Com. v. Gallagher, D.

J-S42004-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

DANIEL GALLAGHER,

Appellant No. 789 EDA 2014

Appeal from the Judgment of Sentence January 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014470-2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 27, 2015

Appellant, Daniel Gallagher, appeals from the judgment of sentence

entered on January 30, 2014, after he pled guilty to one count each of ethnic

intimidation, terroristic threats, criminal use of a communication facility, and

harassment. We affirm.

The trial court set forth the factual background of this case as follows:

The complainant, [Attorney] Joel “Jules” Epstein, received
several calls to his law office on October 1, 2012, which is
located in Philadelphia. (N.T. 12-05-13 p. 9). These calls were
left on his direct line, along with the lines of Mr. Epstein’s co-
workers. (N.T. 12-05-13 p. 9). The caller identified himself as
Appellant, and left a phone number. (N.T. 12-05-13 p. 10). Mr.
Epstein had represented Appellant in a previous case from 1984,
and received various calls throughout the years from Appellant
for various reasons. (N.T. 12-05-13 pp. 19-20). Mr. Epstein
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*
Former Justice specially assigned to the Superior Court.
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recognized the voice on the messages as Appellant due to their
relationship, along with Appellant identifying himself and leaving
his phone number. (N.T. 12-05-13 p. 10). The 25 minutes of
messages contained violent threats against Mr. Epstein, his
family, and his coworkers, including “I’m going to kill Jules
Epstein,” “tell him I’m going to kick his wife’s teeth down her
throat,” and, to his African-American secretary “you n[-----]
loving whore, you better tell that Jew I’m going to kill him. Are
you a n[-----]? You sound like it,” among other, more lurid
statements. (N.T. 12-05-13 p. 10-12).

[Appellant] also said that he recently purchased an AK-47
and .357 Magnum, which are a semi-automatic rifle and a high-
power handgun, respectively. (N.T. 12-05-13 p. 11). He said
that he would shoot up an elementary school. (N.T. 12-05-13 p.
11). Mr. Epstein and his staff contacted the police department
due to all of these very dangerous threats, specifically the
threats against the schools. (N.T. 12-05-13 pp. 11, 18;
Sentencing Hearing, 1-30-14 p. 27). Because of these threats,
two schools, Warren Snyder Middle School and Bristol Borough
High, were locked down. (N.T. 12-05-13 p. 12).

Mr. Epstein testified during the guilty plea, explaining his
relationship with the Appellant, along with Appellant’s history of
mental illness and alcoholism. [In the 1984 case,] Appellant had
set fire to an alcoholism counseling center for police officers and
firefighters, and was represented by Mr. Epstein. (N.T. 12-05-13
p. 20). Appellant received a county sentence with a long
probationary period, and received mental health treatment while
on probation, showing great improvement over the next decade.
(N.T. 12-05-13 p. 18). Appellant sporadically called Mr. Epstein
over the next 18 years, even though his sentence was over.
(N.T. 12-05-13 p. 10). Mr. Epstein could tell when Appellant was
off of his medication and/or was drinking and doing drugs, and
said that it was apparent this was the case when those calls
were made. (N.T. 12-05-13 p. 19). This was compounded by
other factors, such as the death of family members . . . . (N.T.
12-05-13 p. 20; Sentencing Hearing 1-30-14 p. 20). During the
sentencing hearing, a psychological report created by Dr. Steven
E. Samuel was entered by the defense, detailing Appellant’s
condition. (N.T., Sentencing Hearing 1-30-14 p. 18).

Trial Court Opinion, 11/12/14, at 2-4.

