Com. v. Wagner, B.

J-S39001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN LEROY WAGNER :
:
Appellant : No. 1397 MDA 2021
Appeal from the Judgment of Sentence Entered August 3, 2021
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000502-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED: MARCH 17, 2023
Brian Leroy Wagner appeals from the judgment of sentence entered
after the trial court convicted him of Criminal Homicide - Murder of the Third
Degree, Aggravated Assault, and Endangering the Welfare of Children – Parent
or Guardian. The charges arose from allegations that, on July 6, 2017, Wagner
violently shook or struck the head of his four-month-old son, Finnick Wagner
(“Finnick”), who was brought to the hospital unresponsive and later died. The
key dispute at trial pitted the expert testimony presented by the
Commonwealth, which argued the child died from physical injuries to the head
and spine, against the expert testimony presented by Wagner’s defense,
which argued that the child died from sepsis arising from an infection and a
blood clotting disorder.
J-S39001-22
For purposes of this appeal, the following facts are undisputed. Finnick
was suffering from a fever when his mother went to work on July 6, 2017,
leaving him in the care of his father, Wagner. Later that day, Wagner called
Finnick’s mother, quickly telling her to get home immediately before calling
911 to report that Finnick was not breathing. Under the direction of the 911
operator, Wagner began CPR on Finnick. Finnick ultimately died at the local
hospital. Wayne Ross, M.D., conducted an autopsy and concluded that Finnick
died as the result of violent shaking or blows to the head. The Commonwealth
charged Wagner with multiple crimes related to Finnick’s death. A jury
ultimately convicted Wagner of third degree murder, aggravated assault, and
endangering the welfare of Finnick.
Wagner raises several claims on appeal: the evidence was not sufficient
for the conviction of third-degree murder and aggravated assault; the verdict
was against the weight of the evidence; and the trial court erred by permitting
the Commonwealth to introduce improper expert testimony in rebuttal, an
inflammatory autopsy photo, and use a previously unpublished expert report
in their closing argument. Lastly, Wagner asserts that the trial court abused
its discretion in sentencing him to an aggregated term of twenty to forty years
in a state correctional facility. We disagree and therefore affirm.1
1 The original memorandum decision in this appeal was withdrawn with the
intent to publish. However, upon further consideration, this new memorandum
decision replaces the original memorandum.
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First, Wagner argues that there was not sufficient evidence to support
the convictions of third-degree murder and aggravated assault. In reviewing
the sufficiency of the evidence, “[w]e must determine whether the evidence
admitted at trial, and all reasonable inferences drawn therefrom, when viewed
in a light most favorable to the Commonwealth as verdict winner, …enable the
trier of fact to find every element of the crime has been established beyond a
reasonable doubt.” Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super.
2012)(citation omitted). “The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to believe all, part, or
none of the evidence presented.” Id. (citation omitted). We, as an appellate
court, are not to independently weigh the evidence or substitute our judgment
for that of the jury as fact-finder. See id. The Commonwealth’s burden can
be satisfied entirely by circumstantial evidence. See id. Finally, it was for the
jury to resolve any doubts about Wagner’s guilt, so long as the evidence was
not so weak or inconclusive that no inference can reasonably be drawn from
the combined circumstances. See id.A conviction for murder of the third-degree requires sufficient evidence
that an individual was killed by another unintentionally, without
premeditation, and maliciously. See Commonwealth v. Young, 431 A.2d
230, 232 (Pa. 1981). To establish malice, the Commonwealth must prove that
the perpetrator acted with a “hardness of heart, recklessness of
consequences, and a mind regardless of social duty, although a particular
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person may not be intended to be injured.” Commonwealth v. Fisher, 80
A.3d 1186, 1191 (Pa. 2013) (citation omitted).
“A person is guilty of aggravated assault if he … attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to value
of human life.” 18 Pa.C.S.A. § 2702(a)(1). Where, as is undisputed here, the
victim suffers serious bodily injury, the Commonwealth need not prove specific
intent, but need only prove that the defendant “acted recklessly under
circumstances manifesting extreme indifference to value of human life."
