Com. v. Cosme, O.

J-A27025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
OTILIO COSME,
Appellant No. 1735 WDA 2014
Appeal from the Judgment of Sentence of October 9, 2014
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000282-2013
BEFORE: BOWES, OLSON & STABILE, JJ.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015
Appellant, Otilio Cosme, appeals from the judgment of sentence
entered on October 9, 2014, following his guilty plea to involuntary
manslaughter, 18 Pa.C.S.A. § 2504. Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On March 17, 2013, the Commonwealth charged Appellant with
criminal homicide, simple assault, recklessly endangering another person
and harassment1 as the result of an altercation wherein Appellant and his
co-defendants beat a man to death. On August 6, 2014, the Commonwealth
entered into a plea agreement with Appellant wherein Appellant agreed to
____________________________________________
1
18 Pa.C.S.A. §§ 2501, 2705, and 2709, respectively.
J-A27025-15
plead guilty2 to involuntary manslaughter and the Commonwealth agreed to
nolle pros the original charges. On August 7, 2014, the Commonwealth filed
an amended bill of criminal information conforming to that agreement. On
that same date, Appellant pled guilty to involuntary manslaughter. On
October 9, 2014, the trial court sentenced Appellant to an aggravated range
sentence of 18 to 36 months of imprisonment. At the sentencing hearing,
Appellant objected to the term of incarceration arguing that the
Commonwealth admitted that there were no aggravating circumstances in
the case. He further argued that there was no evidence that he had
manifested an indifference to the victim’s life, an element of the offense of
aggravated assault that was nolle prossed. The trial court denied relief and
entered the sentencing order. This timely appeal followed.3
On appeal, Appellant presents the following issues for our review:
1. Did the [trial] court abuse its discretion in moving
Appellant’s sentence into the aggravated range based
____________________________________________
2
Appellant believed it was in his best interest to plead guilty, but did so
while maintaining his innocence. See Appellant’s Brief at 4, citing North
Carolina v. Alford, 400 U.S. 25, 38 (1970) (holding “an individual accused
of a crime may voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or unable to admit his
participation in the acts constituting a crime.”); see also N.T., 8/7/2014, at
10-11.
3
On October 22, 2014, Appellant filed a notice of appeal. On the same day,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on November 5, 2014. On December 8, 2014, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a).
-2-
J-A27025-15
upon a finding that Appellant showed a ‘manifest
indifference to life’ where no testimony was provided as
to the events in question, the Commonwealth nolle
prossed all charges having an intent element, and where
the Commonwealth’s proffer of underlying events in the
case did not suggest anything which would indicate
aggravating circumstances?
2. Was there any other evidence, outside of the [trial]
court’s finding that Appellant evidenced ‘a manifest
indifference to life’ to support moving Appellant’s
sentence into the aggravated range?
Appellant’s Brief at 3.4
Initially we note that Appellant’s claims implicate the discretionary
aspects of his sentence, which is not appealable as of right.
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).
Rather, an appellant challenging the trial court's discretion must invoke this
Court's jurisdiction by satisfying a four-part test:
We 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. 720; (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. (citation omitted).
____________________________________________
4
Appellant raised additional issues in his Rule 1925(b) statement, but
concedes that he is only challenging the imposition of an aggravated range
sentence on appeal. See Appellant’s Brief at 3, n.1. Those additional,
abandoned issues are thereby waived.
-3-
J-A27025-15
Here, Appellant preserved his claim at sentencing and by including it in
his Rule 1925(b) statement. Appellant also filed a timely notice of appeal
and included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which
he claims that the trial court imposed an excessive sentence and failed to
articulate its reasons for doing so. We have previously determined that an
appellant raises a substantial question when he alleges that the trial court
failed to state sufficient reasons on the record when imposing an aggravated
range sentence. Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super.
2006). We have also determined that an appellant raises a substantial
question when he alleges that the trial court, in imposing sentence,
considered a charge that was nolle prossed as part of a plea agreement.
