Com. v. McDowell, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND ANTHONY MCDOWELL :
:
Appellant : No. 325 MDA 2022
Appeal from the Judgment of Sentence Entered January 19, 2022
In the Court of Common Pleas of Columbia County Criminal Division at
No(s): CP-19-CR-0000855-2020
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 30, 2022
Raymond Anthony McDowell appeals from the judgment of sentence
imposed after he pleaded guilty to robbery.1 McDowell challenges the
discretionary aspects of his sentence. We affirm.
McDowell admitted that, on October 8, 2019, he was involved in the
robbery of Geraldine Carson. On that date, McDowell physically assaulted or
aided and abetted in the assault of Carson, while taking a television from her
residence. Carson died due to the blunt force trauma she sustained during the
robbery.
Prior to sentencing, a Pre-Sentence Investigation Report (“PSI”) was
entered into the record. The PSI stated that McDowell had a prior record score
of 5 and an offense gravity score of 12, which indicated a standard range
____________________________________________
1 18 Pa.C.S.A. § 3701(a)(1)(i).
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sentence of 84-102 months, with 114 months being the aggravated minimum
according to the sentencing guidelines.
At sentencing, on January 19, 2022, the trial court sentenced McDowell
to 114 months (9½ years) to 240 months (20 years) in prison. McDowell
argued objected that because the crime of robbery already included the
infliction of “serious bodily injury,” the court should not have considered the
victim’s death as an aggravating factor for sentencing purposes. The trial court
did not agree, stating:
This is an aggravated sentence above the standard range on
account of the fact that [McDowell] has pled guilty to robbery and
the occurrence of death is not an element of robbery, nor is it
factored into the offense gravity score. It is acknowledged that
[McDowell] pled guilty to aiding and abetting in the robbery at
issue and, therefore, aided and abetted in the circumstances
which led to the death of the victim since the robbery at issue that
he aided and abetted in was that which required the occurrence
of serious bodily injury as an element. It is noted that death is not
a specified element of the definition of “serious bodily injury.”
N.T. Sentencing Hearing, 1/19/22, at 15.
McDowell filed the instant timely appeal. Both he and the trial court
complied with Pa.R.A.P. 1925.
McDowell raises the following issues:
1. Did the trial court commit an abuse of discretion sentencing
[McDowell] outside the standard range of the sentencing
guidelines?
2. Did the trial court commit an error of law in determining the
death of the victim was an aggravating factor and not an
element of the crime of Robbery?
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McDowell’s Br. at 5.
McDowell challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super. 2014) (en
banc). To invoke this Court’s jurisdiction over such a claim, an appellant must
satisfy a four-part test. We must determine whether the appellant: (1)
preserved the issue by raising it either at the time of sentencing or in a post-
sentence motion; (2) filed a timely notice of appeal; (3) set forth a concise
statement of reasons relied upon for the allowance of appeal pursuant to
Pa.R.A.P. 2119(f); and (4) raised a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013).
“If an appellant fails to comply with Pa.R.A.P. 2119(f) and the
Commonwealth does not object, the reviewing Court may overlook the
omission if the presence or absence of a substantial question can easily be
determined from the appellant’s brief.” Commonwealth v. Anderson, 830
A.2d 1013, 1017 (Pa.Super. 2003) (citation omitted).
In both of McDowell’s interrelated issues on appeal, he challenges the
trial court’s determination that the death of the victim in this case constituted
an aggravating factor, leading to a sentence in the aggravated range of the
sentencing guidelines. McDowell preserved his claim by raising it during his
sentencing hearing and by filing a timely appeal.
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However, McDowell did not include a Rule 2119(f) statement in his brief.
This does not prevent our review, as the Commonwealth did not object to its
absence, and we can determine whether a substantial question exists based
on the brief. See Anderson, 830 A.2d at 1017. McDowell challenges whether
the court erred in imposing a sentence above the standard range of the
sentencing guidelines without sufficient justification, which raises a substantial
question. Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014)
(concluding claim that court imposed sentence outside the standard range
without stating adequate reasons presents a substantial question);
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002) (finding a claim
the court imposed an unreasonable sentence outside the guidelines raises a
substantial question).
We apply the following standard of review to discretionary sentencing
issues:
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. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (quoting
Commonwealth v. Mann, 957 A.2d 746, 749 (Pa.Super. 2008)).
“If the court imposes a sentence outside of the sentencing guidelines, it
must provide a written statement setting forth the reasons for the deviation
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and the failure to do so is grounds for resentencing.” Commonwealth v.
Walls, 926 A.2d 957, 963 (Pa. 2007). The written statement requirement is
met where the court set forth its reasoning on the record at the sentencing.
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super. 2008).
“[U]nder the Sentencing Code[,] an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to assess
whether the sentencing court imposed a sentence that is ‘unreasonable.’”
Walls, 926 A.2d at 963 (citing 42 Pa.C.S.A. § 9781(c),(d)). The General
Assembly has set forth four factors that an appellate court is to consider when
determining whether a sentence is unreasonable:
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
In this case, contrary to McDowell’s averments, his robbery conviction
did not already account for the death of the victim. A person is guilty of
robbery pursuant to Section 3701(1)(i), “if, in the course of committing a
theft, he . . . inflicts serious bodily injury upon another.” 18 Pa.C.S.A. §
3701(a)(1)(i). The statutory definition of “serious bodily injury” is: “Bodily
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injury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” 18 Pa.C.S.A. § 2301. Death itself is not
incorporated within the definition of “serious bodily harm.” Therefore, we
conclude that the trial court did not abuse its discretion by considering the
victim’s death, from her injuries sustained in the robbery, as an independent
aggravating factor in the context of McDowell’s sentencing.
Moreover, the court properly considered the PSI, the sentencing
guidelines, and McDowell’s prior record. The court also stated on the record
its reasons for imposing an aggravated sentence above the standard range of
the sentencing guidelines. N.T. at 14-15; see also Sentencing Order,
1/19/22. Further, the court summarized its reasoning in its Rule 1925(a)
opinion:
At sentencing, this court recognized that [McDowell], at his guilty
plea, admitted that he aided and abetted in a theft of a television
during which injuries were inflicted upon Ms. Carson which not
only constituted “serious bodily injury,” but, even more so,
resulted in her death. This court noted that the Robbery at issue,
under §[]3701(a)(1)(i), required the infliction of “serious bodily
injury” in the course of a theft, but that “death” is not an element
of that type of Robbery. We referred to the definition of “serious
bodily injury” at §[]2301 as bodily injury which creates a
substantial risk of death or which causes permanent disfigurement
or protracted loss or impairment of the function of any bodily
member or organ (NT 1/19/22 p. 12 lns. 13-25). We noted that
creating a risk of death is not the same as causing a death and
that the occurrence of the death was an aggravating factor
because death is not an element of Robbery. This court confirmed
that it was sentencing [McDowell] for aiding and abetting the
commission of the Robbery which [led] to Ms. Carson’s death (NT
1/19/22 p. 14 lns. 1-5; See also: Sentencing Order of 1/19/22).
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Trial Ct. Rule 1925(a) Op., 3/23/22 at 1-2.
The trial court did not abuse its discretion. The court considered the PSI
and all relevant factors and provided adequate reasons for McDowell’s
sentence on the record. Considering the nature and circumstances of the
offense, and the opportunity for the sentencing court to observe McDowell and
to consider the PSI and the sentencing guidelines, we do not conclude that
McDowell’s aggravated range sentence was unreasonable.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2022
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