J-A09032-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  Appellee             :
                                       :
                  v.                   :
                                       :
ROBERT METZ,                           :
                                       :
                  Appellant            :
                                       :          No. 730 WDA 2019

        Appeal from the Judgment of Sentence Entered April 4, 2019
            in the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010016-2018

BEFORE: SHOGAN, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 26, 2020

      Robert Metz (Appellant) appeals from the April 4, 2019 judgment of

sentence of an aggregate term of 15 to 30 years of incarceration imposed

after he pleaded guilty to murder of the third degree and abuse of a corpse.1

We affirm.

      The following summary of facts was offered by the Commonwealth at

Appellant’s guilty plea hearing.

      [H]ad this matter proceeded to trial, the Commonwealth would
      have presented the testimony of Detectives Michael Kirtley and
      David Sciullo of the Ross Township Police Department, Detective
      Charles Hanlon and Detective Shawn Dady of the City of

1 We note that Appellant purported to appeal from the April 15, 2019 order
denying his post-sentence motion. “In a criminal action, appeal properly lies
from the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 (Pa. Super.
2001) (citation omitted). We have corrected the caption accordingly.



* Retired Senior Judge assigned to the Superior Court.
J-A09032-20

     Pittsburgh Police Department, along with various records
     custodians, forensic technicians and civilian witnesses, who
     collectively would have testified that on or about June 19th,
     2018, Pittsburgh Police received a walk-in report from one
     Kristen Miller, that her mother, Dolores Miller [(Victim)], had not
     been seen since June 16th, 2018.

           City  detectives   began    to    investigate   [Victim’s]
     disappearance as a missing person and found that [Victim’s]
     whereabouts could not be accounted for after June 17th, 2018.

           Detectives received information on the date of the initial
     report that [Victim] had been involved in an extramarital
     romantic relationship with a then unknown individual.

           On or about June 20th, 2018, investigating detectives
     received [Victim’s] phone records and noted a 22-minute call on
     the date of her disappearance. A Google search of the second
     number involved yielded the name [of Appellant].

           Detectives called this number and spoke to a man
     subsequently identified as [Appellant], who informed them that
     he was dating [Victim] and had last seen her on June 17th,
     2018, at his apartment and that she had left from there to go to
     the casino.

           Detectives reviewed surveillance footage from the Rivers
     Casino which depicted a male, also subsequently identified as
     [Appellant], parking [Victim’s] vehicle in a parking space in the
     casino’s parking garage. The same individual was depicted
     returning to the casino a short time later in another vehicle and
     moving [Victim’s] vehicle so that the rear was no longer visible.

           After receiving this information, detectives obtained an
     address for [Appellant] at the Perrytown Apartments in Ross
     Township, in Allegheny County, and contacted Ross Township
     detectives to meet them at that location.

           Detectives observed that [Appellant’s] vehicle was parked
     in the building’s parking lot. Detectives went upstairs to
     [Appellant’s] apartment and knocked for several minutes,
     placing another phone call, without receiving an answer.




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J-A09032-20

               After multiple attempts, detectives contacted the building
        manager to open the door so that they could perform a welfare
        check on [Appellant]. The manager arrived with a key, and after
        calling for [Appellant] again, detectives entered the residence.

              Immediately upon entering, detectives observed a
        deceased female, later identified as [Victim], on the floor of the
        apartment. Detectives entered further into the apartment in
        search of [Appellant] and found him in a bathtub filled with
        bloody water, holding a large kitchen knife.

              After ignoring multiple commands to drop the knife and [to
        stop] advancing towards detectives, [Appellant] ultimately set
        the knife down and was placed into custody without further
        incident.

               After receiving medical treatment for minor lacerations to
        his wrist and groin area, [Appellant] was transported to the Ross
        Township Police Department for interview. After being advised of
        his Miranda[2] rights, [Appellant] informed detectives that he
        had begun dating [Victim] in December of 2017 and had been
        dating her for approximately six months. [Victim] had arrived at
        his apartment on the afternoon of June 17th, 2018. [Appellant]
        indicated that he had decided at that time to terminate their
        relationship because [Victim] would not leave her husband for
        him.

              As she completed gathering her belongings from his
        apartment, [Appellant] placed both hands around her throat and
        strangled her for what felt like a couple of minutes, until blood
        began to come from her mouth and nose. He did not call for
        medical aid, as he searched for a pulse and did not feel one.

              After killing [Victim], [Appellant] gathered her belongings
        and placed some in her car and some in his. He took her vehicle
        and left it parked in the Rivers Casino parking lot, returning in
        his own vehicle approximately one hour later to turn it around so
        that the license plate would not be visible.