Commonwealth v. Nichols, 692 A.2d 181, 185 (Pa. Super. 1997) (citation
omitted). A person acts recklessly with respect to serious bodily injury when
they consciously disregard a substantial and unjustifiable risk that serious
bodily injury will result from their conduct. See id. This risk must be of such
a nature that the conduct and the circumstances involve a gross deviation
from the standard of conduct that a reasonable person would observe in the
perpetrator’s situation. See 18 Pa.C.S.A. § 302(b)(3).
Here, the Commonwealth presented the expert testimony of Wayne
Ross, M.D., who performed the autopsy. Dr. Ross concluded that Finnick
suffered serious bodily injury with signs of new and old trauma to the brain
and spine indicated by tears in the blood vessels deep in the brain and bruising
on the head. See N.T. Jury Trial, 5/24/21, at 154-60, 166-195. He determined
within a reasonable degree of scientific certainty that Finnick died as a result
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of these traumatic brain and spinal cord injuries. See id. at 196-197. The
cause of the injuries was consistent with Finnick’s head being rapidly and
violently moved as well as nine separate strikes to the head. See id. at 156-
60, 176, 195.
Another expert witness offered by the Commonwealth, Dr. Lori Frasier,
M.D., agreed that the brain trauma that caused Finnick’s death was incurred
from the child being violently shaken and hitting his head on a hard, blunt
object or a hard, blunt object hitting his head. See id. at 41-43, 88-89.
Additionally, Finnick’s mother established that Wagner was with Finnick and
responsible for his care at the time the injuries likely occurred and Finnick was
found unresponsive. See id. at 58-61.
Collectively, viewed in the light most favorable to the Commonwealth,
this evidence is sufficient to support a conclusion that Wagner shook Finnick
and caused hard blows to his head, resulting in trauma to the brain and spine
which led to Finnick’s death. Therefore, for the charge of aggravated assault,
this evidence is sufficient to find that Wagner acted in a manner that is a gross
deviation from the standard of conduct of a reasonable person and indicates
a reckless disregard of the substantial and unjustifiable risk of seriously
injuring Finnick. See Nichols, 682 A.2d 185. Similarly, for the charge of third-
degree murder, this evidence is sufficient to find that Wagner acted with a
recklessness to the most serious risk of injury and an extreme indifference to
the value of human life. See Fisher, 80 A.3d 1191. As a result, we conclude
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that the evidence is sufficient to support the convictions of aggravated assault
and criminal homicide – murder in the third degree.
In his brief, Wagner presents four specific arguments against this
conclusion. First, he highlights that the Commonwealth’s medical expert, Dr.
Ross, could only speculate as to how Finnick suffered the blunt force trauma
to his head. See Appellant’s Brief, at 32. However, this argument does not
accurately describe Dr. Ross’s testimony. As noted above, Dr. Ross testified
that to a reasonable degree of medical certainty, Finnick suffered at least 9
strikes to his head before dying. While this is not direct evidence of the exact
circumstances that led to Finnick’s death, it certainly is circumstantial
evidence that Wagner, as the adult who was responsible for Finnick’s care at
the time, had violently handled four-month-old Finnick. Since there was no
evidence that any other person capable of inflicting such violence interacted
with Finnick at the relevant time, the jury could reasonably infer Wagner’s
violent treatment of Finnick.
Next, Wagner argues that Dr. Ross acknowledged that Finnick had been
sick prior to his death. See id. He separately maintains that there was
evidence that Finnick was suffering from an E. Coli infection resulting in sepsis.
