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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID J. HOWARD,
Appellant No. 1478 EDA 2015
Appeal from the Judgment of Sentence of March 26, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0000716-2014
BEFORE: MUNDY, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 18, 2016
Appellant, David J. Howard, appeals from the judgment of sentence
entered on March 26, 2015, as made final by the denial of his post-sentence
motion on April 16, 2015. We affirm.
On March 19, 2014, the Commonwealth filed a criminal information
charging Appellant with one count each of homicide (18 Pa.C.S.A.
§ 2501(a)), aggravated assault (18 Pa.C.S.A. § 2702(a)(1)), and conspiracy
(18 Pa.C.S.A. § 903(c)). Thereafter, on February 9, 2015, Appellant entered
an open guilty plea to one count of involuntary manslaughter (18 Pa.C.S.A.
§ 2504(a)). The Commonwealth offered the following factual recitation to
support Appellant’s plea.
[THE COMMONWEALTH]
[Thank you. Your Honor, this incident occurred on or about
February 1st, 2013. The incident initially began at Freddie’s Bar,
*Retired Senior Judge assigned to the Superior Court.
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which is located at 222 East Hamilton Street in Allentown, Lehigh
County. Earlier in the evening the victim in this case, Roman
Bentley, age 53 at the time, was a patron of Freddie’s Bar, along
with the mother of his children, April Fernandez. During a period
of time in which Ms. Fernandez and Mr. Bentley were at the bar,
Mr. Bentley left for a short period of time to go pick up a friend.]
The duration for which Mr. Bentley was away to speak with his
friend, [Appellant] had contact with April Fernandez. They had
interactions which involved at one point [Appellant] taking food
from Ms. Fernandez’ plate, as well as $5[.00] off the bar to put
in a juke box. This ultimately resulted in an argument or
disagreement between Ms. Fernandez and [Appellant].
Ultimately, Mr. Bentley came back to the bar, and exchanged
words and had an argument with [Appellant] regarding his
contact with Ms. Fernandez.
At that point, the argument spilled out onto the street, out on
Hanover Avenue in Allentown, at which time [Appellant] punched
Mr. Bentley causing Mr. Bentley to fall to the ground.
Dr. Samuel Land is the doctor who performed the autopsy in this
case and would ultimately provide an opinion that when Mr.
Bentley was struck he fell to the ground. It was an unimpeded
fall. He was not able to brace himself and struck his head on the
pavement of Hanover Avenue, at which time he sustained a
crack in his skull which ultimately resulted in the death of Mr.
Bentley.
Allentown Police promptly responded and were able to get
medical assistance for Mr. Bentley, Your Honor.
He was transported to St. Luke’s Hospital in Fountain Hill and
ultimately passed away on [February 2nd, 2013, at 9:17 p.m. as
a result of the crack to his skull which resulted in a bleeding of
the brain.
[THE COURT]
[Appellant], do you acknowledge that that is what you did?
[APPELLANT]
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Yes.
N.T. Guilty Plea, 2/9/15, at 7-9.
After accepting Appellant’s guilty plea, the trial court deferred
sentencing until March 26, 2015, at which time the court ordered Appellant
to serve two and one-half to five years’ imprisonment. Appellant filed a
timely post-sentence motion challenging the discretionary aspect of his
sentence, including the trial court’s alleged consideration of information not
found in the record. The court denied Appellant’s motion by order entered
on April 16, 2015. This appeal followed.1
Appellant raises the following question for our review:
Whether the sentencing court abused its discretion in imposing a
sentence in the aggravated range based upon conduct not
charged and matters not of record such as an autopsy report
and other information unknown to Appellant from which the
court drew inferences adverse to Appellant?
Appellant’s Brief at 5.
Appellant’s sole claim pertains to the discretionary aspects of his
sentence. Accordingly, we consider such an argument to be a petition for
permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. 2014) (en banc) (citation omitted), appeal denied, 104 A.3d 1
(Pa. 2014). “[A]n appeal is permitted only after this Court determines that
there is a substantial question that the sentence was not appropriate under
____________________________________________
1
Both Appellant and the trial court have complied with the requirements of
Pa.R.A.P. 1925.
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the sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa. 2013) (en banc) (citation omitted).
Prior to reaching the merits of a discretionary aspect of sentencing
issue, this Court is required to conduct a four-part analysis.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). In this analysis,
we must determine: 1) whether the present appeal is timely; 2) whether
the issue raised on appeal was properly preserved at sentencing or in a
post-sentence motion; 3) whether Appellant has filed a statement pursuant
to Pa.R.A.P. 2119(f); and 4) whether Appellant has raised a substantial
question that his sentence is not appropriate under the Sentencing Code.
Id.
