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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                  v.                  :
                                      :
DAVID HARRINGTON,                     :         No. 2211 EDA 2015
                                      :
                       Appellant      :


          Appeal from the Judgment of Sentence, June 12, 2015,
           in the Court of Common Pleas of Philadelphia County
            Criminal Division at Nos. CP-51-CR-0007927-2014,
                         CP-51-CR-0007928-2014


BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED MAY 15, 2017

     David Harrington appeals from the June 12, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

he pled guilty to 2 counts of criminal attempt -- murder; 2 counts of

aggravated assault; 2 counts of possessing an instrument of crime (“PIC”);

1 count of unlawful restraint; 3 violations of the Uniform Firearms Act

(“VUFA”); and 1 count of terroristic threats.1 The sentencing court imposed

consecutive sentences of 12½ to 25 years of imprisonment on each

attempted-murder conviction. The sentencing court merged one of the PIC

counts into the other and imposed 2½ to 5 years of incarceration to run



1
  18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2902(a)(1), 6105(a)(1),
6106(a)(1), 6108, and 2706(a)(1).
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concurrent to the attempted-murder sentences.          It imposed a concurrent

sentence of 5 to 10 years of incarceration on one VUFA count.               The

sentencing court also imposed 1 to 2 years of imprisonment on the unlawful-

restraint conviction to run consecutive to the attempted-murder sentences.

It imposed no further penalty on the remaining counts.          The sentencing

court, therefore, imposed an aggregate sentence of 26 to 52 years of

imprisonment. We affirm.

     The record reflects that on May 14, 2014, at approximately 11:30 p.m.

to   11:45     p.m.,   appellant   was    at    home     with   his   then-wife,

Michelle Harrington, who was allegedly having an affair with Derrick Morris.

(Notes of testimony, 4/10/15 at 6-7.)          At that time, appellant asked

Ms. Harrington to make him a sandwich.         (Notes of testimony, 6/12/15 at

12-13.) As she went to make the sandwich, appellant pulled out a gun and

forced Ms. Harrington to go to the basement with him. (Notes of testimony,

4/10/15 at 7; 6/12/15 at 13.) Once in the basement, appellant instructed

the victim to chain her leg to a pipe. (Notes of testimony, 6/12/15 at 13.)

Appellant then went upstairs with the victim’s cellphone. (Id. at 14.) When

he returned to the basement, appellant shot his then-wife three times in the

face. (Notes of testimony, 4/10/15 at 7.) According to the Commonwealth,

appellant then went back upstairs and instructed two of his children, then

ages 13 and 15, to go to a neighbor’s home. (Notes of testimony, 4/10/15




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at 7.) Appellant then returned to the basement and shot Ms. Harrington two

times in the chest.2

        After shooting his then-wife 5 times, appellant left his home and drove

to Derrick Morris’s home. Appellant shot Mr. Morris one time in the left eye.

(Id.)      After   shooting   Mr.   Morris,   appellant   drove   to   a   bridge   in

West Philadelphia and discarded the gun.              (Id.)     Shortly thereafter,

appellant drove to the police station, turned himself in, and gave a full

statement. (Id. at 8).

        The record further reflects that both victims survived. Ms. Harrington

sustained a gunshot wound between her eyes, a gunshot wound to the left

temple, and a gunshot wound to the right temple. (Id.) A bullet fragment

remains between her eyes. She also sustained two gunshot wounds to her

chest area. Additionally, Ms. Harrington sustained multiple fractures to her

face, collar bone, and chest area. Mr. Morris sustained a gunshot wound to

the left eye that necessitated a cornea replacement. (Id.)

        Appellant raises the following issues for our review:

              1.    Did the sentencing court err and abuse its
                    discretion when it imposed a sentence on
                    [appellant] without adequately considering his
                    rehabilitative needs in the context of his
                    tortured mental health history, in violation of
                    42 Pa.C.S.A. § 9721(b)?



2
  The record reflects that at the guilty-plea hearing, appellant denied that he
left the basement and then returned to shoot his wife two more times.
(Notes of testimony, 4/10/15 at 9.)


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            2.     Did the sentencing court impose a sentence
                   that was contrary to the fundamental norms
                   underlying the sentencing process because it
                   was a de facto sentence of life imprisonment?