Commonwealth v. Miller, 965 A.2d 276, 276 (Pa. Super. 2009). Thus,
we turn to Appellant’s claims.
Appellant’s issues are interrelated so we will examine them together.
In his first issue presented, Appellant contends that the trial court manifestly
abused its discretion when it enhanced his sentence based upon charges
that were nolle prossed as part of the guilty plea negotiation. Appellant’s
Brief at 10. More particularly, Appellant argues “the [trial] court, in
imposing sentence, specifically found that [Appellant] evidenced a ‘manifest
indifference to life[,]’ [thereby] adopting the specific language of the nolle
-4-
J-A27025-15
prossed charge of aggravated assault.”5 Id. at 12. Appellant maintains that
the factual basis underlying the plea “is devoid of any mention of the type of
strike, how many strikes, how quickly this event unfolded, and whether
[Appellant] had any indication that the victim was unconscious.” Id.
Appellant posits that the Commonwealth acquiesced and allowed Appellant
to maintain his innocence as part of his plea and, thus, he did not admit to
“any of the factual circumstances as presented by the Commonwealth in its
charging documents, or most importantly as suggested by the sentencing
court.” Id. (footnote omitted).
Next, Appellant claims that there was no other evidence to support an
aggravated range sentence. Appellant argues that his prior record score and
the impact of the victim’s death on the victim’s family are factors already
taken into consideration under the sentencing guidelines. Id. at 16-17.
Moreover, Appellant avers that there was no evidence that Appellant is a
threat to the community, as set forth in the pre-sentence investigation (PSI)
report. Id. at 17. As such, Appellant contends that there were “no factors
upon which the [trial] court could have, without abusing its discretion, used
____________________________________________
5
In pertinent part, a person is guilty of aggravated assault if he: “(1)
attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]” 18 Pa.S.C.A.
§ 2702(a)(1) (emphasis added).
-5-
J-A27025-15
to move the sentence into the aggravated range.” Id. at 18. Accordingly,
Appellant requests vacating his sentence. Id.
In reviewing a sentencing claim:
We must accord the sentencing court great weight as it is in
the best position to view the defendant's character, displays
of remorse, defiance or indifference, and the overall effect
and nature of the crime. An appellate court will not disturb
the lower court's judgment absent a manifest abuse of
discretion. In order to constitute an abuse of discretion, a
sentence must either exceed the statutory limits or be so
manifestly excessive as to constitute an abuse of discretion.
Further, a sentence should not be disturbed where it is
evident that the sentencing court was aware of sentencing
considerations and weighed the considerations in a
meaningful fashion.
Miller, 965 A.2d at 277 (internal citation omitted).
In formulating a sentence, “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
the protection of the public, the gravity of offense as it relates to the impact
on life of the victim and on the community, and the rehabilitative needs of
the defendant.” Id., citing 42 Pa.C.S.A. § 9721(b). “A court is required to
consider the particular circumstances of the offense and the character of the
defendant.” Id. at 277-278 (citation omitted).
Furthermore,
[42 Pa.C.S.A. §] 9781(c) specifically defines three instances
in which the appellate courts should vacate a sentence and
remand: (1) the sentencing court applied the guidelines
erroneously; (2) the sentence falls within the guidelines, but
is “clearly unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the guidelines
and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42
-6-
J-A27025-15
Pa.C.S.A. § 9781(d), the appellate courts must review the
record and consider the nature and circumstances of the
offense, the sentencing court's observations of the
defendant, the findings that formed the basis of the
sentence, and the sentencing guidelines. The weighing of
factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the
sentencing court, and an appellate court could not
substitute its own weighing of those factors. The primary
consideration, therefore, is whether the court imposed an
individualized sentence, and whether the sentence was
nonetheless unreasonable for sentences falling outside the
guidelines, or clearly unreasonable for sentences falling
within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).
