Com. v. O'Boyle, J. ( 2023 )

J-A01025-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH ROBERT O’BOYLE :
:
Appellant : No. 1885 EDA 2022
Appeal from the Judgment of Sentence Entered June 10, 2022
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001465-2021
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 6, 2023
Appellant Joseph Robert O’Boyle appeals from the judgment of sentence
imposed after he entered an open guilty plea to aggravated assault, resisting
arrest,1 and related offenses. Appellant challenges the discretionary aspects
of his sentence. We affirm.
The underlying facts of this matter are well known to the parties. See
Trial Ct. Op., 9/19/22, at 1-5. By way of background, we note that Appellant
was charged with homicide and related offenses following the death of Dr.
James Sawa in 2020. See Docket No. 1467-2021. While police were
executing a search warrant in connection with the homicide case, Appellant
attacked Bensalem Police Department Detective David Nieves which gave rise
to the instant case. As a result, Appellant was subsequently charged with two
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1 18 Pa.C.S. §§ 2702(a)(2) and 5104, respectively.
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counts of aggravated assault, and one count each of simple assault, recklessly
endangering another person (REAP), and resisting arrest. See Docket No.
1465-2021.
On May 27, 2022, Appellant entered open guilty pleas in both cases. At
Docket No. 1465-2021, Appellant pled guilty to two counts of aggravated
assault and one count each of simple assault, REAP, and resisting arrest. At
Docket No. 1467-2021, Appellant pled guilty criminal trespass, possession of
an instrument of crime, and criminal homicide, but not guilty to burglary.
On June 6-10, 2022, the trial court conducted a degree of guilt hearing
with respect to Appellant’s burglary and homicide charges at Docket No. 1467-
2021. Ultimately, the trial court found Appellant guilty of third-degree murder
but not guilty of burglary. After the Commonwealth and Appellant agreed to
immediately proceed with sentencing, the trial court conducted a sentencing
hearing on both cases.2 See N.T. Sentencing Hr’g., 6/10/22, at 46.
Ultimately, the trial court sentenced Appellant to twenty-six to fifty-four years’
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2 We note that the trial court did not order a pre-sentence investigation (PSI)
report and did not provide any reasons on the record for not ordering one.
See Pa.R.Crim.P. 702(A)(2) (requiring a sentencing judge to place on the
record reasons for dispensing with a PSI report). We further note that
Appellant did not challenge the lack of a PSI report in his post-sentence
motions, nor did he raise the issue on appeal. Because the lack of a PSI report
does not implicate the legality of sentence, we shall proceed to decide this
case based on our well-settled procedure for deciding challenges to the
discretionary aspects of sentence. See Commonwealth v. Flowers, 950
A.2d 330, 331 (Pa. Super. 2008) (stating that “a claim that the court erred in
failing to order a PSI report raises a discretionary aspect of sentencing [claim]”
(citation omitted)).
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imprisonment for the homicide case at Docket No. 1467-2021, which Appellant
does not challenge on appeal.
At Docket No. 1465-2021, which is the subject of the instant appeal, the
trial court sentenced Appellant to a term of ten to twenty years’ imprisonment
for aggravated assault and one to two years’ imprisonment for resisting arrest,
to be served consecutively.3 The trial court further ordered that Appellant’s
sentence at Docket No. 1465-2021 would run consecutive to the sentence
imposed at Docket No. 1467-2021.
Appellant filed a timely post-sentence motion on June 17, 2022, which
the trial court denied. Appellant subsequently filed a timely notice of appeal
from the judgment of sentence imposed at Docket No. 1465-2021. Both
Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue for our review:
Did the trial court err in imposing a sentence that: (a) exceeded
the sentencing guidelines, (b) failed to give adequate reasons to
justify a sentence in excess of the aggravated range of the
sentencing guidelines, and (c) failed to take into account
Appellant’s age, maturity, circumstances of the case, and
Appellant’s personal circumstances[?]
Appellant’s Brief at 8 (formatting altered).
Appellant claims that the trial court abused its discretion by imposing a
manifestly excessive sentence. Id. at 19. In support, Appellant asserts that
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3 The record reflects that Appellant’s prior record score is zero. The standard
range sentence for aggravated assault is twenty-two to thirty-six months; the
standard range sentence for resisting arrest is a term of probation. N.T.
Sentencing Hr’g., 6/10/22 at 104-05.
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the trial court improperly considered the facts of the homicide case at Docket
No. 1467-2021 when imposing Appellant’s sentence in the instant case and
that the trial court failed to provide adequate reasons for imposing a sentence
within the aggravated range. Id. at 10-11, 15-18. Further, Appellant asserts
that the trial court failed to consider relevant sentencing factors, including
Appellant’s rehabilitative needs. Id. at 10, 18. Finally, Appellant alleges that
the trial court imposed an unreasonable sentence that exceeded the
sentencing guidelines. Id. at 10-11. Therefore, Appellant requests that we
vacate the judgment of sentence and remand the case for resentencing.
Appellant’s claims implicate the discretionary aspects of his sentence.
Therefore, before addressing Appellant’s arguments, we must determine
whether he has properly preserved them for review.
