J-S07003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRENDA SUE SMITH                           :
                                               :
                       Appellant               :   No. 1391 MDA 2018

          Appeal from the Judgment of Sentence Entered July 16, 2018
      In the Court of Common Pleas of Juniata County Criminal Division at
                        No(s): CP-34-CR-0000190-2010


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 16, 2019

        Appellant, Brenda Sue Smith, appeals from the judgment of sentence

entered July 16, 2018, as made final by the denial of post-sentence motions

by order dated August 17, 2018. We affirm.

        The factual and procedural history of this case are as follows.        On

September 15, 2010, Appellant shot and killed her son-in-law. On February

3, 2012, a jury convicted Appellant of first-degree murder1. Thereafter, the

trial court sentenced her to life in prison.       This Court affirmed Appellant’s

judgment of sentence on December 15, 2014.               However, the trial court

granted Appellant’s Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, petition on September 21, 2017, based on ineffective


____________________________________________


1   18 Pa.C.S.A. § 2502(a).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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assistance of counsel.2          Instead of going through another trial, the

Commonwealth agreed to dismiss the criminal homicide and first-degree

murder charges in exchange for a plea to third-degree murder. On May 4,

2018, Appellant entered an open guilty plea to one count of third-degree

murder.3 The court sentenced her to 20 to 40 years’ incarceration with credit

for time served from September 15, 2010.4 On July 23, 2018, Appellant filed

post-sentence motions asking that the court order resentencing and that the

judge recuse herself from that proceeding. On August 17, 2018, the court

denied those motions. This timely appeal followed.5

        Appellant raises the following issues on appeal:

        1. At sentencing following a guilty plea [to third-degree murder],
           did the court commit an error of law and thereby abuse its
           discretion in considering testimony from an earlier trial in
____________________________________________


2 Appellant’s PCRA petition alleged ineffective assistance of counsel for a
multitude of reasons. She attained relief based on trial counsel’s failure to
object to Appellant’s written confession being given to the jury in
deliberations.

3   18 Pa.C.S.A. § 2502(c).

4 The sentencing court sentenced Appellant to 20 to 40 years’ incarceration.
Appellant’s sentence is not outside of the sentencing guidelines. Third-degree
murder has an offense gravity score of 14, so even though Appellant had a
prior record score of zero, her sentence is within the standard range. See
204 Pa.C.S.A. § 303.16(a). The record reflects that the sentencing court
received a presentence report that recommended a sentence of 20 to 40
years.
5 On August 29, 2018, the sentencing court ordered the filing of a concise
statement of matters complained of on appeal. Appellant complied on
September 6, 2018. Her concise statement lists all three claims that she now
raises on appeal. The court filed its final memorandum on October 12, 2018.

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         concluding this was a “deliberate” and “planned” killing to
         support its imposition of the maximum sentence when the
         conviction from that trial had been vacated on the ground that
         trial counsel had been ineffective, the trial evidence relied on
         was totally discredited in PCRA proceedings, and the record
         before the court at sentencing consisted solely of the facts
         established at the plea hearing?

      2. Did the sentencing court commit an error of law and thereby
         abuse its discretion in explicitly refusing to consider
         overwhelming mitigating evidence?

      3. Did the sentencing court commit an error of law and thereby
         abuse its discretion in considering the unsworn, incompetent
         testimony of several Commonwealth witnesses?

Appellant’s Brief at 3.

      All three of Appellant’s claims allege that the sentencing court abused

its discretion in sentencing. As this Court explained:

      [t]o reach 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, Pa.R.A.P. 902, 903; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence, 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).

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

      In the instant case, Appellant filed a timely notice of appeal and properly

preserved the issues in her post-sentence motion. Appellant’s brief contains

the requisite 2119(f) concise statement and, as such, is in compliance with

the procedural requirements to challenge the discretionary aspects of a




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sentence.    See Appellant’s Brief at 14-18.        Thus, we will address whether

Appellant’s issues present a substantial question.

      Appellant’s first issue argues that the sentencing court abused its

discretion   in   considering   testimony    from    Appellant’s     earlier   trial    for

first-degree murder when imposing a sentence for her plea to third-degree

murder. Generally, to raise a substantial question an appellant must “advance

a colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000). When determining whether an appellant has set forth a substantial

question, “[o]ur inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005).

      This Court has held that where an appellant claims that the sentencing

court considered improper factors in sentencing, a substantial question exists.