Commonwealth v. Grace, 2015 WL 6108065, at *3 (Pa. Super. 2015).
Additionally, we are mindful that when a sentencing court has the
benefit of a PSI, we must presume that the sentencing judge was aware of,
and duly considered, any character-related information contained therein.
Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super. 2014),
citing Commonwealth v. Devers, 5546 A.2d 12 (Pa. 1988).
Finally, with regard to Appellant’s contention that the trial court
improperly relied upon the nolle prossed aggravated assault charge in
fashioning its sentence, our decision in Miller, supra, is instructive. In that
case, Miller pled guilty to third-degree murder after the Commonwealth
agreed to nolle pros additional criminal charges including, inter alia, arson.
Miller argued that the trial court abused its discretion when it considered the
arson charge at sentencing. More specifically, Miller averred that the trial
court’s reference to “[t]he tragedy of the fire as well as the lives of [the]
firefighters and police and everyone else that were risked in putting out that
fire [was] something [the trial court] consider[ed] because [] there could
-7-
J-A27025-15
have been even more lives either injured or taken.” Miller, 965 A.2d at
279-280. Upon review in Miller, we examined the trial court’s rationale in
imposing sentence, as stated on the record, and concluded:
[the trial court] carefully reviewed the PSI and [three victim
impact] letters presented, and considered many factors in
imposing sentence, including: the seriousness of the
offense; the situation that faced firefighters and police when
they arrived at [the victim’s] residence; the manner in
which the murder of [the victim] impacted her family and
friends and [Miller’s] family; [Miller’s] apparent
unwillingness to accept responsibility for his actions; and
[Miller’s] misconduct while incarcerated. Contrary to
[Miller’s] assertion that the trial court improperly considered
the charge of arson that was nolle prossed as part of the
plea agreement, we do not find that the court's mere
reference to the fact that the lives of firefighters and police
were at risk due to [the victim’s] residence being ablaze
when these individuals arrived on the scene indicates that
the court specifically considered the charge of arson and
enhanced [Miller’s] sentence based thereon. Cf.
[Commonwealth v.] Stewart, 867 A.2d [589,] 593 [(Pa.
Super. 2005)] (trial court specifically indicated that it was
sentencing the appellant in the aggravated range because
of three (3) counts that were nolle prossed).
Miller, 965 A.2d at 280.
In this case, at the guilty plea hearing, while Appellant maintained his
innocence, he stated he was “aware of the case that the Commonwealth
would be prepared to present at trial.” N.T., 8/7/2014, at 10. Appellant
agreed the evidence against him was sufficient to convict him of the charge
of involuntary manslaughter beyond a reasonable doubt. Id. at 13.
Appellant further agreed that the facts would show that a co-defendant
struck the victim and caused him to fall to the ground, fracturing the victim’s
-8-
J-A27025-15
skull, and rendering him unconscious. Id. at 8. Appellant and his two co-
defendants then struck the victim causing the victim’s vena cava aorta to
rupture. Id. Medical evidence showed “that the fractured skull and/or the
ruptured aorta [] was the cause of death[.]” Id. Thus, the Commonwealth
contended, “[t]he basis of the charge of involuntary manslaughter [was] the
striking of [the victim] by [Appellant] []as a cause of the ruptured aorta and
subsequent death as a result of that ruptured aorta.” Id.
Just prior to sentencing, the trial court heard victim impact testimony
from two of the victim’s sisters and the victim’s mother. N.T., 10/9/2014, at
15-21. At sentencing, the trial judge stated that he had considered the
following factors in imposing Appellant’s sentence:
[] I have been provided with the [PSI report] and I have
read and studied that document. I’ve considered in
formulating a sentence, your age, the information about you
and in the [PSI report]. I’ve also reviewed the sentencing
guideline form[.]