This Court has explained:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We 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. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
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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).
Instantly, Appellant preserved his sentencing claims in a post-sentence
motion, filed a timely appeal, and included a Pa.R.A.P. 2119(f) statement in
his brief. See Appellant’s Brief at 10-12. Accordingly, we conclude that
Appellant has presented a substantial question for review. See, e.g.,
Commonwealth v. Roane, 204 A.3d 998, 1002 (Pa. Super. 2019)
(explaining that allegations that the trial court failed to consider the relevant
sentencing factors and imposed a manifestly excessive sentence raise a
substantial question); Commonwealth v. Hanson, 856 A.2d 1254, 1257
(Pa. Super. 2004) (holding that a claim that the sentencing court imposed a
sentence outside the guidelines presents a substantial question). Therefore,
we will address the merits of Appellant’s sentencing claims.
Our well-settled standard of review 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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
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The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(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. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted and some formatting altered).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
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Additionally, the trial court “must consider the sentencing guidelines.” Id. at
848 (citation omitted).
Additionally, this Court has explained that
the sentencing court is required to consider the sentence ranges
set forth in the sentencing guidelines, but it [is] not bound by the
sentencing guidelines. The court may deviate from the
recommended guidelines; they are “merely one factor among
many that the court must consider in imposing a sentence.” A
court may depart from the guidelines “if necessary, to fashion a
sentence which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
particular offense as it relates to the impact on the life of the
victim and the community.” When a court chooses to depart from
the guidelines[,] however, it must “demonstrate on the record, as
a proper starting point, [its] awareness of the sentencing
guidelines.” Further, the court must “provide a contemporaneous
written statement of the reason or reasons for the deviation from
the guidelines.” 42 Pa.C.S. § 9721(b).
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (some
citations omitted and formatting altered). “The requirement that the court
provide a contemporaneous written statement is satisfied when the judge
states his reasons for the sentence on the record and in the defendant’s
presence.” Commonwealth v. Durazo, 210 A.3d 316, 321 (Pa. Super.
2019) (citations and quotation marks omitted).
“When reviewing a sentence outside of the guidelines, the essential
question is whether the sentence imposed was reasonable.” Id. (citations
omitted). “A sentence may be found unreasonable if it fails to properly
account for” the four statutory factors of Section 9781(d). Sheller, 961 A.2d
at 191. “Even if the sentencing court relied on factors that were subsumed
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into the guideline recommendation, . . . there is no abuse of discretion when
the sentencing court has significant other support for its departure from the
sentencing guidelines.” Id. at 192 (citations omitted). Finally, we note that
a sentencing court is not required to ignore context and impose a sentence in
a vacuum, where the offense at issue and the corresponding sentencing
guidelines are the only factors permissibly considered by a sentencing court.
Commonwealth v. Hardy, 939 A.2d 974, 980 (Pa. Super. 2007).
Here, at sentencing, the record reflects that Appellant’s counsel advised
the trial court that Appellant suffers from severe mental illness, has been in
the Norristown State Hospital, and is taking several medications to improve
his mental health. N.T. Sentencing Hr’g. at 101.4
After setting forth the applicable sentencing guidelines for the charges
in both cases, the trial court explained:
[Appellant], the facts of this case, as you know, are serious. You
brutally murdered Dr. Sowa. You savagely murdered him, I might
add. It was unprovoked and unnecessary, of course. I don’t know
that any of us will ever know the full reason why you did it.
I understand from the evidence that you had a problem with your
jaw. You had two appointments with him and he tried to help you.
I suspect that you were upset about your jaw bothering you, and
you went to see him about it. Nevertheless, the injuries to him
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4 During the degree of guilt hearing, the trial court also heard extensive
testimony from Allen M. Tepper, Ph.D., regarding Appellant’s mental health.
See N.T. Degree of Guilt Hr’g., 6/8/22, at 43-118. The trial court also
accepted into evidence a report authored by Dr. Tepper, which concluded that
Appellant, at the time of his offenses, suffered from schizophrenia and
schizoaffective disorder, “that was characterized by auditory hallucinations,
delusional thought, self-deprecating feelings, and emotional dysregulation.”
Defense Exhibit 2 at 11.
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were severe that caused his death. They were quite graphic as
depicted in the photographs. I’m sure you have seen them. And
it was a horrific death that he suffered.
Detective Nieves, someone you now or knew from basketball,
likewise, was attacked unprovoked by you, and we saw the video
of that. What stood out from that video was the rage on your
face. So I can’t overlook those things when considering the facts
of the case.
I have, of course, considered your age and your family support.
And I’ve considered the severe mental illness from which you
suffer. The guidelines I’ve gone over with you.
* * *
So the bottom line is, the impact it’s done upon [the Sowas] is
immeasurable and nothing anybody says or does will ever ease
that pain. Even if you were to spend the rest of your natural life
in jail that wouldn’t ease their pain because they want their loved
one back, and that’s something you took from them.
