Com. v. Heffner, B.

J-A09006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN GEORGE HEFFNER :
:
Appellant : No. 262 MDA 2022
Appeal from the Judgment of Sentence Entered October 1, 2021
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000716-2018
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY PANELLA, P.J.: FILED: JULY 28, 2023
Brian George Heffner appeals from the judgment of sentence entered in
the Northumberland County Court of Common Pleas on October 1, 2021. On
appeal, Heffner raises multiple challenges to the discretionary aspects of his
sentence. After careful review, we affirm.
As Heffner raises no challenge to his convictions, the following factual
summary is undisputed for purposes of this appeal. This case arises from the
death of Sean Maschal in the evening of September 12, 2017. Heffner,
Maschal, David Brown, and Robert Villari drove around a mountainous and
wooded area in Coal Township, stopping a few times, during which they all
got high on bath salts. Villari possessed a gun he had stolen the day before
and they had made a plan to sell it later that day for drugs.
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Heffner, who at that point was seated in the rear passenger seat behind
Maschal, discharged the gun, killing Maschal. Heffner exited the vehicle and
opened the front passenger door where Maschal’s body fell to the ground. The
three remaining individuals then left Maschal’s body in the woods and drove
away. No one called the police.
Brown and Villari testified that Heffner told them not to call the police.
Heffner testified that he did not know if he shot Maschal because he does not
remember holding the gun or discharging it. He further testified that he tried
to call the police but he was unable to unlock Maschal’s phone and no one else
had a usable phone.
The three individuals drove back to a house Brown was staying at, and
cleaned blood from their clothes and bodies. They then drove to trade the gun
for bath salts. On the way, they cleaned blood from the vehicle at a gas station
and dumped some clothing they had used to clean the car into trash cans.
After trading the gun for more bath salts, the group got high again.
Several days later, police arrested Heffner and charged him with
multiple crimes arising from Maschal’s death. On August 20, 2021, a jury
found Heffner guilty of involuntary manslaughter, possession of a firearm,
possession of a firearm without a license, conspiracy to receive stolen
property, receiving stolen property, aiding consummation of a crime,
recklessly endangering another person, abuse of corpse, and tampering with
physical evidence.
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On October 1, 2021, the trial court imposed consecutive sentences for
each count at the maximum standard range sentence, for an aggregate term
of nineteen and one-half to fifty years’ incarceration. The court denied
Heffner’s post sentence motions. This timely appeal followed.
On appeal, Heffner raises four separate challenges to the sentence
imposed:
1. Did the [trial c]ourt err in sentencing [Heffner] on incorrect
factual assertions?
2. Did the [trial c]ourt sentence [Heffner] excessively and without
adequate consideration of specific mitigating factors sufficient to
individualize [Heffner]’s sentence?
3. Does the disparity in sentencing between Co-Defendant David
Brown and [Heffner] violate a fundamental norm of sentencing?
4. Did the [trial c]ourt hear improper victim witness testimony
from the victim's brother, sister, and mother of his child at
sentencing and did the [trial c]ourt then violate sentencing norms
in sentencing [Heffner] in accord with the victim's request for
specific sentences?
Appellant’s Brief, at 8.
Heffner concedes that his issues challenge the discretionary aspects of
his sentence. See Appellant’s Brief at 16. We review discretionary sentencing
challenges with great deference to the sentencing court:
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.
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Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted). However, “[a] challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
To invoke this Court’s jurisdiction over this issue, Heffner must satisfy a
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, 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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Heffner preserved his issues through a timely post-sentence
motion to modify his sentence, and filed a timely appeal. Further, counsel has
included the required Rule 2119(f) statement. We therefore review the Rule
2119(f) statement to determine if Heffner has raised a substantial question.
We must examine Heffner’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
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which are necessary only to decide the appeal on the merits.” Id. (citation
and emphasis omitted); see also Pa.R.A.P. 2119(f).
Heffner “must show that there is a substantial question that the
sentence imposed is not appropriate under the Sentencing Code.” McAfee,
849 A.2d at 274 (citation omitted). That is, “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.” Tirado,
870 A.2d at 365. “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano, 50
A.3d 148, 154 (Pa. Super. 2012).