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Following the trial court’s acceptance of Appellant’s open guilty plea,

Appellant was sentenced to a term of three and one-half to seven years of

incarceration for ethnic intimidation, two and one-half to five years of

incarceration for terroristic threats, seven years of probation for criminal use

of a communication facility, and one year of probation for harassment. N.T.,

Sentencing, 1/30/14, at 28. All sentences were ordered to be served

consecutively. This resulted in an aggregate term of six to twelve years of

incarceration followed by eight years of probation.1 On February 8, 2014,

Appellant filed a timely post-sentence motion that was denied on February

24, 2014. Appellant filed a timely appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two issues for this Court’s consideration:

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1
In his brief, Appellant claims that he received an aggregate sentence of
five to ten years of incarceration, followed by eight years of probation.
Appellant’s Brief at 6. This is incorrect. While the trial court stated at the
conclusion of the hearing that the sentences resulted in an aggregated term
of five to ten years of incarceration followed by eight years of probation,
N.T., Sentencing, 1/30/14, at 28, the trial judge made a computational
error. Both the transcript from the sentencing hearing and the written order
of sentence reflect the imposition of an aggregate term of six to twelve years
of incarceration followed by eight years of probation. N.T., Sentencing,
1/30/14, at 28; Order, 1/30/14. Generally, when there is a discrepancy
between the sentence as written and orally pronounced, the written
sentence controls. Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa.
Super. 2013). Here, there is no discrepancy – both the oral and written
sentencing orders imposed an aggregate term of six to twelve years of
incarceration followed by eight years of probation.

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A. Did the lower court abuse its discretion by classifying the
offense gravity score [(“OGS”)] of ethnic intimidation as a five
when it in fact was a four?

B. Did the lower court abuse its discretion by imposing an
aggravated sentence on appellant based on speculation,
without properly placing aggravating factors on the record,
and without regard for facts of record?

Appellant’s Brief at 4 (full capitalization omitted).

Both of Appellant’s issues challenge the discretionary aspects of his

sentence.2 We note that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Martin, 727 A.2d 1136,

1143 (Pa. Super. 1999). Rather, where an appellant challenges the

discretionary aspects of a sentence, the appeal should be considered a

petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d

155, 163 (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
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:

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2
When a plea agreement is open and contains no bargain for a specific
sentence, the defendant is not to be precluded from appealing the
discretionary aspects of his sentence. Commonwealth v. Brown, 982 A.2d
1017, 1019 (Pa. Super. 2009) (citing Commonwealth v. Dalberto, 648
A.2d 16, 21 (Pa. Super. 1994)). In the case at bar, Appellant entered an
open guilty plea, and therefore, he is permitted to challenge the
discretionary aspects of his sentence.

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[W]e 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.
[708]; (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).

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

2006)). The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).

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

those being that Appellant brought a timely appeal, raised the challenges in

a post-sentence motion,3 and included in his appellate brief the necessary

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3
The Commonwealth avers that Appellant failed to preserve his first issue
concerning the application of the OGS for the crime of ethnic intimidation.
Commonwealth’s Brief at 9-10. The Commonwealth claims that although
Appellant mentions the OGS in his post-sentence motion and Pa.R.A.P.
1925(b) statement, he never specifically objected to it. Id. While the
relevant portions of Appellant’s post-sentence motion and Pa.R.A.P. 1925(b)
statement are inartfully drafted, we conclude that both documents fairly
suggest Appellant’s challenge to the OGS. Post-sentence Motion, 2/8/14, at
(Footnote Continued Next Page)

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separate concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next determine

whether Appellant raises a substantial question requiring us to review the

discretionary aspects of the sentence imposed by the trial court.

Appellant argues in his Pa.R.A.P. 2119(f) statement that the trial court

erred in its calculation of Appellant’s OGS. Appellant’s Brief at 9. We have

held that such a challenge presents a substantial question for our review.

See Commonwealth v. Archer, 722 A.2d 203, 210-211 (Pa. Super. 1998)

(en banc) (holding that claim that sentencing court used incorrect OGS

raises a substantial question). Appellant also argues that the trial court

erred in failing to place on the record its reasons for sentencing Appellant

outside the guideline range for the crimes of ethnic intimidation and

terroristic threats. Appellant’s Brief at 9-10. This claim also presents a

substantial question. See Commonwealth v. Antidormi, 84 A.3d 736,

759 (Pa. Super. 2014) (stating that claims that the sentencing court

imposed a sentence outside the standard guidelines without providing

adequate reasons on the record presents a substantial question). Because

both of Appellant’s issues present a substantial question, we proceed with

our analysis.