* * *
I’ve considered all of your personal information, your
educational background, your marital status. I’ve
considered the nature of this offense, the affidavit of
probable cause. I’ve considered the plea agreement. And
the plea agreement essentially is that the Commonwealth
would proceed only with this involuntary manslaughter
charge and the remaining charges that were contained on
the information, criminal homicide, aggravated assault,
simple assault, recklessly endangering another person,
these were not prosecuted in the case. That was the plea
agreement.
* * *
-9-
J-A27025-15
I’ve considered the statements of family members [of the
victim] here in the courtroom as well as a statement [] that
was provided to me and it was put into the [PSI report].
I’ve considered your prior criminal history and the
evaluative history that was prepared by the Adult Probation
Office. […T]he sentencing guideline form does reveal a
standard range of sentence of three to 12 months. The
mitigated range is restorative sanctions, which is probation.
The aggravated range is 18 months which is six months
added onto the standard range higher end.
As far as mitigating factors, I think that you do have a prior
record score of zero. And [I take] that into account in
imposing a sentence. However, I don’t find it as a
mitigating factor. I simply find it as something that needs
to be computed in the guideline form. You had prior
involvements. It’s my understanding that you have a prior
DUI and have a pending drug charge, although that may be
disposed of. […] But, I’m not holding that against you. I’m
just saying I don’t find any mitigating factors because there
have been prior involvements even though your prior record
score is in fact a zero.
In computing a sentence, [the trial court] considers that
this is a misdemeanor charge that [] you have pled to. And
we went through at great lengths at the pleas that you
entered your plea based upon the fact that was the only
remaining charge.
That being said, [the trial court] also finds that the victim
involved here was unconscious when the fatal blow was
delivered. [The trial court] takes that as evidence of a
manifest indifference to life. [The trial court] views the
circumstances surrounding the killing of this victim as
extreme. The victim was rendered unconscious by a skull
fracture. But he was further victimized by you and others
causing a ruptured aorta. In other words, an unconscious
victim was beaten to death by three individuals.
All right. I’ve found a factual basis for the guilty plea to
involuntary manslaughter as stated at the plea proceeding.
After considering all of these factors, I find that you are in
need of correctional treatment that can be provided most
effectively by your commitment to an institution and that
- 10 -
J-A27025-15
any lesser sentence would depreciate the seriousness of this
crime.
Id. at 23-28. The trial court then imposed an aggravated range sentence of
18 to 36 months of incarceration. Id. at 28.
In reviewing the totality of circumstances, we discern no abuse of
discretion or error of law in imposing Appellant’s sentence. Initially we note
that the sentencing court specifically stated that it was not considering the
nolle prossed charges in fashioning sentence. Similar to our decision in
Miller, here, a mere passing reference to the language used in the
aggravated assault statute does not indicate that the court specifically
considered that charge in enhancing Appellant’s sentence. The trial court
was required to consider the particular circumstances of the offense and
Appellant’s character in imposing sentence, which it did. Furthermore, on
the record at sentencing, the trial court specifically balanced the protection
of the public, the gravity of offense as it relates to the impact on life of the
victim and on the community, and the rehabilitative needs of the defendant
under Section 9721. The trial court determined that an aggravated sentence
was appropriate because Appellant’s conduct was extreme. Appellant
ganged up with two others to strike an unconscious victim, causing an injury
that ultimately contributed to the victim’s death. As previously noted, the
court heard victim impact testimony from the victim’s family. In its written
opinion, the trial court described that impact as a “quite drastic effect that
the victim’s resultant death has caused on his family.” Trial Court Opinion,
12/8/2014, at 10. Moreover, the trial court had the benefit of a PSI report
- 11 -
J-A27025-15
and, thus, we presume it was aware of, and duly considered, any character-
related information contained therein. Based upon all of the foregoing, we
conclude the trial court did not improperly rely upon the nolle prossed
aggravated assault charge in sentencing Appellant. The trial court fashioned
an individualized sentence for Appellant and clearly articulated its reasons on
the record at sentencing. Hence, both of Appellant’s appellate claims fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/2015
- 12 -