2   Miranda v. Arizona, 384 U.S. 436 (1966).




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J-A09032-20

           On June 18th, 2018, he took [Victim’s] phone and threw it
     into North Park Lake in an attempt to keep it from being tracked
     to his apartment. [Appellant] reported that he had not moved or
     otherwise attended to [Victim’s] body from the time of her death
     on the afternoon of June 17th, 2018, until its discovery by
     detectives on June 20th.

            [Victim’s] body was removed from [Appellant’s] apartment
     and transported to the Allegheny County Office of the Medical
     Examiner, where on June 21st, 2018, an autopsy was performed
     by Dr. Todd Luckasevic at M.E. Case No. 18COR05071. Final
     pathological diagnoses included manual strangulation, as
     evidenced by indicative hemorrhaging of multiple parts of the
     eyes and neck, bilateral pulmonary edema, dermoid cyst of the
     right ovary and early stages of decomposition.

           It would have been the opinion [of Dr. Luckasevic] that
     [Victim], a 56-year-old white female, died as a result of manual
     strangulation, the manner of death being homicide.

N.T., 1/7/2019, at 6-11.

     Based on the foregoing, Appellant was charged with criminal homicide,

abuse of a corpse, and tampering with or fabricating physical evidence. On

January 7, 2019, Appellant pleaded guilty to murder of the third degree and

abuse of a corpse.3 Sentencing was deferred to allow for a pre-sentence

investigation (PSI) report. On April 4, 2019, the trial court sentenced

Appellant to consecutive terms of 14 to 28 years of incarceration for murder

of the third degree, and 1 to 2 years of incarceration for abuse of a corpse.




3The Commonwealth withdrew the charge of tampering with or fabricating
physical evidence. N.T., 1/7/2019, at 4.




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J-A09032-20

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

April 15, 2019. This timely-filed appeal followed.4

      On appeal, Appellant asks us to review whether “the trial court abused

its sentencing discretion when it sentenced [Appellant] without properly

considering   mitigating   factors and   failing   to   adequately address his

rehabilitative needs in relation to his mental health concerns as well as the

de facto life sentence imposed by the trial court.” Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.5 Thus,

we consider this issue mindful of the following.

      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.

                                     ***

            When imposing [a] sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. In considering these factors, the

4 Both Appellant and the trial court complied with Pa.R.A.P. 1925. On May
20, 2019, the trial court directed Appellant to file a concise statement of
matters complained of on appeal. On July 24, 2019, Appellant filed a petition
for permission to file a concise statement nunc pro tunc, which the trial court
granted on July 29, 2019.

5 Because Appellant entered an open guilty plea, he is not precluded from
appealing the discretionary aspects of his sentence. See Commonwealth
v. Tirado, 870 A.2d 362, 365 n.5 (Pa. Super. 2005) (citations omitted).



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J-A09032-20

     court should refer to the defendant’s prior criminal record, age,
     personal characteristics and potential for rehabilitation.

Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.

2014)).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

           (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.[] § 9781(b).

DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102

A.3d 1001, 1006-07 (Pa. Super. 2014)).

     Appellant has satisfied the first three requirements: he timely filed a

notice of appeal, preserved his issues in a post-sentence motion, and

included a Pa.R.A.P. 2119(f) statement in his brief. See Appellant’s Brief at

16-22. Therefore, we now consider whether Appellant raises a substantial

question for our review.

           The determination of what constitutes a substantial
     question must be evaluated on a case-by-case basis.          A
     substantial question exists only when the appellant advances a
     colorable argument that the sentencing judge’s actions were

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J-A09032-20

      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).

      In his Pa.R.A.P. 2119(f) statement, Appellant contends that Appellant’s

“sentence was manifestly excessive because it placed inordinate focus on the

impact statements generally, as well as the cover[-]up in the three days

following [the] murder, at the expense of [Appellant’s] copious mitigating

evidence and [Appellant’s] rehabilitative needs.” Appellant’s Brief at 20-21.

Specifically, Appellant claims the trial court did not consider adequately

Appellant’s history of severe depression, suicidal ideation, suicide attempts,

remorse, regret, age of 69 years at the time of sentencing, long career as a

postal employee, lack of criminal convictions, family statements made at the

sentencing hearing in support of him, cooperation with the police, recorded

confession, and acceptance of responsibility for his actions.      Id. at 21.