In his 2119(f) statement, Heffner contends the trial court erred by
relying on incorrect factual assertions when sentencing and imposed an
excessive sentence without adequate consideration of mitigating factors.
Further, Heffner argues the disparity between his sentence and the sentence
imposed on his co-defendant Brown violates a fundamental norm of
sentencing. Finally, Heffner contends the trial court heard improper victim
witness testimony and violated sentencing norms by sentencing in accord with
the victim witnesses’ request for specific sentences. As these claims each
present a substantial question, we will review them on the merits. See
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (stating
appellant's claim that trial court relied on incorrect factual assertions in
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imposing sentence asserts substantial question); see also Commonwealth
v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (substantial question raised
where defendant challenged consecutive sentences as excessive and claimed
court failed to consider rehabilitative needs and mitigating factors); see also
Commonwealth v. Canfield, 639 A.2d 46, 49 (Pa. Super. 1994) (overruled
on other grounds) (holding disparity between sentences imposed upon co-
defendants touches upon the fundamental norms which underlie the
sentencing process and, therefore, raises a substantial question); see also
Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (finding claim
that trial court considered improper factors in sentencing raises a substantial
question).
In his first issue on appeal, Heffner contends the trial court erred in
sentencing him based on incorrect factual assertions. Relevantly, in explaining
its reasoning for the sentence on the record, the trial court stated “You patted
him down, you took his wallet. … You left your best friend’s body, [whom] you
had shot, to rot in the woods after stealing his wallet, and then you went about
the rest of your day.” N.T., Sentencing Hearing, 10/1/21, at 21-22. Further,
the trial court stated Heffner still had his wits about him after the shooting.
See id. at 21. Heffner argues it was error for the trial court to consider these
facts in imposing sentence, as the jury acquitted him of theft of the victim’s
wallet at trial, and testimony was presented at trial that Heffner was “nodded
out” prior to the shooting. See N.T., Trial - Volume 1, 8/17/21, at 223.
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Heffner takes issue with the trial court’s reliance on United States v.
Watts, 519 U.S. 148 (1997), in which the Supreme Court of the United States
held that an acquittal does not prevent a sentencing judge from considering
conduct underlying the acquitted charge, so long as that conduct has been
proved by a preponderance of the evidence. Id. at 156.
Heffner argues that Watts is distinguishable from this appeal. He
contends that Watts directly relied upon the explicit language of the Federal
Sentencing Guidelines, which require a finding of probable cause to include
evidence for sentencing purposes. See id. at 152-53.
However, even accepting this distinction, we conclude the underlying
logic of Watts applies with equal force in this case. The Supreme Court in
Watts opined that a jury “cannot be said to have necessarily rejected any
facts when it returns a general verdict of not guilty.” Id. at 155 (internal
quotation marks omitted). As a result, an acquittal does not preclude a
prosecutor from relitigating the defendant’s culpability for a charge at
sentencing. See id. At 156.
Furthermore, although Heffner is innocent in the eyes of the law of
stealing Maschal’s wallet, he was found guilty of involuntary manslaughter.
The sentencing court was therefore entitled to determine whether he stole
Maschal’s wallet while committing the crime of involuntary manslaughter. See
Commonwealth v. Stokes, 38 A.3d 846, 862 (Pa. Super. 2011) (“an
acquittal does not prevent a sentencing judge from considering conduct
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underlying the acquitted charge, so long as that conduct has been proved by
a preponderance of the evidence.” (citation and internal quotation marks
omitted)).
Further, since Heffner was not sentenced above the statutory maximum
for each count, neither his due process rights nor his right to a jury trial have
been infringed under existing precedent. See Stokes, 38 A.3d at 862.
