J-S40044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY A. FOLEY, JR. :
:
Appellant : No. 3094 EDA 2017
Appeal from the Judgment of Sentence August 11, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001424-2016
BEFORE: LAZARUS, J., DUBOW, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED JULY 25, 2018
Gary A. Foley, Jr., appeals from the judgment of sentence, entered in
the Court of Common Pleas of Northampton County, after he pleaded guilty
to murder of the third degree.1 After careful review, we affirm.
On February 24, 2015, the Lehigh Township Police Department
responded to a distress call regarding a female child (K.D.), then 17 months
old. Upon arriving at the scene, police observed Foley performing CPR on K.D.
Foley informed the officers that the child had begun choking on a hot dog
while he was changing her diaper. First responders transported K.D. to a local
hospital, where she succumbed to her injuries. An autopsy revealed that the
infant’s cause of death was blunt force trauma, resulting from multiple severe
injuries to her head. K.D.’s death was ruled a homicide.
____________________________________________
1 19 Pa.C.S.A. § 2502(c).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S40044-18
Foley was arrested on March 17, 2016 and charged with one open count
of criminal homicide and four counts of endangering the welfare of a child. He
filed an omnibus pre-trial motion which included a claim for Habeas Corpus
relief, which was denied on January 12, 2017. After a series of continuances
and before the scheduled criminal trial, Foley was presented with a proposed
guilty plea to murder in the third degree with a minimum sentence of fourteen
years, which the trial court again denied. However, on June 30, 2017, Foley
pleaded guilty to murder in the third degree with no sentence bargain.
On August 11, 2017, the trial court sentenced Foley to twenty to forty
years’ incarceration in a state correctional facility. On August 21, 2017, Foley
filed a post-sentence motion for reconsideration of sentence, which the trial
court denied. This timely appeal followed. Both the trial court and Foley have
complied with Pa.R.A.P. 1925. On appeal, Foley argues his sentence is
manifestly excessive because the trial court did not consider certain mitigating
factors: (1) his employment history; (2) lack of prior criminal record; and
(3) his poor living conditions, which he alleges caused him severe stress.
Our standard of review regarding challenges to the discretionary aspects
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.
-2-
J-S40044-18
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
The right to appeal the discretionary aspects of a sentence is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004). To determine if this Court may review the discretionary aspects of a
sentence, we employ a four-part test: “(1) [W]hether appellant has filed a
timely notice of appeal; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify [the] sentence; (3)
whether appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code.” Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006) (internal citations omitted).
Here, Foley preserved his issues in his motion for reconsideration and
timely filed a notice of appeal. His issues were also properly raised in his
Pa.R.A.P. 1925(b) statement. Furthermore, Foley included in his appellate
brief a Pa.R.A.P. 2119(f) concise statement of reasons relied upon for
allowance of appeal, asserting “the Trial Court’s imposition of the maximum
sentence for third-degree murder, despite Foley’s lack of a prior criminal
record, is manifestly excessive.” Brief of Appellant, at 9-10.
An appellant raises a substantial question if he can show “actions by the
trial court inconsistent with the Sentencing Code[2] or contrary to the
____________________________________________
2 42 Pa.C.S.A. §§ 9701 – 9799.75.
-3-
J-S40044-18
fundamental norms underlying the sentencing process.” Commonwealth v.
Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (citation omitted). “The
determination of whether a particular issue raises a substantial question is to
be evaluated on a case-by-case basis.” McAfee, 849 A.2d at 274.
“[T]his Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial question for
our review.” See, e.g., Commonwealth v. Downing, 990 A.2d 788, 903
(holding appellant did not raise substantial question where he alleged the trial
court failed to consider the mitigating factors of his employment history,
education background, and his struggles with family). However, if the
appellant alleges the trial court erroneously relied on factors not of record, we
will hold the appellant raises a substantial question. See Commonwealth v.
Druce, 796 A.2d 321, 334 (Pa. Super. 2002) (holding appellant raised a
substantial question by alleging the trial judge imposed a sentence “not based
on evidence that was presented to him but based on comments reportedly
made by [appellant] to a newspaper[.]”).
Here, Foley’s claim that the trial court failed to consider his employment
history, lack of prior criminal record, and his poor living conditions does not
amount to a substantial question. Foley’s sentence was within the sentencing
guidelines, and his alleged mitigating factors were all on the record and were
considered by the trial judge. The trial court properly formulated a sentence
“individualized to that particular case and that particular defendant.”
Commonwealth v. Boyer, 856 A.2d 149, 153 (Pa. Super. 2004).
-4-
J-S40044-18
Therefore, Foley’s claim that the trial court failed to consider mitigating
factors does not raise a substantial question, and he cannot invoke our
jurisdiction to review the merits of his case. We affirm Foley’s judgment of
sentence.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/18
____________________________________________
3 Even had Foley raised a substantial question for our review, his claim is
without merit. If the trial court had the benefit of a presentence investigation
report (“PSI”) and imposed a standard-range sentence, “we will not consider
the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011). Here the trial court had the benefit of a PSI, which included
“information about [Foley’s] age, his educational background, prior arrests,
employment history, military involvement, and familial background.” Brief of
Appellee, at 9. The court also imposed a standard range sentence. Foley is
entitled to no relief.
-5-
Com. v. Foley, G.
Combined Opinion