J-S31025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                         Appellee

                    v.

CHRISTOPHER RICHARDSON

                         Appellant                  No. 1598 WDA 2018


     Appeal from the Judgment of Sentence entered October 17, 2018
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0009495-2014


BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 27, 2019

     Christopher Richardson (“Richardson”) appeals from the judgment of

sentence entered on October 17, 2018 in the Court of Common Pleas of

Allegheny County. Richardson contends the trial court abused its discretion

by imposing a sentence of ten to twenty years’ incarceration following

Richardson’s entry of an open guilty plea for third-degree murder,

18 Pa.C.S.A. § 2502(c). Upong review, we affirm.

     In its Rule 1925(a) opinion, the trial court explained:

     On July 5, 2014, [Richardson] was charged with one count of
     criminal homicide under 18 Pa.C.S.A. § 2501(a) and one count of
     robbery, inflicting serious bodily injury, under 18 Pa.C.S.A.
     § 3701(a)(1)(i). On February 21, 2017, pursuant to a plea
     agreement, the Commonwealth amended the general criminal
     homicide charge to third degree murder (18 Pa.C.S.A. § 2502(c))
     and withdrew the count of robbery. [Richardson] entered a plea
     of guilty to the sole count of third degree murder. A pre-sentence
     report was ordered.        On May 15, 2017, [Richardson] was
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         sentenced to serve ten (10) years to twenty (20) years in a state
         correctional institution with 1,045 days of credit for time served.
         [Richardson] filed an appeal from that order of sentence on July
         28, 2017. The Pennsylvania Superior Court ultimately reversed
         and remanded this matter for resentencing on the basis that this
         court did not state on the record whether [Richardson] was RRRI
         eligible.

         On October 17, 2018, this court re-sentenced [Richardson] to
         serve ten (10) to twenty (20) years in a state correctional
         institution, found that he was not RRRI eligible, and gave him
         credit for time served in the amount of 1,566 days. [Richardson]
         filed post-sentence motions, which were denied.

         [Richardson] timely filed his notice of appeal on November 9,
         2018. On December 4, 2018, [Richardson] filed his concise
         statement of errors complained of on appeal wherein he raised the
         following issue: the trial court abused its sentencing discretion
         because it failed to consider relevant sentencing criteria, including
         the protection of the public, the gravity of the underlying offense,
         and the character, personal history, and rehabilitative needs of
         [Richardson] as required by 42 Pa.C.S.A. §9721(b).

Trial Court Opinion, 12/11/18, at 1-2 (some capitalization omitted).

         At Richardson’s guilty plea hearing the parties stipulated to the following

facts:

         On July 5, 2014, at approximately 11 a.m., [Richardson] called
         911 from the Sunoco located on 533 Brookline Boulevard. He told
         the dispatcher that the person he was living with at the time, Alan
         Krupitzer, the victim in this case, who was age 75, was either
         stabbed or shot and appeared to be dead.

         Officers responded to the Sunoco and made contact with
         [Richardson]. [Richardson] took the police to 2329 Pioneer
         Avenue, where the [Richardson] was staying with Krupitzer, and
         told the police that Krupitzer was on the ground bleeding but that
         he didn't know what happened to him.

         Medics arrived on the scene and pronounced Krupitzer dead at
         11:16 a.m. [Richardson] was then transported to Pittsburgh


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      police headquarters, where he waived his Miranda rights and
      agreed to provide a statement.

      Initially [Richardson] denied having any involvement in the death
      of Krupitzer but then admitted that he had asked Krupitzer for
      money so he could buy himself some beer.

      [Richardson] further stated that when Krupitzer denied having any
      money, that he had checked Krupitzer’s pockets for money and
      Krupitzer pushed him away. [Richardson] then stated that he got
      a knife and stabbed Krupitzer multiple times in the stomach and
      the heart.

      An autopsy was performed on the body of Alan Krupitzer. The
      autopsy revealed multiple sharp force injuries of the trunk, to
      include a stab wound to the shoulder, two stab wounds to the
      chest and three stab wounds to the back. The cause of death was
      determined to be multiple stab wounds of the trunk.

Id. at 2-3 (quoting Notes of Testimony, Plea Hearing, at 6-7).

      As noted above, Richardson filed this appeal from the judgment of

sentence imposed on October 17, 2018 following remand from this Court.

Richardson asks us to consider one issue:

      I.    In again sentencing Mr. Richardson to 10-20 years’
            incarceration, whether the trial court abused its discretion
            because it failed to consider relevant sentencing criteria,
            including the protection of the public, the gravity of the
            underlying offense, and the character, personal history, and
            rehabilitative needs of Mr. Richardson, as required by 42
            Pa.C.S.A. § 9721(b)?

Appellant’s Brief at 5.

      As this Court recently reiterated:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. A sentence will not be disturbed on

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     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. We must accord
     the sentencing court’s decision great weight because it was in the
     best position to review the defendant’s character, defiance or
     indifference, and the overall effect and nature of the crime.