“Moreover, Watts can be reconciled with [Apprendi v. New Jersey, 530
U.S. 466 (2000) and its progeny] where the facts determined by the court do
not increase the defendant's sentence beyond the statutory maximum as
defined in Blakely [v. Washington, 542 U.S. 296, 303-04 (2004)].” Id., 38
A.3d at 863, n.12.1
Here, Heffner was aware of the possible sentencing ramifications if
found guilty. Heffner is not being punished more harshly for a crime he did
not commit. Rather, Heffner’s sentence was within a range of sentences
already provided for by law based on facts determined by the jury. Since
Heffner’s sentence, without any finding that he stole from the victim or was
cognizant at the time of the shooting, could have been the statutory limit, his
____________________________________________
1 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The Supreme Court
later clarified that “the statutory maximum for Apprendi purposes is the
maximum sentence a judge may impose solely on the bases of the facts
reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S.
at 303-304.
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sentence was one that the court could have imposed solely based on the facts
reflected by the jury's verdict.
In sum, since the sentencing court's findings did not mandate an
increase in his sentences beyond that which the court could have handed down
solely based on the jury verdict, the court did not err in referencing unproven
facts during sentencing. Accordingly, Heffner’s first issue is without merit.
In his second issue, Heffner contends the trial court imposed an
excessive and unreasonable sentence without consideration of his
rehabilitative needs and mitigating factors. This issue is without merit.
The trial court stated that it considered the following in fashioning
Heffner’s sentence: a PSI, victim impact statements, and Heffner’s
statements. See N.T., Sentencing Hearing, 10/1/21, at 21-22.
Where the trial court had the benefit of reviewing a pre-sentence report,
we must
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.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure.
Having been fully informed by the pre-sentence report, the
sentencing court’s discretion should not be disturbed. This is
particularly true, we repeat, in those circumstances where it can
be demonstrated that the judge had any degree of awareness of
the sentencing considerations, and there we will presume also that
the weighing process took place in a meaningful fashion. It would
be foolish, indeed, to take the position that if a court is in
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possession of the facts, it will fail to apply them to the case at
hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992).
The reasons the trial court offered for the sentence imposed, in
conjunction with the court’s review of the PSI, were more than sufficient to
conclude that the court properly considered all relevant factors in fashioning
Heffner’s sentence. Accordingly, Heffner’s claim that the trial court failed to
consider the appropriate factors in imposing his sentence lacks merit.
In his third issue, Heffner asserts the disparity between his sentence
and that of his co-defendant, Brown, was contrary to the fundamental norms
of the sentencing process.
This Court has previously determined:
A sentencing court is not required to impose the same sentence
on all participants in a crime. Moreover, when a defendant's
accomplice is tried, or pleads guilty, in a separate proceeding, and
is sentenced by a different judge, the sentencing court is not
required to explain a disparity between the defendant's sentence
and that of the accomplice.
Myers, 536 A.2d at 430 (citations omitted).
Here, co-defendant Brown pleaded guilty, and was sentenced to thirty-
eight months to fifteen years’ imprisonment. Heffner did not plead guilty,
instead choosing to go to trial, and was sentenced to nineteen and one-half to
fifty years’ imprisonment.
Further, while there is a distinct disparity between the sentences, a
review of the sentencing transcript reveals the court articulated factors that
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were sufficient to support Heffner’s sentence. See N.T., Sentencing Hearing,
10/1/21, at 21-22. In addition, the sentencing court had the benefit of a PSI
report. In light of all of these factors, the court sentenced Heffner to the
maximum standard range sentence on each count. On this record, we cannot
conclude that the sentence imposed constituted an abuse of discretion.
In his final issue raised on appeal, Heffner contends it was improper for
the trial court to hear victim witness testimony regarding what sentence the
court should impose. He further claims the trial court violated sentencing
norms by sentencing Heffner in accord with the victim witness’ sentence
request.
While Heffner takes issue with the court hearing the victim witness
testimony, our review of the record reveals that Heffner did not object to any
portion of the victim witness testimony at any point of the sentencing hearing.
Accordingly, Heffner has waived this issue. See Pa.R.A.P. 302(a) (providing
that issues not raised before the lower court are waived and cannot be raised
for the first time on appeal).
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As none of Heffner’s issues merit relief, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2023
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