In the instant case, Appellant filed a timely notice of appeal, and
properly preserved his claim in a post-sentence motion. Additionally,
Appellant complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 15-16.
We must therefore determine whether Appellant raised a substantial
question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75
(Pa. 2013). “A substantial question exists 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
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to the fundamental norms which underlie the sentencing process.” Id.
(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
Within his Rule 2119(f) statement, Appellant asserts that a substantial
question exists because “the sentencing court relied upon matters not of
record from which the court drew assumptions that Appellant committed
more egregious acts than the offense of [i]nvoluntary [m]anslaughter to
which he pled guilty.” Appellant’s Brief at 15. Specifically, Appellant argues
that the sentencing court improperly considered an autopsy report, as well
as allegations that Appellant encouraged other individuals to attack the
victim. Appellant maintains that neither the autopsy, nor the allegations
against him, were made a part of the record in this case and that he is
unaware of the source of the adverse allegations. Id. at 15-16.
This Court has held that an appellant raises a substantial question
where he alleges that the sentencing court relied upon impermissible factors
such as matters outside the record. See Commonwealth v. Rhoads, 990
A.2d 732, 745 (Pa. Super. 2009), appeal denied, 14 A.3d 827 (Pa. 2010).
Thus, we will address the merits of this claim.
This Court has stated:
The standard employed when reviewing the discretionary
aspects of sentencing is very narrow. We may reverse
only if the sentencing court abused its discretion or
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committed an error of law. We must accord the
sentencing court’s decision great weight because it was in
the best position to review the defendant’s character,
defiance, or indifference, and the overall effect and nature
of the crime.
Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005) (citations
omitted).
Appellant concedes that his sentence, while in the aggravated range of
the guidelines, fell within the statutory maximum punishment applicable to
involuntary manslaughter. See Appellant’s Brief at 10-11. “When imposing
a sentence, the sentencing court must consider the factors set out in 42
Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity of offense
in relation to impact on victim and community, and rehabilitative needs of
the defendant....” Id. Furthermore, “[a] trial court judge has wide
discretion in sentencing and can, on the appropriate record and for the
appropriate reasons, consider any legal factor in imposing a sentence in the
aggravated range.” Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.
Super. 2005) (citation omitted). Because Appellant’s sentence fell within the
guidelines, we may vacate the sentence only if we determine that this case
involves circumstances where the application of the guidelines was clearly
unreasonable. 42 Pa.C.S.A. § 9781(c).
Our review of the record refutes Appellant’s claim that the trial court
relied on sources outside the record in fixing the punishment imposed in this
case. During the proceedings before the trial court, Appellant filed a pretrial
motion to compel discovery together with a petition for habeas corpus. To
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resolve Appellant’s motion, the trial court convened a hearing and reviewed
the transcript of Appellant’s preliminary hearing. Based upon its review of
the preliminary hearing transcript, the court found that Ms. Fernandez
witnessed a verbal altercation between Appellant and Mr. Bentley. This
dispute continued outside Freddie’s Bar. At this time, Appellant was
accompanied by two African American males. Ms. Fernandez witnessed
Appellant strike Mr. Bentley, who fell to the ground. Ms. Fernandez then
testified that she heard Appellant say, “kick his f**king a**.” She then
viewed Appellant and the two African American males begin to kick Mr.
Bentley while he was lying on the ground. Dr. Samuel Land prepared an
autopsy report that assigned blunt force trauma to the head as the cause of
the victim’s death. Trial Court Opinion, 9/16/14, at 2-4. The witnesses at
Appellant’s preliminary hearing would have been subject to
cross-examination by Appellant’s counsel. Moreover, contrary to Appellant’s
claims, the preliminary hearing transcript and the trial court’s opinion were
part of the record in this case at the time of sentencing. Thus, Appellant and
his counsel should have been aware of these materials.
We also conclude that the trial court did not abuse its discretion when
it imposed an aggravated range sentence in this case. In its opinion
disposing of Appellant’s post-sentence motion, the trial court listed the
following reasons for its sentencing choice: “(1) [Appellant] has a long prior
arrest record of violent crimes; (2) [Appellant] was on parole at the time the
crime was committed; (3) [Appellant] previously failed on supervision and is
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a poor candidate for rehabilitation; (4) a lesser sentence would depreciate
the seriousness of the crime; and, (5) [Appellant] is a danger to the
community.” Trial Court Opinion, 4/16/15, at 3. The trial court also noted
that Appellant committed the instant offense approximately eight months
after completing a federal supervised release program for possessing a
firearm despite a felony conviction, that Appellant has virtually no work
history, and that Appellant has had contact with the criminal justice system
for over 24 years and is only 36 years of age. Id. Appellant does not
dispute these assessments and we conclude that they support the
aggravated range sentence imposed in this case. Accordingly, we conclude
that Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/2016
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