J-S78016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
            v.                          :
                                        :
                                        :
CARL BELL                               :
                                        :
                  Appellant             :   No. 538 WDA 2017

           Appeal from the Judgment of Sentence March 6, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001854-2016


BEFORE:   OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY DUBOW, J.:                            FILED APRIL 24, 2018

     Appellant Carl Bell appeals from the Judgment of Sentence imposed

after he pled guilty to one count of Third-Degree Murder and two counts of

Aggravated Assault.    Appellant challenges the discretionary aspects of his

sentence. We affirm.

     On January 1, 2016, while at an apartment in Lin Lee Motel in

Millcreek Township with his girlfriend, Appellant consumed alcohol and

cocaine. An argument erupted between Appellant and Charles Lesser, and

Appellant punched, kicked, and stomped on Lesser’s head and body. When

his friend, Danny Green, attempted to stop the fight, Appellant punched,

kicked, or stomped on Danny Green’s head and body. Appellant then went

to a separate apartment and stomped and kicked his own mother, Andrea

Zack, in the face and neck, poured boiling water on her arms and stomach,

and threatened to kill her.   Mr. Lesser never recovered consciousness and

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78016-17



died from his injuries on February 12, 2016.           Mr. Green is permanently

physically disabled as a result of the attack. Ms. Zack suffered severe

injuries and permanent scarring.

       The Commonwealth charged Appellant with multiple counts of Assault

and Reckless Endangerment, one count of Terroristic Threats, and one count

of Homicide.

       On January 20, 2017, Appellant pled guilty to Third-Degree Murder

and two counts of Aggravated Assault.            In exchange, the Commonwealth

withdrew the remaining charges. The court ordered a pre-sentence

investigation and scheduled sentencing for Monday, March 6, 2017.          The

Commonwealth submitted a Sentencing Memorandum to the court and gave

a copy to Appellant’s counsel on the morning of Friday, March 3, 2017.1

       At the sentencing hearing on Monday, March 6, 2017, Appellant’s

counsel objected to the court’s considering the Commonwealth’s Sentencing

Memorandum, arguing that the photographs of the victims and the crime

scene attached to the Memorandum were inflammatory. He also complained

that he did not have a chance to respond to the Memorandum, and argued
____________________________________________


1  The Commonwealth’s Sentencing Memorandum “set forth the
Commonwealth’s recommendation of an aggregate sentence of 40 to 80
years of incarceration. It summarized the factual background of the case,
Appellant’s prior record[,] and the Commonwealth’s argument in favor of the
sentence it recommended.           Appended to the memorandum were
photographs of the victims and the apartment where Appellant assaulted the
male victims.” Trial Ct. Op., dated 6/6/17, at 8 n.2.




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that the Commonwealth should be precluded from making oral argument

because it had already submitted its statement. N.T. Sentencing, 3/6/17, at

8-10. The court denied the objection.

       The court then heard statements from Appellant, his attorney, and Ms.

Zack on Appellant’s behalf. The prosecutor made a short statement,

recognizing     that    the    court    had    the   Commonwealth’s   Sentencing

Memorandum. Over defense counsel’s objection, the decedent’s sisters and

Mr. Green made victim impact statements.             The court then acknowledged

counsels’ arguments, the in-court statements, the pre-sentence investigation

report, and the sentencing guidelines, and imposed an aggregate sentence

of 30 to 60 years’ incarceration, which included a term within the sentencing

guidelines of 19 to 38 years on the Third-Degree Murder conviction.2

       After the denial of post-sentence motions, Appellant timely appealed.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issues for our review:

       1. Did the Sentencing Court commit an abuse of discretion when
          it imposed a sentence of 19 to 38 years on the third degree
          murder conviction that, while within the Sentencing
          Guidelines, was unreasonable?

       2. Did the Sentencing Court commit an abuse of discretion and/or
          error of law when it considered and relied upon the
____________________________________________


2 The court imposed consecutive terms of incarceration of 19 to 38 years for
the Third-Degree Murder conviction, 6 to 12 years for the assault on Mr.
Green, and 5 to 10 years for the assault on Ms. Zack. The court also
ordered restitution.



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          Commonwealth’s Sentencing Memorandum, which was filed and
          provided to defense counsel less than one business day prior to the
          scheduled sentencing?

Appellant’s Brief at 8.

        While acknowledging that his sentence falls within the sentencing

guidelines, Appellant avers that the sentencing court committed an abuse of

discretion in sentencing him to 19 to 38 years’ incarceration on the Third-

Degree Murder conviction because it “closely approached the statutory

maximum[.]”3 Appellant’s Brief at 16. He also argues that the sentencing

court    “considered      an    impermissible    consideration/facts,”   i.e.,   the

Commonwealth’s Sentencing Memorandum, “filed on the eve of sentencing

that did not afford defense counsel an opportunity to respond in kind.” Id.

at 17.    Appellant's claims implicate the discretionary aspects of the trial

court's sentencing decision.

        “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. Antidormi, 84 A.3d 736,

760 (Pa. Super. 2014) (citation omitted).

        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
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3 The sentencing guidelines provide a standard range of 120-240 months’
incarceration for an individual with an OGS of 14 and a prior record score of
3. The statutory limits for a sentence on a Third-Degree Murder conviction
are 240-480 months. 18 Pa.C.S. §1102(d).



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      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill[-]will, or arrived at a manifestly
      unreasonable decision.
                                          ***
      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Id. at 760-61 (internal citations and quotation marks omitted).

