Com. v. Kerr, R.

J-S38035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT EDWARD KERR, :
:
Appellant : No. 149 EDA 2014

Appeal from the Judgment of Sentence Entered February 14, 2011,
In the Court of Common Pleas of Lehigh County,
Criminal Division, at No. CP-39-CR-0003147-2009.

BEFORE: FORD ELLIOTT, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED JULY 30, 2014

Appellant, Robert Edward Kerr, appeals from the judgment of sentence

entered after he pled guilty to robbery and conspiracy to commit robbery.

We affirm.

The trial court set forth the facts of this case as follow:

On June 2, 2009, at approximately 7:45 a.m., Todd Koch,

Seafood, located at 1234 MacArthur Road in Whitehall Township,
Lehigh County. As Mr. Koch began opening the door to the
business, three individuals rushed him. All three were wearing
masks. One had a gun and pointed it at Mr. Koch. Another had
a knife in his hand. The assailants put Mr. Koch on the floor of
the store, duct taped him, and took a number of keys from him,
including the key to his vehicle.

At approximately 8:00 a.m., John Langer, a business
associate of Mr. Koch, arrived for an appointment. When he got
to the door, two of the individuals rushed him and the third ran
around the back of the building. They forced Mr. Langer to the
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ground at gunpoint, took his wristwatch, a cell phone, and
$42.00 in U.S. currency.

Whitehall Police were called after the assailants left. They
began investigating the scene and reviewed surveillance footage.
An all[-]points bulletin was issued for the three individuals in a
blue Mitsubishi vehicle.

At 9:00 a.m., Allentown police received a call for a robbery
in progress at the Easy Cash, a check cashing store located at
604 North 14th Street, Allentown, Pennsylvania. When police
arrived, they found the store owner, Mr. Martinez, with a facial
wound from being either punched or pistol whipped. Mr.
Martinez reported the assailants held a gun to his side as he was
opening the store and they attempted to rob him, but he fought
them off.

Rosina Arroyo, a female employee of Easy Cash, reported
that the suspects left in a dark blue, sports-type vehicle with a
wing on the back. She also indicated there was something red
on the front license plate of the car. She followed the suspects
before they fled in that vehicle.

Detective Eric Wagner of the Allentown Police Department
learned that patrolman Michael Mancini located a vehicle
matching

When the vehicle was located, other detectives saw a
female at the vehicle entering it, placing items in a book bag,
and walking away from it. She was stopped and asked for
identification. She indicated her name was Paula Kerr. Ms. Kerr
told police her sons, Appellant and one of the co[-]defendants in
this case, were not home because they were in New York. Ms.
Kerr consented to a search of the bag she was carrying. Inside,
police found a stun gun, a BB gun, duct tape, and rubber gloves.
Whitehall police later identified the book bag as the one carried
by one of the robbery suspects from the Whitehall incidents.

Shortly after the vehicle and bag were identified, Appellant
was stopped by police. One of the witnesses from the Easy Cash

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brother, Ronald. Appellant was taken into custody later that
evening. Ronald was Mirandized and interviewed, at which time
he admitted that he, Appellant, and a third male, Malcolm

the seafood establishment, and the Easy Cash facility. Ronald
admitted that he and Mr. Jenkins were in possession of weapons
during the robberies, and he implicated Mr. Jenkins as being the
individual who struck Mr. Martinez during the attack on him.

Reichley Opinion, 1/30/14, at 1 3.1

Appellant pled guilty to three counts of robbery and three counts of

conspiracy to commit robbery on December 17, 2010. Pursuant to a

negotiated plea agreement, the trial court sentenced Appellant on February

14, 2011, to incarceration for an aggregate term of eight to thirty years.

This was the same sentence his co-defendant brother, Ronald, received, but

a greater sentence than the sentence imposed on co-defendant Malcolm

Jenkins. Appellant filed a post-sentence motion on February 22, 2011,

challenging the discretionary aspects of his sentence. The trial court denied

the motion on March 9, 2011. Thereafter:

Appellant appealed, challenging the discretionary aspects of his
sentence. On November 4, 2011, the Superior Court of
Pennsylvania entered an order and a Memorandum Opinion in
which it concluded that Appellant had waived his appeal by
virtue of raising different sentencing issues on appeal than those

1

and sentencing. He filed an opinion pursuant to Pa.R.A.P. 1925(a) on May 2,

nunc pro tunc. He filed an

O

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raised in his post-sentence motions. [Commonwealth v. Kerr,
825 EDA 2011 (Pa. Super. November 4, 2011), unpublished
memorandum at 2]. Appellant filed a Petition for Allowance of
Appeal to the Supreme Court of Pennsylvania on November 14,
2011. The Supreme Court denied his allocator petition on July 2,
2012.