See id. Finally, he asserts that the testimony of his own experts so undercut
the Commonwealth’s theory of Finnick’s death that there was reasonable
doubt. See id. These arguments, however, are more properly classified as
challenges to the weight of the evidence. There was certainly evidence
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supporting a conclusion that Finnick died from causes other than those
highlighted by Dr. Ross. And some of that evidence came in the form of expert
testimony that directly contradicted Dr. Ross’s testimony. But Dr. Ross
nevertheless explicitly opined that Finnick died from blunt force trauma to his
head. The evidence of other possible causes of death raises questions of the
credibility of Dr. Ross’s opinion, not its sufficiency. Wagner’s first issue on
appeal merits no relief.
In his second issue, Wagner claims that the guilty verdict was against
the weight of the evidence. See Appellant’s Brief at 34-39. “The weight of the
evidence is a matter exclusively for the finder of fact, who is free to believe
all, part, or none of the evidence and to determine the credibility of the
witnesses.” Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.Super.
2015) (citation omitted). Appellate review of the weight of the evidence is
“extremely limited and is confined to whether the trial court abused its
discretion in finding that the jury verdict did not shock its conscience.” Id. A
verdict may only be reversed if “it is so contrary to the evidence as to shock
one’s sense of justice.” Id.More specifically, Wagner contends that the manifest weight of the
evidence suggests Finnick’s cause of death was untreated sepsis from an E.
coli infection, not the brain trauma as presented by the Commonwealth. See
Appellant’s Brief, at 36-38. Wagner relied on the defense expert testimony
offered by Michael Laposata, M.D., Ph.D., which suggested that sepsis due to
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an E. Coli infection, combined with a blood clotting disorder, caused Finnick’s
death. N.T. Jury Trial, 5/25/21 at 21-22, 24-25, 30. Dr. Laposata testified the
blood clotting disorder can mimic trauma and Finnick’s injuries were a result
of life-saving measures taken by medical professionals. See id. at 32, 35-36.
The defense’s other expert witness, Janice Ophoven, M.D., agreed Finnick died
of sepsis and the injuries were due to life-saving measures performed. See
id. at 74-76, 101-102.
In rebuttal, Dr. Ross disputed that a blood clotting disorder caused the
brain trauma because such a disorder would cause blood all over the brain
and inside the brain which was not found here. See id. 190-195; see also
N.T. Jury Trial, 5/26/21 at 27. He disagreed with the defense’s theory that
life-saving CPR caused the injuries because, if Finnick had a blood clotting
disorder, there would have been bruises on the child’s back. See id. at 31,34.
Similarly, Dr. Frasier explained that the trauma from injuries could present
symptoms of sepsis, but sepsis could not explain the damage to Finnick’s head
and neck. See N.T., 5/24/21 at 86-87.
After reviewing this record, the trial court concluded that
the experts disagreed with one another, and the jury had to and
evidently did choose which expert testimony to believe. We did
not find [Wagner’s] expert testimony so strong that the verdicts
may be said to be against the weight of the evidence, and we
found the Commonwealth’s evidence neither weak nor tenuous. …
We note that the defense expert testimony of Dr. Laposata was
compelling, but that we found Dr. Ophoven’s testimony less than
credible. Apparently, the jury thought the same. We were far from
shocked at the verdicts.
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Trial Court Opinion, 4/11/22, at 10.
After our own independent review of the record, we cannot conclude
that the trial court’s reasoning constitutes an abuse of discretion. See id. The
trial court’s observation that this was a battle of expert opinion is accurate, as
is the court’s observation that the jury performed its assigned duty and
resolved the conflict based upon credibility assessments. See Gonzalez, 109
A.3d 723. Wagner’s second issue merits no relief.
Next, Wagner claims Dr. Ross’s rebuttal expert testimony strayed
beyond the bounds of proper rebuttal testimony. See Appellant’s Brief, at 39-
42. The admissibility of “expert testimony is a matter left largely to the
discretion of the trial court, and its rulings thereon will not be reversed absent
an abuse of discretion. An expert's testimony is admissible when it is based
on facts of record and will not cause confusion or prejudice.” Commonwealth
v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citation omitted). Rebuttal
testimony is admissible to discredit the defense’s expert witness and, in doing
so, may repeat some of the prior testimony given. See Remy v. Michael D’s
Carpet Outlets, 571 A.2d 446, 450 (Pa. Super. 1990).