_______________________
(Footnote Continued)

1 n.2; Pa.R.A.P. 1925(b) Statement, 5/13/14, at 3 n.4. Accordingly, we do
not find the challenge waived.

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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. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment. Id. 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. Id.

With respect to Appellant’s challenge to the OGS, we note that

Appellant is correct insofar as the proper OGS for ethnic intimidation in this

case is four. 204 Pa. Code § 303.3(d). Additionally, because Appellant’s

prior record score was also four, the sentencing guidelines provide a

standard-range minimum sentence of between six and sixteen months, plus

or minus three months for mitigating or aggravating circumstances. 204 Pa.

Code § 303.16. Here, the trial court placed Appellant’s OGS at five and, at

that level, the sentencing guidelines provide a standard-range minimum

sentence of between nine and sixteen months, plus or minus three months

for mitigating or aggravating circumstances. Id. However, because the trial

court chose to sentence Appellant beyond the aggravated range

recommended by the sentencing guidelines, we conclude that any error in

whether the standard-range minimum sentence was six to sixteen months

as opposed to nine to sixteen months was of no moment. The trial court

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informed Appellant of the possible maximum sentence he could receive, and

then sentenced Appellant to a term of three and one-half to seven years,4 a

legal sentence that was outside of the guidelines. N.T., Guilty Plea, 12/5/13,

at 5; N.T., Sentencing, 1/30/14, at 4, 28. The trial court’s application of an

OGS of five as opposed to four amounts to a difference of three months

between the lowest minimum guideline-range sentence. However, because

the trial court sentenced Appellant to a minimum that was almost twice the

aggravated range of the guidelines, we conclude that the erroneous

calculation of the OGS was harmless as there is no indication that the court

was guided in its sentencing by the incorrect OGS. See Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (providing that generally, this

Court will disturb a sentence based on an incorrect or absent guideline

recitation only upon a showing that the trial court was guided in its

sentencing decision by a material misapprehension of the applicable

sentencing guideline range). Accordingly, no relief is due.

In Appellant’s second issue, he alleges that the trial court failed to

provide its reasons for sentencing him outside of the prescribed guideline

range. We note that:

When the sentencing court imposes a sentence outside the
guidelines, it must provide a contemporaneous written
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4
Ethnic intimidation was graded as a felony of the third degree. A felony of
the third degree carries a maximum sentence of seven years. 18 Pa.C.S. §
1103(3).

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statement of the reason or reasons for the deviation from the
guidelines. The Sentencing Code requires a trial judge who
intends to sentence outside the guidelines to demonstrate, on
the record, his awareness of the guideline ranges. Having done
so, the sentencing court may, in an appropriate case, deviate
from the guidelines by fashioning a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the
community. In doing so, the sentencing judge must state of
record the factual basis and specific reasons which compelled
him or her to deviate from the guideline ranges. When
evaluating a claim of this type, it is necessary to remember that
the sentencing guidelines are advisory only.

[W]hen deviating from the sentencing guidelines, a trial judge
must indicate that he understands the suggested ranges.
However, there is no requirement that a sentencing court must
evoke “magic words” in a verbatim recitation of the guideline[]
ranges to satisfy this requirement. Our law is clear that, when
imposing a sentence, the trial court has rendered a proper
“contemporaneous statement” under the mandate of the
Sentencing Code “so long as the record demonstrates with
clarity that the court considered the sentencing guidelines in a
rational and systematic way and made a dispassionate decision
to depart from them.”

Our Supreme Court has ruled that where pre-sentence
reports exist, the presumption will stand that the sentencing
judge was both aware of and appropriately weighed all relevant
information contained therein. . . . As our Supreme Court has
explained, “it would be foolish, indeed, to take the position that
if a court is in possession of the facts, it will fail to apply them to
the case at hand.”

