Com. v. Burgess, M. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARIUS LEE BURGESS :
:
Appellant : No. 1006 WDA 2021
Appeal from the Judgment of Sentence Entered May 26, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006045-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIUS BURGESS :
:
Appellant : No. 1007 WDA 2021
Appeal from the Judgment of Sentence Entered May 26, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000157-2021
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: APRIL 20, 2022
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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In this consolidated appeal,1 Appellant, Marius Lee Burgess, appeals
from the May 26, 2021 judgments of sentence imposing an aggregate
sentence of two to four years’ incarceration after Appellant pleaded guilty to
simple assault (2 counts), strangulation – applying pressure to throat or neck
(1 count), and unlawful restraint – serious bodily injury (1 count).2 We affirm.
The record demonstrates that, on May 26, 2021, Appellant pleaded
guilty, pursuant to a negotiated agreement, to simple assault at trial court
docket CP-02-CR-0000157-2021 (“CR-157”). Appellant also pleaded guilty,
pursuant to a negotiated agreement, to simple assault,
strangulation – applying pressure to throat or neck, and unlawful
restraint – serious bodily injury at trial court docket CP-02-CR-0006045-2020
(“CR-6045”). That same day, the trial court sentenced Appellant at CR-157
to one to two years’ incarceration for his conviction of simple assault. At
CR-6045, the trial court sentenced Appellant to two years’ probation for his
strangulation conviction, five years’ probation for his unlawful restraint
conviction, and one to two years’ incarceration for his simple assault
____________________________________________
1 In a September 14, 2021 per curiam order, this Court consolidated sua
sponte Appellant’s two appeals docketed with this Court at 1006 WDA 2021
and 1007 WDA 2021.
2 18 Pa.C.S.A. §§ 2701(a)(1), 2718(a)(1), and (2902(a)(1), respectively.
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conviction, with the entire sentence at CR-6045 set to run consecutively to
the sentence imposed at CR-157.3
At CR-6045, Appellant filed a timely motion to reconsider his sentence
on May 27, 2021. At CR-157, Appellant filed an untimely post-sentence
motion on June 8, 2021. That same day, Appellant filed a motion to reinstate
his post-sentence rights nunc pro tunc at CR-157. On June 23, 2021, the trial
court expressly granted Appellant’s motion to reinstate his post-sentence
rights nunc pro tunc and scheduled a hearing on Appellant’s post-sentence
motions. After entertaining argument on Appellant’s post-sentence motions,
the trial court denied said motions on August 25, 2021. This appeal followed.4
Appellant raises the following issue for our review: “Did the [trial c]ourt
abuse its discretion in sentencing [Appellant] to an aggregate sentence of two
to four years of incarceration?” Appellant’s Brief at 3.
Appellant challenges the discretionary aspects of his sentences, arguing
that the trial court abused its discretion by imposing “its sentence[s] on
[Appellant] due solely to the nature of the crime and [] failed [to consider, or]
____________________________________________
3 Appellant’s sentence of five years’ probation imposed for his unlawful
restraint conviction was set to run concurrently to the sentence of two years’
probation imposed for his strangulation conviction. See Trial Court Order
(CR-6045), 5/26/21. In addition to the confinement and probation imposed
at CR-157 and CR-6045, Appellant was required to comply with DNA
registration, successfully complete a batterer’s intervention program, undergo
drug and alcohol and mental health evaluations and successfully complete any
recommended treatment, and have no contact with the victim. Id.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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to refer [to,] any other statutory considerations when fashioning the
sentence[s].” Id. at 14.
It is well-settled that “the right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d 162(Pa. Super. 2010):
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 [] 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).
Id. at 170. We evaluate on a case-by-case basis whether a
particular issue constitutes a substantial question about the
appropriateness of sentence. Commonwealth v. Kenner, 784
A.2d 808, 811 (Pa. Super. 2001).