Here, the Commonwealth called on Dr. Ross to rebut Wagner’s expert’s
claim that his work was “sloppy” and lacking a comprehensive review. N.T.,
5/26/21 at 4-8. Additionally, Dr. Ross was called to refute Wagner’s experts’
assertions that the cause of death was sepsis caused by an E. coli infection
which was, in part, repetitive to their prior direct examinations but was offered
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in direct response to the testimony of Wagner’s expert witnesses. The trial
court decided that allowing Dr. Ross to directly address the criticisms of his
expert opinion would aid the jury in performing its task in assessing the
credibility of the conflicting expert opinions. We cannot conclude that this was
an abuse of the trial court’s discretion. See Commonwealth v. Yale, 150
A.3d 979, 983 (Pa. Super. 2016) (concluding there was nothing improper with
the trial court’s decision to allow an expert to address criticisms of his direct
testimony in rebuttal).
In his fourth issue, Wagner claims the trial court erred in allowing an
autopsy photo of Finnick’s body to be introduced during rebuttal testimony.
See Appellant’s Brief, at 43-48. The trial judge has the discretion of admitting
photographs of a murder victim and only an abuse of this discretion would
establish reversible error. See Commonwealth v. Spell, 28 A.3d 1274, 1279
(Pa. 2011). The court must first determine whether the photograph is
inflammatory and, if inflammatory, then “decide whether or not the
photographs are of such essential evidentiary value that their need clearly
outweighs the likelihood of inflaming the minds and passions of the jurors.”
Commonwealth v. Chester, 587 A.2d 1367, 1373-74 (Pa. 1991) (citations
omitted).
Here, the trial court determined that the photo was not inflammatory,
explaining: “It does not depict the child’s face or front of his body. Some
redness is visible on the back and neck, but not alarmingly so, and no
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lacerations, blood, or other offensive visuals are present.” Trial Court Opinion,
4/11/22, at 15. In fact, when Wagner’s counsel objected to the admission of
the photos at trial stating that showing Finnick’s face would be “indecent,” the
court excluded the photo showing his face and only admitted the photo that
showed Finnick’s back, neck, and lower back of head. N.T. 5/26/21 at 8.
The trial court admitted the photograph because it found the photograph
relevant to an issue that was hotly disputed by the experts. See Trial Court
Opinion, 4/11/22, at 15. Wagner’s experts posited that Finnick was suffering
from a blood disorder that hindered his ability to form blood clots. See N.T.,
5/25/21, at 26. Wagner’s experts therefore opined that this lack of clotting,
when combined with the CPR performed on Finnick, explained the bruising on
Finnick’s head. See id., at 74. In contrast, Dr. Ross opined that he discounted
the blood clotting theory because, if true, there would be bruises on Finnick’s
back from the CPR. See N.T., 5/26/21, at 31-34.
Under these circumstances, we cannot conclude the trial court abused
its discretion in admitting the photograph. See Spell, 28 A.3d at 1279. The
presence or absence of bruising on Finnick’s back was directly relevant to the
jury’s analysis of a material dispute between the experts. See Chester, 587
A.2d at 1373-74. Wagner’s fourth issue merits no relief.
Next, Wagner claims the trial court erred by allowing and not striking a
portion of the Commonwealth’s closing argument in which it used Dr.
Ophoven’s expert report to impugn Dr. Ophoven’s credibility. During its
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closing argument, the Commonwealth indicated that it intended to publish the
conclusion of Dr. Ophoven’s report. See N.T., 5/26/21, at 86. After the trial
court overruled defense counsel’s request for a sidebar, the Commonwealth
published the report to the jury and highlighted inconsistencies in the report:
In that paragraph [Dr. Ophoven] says without investigative
reports and autopsy photos, it is challenging to come to blah, blah,
blah. But when we look [at] the end of her report, she lists
materials that she examined. In those materials she indicated a
flash drive with autopsy photos, 280 images.
