Com. v. Scott, M. ( 2023 )

J-S10042-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN SCOTT :
:
Appellant : No. 924 EDA 2022
Appeal from the Judgment of Sentence Entered November 18, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002435-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 16, 2023
Appellant, Marvin Scott, appeals from the judgment of sentence
imposed on November 18, 2021 in the Court of Common Pleas of Philadelphia
County following entry of his open guilty plea to third-degree murder,
possessing instruments of crime, and simple assault.1,2 Appellant contends
the sentence imposed by the trial court violated the Sentencing Code because
the court did not give reasons for the sentence imposed and failed to consider
Appellant’s background and rehabilitative needs. Appellant further claims that
the court imposed an excessive sentence. Upon review, we affirm.
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1 18 Pa.C.S.A. §§ 2502(c), 907, and 2701, respectively.
2 Appellant entered his guilty plea on June 30, 2021. Sentencing was deferred
for preparation of a presentence report and a mental health evaluation.
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As the trial court explained:
On Tuesday, January 14, 2020, officers responded to a call at 6000
Upland Street in Philadelphia, PA. Upon the officers’ arrival,
Rochelle Jackson, “Decedent,” was found unresponsive on the
kitchen floor of the home. The Decedent was pronounced at 2:37
a.m. An autopsy revealed that the Decedent suffered from several
stab wounds to the body, and the manner of death was ruled a
homicide.
The Decedent’s son, Jeffrey Burroughs, Jr., told police that he
awoke to his mother’s screams and found the Appellant standing
over the Decedent’s body, stabbing her repeatedly. Mr. Burroughs
struggled with the Appellant and wrestled a knife away from him.
The Appellant provided a post-Miranda statement admitting to
stabbing the Decedent. The Appellant stated that he and the
Decedent were drinking and using cocaine when the Decedent hit
him with a metal bar. The Appellant stated that he took a knife
from the Decedent and proceeded to stab the Decedent with it. A
metal bar was not recovered from the scene. The Appellant and
the Decedent had dated for approximately four years.
On June 30, 2021, the Appellant entered a non-negotiated guilty
plea to one count of third-degree murder, one count of possessing
an instrument of crime (PIC), and one count of simple assault.
This court sentenced Appellant to 2½-5 years’ incarceration on the
PIC charge to run consecutively to 20-40 years’ incarceration on
third-degree murder on November 18, 2021. No further penalty
was imposed on the simple assault charge. Appellant was
sentenced to a total of 22½-45 years’ confinement.
Trial Court Opinion, 8/8/22, at 1-2 (with minor alterations).
After post-sentence motions were denied by operation of law, Appellant
filed a timely appeal with this Court. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review:
[The Superior Court] shall vacate a sentence and remand the case
for resentencing if it finds that the sentencing court violated the
Sentencing Code. Did the lower court abuse its discretion when
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the court 1) gave no reasons for the sentence imposed, 2) failed
to consider Appellant’s background and rehabilitative needs, and
3) imposed an excessive sentence?
Appellant’s Brief at 3.
Appellant does not challenge the legality of the sentence imposed; he
challenges only the discretionary aspects of his sentence. As this Court
observed in Commonwealth v. Crawford, 257 A.3d 75 (Pa. Super. 2021):
The right to appeal the discretionary aspects of one’s sentence is
not absolute, and the jurisdiction of this Court must be properly
invoked. To raise a substantial question, an appellant must satisfy
the following four-part test:
(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. 720;
(3) whether appellant’s brief has a fatal defect,
see 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. The determination
of whether a particular issue raises a substantial question is
to be evaluated on a case-by-case basis. Generally,
however, in order to establish a substantial question, the
appellant must show actions by the sentencing court
inconsistent with the Sentencing Code or contrary to the
fundamental norms underlying the sentencing process.
Id. at 78 (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa.
Super. 2011)).
Our review of the record confirms that Appellant filed a timely notice of
appeal and that he properly preserved the issue in his post-sentence motion.
Further, he has included a Rule 2119(f) statement in his brief filed with this
Court. Therefore, we must determine if he has satisfied the fourth prong by
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raising a substantial question that his sentence is not appropriate under the
Sentencing Code.
