Com. v. Morales, C.

J-A24021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CESAR A. MORALES :
:
Appellant : No. 372 EDA 2022
Appeal from the Judgment of Sentence Entered November 17, 2021
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0001036-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 6, 2023
Cesar A. Morales appeals from the judgment of sentence entered
following his guilty plea to two counts of attempted murder, and one count
each of persons not to possess a firearm, and conspiracy to commit attempted
murder. See 18 Pa.C.S.A. §§ 901, 6105(a), 903(a). Morales argues that the
trial court abused its discretion in imposing an excessive aggregate sentence.
We affirm.
Morales’s convictions arise from his actions as a subcontracted hitman.
Joseph Wesley believed Danielle Miller was the informant police relied on to
charge Wesley with gun and drug trafficking. Wesley therefore hired Darelle
Bean to kill Miller. Although Bean accepted Wesley’s offer to kill Miller, he later
determined that he could not kill a woman. As a result, Bean subcontracted
the job to Morales for $2000.
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On December 2, 2016, Bean drove Morales to Miller’s location in
Norristown. Thereafter, Morales fired three shots at Miller and Stephen Rowl,
striking Miller’s right hand and left bicep, and Rowl’s torso and right leg.
On May 30, 2018, Morales entered an open plea of guilty to two counts
of attempted murder and one count each of persons not to possess a firearm
and conspiracy to commit murder. The trial court deferred sentencing because
Morales agreed to testify at Wesley’s trial. Approximately one week later, Bean
entered an open plea of guilty to two counts of attempted murder and one
count each of persons not to possess a firearm and conspiracy to commit
murder. Like Morales, the trial court deferred Bean’s sentencing hearing
pending Bean’s testimony at Wesley’s trial.
Wesley’s jury trial commenced in November 2021, and Morales testified
at the trial. Thereafter, a jury found Wesley guilty of two counts of attempted
murder, and one count each of solicitation to commit murder and conspiracy
to commit murder. On November 17, 2021, the trial court sentenced Morales
to an aggregate prison sentence of 30 to 60 years. More specifically, the trial
court imposed consecutive sentences of 15 to 30 years for the attempted
murder convictions, which were in the mitigated range, and a concurrent
sentence of 5 to 10 years for the persons not to possess a firearm conviction.
The court found that the criminal conspiracy conviction merged for sentencing
purposes. That same day, the trial court sentenced Bean to an aggregate
prison term of 15 to 30 years. Notably, the trial court imposed concurrent
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prison terms of 15 to 30 years for the attempted murder convictions because
Rowl was not the intended target of Bean’s actions.
Morales filed a timely post-sentence motion for reconsideration of
sentence, which the trial court denied. This timely appeal followed.
On appeal, Morales raises the following question for our review:
Did the trial court abuse its discretion by sentencing [Morales] to
an aggregate of 30 to 60 years’ incarceration, because such a
sentence was fashioned only to punish Appellant and solely based
upon the “seriousness of the offenses,” and [is] contrary to justice
as no victim, witness, party or representative of the
Commonwealth asked for such a sentence and it is not necessary
to prevent [Morales] from committing further crimes, as the trial
court explicitly admitted?
Appellant’s Brief at 2-3.
Morales challenges the discretionary aspects of his sentence.1
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010) (citation omitted). Prior to reaching the merits of a
discretionary sentencing issue, this Court conducts a four-part analysis:
(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).
____________________________________________
1 We note that when a defendant enters an open plea, he may challenge
the discretionary aspects of the sentence imposed. See Commonwealth v.
Brown, 240 A.3d 970, 972 (Pa. Super. 2020).
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Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, Morales filed a timely appeal and preserved his claim in his post-
sentence motion. Morales also included a separate Rule 2119(f) Statement in
his brief; accordingly, we will review his Rule 2119(f) statement to determine
whether he has raised a substantial question. See Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating that “we cannot
look beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.” (citation
omitted)).
“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). “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 to the fundamental norms which underlie the sentencing
process.” Id. (citation omitted).
In his Rule 2119(f) statement, Morales argues that the trial court
improperly failed to consider the standards for sentencing set forth by 42
Pa.C.S.A. § 9721(b), did not provide adequate reasons for the sentence, and
focused solely upon the seriousness of the crimes in imposing the sentence.
See Appellant’s Brief at 7-8. Morales’s claims raise a substantial question. See
Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)
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(recognizing that a claim that impugns the trial court’s failure to offer specific
reasons for the sentence, which “comport with the considerations required in
section 9721(b)[,]” raises a substantial question); see also Commonwealth
v. Knox, 165 A.3d 925, 929 (Pa. Super. 2017) (stating that claim that trial
court focused on the seriousness of the crime while ignoring other factors
raises a substantial question).
