J-S79013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
         v.                                    :
                                               :
                                               :
WILLIAM PITT                                   :
                                               :
                Appellant                      :   No. 3354 EDA 2016

              Appeal from the Judgment of Sentence June 16, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0014105-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                   FILED MARCH 13, 2018

        William Pitt appeals from the judgment of sentence imposed June 16,

2016, in the Philadelphia County Court of Common Pleas.            The trial court

sentenced Pitt to an aggregate term of 20 to 40 years’ imprisonment following

his open guilty plea to charges of third-degree murder, aggravated assault,

and possessing an instrument of crime (“PIC”).1 On appeal, Pitt challenges

the discretionary aspects of his sentence. For the reasons below, we affirm.

        The factual basis for Pitt’s guilty plea is recounted by the trial court as

follows:
              On November 27, 2014, at approximately 10:00 a.m.,
        Tyhief Thomas and Taniesha Witchard were watching a movie in
        the bedroom of Witchard’s residence in Philadelphia, when
        Witchard heard someone inside of her residence. Thomas and
        Witchard exited the bedroom and saw [Pitt], with whom Witchard
        has a four-year old child, inside of her residence. While [Pitt] used
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1   See 18 Pa.C.S. §§ 2502, 2702(a), and 907(a), respectively.
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       to live at this residence with Witchard, and had a key to the
       residence, [Pitt] was not living at the residence at that time. A
       few words were exchanged and then [Pitt] began stabbing Thomas
       repeatedly with a butcher knife. Witchard, in an effort to prevent
       further attacks, got in the way of [Pitt], who stabbed her in her
       right hand. [Pitt] then fled the scene in a white Chevy.

             Witchard called 911. Police arrived and transported Thomas
       to the Hospital of the University of Pennsylvania, where he was
       pronounced dead at approximately 10:36 a.m.               Medical
       examination revealed that Thomas had been stabbed six times in
       the head, twice in the neck, 10 times in the torso, and
       approximately 13 times in the extremities. Witchard was taken to
       Lankenau Hospital, where she received treatment for the stab
       wounds to her right hand. [Pitt] left his identification and cell
       phone at the scene of the incident, which were recovered by
       police.

Trial Court Opinion, 1/5/2017, at 2-3 (record citations omitted).

       Pitt was subsequently arrested and charged with murder, burglary,

criminal trespass, PIC, aggravated assault, and simple assault.2 On March 8,

2016, Pitt entered an open guilty plea to charges of third-degree murder,

aggravated assault, and PIC. He was sentenced on June 16, 2016, to a term

of 20 to 40 years’ imprisonment for third-degree murder, a concurrent term

of one to five years’ imprisonment for aggravated assault, and a concurrent

term of one month to five years’ imprisonment for PIC. On June 20, 2016,

Pitt filed a timely motion seeking reconsideration of his sentence arguing the

sentence imposed was “excessive and unjust,” and the trial court placed too

much weight on the fact that the victim suffered 31 stab wounds and Pitt

purportedly illegally entered the home, when in fact Pitt was paying rent for

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2See 18 Pa.C.S. §§ 2502, 3502(a)(1), 3503(a)(1)(ii), 907(a), 2702(a), and
2701(a), respectively.

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the home, where he encountered his child’s mother in bed with another man,

and most of the wounds were “superficial and were a result of a violent

struggle.”     Motion for Reconsideration of Sentence, 6/20/2016, at 1-2.

Further, Pitt argued the victim was “conscious and alive” when he left the

home. Id. at 2. On October 13, 2016, the trial court entered an order denying

Pitt’s motion. This timely appeal followed.3

        The sole issue raised on appeal is a challenge to the discretionary

aspects of Pitt’s sentence. When considering such claims, we must bear in

mind:
        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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(quotation omitted), appeal denied, 125 A.3d 1198 (Pa. 2015). Furthermore,

it is well-settled that:


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3 On October 28, 2016, the trial court directed Pitt to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However,
on December 8, 2016, Pitt’s plea counsel filed a motion to withdraw in this
Court, explaining he was retained only for trial. Thereafter, on January 9,
2017, this Court granted counsel permission to withdraw, and remanded the
case to the trial court to conduct a hearing and determine if Pitt was eligible
for the appointment of counsel. The trial court conducted a hearing on
February 17, 2017, and present counsel was appointed shortly thereafter. The
court did not direct present counsel to file a concise statement. Rather, it
indicated in its opinion that “to avoid unnecessary delay,” it would address the
claim set forth in Pitt’s motion for reconsideration of sentence. Trial Court
Opinion, 1/5/2017, at 2. Because that is the sole claim raised on appeal, we
decline to find waiver due to the absence of a concise statement.


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      [a] challenge to the discretionary aspects of sentencing is not
      automatically reviewable as a matter of right. Prior to reaching
      the merits of a discretionary sentencing issue:

          We 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. Grays, 167 A.3d 793, 815–816 (Pa. Super. 2017) (some

citations omitted), appeal denied, ___ A.3d ___, 2018 WL 319345 (Pa. 2018).

      In the present case, Pitt complied with the procedural requirements for

this appeal by filing a timely post-sentence motion for modification of sentence

and subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether he has raised a substantial question justifying our

review.

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted). Here, Pitt maintains the trial court imposed a “manifestly

excessive” sentence by considering only “the seriousness of the offense … and

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not the individual characteristics of the [d]efendant nor mitigating factors.”

Pitt’s Brief at 8. “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (2012),

quoting Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009).

