Com. v. Tatem, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANGELINA JAY TATEM :
:
Appellant : No. 1855 MDA 2019
Appeal from the Judgment of Sentence Entered October 9, 2019
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000052-2019
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED MAY 22, 2020
Appellant, Angelina Jay Tatem, appeals from the judgment of sentence
entered on October 9, 2019, as made final by the denial of her post-sentence
motion on October 22, 2019, following her guilty plea to drug delivery
resulting in death.1 We affirm.
The trial court accurately summarized the relevant factual and
procedural history of this case as follows.
On or about March 14, 2018, [police authorities filed a criminal
complaint against Appellant for possession of a controlled
substance and possession of drug paraphernalia.] According to
the affidavit of probable cause, in February [] 2018[, the
Tunkhannock Borough Police received] numerous complaints . . .
from neighbors of a residence located [along] Maple Avenue in
Tunkhannock Borough, Wyoming County, Pennsylvania
(hereafter[,] “the residence”)[. Specifically, the neighbors
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2506(a).
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complained] of suspicious activity . . . consisting of numerous
different vehicles frequenting the residence, entering the same,
staying for a minute then leaving, all at extremely late hours. At
that time, the residence was occupied by Levi McDermott
(hereafter[,] “McDermott”) and his girlfriend, [Appellant]. The
affidavit of probable cause [also stated] that in March [] 2018,
subsequent investigation revealed the existence of a bench
warrant for [Appellant] by Luzerne County Court of Common Pleas
for her failure to appear relative to numerous violations of the
Controlled Substance, Drug, Device and Cosmetic Act. On March
14, 2018, the Tunkhannock Borough Police Department, together
with the affiant of the affidavit of probable cause, attempted to
execute arrest warrants for McDermott and [Appellant] at the
residence. Upon arrival, the second-floor lights were observed to
be on and there was fresh snow on the ground, which revealed no
[footprints], indicating that [no one had recently departed] the
residence. The officers repeatedly knocked on the residence, to
no avail. As such, [the] Tunkhannock Borough Police Officer[s]
remained close to the residence while the affiant prepared a
search warrant and search warrant affidavit. A search warrant
was [eventually] obtained[.]
***
[Thereafter,] the affiant[,] with the assistance of Tunkhannock
Borough Police Department again knocked on the door of the
residence. [Receiving] no response, the affiant contacted the
landlord, who opened the front door with a key. However, the
occupants of the residence [] secured the door with a chain. The
officers used a bolt cutter to obtain access [and] found [Appellant]
located in a bedroom of the residence. [Appellant] was taken into
custody on the bench warrant and placed in the back of a police
cruiser while [they] executed the search warrant[.] As a result of
the search[,] officers located numerous knives, hundreds of bags
of heroin packets, syringes, cash, [and] various cell phones,
among other things. Based upon the search warrant, [the police
charged Appellant with drug-related offenses.]
On April 4, 2018[,] following a preliminary arraignment, bail in the
matter was set for [$10,000.00] unsecured by Magisterial District
Judge Carl Smith, with a condition that [Appellant] refrain from
criminal activity. On or about December 20, 201[8], the
Commonwealth filed a motion for bail modification which alleged
that[,] while on bail, [Appellant] admitted to selling heroin to five
[] people, with some of those deliveries involving Fentanyl and
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one of those deliveries resulting in a death[.] [Appellant] did not
deny the allegations in said motion . . . and[,] as such, [Appellant’s
bail was reset in the amount of [$1,000,000] by court order dated
December 20, 2018.
[In April 2019,] another criminal information was filed against
[Appellant] charging [her] with [multiple] offenses based upon her
course of conduct between [] October 8, 2018 and [] December
20, 2018. … According to the criminal information, [Appellant]
intentionally delivered [] controlled substance[s], namely
Fentanyl and heroin, to Samantha Delesky[, resulting in] her
death[.] On August 1, 2019, [Appellant] entered a guilty plea
agreement wherein she pleaded guilty to drug delivery resulting
in death[. Appellant’s other charges were nolle prossed or
withdrawn].