The need to protect the community, of course, is something else
that I have to consider. This was an attack on a man in his home,
pointed out by his son, in his home office. There’s [sic] some
details that are unclear to me, and perhaps that worked to your
benefit. But you were in his home, and that shows that you can
do to him you can do to someone in the community [sic]. So I
think, frankly, as long as you continue to suffer from the mental
illness that you have, and as long as you don’t seek proper
therapy, I think it’s a fair statement to say that you’re a danger
to anybody and everybody you come in contact with. And so from
the community protection standpoint, I would dare suggest that
as long as you’re in custody, the community is safe. When you’re
not in custody, the community is not safe. You have
demonstrated that by your violent behavior towards Dr. Sowa and
Detective Nieves.
And, of course, your need for rehabilitation, which is important to
us as well. And that’s probably best served by you getting into
treatment. Hopefully in the state they’ll find you a hospital and
they’ll find you doctors to treat you. But I will tell you, with your
condition, your medication is something you need to address and
you need to deal with.
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So for those reasons, from what we’ve discussed, I believe a
sentence of total confinement is appropriate.
* * *
[At Docket No. 1465-2021], count number [one], aggravated
assault on Detective Nieves, it’s ordered that you pay the costs
and undergo imprisonment in the state correctional institution for
a period of not less than ten nor more than [twenty] years.
And on [c]ount [n]umber [five], resisting arrest, it’s ordered that
you pay the costs and undergo imprisonment in the state
correctional institution for a period of not less than one nor more
than two years.
Those sentences are consecutive to one another and consecutive
to the sentence imposed [at Docket No. 1467-2021].
. . . They’re in the aggravated range,[5] and I believe that’s
necessary based upon facts of the case and in order to protect the
community and to meet his long-term rehabilitative needs.
N.T. Sentencing Hr’g. at 105-11.
In its Rule 1925(a) opinion, the trial court addressed Appellant’s
sentence in the instant case as follows:
The facts of this case are simple: Appellant violently attacked
Detective Nieves, his former basketball coach, without
provocation. As he assaulted a man who was simply trying to do
his job, Appellant’s face was filled with a terrifying rage, and he
required numerous other officers to stop his attack. Had those
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5 Appellant’s sentencing guidelines reflect that the sentence imposed was in
excess of the aggravated range. We note that the record reflects that the trial
court demonstrated that it was aware of Appellant’s sentencing guidelines,
having explicitly referenced the mitigated, standard, and aggravated range
sentence for each of Appellant’s offenses. See N.T. Sentencing Hr’g. at 104-
05; see also Commonwealth v. Beatty, 227 A.3d 1277, 1288 (Pa. Super.
2020) (explaining that “[w]hen deviating from the sentencing guidelines, a
trial judge must indicate that he understands the suggested ranges.” (citations
omitted)).
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additional officers not been in close proximity, Detective Nieves
could have been even more seriously injured, perhaps even killed.
Appellant sucker-punched Detective Nieves with a closed-fist until
he was physically no longer able to do so, similar to the modus
operandi Appellant had when he killed Dr. Sowa. This shows
Appellant’s habit for responding with violent behavior whenever
he becomes slightly upset with someone and that he is a danger
to anyone who encounters him.
[The trial court] also considered Appellant’s family support and
history of mental illness. While [the trial court] is sympathetic to
Appellant’s mental health, it is clear that Appellant has never
seriously tried to seek help for his disorders and will continue with
his violent behavior until he is no longer physically able to do so.
Therefore, [the trial court] found that Appellant has a high need
for rehabilitation and there is a strong need to protect the
community from his uncontrolled rage. As such, [the trial court]
had no choice but to impose a lengthy sentence in a state
correctional facility. This sentence will hopefully ensure that
Appellant receives the treatment he needs and that Appellant will
appreciate the gravity of his actions. Appellant’s allegations that
[the trial court] abused its discretion in sentencing are meritless.
Trial Ct. Op. at 10-11.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Raven, 97 A.3d at 1253. As noted previously, the trial
court is not required to sentence a defendant in a vacuum. See Hardy, 939
A.2d at 980. Although the trial court referenced the homicide case at the
sentencing hearing for context of the crimes, it is clear that the trial court
fashioned its sentence in the instant case based on the facts and
circumstances of the aggravated assault and resisting arrest charges. Indeed,
the record reflects that the trial court expressly considered the sentencing
guidelines for aggravated assault and resisting arrest, the impact of
Appellant’s crimes on Detective Nieves and the community, and Appellant’s
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rehabilitative needs. See id; see also Fullin, 892 A.2d at 847. Further, the
trial court noted that although Appellant suffered from severe mental illness,
so long as he failed to seek proper treatment and proper therapy, Appellant
continued to remain a threat to the community. See N.T. Sentencing Hr’g. at
106, 108. Ultimately, the trial court concluded that a sentence in excess of
the guidelines’ aggravated range was necessary in light of Appellant’s violent
behavior and the continued risk that Appellant posed to public safety. See
Durazo, 210 A.3d at 321. Under these circumstances, we have no basis to
conclude that the trial court’s sentence was unreasonable. See Sheller, 961
A.2d at 192. Therefore, Appellant is not entitled to relief. Accordingly, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/2023
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