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). “Rather, an appellant challenging

the discretionary aspects of a sentence must invoke this Court’s jurisdiction.”

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014).

To determine whether an appellant has invoked our jurisdiction, we consider

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.A. § 9781(b).

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

omitted).

      Here, Appellant filed a timely Notice of Appeal after preserving the

issues in a post-sentence motion, and his brief contains a Pa.R.A.P. 2119(f)




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statement.   We, thus, consider whether Appellant has raised a substantial

question that his sentence is inappropriate.

      To demonstrate that a substantial question exists, “a party must

articulate reasons why a particular sentence raises doubts that the trial court

did not properly consider the general guidelines provided by the legislature.”

Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa. 2002) (citation and

internal brackets omitted).     An appellant is required only to “make a

plausible argument that his sentence is either inconsistent with a particular

provision of the Sentencing Code or contrary to the fundamental norms

underlying the sentencing process.”        Id. (citing Commonwealth v.

Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)).

      “As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. [ ] An appellant must articulate

the reasons the sentencing court's actions violated the sentencing code.”

Moury, supra at 170 (citing Commonwealth v. Malovich, 903 A.2d 1247,

1252 (Pa. Super. 2006)).

      In the instant case, Appellant acknowledges that the sentence falls

within the sentencing guidelines, but avers that the sentence “was clearly

unreasonable as it closely approached the statutory maximum sentence

allowed by law in circumstances where Appellant did not employ a

weapon/firearm and where Appellant had a prior record score of 3.”

Appellant’s Brief at 16. He further asserts that the sentence imposed was


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akin to one that would be imposed on someone with a prior record score of 4

or 5. Id. at 19.      Appellant has not provided “a plausible argument that his

sentence is either inconsistent with a particular provision of the Sentencing

Code or contrary to the fundamental norms underlying the sentencing

process.” Mouzon, supra, at 622.

       Moreover, Appellant has not asserted any particular circumstances

that make application of the guidelines unreasonable. His statement that his

crime did not involve firearms/weapon does not comprise a circumstance

that makes the application of the guidelines unreasonable. 4             Further,

Appellant does not support his inference that when compared to other

defendants with higher prior record scores, the court erroneously applied the

guidelines. Accordingly, Appellant’s first issue does not raise a substantial

question and he has, thus, failed to invoke this Court’s jurisdiction.

       With respect to his second issue, where an appellant alleges that the

sentencing court considered impermissible factors at sentencing, he will be

entitled to review. See, e.g., Commonwealth v. Simpson, 829 A.2d 334,

338-39 (Pa. Super. 2003) (giving examples of impermissible factors with

citation to case law). However, we are unpersuaded that because Appellant

did not believe he had a chance to respond to the Commonwealth’s
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4 Appellant has not provided any statutory or case law, or developed any
argument, to support his contention that because he did not use a
“weapon/firearm” to kill and hurt people, the court’s sentence is “clearly
unreasonable.” Appellant’s Brief at 16, 19.



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Sentencing       Memorandum,      the    sentencing   court   “considered    an

impermissible consideration/factor when it imposed sentence.”       Appellant’s

Brief at 17.

      As Appellant acknowledges, 42 Pa.C.S. §9752 provides:

      (a)      General rule.--As soon as practicable after the
               determination of guilt and the examination of any
               presentence report, a proceeding shall be held at which
               the court shall:

      (1)      Entertain submissions by the parties on the facts relevant
               to the sentence, including any facts with respect to
               negotiated pleas, as to the nature of the sentence.

      (2)      Afford to the defendant the right to make a statement.

      (3)       Hear argument by the defense on the applicability of the
               various sentencing alternatives to the facts of the case,
               and may hear argument by the prosecution.

                                         ****

42 Pa. C.S. §9752(a).

      There is nothing in this section that prohibits a court from considering

a Sentencing Memorandum and, as Appellant notes in his Brief, nothing in

this section dictates when a Sentencing Memorandum must be filed.           The

fact that Appellant received the Commonwealth’s Sentencing Memorandum

on the morning of the Friday before the Monday sentencing hearing does not

equate to the court relying on “impermissible sentencing factors” such that a

substantial question is raised. See Simpson, supra. Moreover, Appellant

cites to no authority that prohibits a court from considering a Sentencing

Memorandum submitted by a party prior to imposing sentence.

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      We further note that nothing in Section 9752 prohibited Appellant from

submitting his own Sentencing Memorandum in advance or at the hearing.

In fact, Section 9752 allows a party the right to make any submissions and

statements at the sentencing hearing.        As the sentencing court noted, the

court did not deprive Appellant and his counsel of that opportunity.

      There was ample opportunity to review the Sentencing
      Memorandum prior to the sentencing hearing. None of the
      background information in the Sentencing Memorandum would
      have been new or surprising to Appellant’s counsel, who was
      familiar with the case [and assisted Appellant as plea counsel].
      Appellant was afforded full and fair opportunity at the sentencing
      hearing to address the topics in the Sentencing Memorandum.
      The [c]ourt did not err in considering the Commonwealth’s
      sentencing memorandum.

Trial Ct. Op., dated June 6, 2017, at 6-7.

      We   conclude   that   Appellant’s   claim   that   the   court   considered

impermissible factors in imposing sentence is completely without factual or

legal support. He has failed to raise a substantial question and we, thus, are

without jurisdiction to review the merits of his claim.

      Accordingly, we affirm the Judgment of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2018

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