In Commonwealth v. Patterson, 180 A.3d 1217 (Pa. Super. 2018),
we reiterated that “[a] substantial question is raised when an 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.’” Id. at 1232 (quoting Commonwealth v. Prisk, 13 A.3d 526, 533
(Pa. Super. 2011)).
Appellant first claims that the trial court failed to give reasons for the
sentence imposed. “An allegation that a judge ‘failed to offer specific reasons
for [a] sentence does raise a substantial question.’” Dunphy, 20 A.3d at 1222(quoting Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa. Super.
2003)).
Appellant next contends that the trial court failed to consider his
background and rehabilitative needs. In Commonwealth v. Dodge, 77 A.3d
1263 (Pa. Super. 2013), we found that the appellant’s claim “that the
sentencing court disregarded rehabilitation and the nature and circumstances
of the offense . . . presents a substantial question for our review.” Id. at 1273
(citing, inter alia, Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012) (averment that court “failed to consider relevant sentencing criteria,
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including the protection of the public, the gravity of the underlying offense
and the rehabilitative needs” of the defendant raised a substantial question)).
Finally, Appellant argues that the trial court imposed an excessive
sentence. In determining whether a substantial question exists, we do not
examine the merits of whether the sentence is actually excessive. Dodge,
77 A.3d at 1270 (citing Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa.
1987)). “Rather, we look to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the guideline ranges, is clearly
unreasonable.” Id.This Court is not required to accept
bald allegations of excessiveness. Rather, only where the
appellant’s Rule 2119(f) statement sufficiently articulates the
manner in which the sentence violates either a specific provision
of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process,
will such a statement be deemed adequate to raise a substantial
question so as to permit a grant of allowance of appeal of the
discretionary aspects of the sentence.
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). Here, Appellant
couches his excessiveness claims in terms of the court’s failure to consider his
rehabilitative needs. Because we have already determined that the failure to
consider rehabilitative needs raises a substantial question, we shall consider
his claim of excessiveness in that context.3
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3Although the trial court imposed a sentence in the aggravated range for
Appellant’s PIC conviction, Appellant does not frame his excessive sentence
(Footnote Continued Next Page)
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Our well-settled standard of review concerning the discretionary aspects
of sentencing is as follows:
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion. . . . [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court [is] in the best position to determine the proper penalty for
a particular offense based upon an evaluation of the individual
circumstances before it.
Patterson, 180 A.3d at 1231-32 (quoting Commonwealth v. Moury, 992
A.2d 162, 169–70 (Pa. Super. 2010) (citation omitted)).
Here, the trial court addressed each of Appellant’s three contentions,
i.e., failure to state reasons for the sentence, failure to consider his
background and rehabilitative needs, and imposition of an excessive sentence.
With regard to stating reasons for the sentence, the trial court noted that
Pa.R.Crim.P. 704 directs the sentencing judge to state on the record reasons
for the sentence imposed. Trial Court Opinion, 8/8/22, at 5. The court
____________________________________________
claim in that context. Rather he argues the sentence was excessive for failure
to consider, inter alia, his rehabilitative needs.
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similarly acknowledged that 204 Pa. Code § 303.1 requires a statement of the
reasons for imposing a sentence for a felony or misdemeanor. Id.This Court has recognized that “[a] sentencing court need not undertake
a lengthy discourse for its reasons for imposing a sentence or specifically
reference the statute in question, but the record as a whole must reflect the
sentencing court's consideration of the facts of the crime and character of the
offender.” Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super.
2010) (citation omitted). Importantly, as our Supreme Court has explained:
Where pre-sentence reports, we shall continue to presume that
the sentencing judge was aware of relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors. A pre-sentence report
constitutes the record and speaks for itself. . . . Having been fully
informed by the pre-sentence report, the sentencing court’s
discretion should not be disturbed.
Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (same).
Therefore, the requirement for stating the reasons for imposing a sentence “is
met if the court states on the record that it has consulted a pre-sentence
report.” Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999)
(citing Devers, 546 A.2d at 18).