On July 3, 2012, Appellant filed a pro se Motion for Post
Conviction Collateral Relief. The Court appointed David N.
Melman, Esq. to represent Appellant and gave Attorney Melman
sixty (60) days to file an Amended PCRA Petition. An Amended
PCRA Petition was timely filed on October 2, 2013.

On December 5, 2013, a PCRA hearing was scheduled
before [the trial court]. At that time, the Commonwealth agreed

the PCRA and afford him the right to file a new Notice of Appeal
nunc pro tunc. Appellant filed a timely Notice of Appeal on
December 26, 2013. Appellant then filed a Concise Statement of
[Errors] Complained of on Appeal on January 16, 2014.

Reichley Opinion, 6/30/14, at 3 4.

On appeal, Appellant presents the following questions for our review:

1. IS THERE A SUBSTANTIAL QUESTION FOR WHICH THE
SUPERIOR COURT SHOULD GRANT ALLOWANCE OF APPEAL
FROM THE DISCRETIONARY ASPECTS OF THE SENTENCE?

A. Whether the sentencing court failed to adhere to
the fundamental norm underlying the sentencing
process to provide sanctions proportionate to the
severity of the crime and the severity of the

culpable codefendant, who carried a gun and
inflicted serious personal injury on a victim, was
given a lighter sentence than that received by
[Appellant], a less culpable defendant, who
neither carried a weapon nor inflicted injury on
any victims of the crimes, rendering the sentence
given to [Appellant] manifestly unreasonable?

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B.
respecting his aggregate sentence of not less than
8 nor more than 30 years because of the
consecutive nature of the two groups of sentences
raises a substantial question whether, under the

manifestly excessive as to constitute too severe a

C. Whether, where the lower Court sentenced
[Appellant], the less culpable defendant who did
not carry a weapon or inflict injury to the victims
of the crimes, to a much greater sentence than
the more culpable co-defendant, who carried the
weapon and inflicted the harm on the victim, the
sentence of [Appellant] is by comparison harsh
and manifestly excessive and therefore
unreasonable and unjust?

D. Whether, where the Court emphasized that the
situation was made worse by the fact that
[Appellant] and his brother went out in the
morning and committed two robberies, and then
went back in the afternoon to commit the third,
whereas the record indicates that the robberies all
occurred in the morning within an hour of each

have aff
two groups of sentences consecutive to one
another, creates a substantial question for review
by the Superior Court?

2. DID THE TRIAL COURT ABUSE ITS DISCRETION IN IMPOSING
A SENTENCE WHICH WAS HARSH AND MANIFESTLY
EXCESSIVE, AND THEREFORE UNJUST AND UNREASONABLE?

8.

defendant who has pled guilty may challenge

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the discretionary aspects of his sentence as long as the defendant did not

Commonwealth v. Johnson, 758 A.2d 1214, 1216 (Pa. Super. 2000).

However:

where a defendant pleads guilty pursuant to a plea agreement
specifying particular penalties, the defendant may not seek a
discretionary appeal relating to those agreed-upon penalties.
Permitting a defendant to petition for such an appeal would
undermine the integrity of the plea negotiation process and
could ultimately deprive the Commonwealth of sentencing
particulars for which it bargained.

In some cases, there may be plea agreements specifying
some but not all aspects of the sentence. For example, in
[Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa. Super.
1994)], the parties did not have an agreement as to the length

than two of the several charges to which the defendant pled
guilty would result in consecutive prison terms. Id. at 18. After
the defendant pled guilty, the court imposed various terms of
imprisonment that were consecutive at two counts and
concurrent at the remaining charges. Id. at 20. This Court later
determined that, by pleading guilty pursuant to such an
agreement, the defendant could not seek a discretionary appeal
involving the agreed-upon terms (i.e., the consecutive nature of
two of his sentences) but he could seek such an appeal with
respect to the length of his sentences because that aspect of his
penalty had not been negotiated. Id. at 21.

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009); but

see Dalberto, 648 A.2d at 20 (holding that defendant who pleads guilty

without agreement as to sentence retains right to petition for allowance of

appeal with respect to discretionary aspects of sentencing).

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The record before us reveals that the parties negotiated and the

sentencing judge accepted the following sentencing terms:

the sentences for robbery counts 1 and 3 and conspiracy counts 2
;2

the sentences for robbery count 5 and conspiracy count 6 would run
3

the sentencing judge would determine if Group I and Group II
would be served concurrently or consecutively;4

counts 7, 8, and 9 would be withdrawn;

the minimum sentence imposed for each charge would not exceed
the standard range thirty-nine to forty-one months for robbery
and twenty-seven to thirty-nine months for conspiracy;

the five-year mandatory sentence would be waived; and

the de

N.T., 2/14/11, at 2 3; Brenner Opinion, 5/2/11, at 2 3.