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted). If an appellant fails to raise a challenge to the discretionary
aspects of a sentence either by presenting a claim to the trial court at the time
of sentencing or in a post-sentence motion, then the appellant’s challenge is
considered waived. Commonwealth v. Lamonda, 52 A.3d 365, 371
(Pa. Super. 2012) (en banc) (citation omitted), appeal denied, 75 A.3d 1281-4-
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(Pa. 2013). A substantial question exists when the appellant presents a
colorable argument that the sentence imposed is either (1) inconsistent with
a specific provision of the Pennsylvania Sentencing Code or (2) is “contrary to
the fundamental norms which underlie the sentencing process.”
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011). “While a bald claim of excessiveness
does not present a substantial question for review, a claim that the sentence
is manifestly excessive, inflicting too severe a punishment, does present a
substantial question.” Commonwealth v. Hicks, 151 A.3d 216, 227
(Pa. Super. 2016), citing Commonwealth v. Haynes, 125 A.3d 800,
807-808 (Pa. Super. 2015), appeal denied, 167 A.3d 1287 (Pa. 2017).
Here, the record reflects that Appellant filed timely notices of appeal,
properly preserved challenges to the discretionary aspects of his sentences in
his post-sentence motions, and included a Rule 2119(f) statement in his brief.
Appellant’s Brief at 9-11. As such, Appellant complied with the technical
requirements to challenge the discretionary aspects of his sentences. Hill,
210 A.3d at 1116. Therefore, we review Appellant’s Rule 2119(f) statement
to see if he presents a substantial question.
In his Rule 2119(f) statement, Appellant argues that the trial court
“failed to consider and reference the statutory factors in 42 Pa.C.S.[A.]
§ 9721(b), and instead fashioned [] sentence[s] that only reflected the
seriousness of the crime, which is contrary to the fundamental norms that
underlie the sentencing process.” Appellant’s Brief at 11 (citation omitted).
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In so arguing, we find that Appellant raises a substantial question regarding
consideration of the Section 9721(b) sentencing factors. See
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (stating, an
assertion that the “trial court failed to consider relevant sentencing criteria,
including the protection of the public, the gravity of the underlying offense[,]
and the rehabilitative needs of [an a]ppellant, as 42 Pa.C.S.A § 9721(b)
requires, and instead focused on the injuries suffered by the complaining
victims” raises a substantial question), appeal denied, 63 A.3d 776 (Pa. 2013).
Therefore, we will address the merits of Appellant’s claim challenging the
discretionary aspects of his sentences based upon the trial court’s alleged
failure to consider the Section 9721(b) sentencing factors.
Appellant asserts that the trial court “imposed its sentence[s] on
[Appellant] due solely to the nature of the crime and that the [trial c]ourt
failed to refer to any other statutory considerations when fashioning the
sentence[s].” Appellant’s Brief at 14. Specifically, Appellant contends the
trial court “did not examine the factors of the protection of the public, the
gravity of the offense in relation to the impact on the victim and the
community, and the rehabilitative needs of [Appellant], pursuant to 42
Pa.C.S.[A.] § 9721(b).” Appellant’s Brief at 16.
It is well-established that “[w]hen imposing a sentence, a [trial] court
must consider the factors set forth in 42 Pa.C.S.A. § 9721(b).”
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal
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denied, 963 A.2d 467 (Pa. 2008). Section 9721(b) of the Pennsylvania
Sentencing Code, in pertinent part, states,
the [trial] court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent with
section 9725 (relating to total confinement) and the protection of
the public, the gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the rehabilitative
needs of the defendant. The [trial] court shall also consider any
guidelines for sentencing and resentencing adopted by the
Pennsylvania Commission on Sentencing and taking effect under
section 2155 (relating to publication of guidelines for sentencing,
resentencing and parole, risk assessment instrument and
recommitment ranges following revocation).