See Commonwealth v. Druce, 796 A.2d 321, 334 (Pa. Super. 2002) (an

allegation that the trial court relied on matters not of record during sentencing

raises a substantial question); Commonwealth v. Downing, 990 A.2d 788,

792   (Pa.   Super.   2010)     (a   claim   that   the   trial   court   relied   on    a


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“mischaracterization of the evidence” at sentencing presents a substantial

question). Therefore, Appellant’s first issue presents a substantial question

and we will review the merits.

      In reviewing a sentencing claim, we are mindful that[ w]e must
      accord the sentencing court great weight as it is in the best
      position to view the defendant's character, displays of remorse,
      defiance or indifference, and the overall effect and nature of the
      crime. An appellate court will not disturb the lower court's
      judgment absent a manifest abuse of discretion. In order to
      constitute an abuse of discretion, a sentence must either exceed
      the statutory limits or be so manifestly excessive as to constitute
      an abuse of discretion. Further, a sentence should not be
      disturbed where it is evident that the sentencing court was aware
      of sentencing considerations and weighed the considerations in a
      meaningful fashion.

Miller, 965 A.2d at 277, citing Commonwealth v. Fish, 752 A.2d 921, 923

(Pa. Super. 2000). Moreover, this Court has held that, even if a sentencing

court relies on impermissible factors, the sentence should stand and there is

no abuse of discretion so long as it “has significant other support for its

departure from the sentencing guidelines.” Commonwealth v. Shelter, 961

A.2d 187, 191 (Pa. Super. 2008), citing Commonwealth v. Smith, 673 A.2d

893, 896-897 (Pa. 1996).

      Appellant argues that when fashioning her sentence, the sentencing

court, “was relying on testimony from the trial six years earlier… [which] was

now a legal nullity.”   Appellant’s Brief at 15.   Notably, Appellant does not

dispute the facts that she acknowledges underlie the sentencing court’s

decision. As part of her plea, Appellant admitted to shooting the victim to

death in the back of the head.     Rather, she supplements those facts with

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allegations that the victim was abusive to her and her daughter. Although the

sentencing court referred to Appellant’s initial trial at sentencing, the court

specifically said, “[t]he trial occurred.   People will never forget what they

heard, but that is not something that the court can necessarily take into

consideration. That is gone.” N.T., 7/16/2018, at 38. The sentencing court

also indicated on the record that it read the sentencing memoranda from both

the Commonwealth and Appellant, including all of the letters in support of

Appellant and those from the victim’s family and friends. The sentencing court

clearly weighed many factors in determining Appellant’s sentence.            The

sentence is within the standard range and not clearly excessive considering

the gravity of the offense. The sentencing court did not abuse its discretion

by referencing Appellant’s trial.

      Appellant’s second issue alleges that the sentencing court abused its

discretion by failing to consider mitigating factors. Generally, such a claim

does not constitute a substantial question warranting a review of the merits

unless   the   sentence   imposed    was    in   the   aggravated   range.   See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (“An

allegation that the sentencing court failed to consider certain mitigating

factors generally   does not [] raise a substantial          question.”), citing

Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003); compare

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc) (stating that a substantial question is raised where appellant alleges the


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sentencing court imposed an aggravated range sentence without adequately

considering mitigating circumstances). As indicated above, Appellant did not

receive an aggravated sentence.        As such, this allegation fails to raise a

substantial question.

          Appellant’s third and final issue complains that the sentencing court

abused its discretion by relying on the “unsworn, incompetent testimony of

several Commonwealth witnesses.” Appellant’s Brief at 3. The witnesses to

which Appellant refers are the family and friends of the victim who read their

impact statements at the sentencing hearing.          Section 11.201(5) of the

Pennsylvania Crimes Code specifically allows the submission of oral and

written victim impact testimony before sentencing and, in fact, commands

that, “[v]ictim-impact statements shall be considered by a court when

determining the disposition of a juvenile or sentence of an adult.”          18

Pa.C.S.A. § 11.201(5). Therefore, it cannot be argued that consideration of

such testimony is inconsistent with the fundamental norms of the sentencing

process.        As such, Appellant’s final issue does not present a substantial

question requiring a full analysis on the merits. Appellant is not entitled to

relief.

          Judgment of sentence affirmed.

          Judge Pellegrini joins.

          Judge McLaughlin concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/16/2019




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