In sum, Appellant agreed to a minimum term on each count in the

standard rang

the maximum term and whether Group I and Group II ran concurrently or

2

Brenner Opinion, 5/2/11, at 3 n.4.
3
The counts in Group II relate to the events at the Easy Cash. Brenner
Opinion, 5/2/11, at 3 n.5.
4
The sentencing judge ordered that the sentences imposed for the Group
II counts would run consecutively to the sentences imposed on the Group I
counts. Brenner Opinion, 5/2/11, at 4.

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ellant] somehow agreed it

Brown, 982 A.2d

at 1019. Consequently, we conclude that Appellant has not waived the right

maximum term and in running Group I and Group II consecutively.

As in Brown, we emphasize that permitting Appellant to petition this

Court for allowance of appeal with respect to the exercise of the sentencing

um term and running the

sentencing groups consecutively does not deprive the Commonwealth of

terms to which it agreed and does not otherwise undermine the plea process

in any way. If the Commonwealth wanted an agreement particularizing the

maximum term of confinement and whether the two groups ran concurrently

agreement and thereby insulated such particulars from discretionary review.

Brown, 982 A.2d at 1019. Rather, the

parties came to an agreement as to the minimum term while leaving other

while Appellant cannot seek to appeal that part of his sentence set by the

plea bargain, he can request permission to appeal the parts of his sentence

Brown, 982 A.2d at

1019.

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We have often repeated that there is no absolute right to appeal the

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d

800, 805 (Pa. Super. 2006). Rather, such an appeal should be considered to

be a petition for allowance of appeal. Commonwealth v. W.H.M., 932

A.2d 155, 162 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his

four-part test:

[W]e conduct a four-part analysis to determine:
(1) whether [the] 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

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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.

2001). As to what constitutes a substantial question, this Court does not

accept bald assertions of sentencing errors. Commonwealth v. Malovich,

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903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the

Id.

Herein, the first three requirements of the four-part test are met,

those being that Appellant brought an appropriate appeal, sufficiently

preserved the issue through a post-sentence motion,5 and included in his

appellate brief the necessary separate concise statement of the reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f).

Therefore, we determine whether Appellant raises any substantial questions

requiring us to review the discretionary aspects of the sentence imposed by

the trial court.

In his Rule 2119(f) statement, Appellant raises several challenges to

lpable

defendant, who carried a gun and inflicted serious personal injury on a

5
-sentence
motion, the trial court found th
specific reasoning behind the allegation that the sentence was excessive,
. . . as a technical matter, Appellant did preserve his argument that the
Court erred in sentencing him to a harsh and excessive sentence by raising

Reichley Opinion, 1/30/14, at 7. We concur.

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victim, to a substantially lesser sentence than that received by [Appellant 6],

a less culpable defendant with a good background, who neither carried a

weapon nor inflicted injur

at 20. This claim raises a substantial question, thus requiring our review.

See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(holding substantial question raised where appellant averred disparity

between his sentence and that of his co-defendant).

Our standard of review in appeals of sentencing is well settled:

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.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

-defendants are not required to receive

i Mastromarino, 2 A.3d at 589. Moreover, a

sentencing court need not specifically refer to the sentence of a co-

-

ive reasons particular to

6
According to Appellant, his co-defendant, Malcolm Jenkins, received an
aggregate sentence of sixty-two months to twent
at 13.

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Id.

particular sentence:

The aggregate sentence here would be for a period of eight
years to [thirty] years. The sentence is in accordance with the
binding plea agreement and is in the standard range of
sentencing.

I have taken the presentence investigation into
consideration in this sentencing. However, I cannot, cannot
overlook the very substantial physical injury to Mr. Martinez, the
victim, as well as the emotional impact upon him, as well as the
impact upon the other two victims.

The Court has got to consider the safety and protection of
the community.

* * *

This was not just an aberration. You know, you went out

dealing with armed robberies here.

* * *

wo
people who are really intelligent people. You had every
opportunity. I heard your mother here. I saw the letters. I

happened, but it did happen. And, you know, you have victims
here who are going to live with this the rest of their life. As I
indicated to you, I have got to protect the community.