Appellant’s brief at 4.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether      to    affirm    the    sentencing   court’s
            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the     judgment        exercised     was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:




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                  [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).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, the record reflects that appellant filed a timely notice of appeal

and included a Pa.R.A.P. 2119(f) statement in his brief. Although appellant

filed a timely post-sentence motion for arrest of judgment, judgment of

acquittal, and modification of sentence, the Commonwealth contends that

appellant failed to preserve his first challenge, which is that the sentencing

court failed to adequately consider appellant’s rehabilitative needs in the

context of his mental health history.

      In his post-sentence motion, appellant admits that the sentencing

court “did to some degree take into account [appellant’s] rehabilitative

needs and mitigating circumstances[,]” but complains that it “nonetheless

imposed an excessive maximum sentence that will certainly outlast

[appellant’s] natural lifespan” and “even the minimum sentence of 26 years

will likely extend beyond [appellant’s] lifespan.” (Post-sentence motion for

arrest of judgment, judgment of acquittal, and modification of sentence,


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6/22/15 at ¶ 10.) Appellant then concedes that “the [sentencing c]ourt did

take into consideration [appellant’s] mental health needs and other

mitigating factors,” but complains that the “sentence did not allow for the

possibility that with appropriate mental health treatment[, appellant] might

succeed at rehabilitation after serving a substantial term of incarceration

that would still be shorter than a life sentence.” (Id. at ¶ 15.) Appellant

then sets forth the gravamen of his sentencing challenge, which is that the

sentencing court imposed “what is functionally a life sentence, and a

sentence that affords no possibility for rehabilitation or parole” which,

appellant contends, “is contrary to the fundamental norms underlying the

sentencing process and is manifestly unreasonable.”           (Id. at ¶ 16.)

Therefore, the   sentencing challenge     that   appellant   preserved in his

post-sentence motion is that the sentencing court imposed an excessive

sentence in light of appellant’s age.     Consequently, we must determine

whether that claim raises a substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.    Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).     “A substantial question exists only

when an 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. (citation omitted).



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            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

      Before we determine whether appellant raises a substantial question,

we again note that the sentencing court imposed a 12½ to 25-year sentence

for each attempted-murder conviction, which was below the mitigating range

of 16½ to 33 years for each of those crimes. In reviewing a sentence on

appeal, the appellate court:

            shall vacate the sentence and remand the case to
            the sentencing court with instructions if it finds:

            (1)   the sentencing court purported to
                  sentence     within  the   sentencing
                  guidelines but applied the guidelines
                  erroneously;

            (2)   the sentencing court sentenced within
                  the sentencing guidelines but the case
                  involves    circumstances   where  the
                  application of the guidelines would be
                  clearly unreasonable; or

            (3)   the sentencing court sentenced outside
                  the sentencing guidelines and the
                  sentence is unreasonable.

            In all other cases[,] the appellate court shall affirm
            the sentence imposed by the sentencing court.



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42 Pa.C.S.A. § 9781.

      Therefore,   momentarily    setting     aside   the   substantial-question

determination, we note that because appellant’s sentence fell outside the

guidelines range, neither Subsection (1) nor (2) of Section 9781 would

apply. As such, for this court to vacate and remand, we would be required

to find that “the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(3). In

this case, appellant’s sentence fell outside the guidelines because it was

below the mitigating range. Therefore, it is implausible that a sentence that

falls outside the guidelines because it is below the mitigating range could be

“unreasonable.”

      Even though appellant’s sentence fell below the mitigating range,

appellant   nevertheless   complains   that     his   sentence   is   manifestly

unreasonable because it was imposed when he was 52 years old and it

consisted of consecutive sentences that resulted in an aggregate sentence of

26 to 52 years, which, consequently, because of his age, constitutes a life

sentence.   Just as we have noted that an appellant is not entitled to a

volume discount when a court imposes consecutive sentences for multiple

crimes,3 we note that an appellant is not entitled to a seasonal discount

when he commits his crimes in the autumn of his life.


3
  See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(noting that a defendant is not entitled to a “volume discount” for multiple
crimes by having all sentences run concurrently).


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      Therefore, because appellant has advanced no plausible argument as

to why his sentence is unreasonable considering the nature of his crimes and

the fact that his sentence fell below the mitigating range, appellant has

failed to raise a substantial question for our review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




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