42 Pa.C.S.A. § 9721(b). “The [trial] court is not required to parrot the words
of the Sentencing Code, stating every factor that must be considered under
Section 9721(b). However, the record as a whole must reflect due
consideration by the [trial] court of the statutory considerations.” Feucht,
955 A.2d at 383 (citations omitted).
Appellate review of a trial court’s sentencing determination is governed
by Section 9781(c) of the Sentencing Code.
Section 9781(c) specifically defines three instances in which the
appellate courts should vacate a sentence and remand: (1) the
[trial] court applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly unreasonable” based on
the circumstances of the case; and (3) the sentence falls outside
of the guidelines and is “unreasonable.”
Commonwealth v. Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009), citing
42 Pa.C.S.A. § 9781(c).
At sentencing, the trial court stated,
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in the seven years that I've known you, seven years, okay, you
came into mental health court in July of 2014. If that is the best
that you can do to stay away from [the victim], it's pretty poor,
okay, because in seven years, this has been an ongoing issue.
[Y]ou came into [the trial] court on July 28[,] 2014, you know,
with felony cases, [and] you were told to have no violent contact
with [the victim]. That was [July 28, 2014.] On [August 12, 2014,
the victim] filed a [petition for a protection from abuse (“PFA”)
order.] So that no-violent-contact order was not even in effect
for over two weeks, and there' s a [petition for a PFA order] all of
a sudden. So we moved you, put you on [electronic home
monitoring].
We give you no contact with [the victim] in September [2014,] to
make it formal through mental health court[,] as well as amending
our prior order, no contact with [the victim].
[I]n December [2014], you tell [the trial court] that she attacked
you at a program and was thrown out, but then, in January
[2015], there's new charges. You end up[, on] January 2[,]
2015[,] back in the Allegheny County jail.
We put you back on electronic home monitoring, which is what
your counsel is asking us to do again [here today], all right. We
put you on electronic home monitoring, and what happen[ed]?
You know, you g[o]t out of [R]enewal [April 20, 2015, we] put
you on [electronic home monitoring on June 9, 2015,] you are
arrested again for simple assault with the same victim[ - the]
same victim less than [] two months later, okay. The charges get
dismissed, you know, as sometimes that happens in domestic
violence cases, and [the trial court] put you out again on electronic
[home] monitoring [in June 2015.]
[I]n July [2015], you're telling us that you are kicked out of your
cousin's house and you're living with your mom and you're going
back and forth whether you're living with your mom or your
cousin, and we find out in September [] 2015[,] that [the] cousin
you're living with is actually [the victim], that you're staying with
[the victim] while you're on house arrest. And things again get
violent. So, again, you end up getting arrested.
You know, at that point, we told you, we’re not going to deal with
this anymore, and we sent you to state prison, to [a] state
intermediate punishment drug and alcohol program because so
much of this involves intoxication all the time. We send you up to
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state prison in the hopes that you will get the help that you need
and come out and not have a problem.
And I remember seeing you [] at the [local grocery store] after
you got out of state prison, and who were you with again? [The
victim], right? [(Appellant answers in the affirmative.)] Even
though there was still a probation in effect, even though that
probation still had a no-contact [with the victim requirement].
You know, then I don't hear anything about violence for awhile.
You’re not paying restitution, but you finally pay that, and I
decided to close your last case on February 7[,] 2020. And on
March 14[,] 2020, you pick up the strangulation, unlawful
restraint, [and] simple assault case [(referring to CR-6045)].
I let you out of jail then because of the [COVID-19 global]
pandemic, right? And what happens? Now we have the new case
in November [] 2020 [(referring to CR-157)].
So, you know, you're going to tell me that you've moved on?
November [2020,] is not that long ago. It's only May [2021].