N.T., 2/14/11, at 38, 41, 44. In its Rule 1925(a) opinion, the sentencing

court further explained its rationale as follows:

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[Appellant], with his cohorts, robbed and victimized three
men at two different locations, brandishing a firearm and striking
one of the victims in the face with the firearm. In fashioning an
appropriate sentence, the Court considered the impact the
crimes had on the victims. Ortelio Martinez, the individual who
was victimized at the second robbery location, explained during

gun, that he had a cracked bone near his nose, and that he still
experiences vision problems from the injury. According to the

He remarked that he does not []plan to attend sentencing,
because he fears retaliation f

* * *

In addition to considering the impact on the victim and on the
community, the Court also considered the fact that this was not

probation as a juvenile and was arrested twice and pled guilty
both times to disorderly conduct once as a juvenile (2004) and
once as an adult (2007) in addition to other minor offenses to
which he pled guilty on other occasions in 2003 and 2007.
he crimes at issue here were
not a single isolated incident confined to 1234 MacArthur Road,
Whitehall; rather, [Appellant] and his cohorts traveled to another
location, 604 North 14th Street, Allentown, and committed
robbery against a senior citizen, harming him both physically
and psychologically.

The Court considered the Sentencing Guidelines, the PSI,
and the testimony of [Appellant], his brother, and his mother.

protection of the public, the gravity of the offense as it relates to

Pa.C.S.A. § 9721(b); Commonwealth v. Feucht, 955 A.2d 377,
383 (Pa. Super. 2008). Using its discretion, this Court imposed
a sentence that was both within the standard range of the
Sentencing Guidelines and within the law.

Brenner Opinion, 5/2/11, at 6 7.

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Additionally, Judge

appropriate:

In sum, Judge Brenner considered all of the relevant
factors in imposing a sentence. Appellant and his co-defendants
caused permanent physical and mental injuries to their victims.
The circumstances of the robberies demonstrated a serious
degree of planning and preparation, including bringing weapons
and duct tape with them. Protecting the community from them
is a priority. At the same time, Judge Brenner honored the plea
agreement and sentenced Appellant within the standard range.
The sentence in this case was appropriately structured to
achieve the objectives and is neither excessive nor an abuse of
discretion.

Reichley Opinion, 6/30/14, at 9 10.

Based on our review of the record, the relevant law, and the opinions

of the two jurists, we conclude that the trial court sufficiently explained the

of discretion.

sentencing court abused its discretion by imposing a sentence that was

20. In a related argument, Appellant asserts that the sentencing court relied

on an unsupported fac

Id. at 21.

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In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the sentencing

indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).

impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446 447 (Pa. Super.

2006)); 42 Pa.C.S.A. § 9721; see also Commonwealth v. Hoag, 665 A.2d

But see

Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super. 2008) (holding

consecutive, standard range sentences on thirty-seven counts of petty theft

offenses for aggregate sentence of fifty-eight and one-half to 124 years of

imprisonment constituted virtual life sentence and was so manifestly

excessive as to raise substantial quest

resolving the preliminary substantial question inquiry is whether the decision

to sentence consecutively raises the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal conduct at

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Prisk, 13 A.3d at 533 (quoting Mastromarino, 2 A.3d

at 587). See also Commonwealth v. Austin, 66 A.3d 798 (Pa. Super.

2013) (holding that challenge to imposition of consecutive sentences, which

yields extensive aggregate sentence, does not necessarily present

exercise of discretion led to sentence that is grossly incongruent with

criminal conduct at issue and patently unreasonable).

Here, the sentencing court observed on the record that this case

permanent injury, and two others who are emotionally scarred by reason of

this. . . . A lot of things have been built into this plea agreement, not only

the sentence in the standard range, but the possession of a deadly weapon,

32. Moreover, the sentencing court honored the plea agreement in every

respect. Id. at 35 38.

Thus, upon review, although a substantial question appears to exist on

stem from three pre-planned daylight robberies all committed in one day.

Appellant pled guilty to six separate offenses involving multiple victims.

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not impose consecutive sentences on every conviction. Rather, the

sentencing court divided the sentences into two groups of concurrent

sentences. In seeking review of his aggregate sentence, Appellant is not

Hoag,

665 A.2d at 1214.

sentence excessive or unreasonable in light of the crimes committed and the

Prisk, 13 A.3d at 533; Commonwealth v. McWilliams, 887 A.2d 784, 787

(Pa. Super. 2005) (holding that standard range sentences were not

excessive even though they ran consecutively for an aggregate sentence of

forty-one to eighty-two years of imprisonment). Hence, we conclude that

Appellant has not presented a substantial question for our review in this

regard.

sentencing court abused its discretion by failing to consider mitigating

t carry a weapon or commit a

violent act, expressed sincere remorse, had a good background, and was

has held on numerous occasions that a claim of inadequate consideration of

m

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting

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Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)

(citation omitted)). Accordingly, we conclude Appel

trial court failed to give adequate weight to mitigating factors does not

present a substantial question appropriate for our review.

to raise a substantial question or lack merit. Accordingly, we affirm the

judgment of sentence.

Judgment of sentenced affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/30/2014

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