Commonwealth v. Nevel, 203 A.3d 229, 247 (Pa. Super. 2019) (quoting

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted)).      With respect to a challenge to the

discretionary aspects of sentence, we recognized:

     “The right to appellate review of the discretionary aspects of a
     sentence is not absolute, and must be considered a petition for
     permission to appeal.” Commonwealth v. Buterbaugh, 91 A.3d
     1247, 1265 (Pa. Super. 2014), appeal denied, 628 Pa. 627, 104
     A.3d 1 (2014). “An appellant must satisfy a four-part test to
     invoke this Court’s jurisdiction when challenging the discretionary
     aspects of a sentence.” Id. We conduct this four-part test to
     determine whether:

        (1) the appellant preserved the issue either by raising it at
        the time of sentencing or in a post[-]sentence motion; (2)
        the appellant filed a timely notice of appeal; (3) the
        appellant set forth a concise statement of reasons relied
        upon for the allowance of appeal pursuant to Pa.R.A.P.
        2119(f); and (4) the appellant raises a substantial question
        for our review.

     Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013)
     (citation omitted), appeal denied, 624 Pa. 679, 86 A.3d 231
     (2014). “A defendant presents a substantial question when he
     sets forth a plausible argument that the sentence violates a
     provision of the sentencing code or is contrary to the fundamental
     norms of the sentencing process.” Commonwealth v. Dodge,
     77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations
     omitted), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014).


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Id. at 246.

      The record confirms that Richardson has complied with the first three

prongs of the test. He preserved the issue by raising it in a nunc pro tunc

post-sentence motion, which the trial court entertained but denied. He filed

a timely notice of appeal and included a Rule 2119(f) statement in his brief.

As to whether he has satisfied the fourth prong, even the Commonwealth

concedes he has raised a substantial question by asserting the trial court failed

to consider relevant sentencing factors. See Commonwealth Brief at 15-16

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

Therefore, we shall consider the merits of his claim.

      Here, the trial court explained that it considered the evidence presented

at Richardson’s original sentencing and resentencing hearings.       Trial Court

Opinion, 12/11/18, at 4. Importantly, the trial court had the benefit of a pre-

sentence report at the time of Richardson’s original hearing. As this Court

recently restated:

      Where pre-sentence reports exist, 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.




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Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018) (quoting

Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988)).

“Accordingly, ‘[w]here 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.”   Id. (quoting Commonwealth v. Fullin,

892 A.2d 843, 849–50 (Pa. Super. 2006).

      In support of his assertion that the trial court abused its discretion,

Richardson relies on Commonwealth v. Ruffo, 520 A.2d 43 (Pa. Super.

1987) and Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011).

Appellant’s Brief at 42-48. However, those cases are inapposite. Specifically,

in Ruffo, we vacated the judgment of sentence because the trial court failed

to consider any factor other than the nature of the crime.         Similarly, in

Coulverson, we vacated the sentence as excessive and unreasonable, finding

the trial court focused on the victim’s impact statement and the severity of

the offense.

      By contrast, as the Commonwealth notes, the trial court not only had

the pre-sentence report, it also had the benefit of information about

Richardson’s history by virtue of a report from Richardson’s psychiatric expert.

Commonwealth Brief at 21. In addition, the trial court heard the testimony of

four witnesses who were Richardson’s friends or family members as well as

testimony from Richardson himself. Id. at 21-22. Moreover, Richardson’s


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counsel provided information relating to Richardson’s progress while in prison

after the first sentencing hearing. As the court explained,

      While it is clear to this court that [Richardson] has been
      participating in programs at his state correctional institution, and
      commends [Richardson] for doing so, his participation does not
      mitigate the violent act he committed on July 5, 2014 to such an
      extent as would warrant a below-the standard range sentence.
      The sentence of ten (10) to twenty (20) years’ total confinement
      is slightly below the middle of the standard range of the
      guidelines. This court detailed its reasons for imposition of this
      sentence in its November 7, 2017 opinion, which stated as follows:

         As stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
         Super. 2010)[,] “where a sentence is within the standard
         range of the guidelines, Pennsylvania law views the
         sentence as appropriate under the Sentencing Code.”
         Moury, 992 A.2d at 171.

         Based upon the testimony presented at the sentencing
         hearing, the contents of the pre-sentence report, and the
         expert report of Dr. Barbra Ziv, this court found that a
         sentence of total confinement was necessary given
         [Richardson’s] inability to control his alcoholism while not
         incarcerated and the gravity of the crime [Richardson]
         committed. The crime committed by [Richardson] was
         particularly violent considering [Richardson] stabbed Alan
         Krupitzer in the abdomen with a knife, then returned to stab
         him in the heart. The sentence guidelines submitted in this
         matter detail that the standard range started at ninety (90)
         months and ended at two hundred forty (240) months. This
         court’s sentence of one hundred twenty (120) to two
         hundred forty (240) months of total confinement fall[s] in
         the middle of the standard range of the guidelines. As such,
         it is presumed to be appropriate.

Trial Court Opinion, 12/11/18, at 4-5 (some capitalization omitted).

      We find no abuse of discretion or error of law in the trial court’s

imposition of a standard-range sentence of ten to twenty years in prison.

Richardson has failed to establish that the trial court “ignored or misapplied

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the law, exercised its judgment for reasons of partiality, prejudice, bias or ill

will, or arrived at a manifestly unreasonable decision” in imposing its

sentence. Nevel, 203 A.3d at 247. Therefore, we will not disturb it.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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