Com. v. McMullen, B.

J-A15005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY MCMULLEN :
:
Appellant : No. 1731 MDA 2017
Appeal from the Judgment of Sentence July 20, 2017
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000018-2017
BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 20, 2018
Bradley McMullen appeals from the judgment of sentence of five to ten
years of confinement, which was imposed after he pleaded guilty to theft by
unlawful taking–movable property.1 We affirm.
The facts underlying this appeal are as follows. Appellant traded his
mother’s firearm in exchange for drugs. That firearm was later used to kill
Pennsylvania State Police Trooper Landon Weaver.2
Prior to sentencing, the trial court ordered and received a pre-sentence
investigation (“PSI”). On July 20, 2017, the trial court sentenced Appellant to
____________________________________________
1 18 Pa.C.S. § 3921(a).
2 All parties agree that, at the time of the trade, Appellant was unaware and
could not have foreseen that this murder would be committed with the
firearm.
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the statutory maximum. Appellant filed a timely post-sentence motion, which
the trial court denied. Appellant later had his appellate rights reinstated nunc
pro tunc. This timely appeal follows.
Appellant presents the following issue for our review:
Did the court below err by imposing the maximum sentence
allowed for [Appellant]’s crime, based solely on the resulting
consequences, which were unforeseeable and beyond
[Appellant]’s control?
Appellant’s Brief, at 3. Appellant thus challenges the discretionary aspects of
his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e 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).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(some citations omitted; formatting altered).
Appellant filed a timely notice of appeal, properly preserved this issue
in his post-sentence motion, and included a concise statement of the reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence in a separate section of his brief to this Court pursuant to
Pa.R.A.P. 2119(f). We therefore turn to the final requirement: whether the
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question raised by Appellant is a substantial question meriting our
discretionary review.
In his rule 2119(f) statement, Appellant argues that, when sentencing
him, the trial court only considered the seriousness of the crime and did not
take into account his character or rehabilitative needs. These claims raise
substantial questions for our review. See Commonwealth v. Bricker, 41
A.3d 872, 875 (Pa. Super. 2012); Commonwealth v. Luketic, 162 A.3d
1149, 1160–1161 (Pa. Super. 2017); and Commonwealth v. Swope, 123
A.3d 333, 340 (Pa. Super. 2015).
By raising a substantial question, along with fulfilling the other
requirements of our four-part analysis, Appellant consequently has merited
our discretionary review.
Our standard of review for a challenge to the discretionary aspects of
sentencing is as follows:
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. Conte, ___ A.3d ___, ___, 2018 WL 5666923, *5 (Pa.
Super., filed Nov. 1, 2018) (citation omitted).
“A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
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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. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citations
omitted).
In addition,
[w]here [a] pre-sentence report[] exist[s], 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
presentence 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.
Accordingly, where the sentencing judge had the benefit of a pre-
sentence report, it will be presumed that he was aware of relevant
information regarding appellant’s character and weighed those
considerations along with the mitigating statutory factors.
Conte, ___ A.3d at ___, 2018 WL 5666923 at *5 (brackets added and
omitted, citations, and quotation marks omitted).
Here, the trial court explained:
In sentencing [Appellant], we reviewed and considered the [PSI]
prepared by the Huntingdon County Probation Department, the
prior criminal record of [Appellant], gave consideration to the
protection of public, the gravity of the offense and the impact of
the offense on the life of the victim and the community. We also
considered the rehabilitative needs of [Appellant], as well as the
statutory Sentencing Guidelines. (Sentencing Tr. p. 5).
[Appellant]’s prior conduct and the impact the crime had on the
community weighed especially heavily on this Court. The horrific
chain of events triggered by [Appellant]’s conduct have been
taken into consideration by this Court, and the sentence imposed
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pales in comparison to the price paid by Trooper Landon Weaver
and this community.
Trial Court Opinion, filed Jan. 4, 2018, at 2.
Accordingly, contrary to Appellant’s contention, the trial court did not
only consider the seriousness of the crime, but also took into account his
rehabilitative needs. Additionally, although the trial court did not explicitly
state that it considered Appellant’s character, as it asserted that it “reviewed
and considered” the PSI, we presume that the trial court “was aware of
relevant information regarding the defendant’s character and weighed those
considerations[.]”
Consequently, we conclude that the trial court did not abuse its
discretion when sentencing Appellant, and, ergo, Appellant’s sole challenge on
appeal merits no relief. We thereby affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2018
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