Our standard of review of a challenge to the discretionary aspects of a
sentence 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.
Commonwealth v. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)
(citation omitted).
Morales contends the trial court abused its discretion by imposing a
sentence based upon the seriousness of the crimes and without properly
considering the Section 9721(b) factors. See Appellant’s Brief at 9, 11-12, 14.
Morales suggests that his crimes were not exceptional because he did not
make a full effort to execute Miller and Rowl, noting that no vital body parts
were struck by the bullets. See id. at 11. Morales points out that neither Miller
nor Rowl provided a victim impact statement at the sentencing hearing. See
id. at 13. Morales further argues that other defendants convicted of similar
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crimes received lesser sentences, including his co-defendant Bean. See id.;
see also id. at 12-13 (noting that Bean, not Morales, was the mastermind of
the plot to kill Miller). Moreover, Morales highlights that the trial court stated
that there was not a real risk that he would commit further crimes. See id. at
12.
Morales also claims that the trial court failed to provide adequate
reasons for the sentence, including addressing the Section 9721(b) factors.
See id. at 13-14. Morales concludes that the sentence was arbitrary because
the trial court emphasized the seriousness of the crimes and failed to consider
that he will not be eligible for parole until he is 67 years old. See id. at 14.
Here, the trial court considered the presentence investigation report.
See N.T., 11/17/21, at 5, 27; see also Presentence Investigation Report at
1-10. The trial court also noted Morales submitted a sentencing memorandum,
and 26 exhibits attesting to Morales’s character, his rehabilitation in prison,
and his good behavior in prison. See N.T., 11/17/21, at 5, 8-10; see also
Sentencing Memorandum at 1-18. In addition, Morales’s fiancé, Tasliym
Goodman, testified regarding Morales’s growth in prison and his positive
relationship with their son, who was born while Morales was in prison. See
N.T., 11/17/21, at 10-15. Morales testified regarding his remorse and read
letters of apology to the victims. See id. at 16-22. Finally, the Commonwealth
detailed Morales’s cooperation since he was arrested, his truthfulness, and his
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valuable testimony at Wesley’s trial regarding the murder for hire scheme.
See id. at 24-26.
In stating its reasons for the sentence, the trial court noted that it
considered the protection of the public, the gravity of the offenses, the impact
on the victims and the community, and Morales’s rehabilitation needs. See id.
at 27. The court stated that it considered the impact of Morales’s cooperation
in the case, which the Commonwealth had noted was critical in Wesley’s trial.
See id. at 27-28, 30. The trial court also weighed Morales’s positive character
attributes, his exemplary behavior in prison, his remorse, and the seriousness
of the crimes. See id. at 28-29. Although the trial court maintained that there
was not an undue risk that Morales would commit another crime, the trial
court imposed the above sentence, noting that any lesser sentence would
depreciate the seriousness of the crimes. See id. at 29-30.
Upon review, the court’s sentence was consistent with the factors set
forth in Section 9721(b). Indeed, the trial court considered the protection of
the public, the gravity of the offenses relating to the victim and society, and
Morales’s rehabilitative needs. Moreover, the trial court took into account
mitigation evidence, including Morales’s positive character, age, education,
family history, remorse, lack of risk of recidivism, and cooperation with the
Commonwealth. The trial court also highlighted the seriousness of the crimes,
noting that there were “two separate victims, one who was [Morales’s] initial
intended target and the one he was hired to murder; the second her
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companion whom [Morales] maliciously fired upon and attempted to kill.” Trial
Court Opinion, 3/24/22, at 16; see also Commonwealth v. Taylor, 277
A.3d 577, 593 (Pa. Super. 2022) (noting that the “imposition of consecutive
rather than concurrent sentences lies within the sound discretion of
the sentencing court.” (citation omitted)).
Here, the trial court was properly apprised of and considered all relevant
factors in fashioning Morales’s sentence, and there is no indication that the
trial court ignored any factors. See Watson, 228 A.3d at 936 (stating that
where the trial court is informed by a presentence investigation report, it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed). Further, the fact that the trial court imposed
different sentences for Morales and Bean does not establish an abuse of
discretion. See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa.
Super. 2010) (stating that “co-defendants are not required to receive identical
sentences.”); Commonwealth v. Myers, 536 A.2d 428, 430 (Pa. Super.
1988) (“A sentencing court is not required to impose the same sentence on
all participants in a crime.”). Therefore, the trial court did not abuse its
discretion in imposing the aggregate sentence. See Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007) (stating that “the sentencing court
enjoys an institutional advantage to appellate review, bringing to its decisions
an expertise, experience, and judgment that should not be lightly disturbed.”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2023
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