When did you move on because the entire time, this seven years,
it has been you and [the victim] and it's been violent, and it just
has to stop. And you can tell me you tried your best to avoid her,
but you didn't. You tried your best to live with her. Lying to the
[trial] court, passing her off as your cousin so you could serve
your [electronic home monitoring] with her, and you want me to
put you back on [electronic home monitoring] and you think I'm
going to put you on house arrest so, what, you can go do the same
thing? What am I supposed to do with you[?] The stint in the
Allegheny County jail didn't seem to help. The state [intermediate
punishment drug and alcohol ] program didn't help. [Electronic
home monitoring] didn't help. What am I supposed to do with
you?
...
You know, we always liked you[.] Everybody in our [trial] court
liked you. You have so much potential. I cannot tell you the
number of times that I've told you that. You know, you’re a great
chef. Everywhere you worked, they've loved you, they've
promoted you[.] I used to like to come [] to [the restaurant where
you worked] because I knew you were in the kitchen and I knew
the food was going to be good.
[T]here's no doubt you're a good guy, but the problem is this issue
with [the victim], and what am I supposed to do to stop that? I
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can't trust you on electronic home monitoring, I can't. [I]f you're
going to pass [the victim] off as your cousin to live with her, I
can't believe what comes out of your mouth anymore. That's the
problem.
...
It's not a matter of you being with [the victim] and being happy.
When you're without her, you're depressed. It's because you
don't have your medication. That's what causes those swings,
and you should know better by now. Since 2014. It's just the
most difficult thing because I just don't know what's going to help
you because nothing seems to work. We’ve tried everything we
can try, so do I just need to warehouse you so that you [and the
victim] can both truly move on and stay away from each other?
Is that what has to happen? That's what I'm thinking because
what else am I supposed to do? Nothing else has worked in seven
years.
N.T., 5/26/21, at 29-35 (formatting modified; extraneous capitalization
omitted). In addition to the trial court’s seven-year history of interaction with
Appellant, the trial court also heard testimony from the victim, who stated
that she was both physically and emotionally affected by Appellant’s abusive
conduct towards her. Id. at 25-26. The victim stated that because of the
physical injuries Appellant inflicted on her, she was unable to go to work,
suffered pain and scarring, and required facial reconstruction. Id.
Emotionally, the victim stated that she cries a lot, her nerves are shaken, and
she has had suicidal ideations. Id. at 26.
Our review of the certified record as a whole demonstrates that the trial
court considered the appropriate factors and provided proper reasoning in
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determining Appellant’s sentences.5 The trial court heard from the victim
concerning the physical and emotional abuse she suffered as a result of
Appellant’s conduct. The trial court also detailed Appellant’s seven-year
history with the trial court, explaining the pattern of incidents between
Appellant and the victim, the methods employed in an attempt to rehabilitate
Appellant and to protect, and separate Appellant from, the victim, and the lack
of success resulting from those efforts. Therefore, Appellant’s challenge to
the discretionary aspects of his sentences based upon the claim the trial court
failed to consider the factors under Section 9721(b) is without merit.
____________________________________________
5 The trial court did not indicate that it reviewed a pre-sentence investigation
report and the certified record does not contain such a report, which would
give rise to the presumption that the trial court properly considered and
weighed all relevant factors in imposing Appellant’s sentences.
Commonwealth v. Nevels, 203 A.3d 229, 248 (Pa. Super. 2019) (stating,
“[w]hen a [trial] court has reviewed a pre[-]sentence investigation report, we
presume that the [trial] court properly considered and weighed all relevant
factors in fashioning the defendant's sentence” (citation omitted)).
Nonetheless, it is apparent from the trial court’s extensive knowledge of, and
involvement with, Appellant that the trial court possessed sufficient
information to substitute for a pre-sentence investigation report thereby
allowing the trial court to fashion sentences that not only fit the crimes but
also the person who committed them. Commonwealth v. Carrillo-Diaz, 64
A.3d 722, 726 (Pa. Super. 2013) (stating that, “[w]hile case law does not
require that the trial court order a pre-sentence investigation report under all
circumstances, [case law does] appear to restrict the [trial] court's discretion
to dispense with a [pre-sentence investigation report] to circumstances where
the necessary information is provided by another source” (original brackets
omitted)).