Appellant also claims the trial court failed to articulate reasons for imposing

a sentence of total confinement rather than partial confinement pursuant to

42 Pa.C.S. § 9725. Id. at 21-22.

      “[W]e have held that a claim that a court did not weigh the factors as

an appellant wishes does not raise a substantial question.” Commonwealth

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014); see also Commonwealth

v. Patterson, 180 A.3d 1217, 1233 (Pa. Super. 2018) (finding no

substantial question raised where Patterson claimed “the trial court failed to


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J-A09032-20

fully consider mitigating factors such as appellant’s age, prior record score,

lack of violent tendencies prior to the shooting, and appellant’s belief that his

life was in danger”); Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.

Super. 2010) (citation omitted) (“The sentencing discourse demonstrated

the court considered the particular circumstances of the offenses, [Moury’s]

role, and [his] character when sentencing. That the court refused to weigh

the proposed mitigating factors as [Moury] wished, absent more, does not

raise a substantial question.”).6 A trial court’s failure to state sufficiently

reasons    for   the   sentence   imposed    raises   a   substantial   question.

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa. Super. 2003). Thus,

Appellant’s first claim does not present a substantial question for our

review,7 but his second claim does.



6 To the extent Appellant claims that the trial court abused its discretion
because the sentence imposed amounted to a de facto life sentence, such
claim is premised solely on his argument that the trial court failed to
consider his mitigating circumstances, including his age of 69 years at the
time of sentencing. Appellant’s Brief at 25, 30-31 n.3. Such a claim does not
present a substantial question. See Commonwealth v. Radecki, 180 A.3d
441, 469 (Pa. Super. 2018) (finding claim that trial court inadequately
considered mitigating factors, specifically Radecki’s “advanced age” of over
seventy years, when it imposed an aggregate sentence of 133 to 266
months failed to raise a substantial question).

7 Even if Appellant had presented a substantial question with this claim, it is
nothing more than a request for this Court to reweigh the sentencing factors
differently than the trial court. See Appellant’s Brief at 20-21, 25, 29-31,
35. As discussed infra, the trial court reviewed the PSI report, and
considered the circumstances of the offenses, victim impact statements,
testimony from Appellant’s family, and Appellant’s allocution. “[W]here the
(Footnote Continued Next Page)


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J-A09032-20

      “Although a sentencing judge must state his or her reasons for the

sentence imposed, a discourse on the court’s sentencing philosophy ... is not

required.” Simpson, 829 A.2d at 338 (citation and internal quotation marks

omitted). At the sentencing hearing, the trial court explicitly stated that it

had reviewed Appellant’s PSI report and invited counsel for the parties to

make any corrections or additions at the hearing. N.T., 4/4/2019, at 6. The

court also heard victim impact statements and testimony from fourteen

family members, friends, and co-workers describing Victim as loving,

supportive, kind, and hardworking, and expressing their pain, heartbreak,

and grief in losing her in such a violent way, id. at 3-39; testimony from five

members of Appellant’s family discussing their shock at and disbelief of his

crimes due to Appellant’s lack of criminal history or propensity toward

violence, Appellant’s willingness to help his family and others, including his


(Footnote Continued)   _______________________



sentencing judge had the benefit of a [PSI] report, it will be presumed that
he or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Finnecy, 135 A.3d 1028, 1038 (Pa. Super.
2016) (citation and internal quotation marks omitted). “Having been fully
informed by the [PSI] report, the sentencing court’s discretion should not be
disturbed.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Moreover, “[a]n 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.” Moury, 992 A.2d at
170 (citation and quotation marks omitted). Accordingly, even if Appellant
had presented a substantial question with this claim, we would conclude that
it fails.



                                                 -9-
J-A09032-20

mother in a nursing facility and his father when he had serious health issues,

his employment at the post office, and his history of mental illness and

suicide attempts, id. at 40-54; Appellant’s allocution expressing regret and

remorse, and stating that he had attempted suicide four times after the

murder, that he was not asking for forgiveness, and that he was unsure he

could ever forgive himself, id. at 54-56; and the attorneys’ arguments, id.

at 56-61. Thereafter, the trial court gave the following explanation for

concluding a sentence of incarceration was appropriate.

             First of all, I wish to say to [the family] and other
      individuals that spoke on behalf of [Victim] that you certainly
      conveyed the persona of [Victim] and you have certainly
      conveyed to me how this terrible, tragic crime has fractured your
      lives, traumatized you, [caused you] great anxiety, in those few
      days where you just didn’t know where your mother, your aunt,
      your wife was, your friend. She certainly was a good woman, a
      hard-working woman, and her death was certainly horrific.
      Strangulation is a horrific crime.

           Also hearing from [Appellant’s] family, you conveyed to
      me that your brother, your father, [] your brother, in this case
      was essentially a good man up to June 17th of 2018 where he
      committed this horrendous deed.