[Appellant] was sentenced on October 9, 2019 to pay the cost of
prosecution, pay a fine [of $5,000 and pay $5,498.95 in
restitution. The trial court also sentenced Appellant to 90 to 240
months’ incarceration. Appellant filed a post-sentence motion on
October 17, 2019, which the trial court denied on October 22,
2019. This timely appeal followed.2]
Trial Court Opinion, 12/16/19, at 1-4 (superfluous capitalization omitted)
(footnote added).
Appellant raises the following issue on appeal:
Did the sentencing court err in [imposing] an aggravated [range]
sentence that is clearly unreasonable based upon the stated
reasoning of the sentencing court?
Appellant’s Brief at 8.
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2 Appellant filed a notice of appeal on November 8, 2019. On November 13,
2019, the trial court entered an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant timely complied. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 16, 2019.
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Appellant argues that the trial court abused its discretion “when it
sentenced [her] to an [a]ggravate[d range] sentence” based upon
“insufficient” reasoning. Id. at 13. Specifically, Appellant claims that her
aggravated range sentence was clearly unreasonable in view of her many
expressions of remorse, her issues with opioid addiction, her tandem drug use
with the victim, and her prior record score of zero.
Appellant’s issue implicates the discretionary aspects of sentencing. As
this Court previously 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 [her] 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.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted).
Herein, Appellant filed a timely notice of appeal, preserved her challenge
by filing a post-sentence motion on October 17, 2019, and included a Rule
2119(f) statement in her appellate brief. Moreover, a claim alleging that the
trial court offered insufficient reasons to support the imposition of an
aggravated range sentence raises a substantial question. See
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Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008), appeal
denied, 13 A.3d 474 (Pa. 2010). Thus, Appellant met the “threshold
requirements” which enables us to exercise jurisdiction and we may “accept
the appeal and proceed to the merits.” Commonwealth v. Flowers, 149
A.3d 867, 870–872 (Pa. Super. 2016).
Our standard of review in sentencing matters is well-settled:
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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted). Additionally, our review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S.A. §§ 9781(c)
and (d). Subsection 9781(c) provides:
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.
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In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 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.A. § 9781(d).
Upon review of the certified record, we conclude that the trial court did
not abuse its discretion in sentencing Appellant in the aggravated range. In
imposing Appellant’s sentence, the trial court relied upon her pre-sentence
investigation (“PSI”) report. Trial Court Opinion, 12/16/19, at 5. Thus, we
may presume that the trial court “was aware of relevant information regarding
[Appellant’s] character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Hill, 210 A.3d 1104,
1116-1117, appeal denied, 220 A.3d 1066 (Pa. 2019). In addition, during
sentencing, the trial court stated the following reason for Appellant’s
sentence:
[Appellant] acted in careless disregard for human life and any
lessor o[f] a sentence would depreciate the seriousness of
[Appellant’s] actions.
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Sentencing Hearing, 10/9/19, at 14. Here, the record reflects that the trial
court considered Appellant’s history of involvement with narcotics,3 the impact
of her criminal activity upon the community and the life of the victim, and the
justifications for a lengthier sentence to address Appellant’s rehabilitative
needs in view of the tragic consequences of her behavior. As such, the record
supports the cogent and persuasive reasons the trial court offered for
imposing an aggravated range sentence. Accordingly, we perceive no abuse
of discretion.
Judgement of sentence affirmed.
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3 It is undisputed that Appellant’s prior record score was zero. It is also
undisputed, however, that the events leading up to her guilty plea involved
significant involvement in drug-related activity. As stated above, prior to
Appellant’s arrest, preliminary investigation revealed that Luzerne County
Court of Common Pleas issued a bench warrant after she failed to appear for
“numerous violations of the Controlled Substance, Drug, Device and Cosmetic
Act.” Trial Court Opinion, 12/16/19, at 2. After Appellant’s arrest, the
Tunkhannock Borough Police Officers executed a search warrant at the
residence, which resulted in Appellant being criminally charged with
possession of a controlled substance and possession of drug paraphernalia.
Then, while Appellant was on bail, she engaged in more drug-related activity,
which included selling drugs to multiple individuals, resulting in Samantha
Delesky’s death. Accordingly, despite Appellant’s prior record score of zero,
it is clear that she has a “history of drug-related [] offenses” that caused the
trial court to impose a sentence in the aggravated range. Id. at 5.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/22/2020
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