Another heading, Carlisle Borough Police, and subheadings
for incident report, initial report, comments. I don’t know what
she’s referring to by comments, but it’s under Carlisle Borough
Police, a narrative, again, of some sort. I don’t know what that is,
what she is referring to, but it appears on the materials from
Carlisle Borough Police, supplemental reports all under the
heading Carlisle Borough Police.
…
So when you are considering Dr. Ophoven’s accuracy and
trustworthiness in a matter of such magnitude, consider this level
of sloppiness. Remember, this is a report she generated [on]
December 13 of 2020, months and months ago. It’s not as if she
just generated this report last week. So keep that in mind when
deciding whether or not to follow the trusted Dr. Ophoven on the
issue of whether we can make a conclusion regarding one
explanation that is homicide over another that is natural death.
Id., at 88-89.
After the jury was excused, the trial court asked defense counsel to state
her objection:
[Defense counsel:] … Here’s the problem. The expert reports,
number one, they are largely – I think they can be considered
testimonial in nature. Number 2, exhibits are not supposed to go
out to the jury that include – that require expertise to understand
them, and certainly all of these reports do. And number 3, all of
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the reports have within them hearsay, which is properly excluded
and which did not come in, in this trial.
THE COURT: I’m not talking about the entirety of the report,
because that’s not what was shown. Was there any hearsay
contained in … the part that was shown to the jury?
[Defense counsel:] No, but the part that was shown to the jury
was not put in context with the entire report. The part that was
shown to the jury was suggested to be either a copy or paste from
Dr. Ophoven’s report. Now, Dr. Ophoven was not impeached with
that or cross-examined on that point. And now, now that issue
has been raised, it seems likely that the jury will have questions
about that issue and about the reports in general, and they should
not go out and that’s why I asked [the prosecutor] before, and I
should have brought this up ahead of time, but that’s why I asked
him, are you planning on showing anything that has not been
published. I think it just creates a quagmire.
Id., 109-110. The court then overruled Wagner’s objection. See id., at 110.
On appeal, Wagner argues this ruling was in error. His argument
alternately frames the issue as either a claim of prosecutorial misconduct, or
one of evidentiary error. See Appellant’s Brief, at 50-51. Because Wagner
does not clearly identify the basis of his claim of error, he fails to develop any
argument that entitles him to relief. To properly address either version of
Wagner’s argument, whether it is a claim of evidentiary error or a claim of
prosecutorial misconduct, would require this Court to, in effect, act as counsel
and develop the argument beyond what Wagner has set forth in his brief.
These circumstances require that we find Wagner has waived this issue.
Even if not waived, we note that under both versions of Wagner’s
argument, Wagner is not due relief unless the claimed error caused more than
de minimis prejudice. See Commonwealth v. Hairston, 84 A.3d 657, 671-
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672 (Pa. 2014) (evaluating claim of improper admission of evidence for
harmless error); Commonwealth v. Brown, 134 A.3d 1097, 1106-1107 (Pa.
Super. 2016) (“Prosecutorial misconduct is evaluated under a harmless error
standard.” (citation omitted)).
The harmless error doctrine, as adopted in Pennsylvania, reflects
the reality that the accused is entitled to a fair trial, not a perfect
trial. … Harmless error exists if the record demonstrates either:
(1) the error did not prejudice the defendant or the prejudice was
de minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilty was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Hairston, 84 A.3d ay 671-672.