            What bothers me about the crime was the follow[-]up after
      by [Appellant] trying to cover it up. It’s oftentimes the cover[-
      ]up, though cover[-]up would never exceed killing someone,
      which [Appellant] certainly did here. But it is an aggravating
      factor[.]

            So taking into consideration all of these factors, I’m going
      to sentence [Appellant] for his third degree murder, a Felony 1,
      of [Victim], to 14 to 28 years in a State Correctional Institution.
      I’m also going to sentence him for his abuse of the corpse, a
      Misdemeanor 2, to 1 to 2 years to run consecutive for a total
      sentence of 15 to 30 years in the State Correctional Institution.


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J-A09032-20

Id. at 62-63. The trial court expounded on its sentence in its opinion,

explaining it

        based its sentence on the fact that [Appellant], after strangling
        [Victim] for “what felt like a couple of minutes, until blood began
        to come from her mouth and nose,” [N.T., 1/7/2019, at 10,]
        attempted to cover-up his crime by driving her vehicle and
        leaving it at the casino. He then returned to the casino and
        turned her vehicle so that the license plate would not be visible
        and threw her cell phone into a lake. This cover-up attempt was
        found to be an aggravating factor by [the trial court] that
        necessitated a total sentence of fifteen to thirty years.

Trial Court Opinion, 8/13/2019, at 5-6 (unpaginated). The trial court further

explained that in light of 42 Pa.C.S. § 9725,8 it concluded that total

confinement was necessary. Id. at 5 (unpaginated). Relying on Moury, the

trial court also noted that “‘where a sentence is within the standard range of


8   Section 9725 states as follows.

     The court shall impose a sentence of total confinement if, having
     regard to the nature and circumstances of the crime and the
     history, character, and condition of the defendant, it is of the
     opinion that the total confinement of the defendant is necessary
     because:

        (1) there is undue risk that during a period of probation or
        partial confinement the defendant will commit another crime;

        (2) the defendant is in need of correctional treatment that can
        be provided most effectively by his commitment to an
        institution; or

        (3) a lesser sentence will depreciate the seriousness of the crime
        of the defendant.

42 Pa.C.S. § 9725.




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J-A09032-20

the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.’” Id., quoting Moury, 992 A.2d at 171.9

      As discussed supra, the trial court sentenced Appellant to 14 to 28

years of incarceration for murder of the third degree and 1 to 2 years of

incarceration for abuse of a corpse. The court explained it was aggravating

Appellant’s sentence due to the horrific nature and circumstances, i.e.,

strangling Victim until blood came from her mouth and nose, and Appellant’s

attempts to cover up the murder, i.e., moving Victim’s vehicle to the casino,

returning to change the car’s position to hide its license plate, and disposing

9 The standard range of the sentencing guidelines for murder of the third
degree was six to twenty years, with a statutory maximum of forty years.
Sentencing Guidelines, 4/4/2019, at 1 (unpaginated). The standard range
for abuse of a corpse was restorative sanctions to one month of
incarceration, with four months in the aggravated range and a statutory
maximum of two years. Id. at 2 (unpaginated). Thus, the sentence imposed
by the trial court for murder fell within the standard range of the sentencing
guidelines, but the sentence for abuse of a corpse was outside the
guidelines, falling above the aggravated range but below the statutory
maximum.

To the extent Appellant argues that the trial court failed to state its reasons
for sentencing outside the guidelines, see Appellant’s Brief at 20, 23-24,
such argument is waived for failure to raise it below at sentencing or in his
post-sentence motion. See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Regardless, for the reasons discussed herein, this claim is without merit
because the trial court placed its reasons on the record. See
Commonwealth v. Pollard, 832 A.2d 517, 526 (Pa. Super. 2003) (finding
trial court’s sentence was “not unreasonable” when it sentenced Pollard to a
standard range sentence for murder and conspiracy, but outside the
guidelines to one to two years for abuse of corpse, where trial court relied on
PSI report, and considered “victim impact statements as it concerns the
manner in which the victim’s corpse was left” and Pollard’s allocution).



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J-A09032-20

of Victim’s cell phone in a lake. N.T., 4/4/2019, at 62-63; Trial Court

Opinion, 8/13/2019, at 6 (unpaginated). Moreover, the trial court indicated

it had reviewed Appellant’s PSI report and had the benefit of hearing victim

impact statements and testimony, mitigating testimony from Appellant’s

family, Appellant’s allocution, and argument from counsel for the parties.

      In light of the foregoing, we conclude the court sufficiently stated its

reasons for the sentence Appellant received and Appellant has failed to

demonstrate that the trial “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”   in   imposing   Appellant’s   sentence.

DiClaudio, 210 A.3d at 1075. Accordingly, we affirm Appellant’s judgment

of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2020




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