Here, the trial court noted:
“[Appellant’s] counsel introduced, and this court considered, a
broad range of evidence including: a psycho-social history report,
a presentence report, and a mental health evaluation. This court
noted receipt and review of the submitted documentation for the
record prior to announcing the sentence. N.T. 11/18/2021, 4. In
addition, this court stated for the record, review of the prior record
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score, offense gravity score, and sentencing guidelines. Id.Moreover, this court explicitly enumerated the documents that
were reviewed for the record and noted consideration of
arguments from counsel, victim impact statements, and
Appellant’s allocution. N.T. 11/18/2021, 26-27. As a result, this
court sufficiently fulfilled its requirement in acknowledging
presented evidence, thus forming the court’s reasoning for
imposing the sentence.
Trial Court Opinion, 8/8/22, at 6 (footnote and some capitalization omitted).
We find the trial court adequately stated its reasons for the sentence
imposed. Appellant’s assertion in this regard fails.
Appellant next argues that the trial court failed to take his background
and rehabilitative needs into consideration. We disagree. As the trial court
indicated:
Appellant has an extensive criminal history that involved varying
periods of incarceration beginning at 18 years of age. At
approximately 52 years of age, Appellant acknowledged for the
record, his inability to overcome his substance abuse that has
ultimately led to his increasingly violent criminal activity. N.T.
11/18/2021, 24-25. This court was provided with the appropriate
mitigation documents before and during the sentencing hearing
that reiterated Appellant’s background, and desire for
rehabilitation despite numerous attempts. While Appellant
accepted responsibility for the crime committed, this court
appropriately considered the totality of circumstance when
imposing the sentence.
Id. at 12 (some capitalization omitted).
Further evidence that the trial court considered Appellant’s rehabilitation
needs and mental health is found in the trial court’s on-the-record statement,
in which it recommended that Appellant be housed at SCI Waymart because
“[t]hat’s the one place that I can think of unless you know someplace else.”
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N.T., Sentencing, 11/18/21, at 30. In response, Appellant’s counsel stated,
“That’s the only place I know of that even pretends to do mental health.” Id.
The record reflects that the trial court took Appellant’s background and
rehabilitative needs into consideration. Appellant’s second assertion fails.
Finally, Appellant suggests that the trial court imposed an excessive
sentence. While noting that deference must be afforded the trial court’s
sentencing decisions, Appellant complains that the trial court failed to address
rehabilitation while imposing “the longest sentence it could legally impose.”
Appellant’s Brief at 17. “And because of that, it is likely that Appellant will die
in prison given his age and declining health, even if he is paroled after serving
the minimum of 22½ years.” Id. at 17-18.
The trial court countered Appellant’s argument, explaining that it
considered the totality of the circumstances when imposing an aggravated
sentence for PIC. The court acknowledged the standard range and additional
time for aggravating factors and noted, “Appellant’s repeated offenses in
conjunction with numerous parole/probation violations, and the grotesque
nature of the crime committed, influenced an upward deviation.” Trial Court
Opinion, 8/8/22, at 8. As the court recognized:
The Appellant was in a long term, domestic relationship with the
decedent. Amid significant substance abuse and rage, the
Appellant killed the decedent in her own home, brutally, and
relentlessly stabbing the decedent eleven times with a knife.
Based on uncontested facts, the Appellant [] openly pled guilty to
the charge of third degree murder. During allocution, the
Appellant acknowledged that he “regret[s] the fact I’m not staying
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clean,” and that he “went too far . . . hav[ing] taken a life of a
mother, daughter, sister, grandmother.” N.T. 11/18/2021, 24-25.
Furthermore, this court considered the Appellant’s extensive
criminal history. The Commonwealth sentencing memorandum
outlined Appellant’s 15 prior arrests, 11 adult convictions, and 25
violations of parole/probation. . . .
Appellant’s malicious act was a blatant disregard for human life.
When combined with a prior history of violent acts, and overall
inability to successfully rehabilitate over the course of three
decades, this court did not manifestly impose an excessive and
unreasonable sentence. Instead, after careful consideration and
review of the totality of the circumstances, this court imposed a
sentence consummate [sic] with not only the nature of the crime,
but one that is also consistent with the protection of the public
and in the interest of fairness to the victim.
Id. at 8-9 (footnote and some capitalization omitted).
We find no merit in Appellant’s assertion that the trial court imposed an
excessive sentence. Appellant’s excessiveness claim fails.
Appellant has failed to demonstrate an abuse of discretion on the part
of the trial court. Therefore, Appellant is not entitled to relief on his
discretionary aspects of sentencing claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2023
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