Accordingly, because Pitt has raised a substantial question, we proceed to an

examination of his argument on appeal.4

       Here, Pitt insists the trial court abused its discretion when it “placed

[too] much emphasis on the nature of the crime.” Pitt’s Brief at 12. He argues

that although the court reviewed his mitigating evidence, it stated “it did not

think that [Pitt] was nearly as nice a person as his supporters thought and


____________________________________________


4 We note Pitt also claims his sentence is unreasonable pursuant to 42 Pa.C.S.
§ 9721(b), because the court did not “give a contemporaneous, written
statement of reasons for imposing sentence at the maximum range.” Pitt’s
Brief at 8. We find this argument is both waived and meritless. It is waived
because Pitt did not raise this claim at sentencing or in his post-sentence
motion. Grays, supra. Moreover, Section 9721(b) requires the court to
provide a contemporaneous written statement only when it imposed a
sentence outside the guidelines range. See 42 Pa.C.S. § 9721(b). Here,
although Pitt’s 20-year minimum sentence is the statutory maximum for third-
degree murder, it was also within the standard range of the guidelines for his
conviction. See Pitt’s Brief at 8. Therefore, the court was not required to
provide a contemporaneous written statement. See Commonwealth v.
Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).               In any event, the
contemporaneous written statement requirement “is satisfied when the judge
states his reasons for the sentence on the record and in the defendant's
presence.” Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super.
2014) (internal punctuation and quotation omitted), appeal denied, 95 A.3d
275 (Pa. 2014). Here, the record reflects the trial court stated his reasons for
imposing sentence in open court before Pitt. See N.T., 6/16/2016, at 32-36.


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that he was not a pillar of the community – because he committed this crime.”

Id. (emphasis omitted) Pitt maintains “it almost appears as if the court cut

[him] ‘a break’ by finding him guilty of Third Degree Murder but then imposed

a maximum sentence.” Id. He asserts that a statutory maximum sentence

was a “foregone conclusion,” and the court did not meaningfully consider his

“bountiful” mitigation evidence. Id. at 13.

     When a defendant is sentenced within the standard range of the

guidelines, this Court will vacate the sentence only if “the case involves

circumstances where the application of the guidelines would be clearly

unreasonable.” 42 Pa.C.S. § 9781(c)(2). The Pennsylvania Supreme Court

has defined the term “unreasonable” as it appears in Section 9781 to describe

“a decision that is ‘irrational’ or ‘not guided by sound judgment.’”

Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). Moreover, Section

9781 further provides that, in reviewing a sentence on appeal, an appellate

court should consider:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4). Where, as here, the trial court had the benefit

of a presentence investigation report, “we presume that the court properly

considered and weighed all relevant factors in fashioning the defendant’s


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sentence.” Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013),

appeal denied, 86 A.3d 231 (Pa. 2014).

      In the present case, the trial court provided the following explanation

for the 20-to-40 year sentence imposed on Pitt’s conviction of third-degree

murder:

             Here, the Court’s sentence of 20[-]to[-]40 years for the
      third degree murder of Thomas was within the standard range of
      the sentencing guidelines. In fashioning this sentence, the court
      explicitly considered the information adduced at the guilty plea
      hearing, the sentencing hearing, the presentence report, the
      mitigating evidence submitted on [Pitt’]s behalf, [Pitt’s]
      rehabilitative needs, the need to protect the public, and the
      applicable sentencing guidelines. N.T. 6/16/2016 at 33-36. The
      Court specifically noted that Thomas was deprived of his life as a
      result of [Pitt’s] senseless attack and that the attack was
      particularly vicious as [Pitt] stabbed Thomas 31 times. N.T.
      6/16/2016 at 34. The Court properly concluded that this case was
      not in the heartland of third degree murder cases since [Pitt]
      demonstrated specific intent to kill by repeatedly stabbing Thomas
      multiple times in the head. N.T. 6/16/2016 at 34. Furthermore,
      the Court noted that the attack took place inside the sanctity of
      someone’s home, where the victims had the right to feel safe.2
      N.T. 6/16/2016 at 34.        Finally, the Court noted that the
      relationship between Witchard and [Pitt] had ended prior to the
      murder. N.T. 6/16/2016 at 35.

      __________
            2  Contrary to [Pitt’s] argument in his Motion for
      Reconsideration, the Court did not place “considerable weight” on
      a finding that [Pitt] illegally entered the residence. The court
      made no reference to the legality of the entrance in imposing
      sentence. N.T. 6/16/2016 at 32-37.

      __________

           Accordingly, the record demonstrates that the guideline
      sentence was reasonable. Therefore, it should not be disturbed.

Trial Court Opinion, 1/5/2017, at 4-5 (citation omitted).

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        Our review of the record, the parties’ briefs and the relevant statutory

and case law, reveals no basis to disturb the sentence imposed by the trial

court. After considering all the relevant factors, as well as Pitt’s mitigating

evidence, the court concluded an aggregate, standard range sentence of 20

to 40 years’ imprisonment was appropriate for Pitt’s crimes. We find no reason

to disagree.

        Furthermore, to the extent Pitt argues the trial court appeared to “cut

[him] ‘a break’ by finding him guilty of Third Degree Murder but then imposed

a maximum sentence[,]”5 we note:

        [T]here is no legal authority to support Appellant’s position that it
        was impermissible for the sentencing court to consider that he
        already received leniency because he pleaded guilty to third
        degree murder when the evidence supported a conviction for first
        or second degree murder. … There is no reason to prohibit the
        sentencing court from taking into consideration the facts of the
        crime and how those facts supported a potentially more serious
        sentence when the court is weighing whether to impose a standard
        or mitigated range sentence.

Macias, supra, 968 A.2d at 778. Accordingly, it was proper for the trial court

to consider the fact that Pitt stabbed Thomas six times in the head, and

delivered 31 blows overall, when determining an appropriate sentence.

Therefore, no relief is warranted on Pitt’s sole issue on appeal.

        Judgment of sentence affirmed.




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5   Pitt’s Brief at 12.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




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