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Appellant also claims that the trial court failed to consider certain
mitigating factors in fashioning Appellant’s sentences. Specifically, Appellant
asserts that the trial court “failed to consider [Appellant’s] success on pre-trial
electronic home monitoring[,] as well as his outstanding work ethic.”
Appellant’s Brief at 14.
Before we can address Appellant’s claim, we must determine whether
he raised a substantial question with his assertion that the trial court failed to
consider certain mitigating factors.6 “[A]n allegation that the [trial] court did
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6 In order for this Court to determine if a substantial question exists, a Rule
2119(f) statement must specify: (1) where the sentence fails in relation to the
sentencing guidelines; (2) what particular provision of the Sentencing Code it
violates; and (3) what fundamental norm the sentence violates and manner
in which it violates that norm. Commonwealth v. Kiesel, 854 A.2d 530, 532
(Pa. Super. 2004); see also Commonwealth v. Mouzon, 812 A.2d 617, 627
(Pa. 2002) (stating, “[an a]ppellant must, at a minimum, explain specifically
why he thinks his sentences were improper” (emphasis added; citation
omitted)).
Here, a review of Appellant’s Rule 2119(f) statement demonstrates that
Appellant failed to set forth a colorable argument that the sentences imposed
were either inconsistent with a specific provision of the Sentencing Code or
“contrary to the fundamental norms which underlie the sentencing process”
based upon the trial court’s failure to consider certain mitigating factors. See
Appellant’s Brief at 9-11. Nonetheless, the Commonwealth did not object to
Appellant’s omission in his Rule 2119(f) statement, and we are able to discern,
based upon the argument set forth in Appellant’s brief, that Appellant
contends the trial court imposed an excessive sentence based upon its failure
to consider certain mitigating factors. Therefore, we will consider whether a
substantial question has been presented for our review. Kiesel, 854 A.2d at
532-533 (stating that, this Court is permitted to overlook an omission in a
Rule 2119(f) statement and determine if a substantial question has been
presented for review when the Commonwealth, as appellee, fails to object to
the omission).
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not consider certain mitigating factors does not raise a substantial question.”
Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa. Super. 2003); see also
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (stating,
“an allegation that a sentencing court failed to consider or did not adequately
consider certain [mitigating] factors does not raise a substantial question that
the sentence was inappropriate”), appeal denied, 968 A.2d 1280 (Pa. 2009).
Because Appellant failed to raise a substantial question, we cannot now review
the merits of his challenge to the discretionary aspects of his sentences based
upon the claim that the trial court failed to consider, or to adequately consider,
his work ethic and the effectiveness of electronic home monitoring prior to
Appellant pleading guilty to the aforementioned crimes.7
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7 Moreover, a review of the record demonstrates that the trial court did
consider Appellant’s work ethic and the effectiveness of electronic home
monitor. In addition to permitting Appellant’s counsel to read a letter from
Appellant’s current employer, the trial court noted that everywhere Appellant
has worked as a chef, the employer and customers have “loved” Appellant,
and Appellant was promoted due to his job performance. Id. at 19-20, 33
(stating, “I used to like to come [] to the [restaurant where Appellant worked]
because I know you were in the kitchen and I knew the food was going to be
good”). The trial court also remarked that, although Appellant contends he
has been on electronic home monitoring and has not had contact with the
victim for two months prior to his conviction and sentencing, the trial court
could not “trust [Appellant] on electronic home monitoring” based upon his
prior behavior while on electronic home monitoring. Id. at 33-34 (stating,
“I’ve had you on electronic home monitoring before for two months and then,
boom, everything falls apart). Therefore, we would find Appellant’s challenge
to the discretionary aspects of his sentences on the grounds the trial court
failed to consider, or did not adequately consider, his work ethic or electronic
home monitoring to be without merit.
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Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2022
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