Here, Wagner concedes the evidence was used for the purpose of
impeaching Dr. Ophoven’s credibility. See Appellant’s Brief, at 52. We cannot
conclude that the publication of portions of Dr. Ophoven’s expert report for
the first time during closing arguments necessarily caused more than de
minimis prejudice to Wagner. As the trial court noted, this trial boiled down to
a dispute among experts. Both sides vigorously impeached the credibility of
the opposing experts. For example, Dr. Ophoven opined that retinal slides
provided by Dr. Ross showed tissue that was “in little pieces which is not ideal
for making a determination.” N.T., 5/25/21, at 82. As a result, she declared
the slides “not at all diagnostic.” Id., at 83. Further, Dr. Ophoven opined that
Dr. Ross had not performed a proper analysis of Finnick’s spine. See id., at
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88. When asked about Dr. Ross’s opinion that Finnick was suffering from a
viral infection as opposed to an E. Coli infection, Dr. Ophoven disagreed and
quipped, “I’d like his crystal ball.” Id., at 96.
Defense counsel argued that Dr. Ross’s “suspicion [was] grounded in
only a partial knowledge of the facts and an inflexibility and hubris…”. N.T.,
5/26/21, at 69. Counsel highlighted that Dr. Ross informed the police that this
was a homicide case only one hour after he began his autopsy of Finnick. See
id., at 72. Counsel argued that Dr. Ross was biased due to his desire to defend
his methodology and professionalism. See id., at 74.
In rebuttal, Dr. Ross labeled Dr. Ophoven’s criticism of the retinal slides
as “invalid and unscientific.” N.T., 5/26/21, at 21. In fact, Dr. Ross repeatedly
referred to Dr. Ophoven’s critiques as invalid, unscientific, or haphazard. See
id., at 21-22; 38; 39. Further, the Commonwealth argued, without objection,
that Dr. Ophoven was “a non-neuro pathologist who hasn’t done an autopsy
since 2009, hasn’t seen a child patient since sometime in the ‘70s, …. Hasn’t
seen a child patient, she disagrees [with Dr. Ross,] she knows better.” Id., at
93.
The jury was tasked with choosing between experts who vehemently
disagreed with the substance of the other’s expert testimony. And both
experts explicitly attacked the methodology and professionalism of the
opposing expert. Defense counsel and the prosecutor both extensively cross-
examined each expert to contrast their methodologies and expert opinions.
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Under these specific circumstances we cannot conclude that the prosecutor’s
action in publishing and highlighting a portion of Dr. Ophoven’s report to focus
on what may have been a typographical error prejudiced Wagner in any
meaningful way. Accordingly, Wagner’s fifth issue on appeal merits no relief.
Lastly, Wagner argues the court abused discretion by sentencing him to
an aggregate term of twenty to forty years in a state correctional facility. See
Appellant’s Brief, at 53-60. Wagner challenges the discretionary aspects of his
sentence. “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). Before we can reach the merits of
Wagner’s claim, we must perform 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).
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, Wagner filed a timely appeal and preserved his claim in his post-
sentence motion. Wagner 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)
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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, Wagner implies that the trial court
imposed an aggravated range sentence. See Appellant’s Brief, at 23 (“The
reasons to aggravate Mr. Wagner’s sentence are inadequate …”). However,
we agree with the trial court that Wagner’s sentence was within the guidelines.
Wagner correctly notes that the lowest possible minimum sentence pursuant
to the guidelines is seven years given Wagner’s prior record score of one. See
204 Pa. Code § 303.16(a). However, as Wagner concedes, the trial court
properly considered the minimum sentence to be at least 15 years pursuant
to the Commonwealth’s invocation of 42 Pa.C.S.A. § 9718(a)(2). See
Appellant’s Brief, at 53.
Furthermore, the highest possible minimum standard range sentence
under the guidelines was one-half the statutory maximum sentence for third-
degree murder. See 204 Pa. Code § 303.16(a). The statutory maximum
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sentence for third-degree murder is 40 years. See 18 Pa.C.S.A. § 1102(d). As
a result, Wagner’s 20-year minimum sentence falls within the standard range
of the guidelines. Since Wagner’s argument is premised on an incorrect
reading of the sentencing guidelines, he has not presented a substantial
question and we cannot review the argument on the merits. See
Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super. 2006) (observing
that “the standard range … is presumptively where a defendant should be
sentenced.”).
As we conclude none of Wagner’s issues on appeal merit relief, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/17/2023
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