When the record demonstrates that the sentencing court
was aware of the guideline ranges and contains no indication
that incorrect guideline ranges were applied or that the court
misapplied the applicable ranges, we will not reverse merely
because the specific ranges were not recited at the sentencing
hearing.

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Commonwealth v. Griffin, 804 A.2d 1, 7-8 (Pa. Super. 2002) (citations

omitted). Additionally:

[w]hen reviewing a sentence outside of the guideline range, the
essential question is whether the sentence imposed was
reasonable. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d
957, 962 (2007). An appellate court must vacate and remand a
case where it finds that “the sentencing court sentenced outside
the sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S.A. § 9781(c)(3). In making a reasonableness
determination, a court should consider four factors:

(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.A. § 9781(d). A sentence may be found unreasonable
if it fails to properly account for these four statutory factors. A
sentence may also be found unreasonable if the “sentence was
imposed without express or implicit consideration by the
sentencing court of the general standards applicable to
sentencing.” Walls, 926 A.2d at 964. These general standards
mandate that a sentencing court impose a sentence “consistent
with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42
Pa.C.S.A. § 9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 190-191 (Pa. Super. 2008).

After review, we conclude that the trial court properly considered the

aforementioned factors, imposed a reasonable sentence, and placed its

reasons for deviating from the sentencing guidelines on the record. N.T.,

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1/30/14, at 25-28. The trial court explained its review of Appellant’s

presentence investigation report, psychological reports, criminal history,

mental health history, mitigating factors, and aggravating factors. Id. at 18,

25-28. The trial court stated that it:

considered and acknowledged the mitigating factors, such as
Appellant’s mental health issues, drug addictions, and guilty
plea. (N.T., Sentencing Hearing 1-30-14 pp. 25, 27). However,
the Court also looked at Appellant’s inability or unwillingness to
seek help outside a judicial setting when his mental illness or
drug and alcohol problems began to spiral out of control and the
subsequent history of violence associated with that event. (N.T.,
Sentencing Hearing 1-30-14 p. 26). In addition, the Court also
considered [Appellant’s] prior history of threats to do damage to
the police and his subsequent arson of the “369” Center, a place
where police could seek help for their psychological issues. The
Court noted that [in the instant case] the police intervened
before Appellant could carry out his threats to kill innocent
children at an elementary school mere blocks from his house,
unlike what happened when he made threats against police, then
subsequently committed an arson on a place where police likely
would be. (N.T., Sentencing Hearing 1-30-14 p. 26).

Furthermore, the terroristic threats aimed at schools were not
only made all the more real by the Newtown[5] shooting some
two months after the instant case, but also had widespread
psychological harm to everyone in the schools that were locked
down, including students, teachers, family members and the
community at large. (N.T., Sentencing Hearing 1-30-14 p. 27).
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5
Insofar as Appellant claims that the trial court, at the time of sentencing,
erred in comparing Appellant’s actions to the shooting deaths of twenty
children in Newtown, Connecticut only two months after Appellant made his
threats, Appellant’s Brief at 15-16, Appellant did not object to the trial
court’s reference to the Connecticut school shooting. Accordingly, any
challenge to the trial court’s statement was not preserved for appellate
review. See Pa.R.A.P. 302(a) (stating that issues not raised in the lower
court are waived and cannot be raised for the first time on appeal).

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All of these aggravating factors far outweigh any mitigating
factors, and [these reasons] justify a sentence above the
guidelines.

Trial Court Opinion, 11/12/14, at 12-13. We discern no error or abuse of

discretion, and we conclude that the record reflects the trial court’s proper

consideration of the appropriate statutory considerations. We conclude that

the trial court’s statement on the record reflected an apt rationale for

deviating from the sentencing guidelines. Appellant’s contrary claim lacks

merit.

For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/27/2015

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