question, along with fulfilling the other

requirements of our four-part analysis, Appellant consequently has merited

our discretionary review.

      Our standard of review for a challenge to the discretionary aspects of

sentencing is as follows:

      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. Conte, ___ A.3d ___, ___, 2018 WL 5666923, *5 (Pa.

Super., filed Nov. 1, 2018) (citation omitted).

      “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in


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question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citations

omitted).

     In addition,

     [w]here [a] pre-sentence report[] exist[s], we shall continue to
     presume that the sentencing judge was aware of relevant
     information regarding the defendant’s character and weighed
     those considerations along with mitigating statutory factors. A
     presentence report constitutes the record and speaks for itself. In
     order to dispel any lingering doubt as to our intention of engaging
     in an effort of legal purification, we state clearly that sentencers
     are under no compulsion to employ checklists or any extended or
     systematic definitions of their punishment procedure. Having been
     fully informed by the pre-sentence report, the sentencing court’s
     discretion should not be disturbed.

     Accordingly, where the sentencing judge had the benefit of a pre-
     sentence report, it will be presumed that he was aware of relevant
     information regarding appellant’s character and weighed those
     considerations along with the mitigating statutory factors.

Conte, ___ A.3d at ___, 2018 WL 5666923 at *5 (brackets added and

omitted, citations, and quotation marks omitted).

     Here, the trial court explained:

     In sentencing [Appellant], we reviewed and considered the [PSI]
     prepared by the Huntingdon County Probation Department, the
     prior criminal record of [Appellant], gave consideration to the
     protection of public, the gravity of the offense and the impact of
     the offense on the life of the victim and the community. We also
     considered the rehabilitative needs of [Appellant], as well as the
     statutory Sentencing Guidelines. (Sentencing Tr. p. 5).
     [Appellant]’s prior conduct and the impact the crime had on the
     community weighed especially heavily on this Court. The horrific
     chain of events triggered by [Appellant]’s conduct have been
     taken into consideration by this Court, and the sentence imposed


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J-A15005-18


      pales in comparison to the price paid by Trooper Landon Weaver
      and this community.

Trial Court Opinion, filed Jan. 4, 2018, at 2.

      Accordingly, contrary to Appellant’s contention, the trial court did not

only consider the seriousness of the crime, but also took into account his

rehabilitative needs. Additionally, although the trial court did not explicitly

state that it considered Appellant’s character, as it asserted that it “reviewed

and considered” the PSI, we presume that the trial court “was aware of

relevant information regarding the defendant’s character and weighed those

considerations[.]”

      Consequently, we conclude that the trial court did not abuse its

discretion when sentencing Appellant, and, ergo, Appellant’s sole challenge on

appeal merits no relief. We thereby affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2018




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