Com. v. McRoberts, B. ( 2023 )

J-S11040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRADLEY W. MCROBERTS :
:
Appellant : No. 1228 EDA 2022
Appeal from the Judgment of Sentence Entered March 29, 2022
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000386-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KING, J.: FILED APRIL 28, 2023
Appellant, Bradley W. McRoberts, appeals from the judgment of
sentence entered in the Philadelphia County Court of Common Pleas, following
his open guilty plea to theft by unlawful taking, theft by deception, receiving
stolen property, identity theft, access device fraud, and bad checks.1 We
vacate and remand for resentencing.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows:
[Appellant] and [Victim] met while [Victim] was a student
at Quinnipiac University and [Appellant] was beginning a
master’s program at Yale University. They started dating
and in August 2018 moved to an apartment located at 220
South 47th Street in Philadelphia. [Victim’s]
father…cosigned the lease for the apartment, and her
____________________________________________
1 18 Pa.C.S.A. §§ 3921(a); 3922(a); 3925; 4120; 4106(a)(1); and
4105(a)(1), respectively.
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mother provided the money for the security deposit with the
understanding that [Appellant] would reimburse her. This
gave [Appellant] access to both [Victim] and her father’s
social security numbers. [Appellant] forged a lease
agreement to say that the rent was $2,000 a month.
[Victim] sent $1,000 a month for rent to [Appellant] via E-
transfer. [Appellant] pocketed the money and did not pay
the rent. The property managers of their apartment
reached out to [Appellant], [Victim] and [Victim’s] father
about the rent, but [Appellant] had created fraudulent email
accounts and phone numbers and impersonated [Victim]
and her father, sending emails and making phone calls as
them.
In July of 2019, [Appellant] told [Victim] that they had to
leave the apartment for necessary electric work. They left
the apartment and [Victim] commuted to Philadelphia from
Connecticut for two weeks. On July 31, 2019, she dropped
[Appellant] off at the Philadelphia airport, and he caught a
flight to California. She did not see [Appellant] after that.
A week after dropping [Appellant] off at the airport, [Victim]
went to the leasing office of their former apartment and
encountered one of the property managers who told her that
there had not been any electrical work, but that she had
been evicted. [Victim] then discovered that [Appellant] had
opened credit cards in her name without her knowledge.
Additionally, the checks [Appellant] had given [Victim’s]
mother as repayment bounced. As a result of this scheme,
[Victim’s] family’s credit was ruined to the point that they
had to hire credit restoration services. [Victim’s] family
created an itemized list estimating that the financial damage
caused was over $31,000. [Appellant] was arrested and
charged with Theft, Theft by Deception, Receiving Stolen
Property, Identity Theft, Access Device Fraud, and Passing
a Bad Check on August 7, 2019.
* * *
On September 27, 2021, [Appellant] entered a non-
negotiated guilty plea before this [c]ourt to [all charges].
Following testimony from the victim and her family, this
[c]ourt sentenced [Appellant] on November 16, 2021, to …
an aggregate sentence of fourteen to thirty-three (14-33)
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years. … This [c]ourt also ordered $31,000 in restitution.
On November 23, 2021, [Appellant] filed a Motion for
Reconsideration of Sentence. At a reconsideration hearing
on March 29, 2022, the [c]ourt imposed an aggregate
sentence of two-and-a-half to five (2.5-5) years.
[Appellant] again filed a Motion for Reconsideration of
Sentence on April 7, 2022. This [c]ourt denied that motion
on April 27, 2022. The following day, [Appellant] filed a
Notice of Appeal to the Superior Court of Pennsylvania. On
May 31, 2022, this [c]ourt issued an order pursuant to Rule
1925(b) of Pennsylvania Rules of Appellate Procedure
ordering that [Appellant] file a Concise Statement of Matters
Complained of on Appeal within twenty-one days. On June
17, 2022, [Appellant] filed a Statement of Matters
Complained of on Appeal alleging that this [c]ourt erred by
imposing an excessive and unreasonable sentence at the
sentencing and reconsideration hearing; that this [c]ourt
failed to consider the Sentencing Guidelines and relied upon
improper factors; and that the prosecution engaged in
misconduct.
(Trial Court Opinion, filed July 8, 2022, at 1-3).
Appellant raises one issue for our review:
Whether the trial court erred and abused its discretion in
imposing a manifestly excessive sentence of 2½ to 5 years’
[imprisonment], where the court upwardly departed from
the Sentencing Guidelines, relying upon impermissible
sentencing factors, including improper comments by the
prosecutor; and also while not considering mitigating
circumstances.
(Appellant’s Brief at 5).
Appellant argues the court relied upon improper factors and facts not in
evidence when sentencing Appellant. Appellant claims the court disregarded
the sentencing guidelines and mitigating circumstances. Appellant
emphasizes that the trial court acknowledged in its opinion that it provided
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inadequate reasons for its departure from the guidelines and erroneously
considered the prosecutor’s improper comments. Specifically, Appellant
claims the court imposed a sentence beyond the aggravated range of the
guidelines to scare Appellant’s family into paying restitution quickly and
because the prosecutor would receive “massive blowback” if the court imposed
a county sentence. Appellant insists the sentence was unduly harsh given
Appellant’s lack of any prior convictions and where the sentencing guidelines
fell in the restorative sanctions range. Appellant contends he presented
mitigating evidence to the court, namely, that Appellant suffered from PTSD
and other mental health ailments after he was raped as a teenager. Appellant
avers that he began making payments to Victim before his arrest, apologized
to Victim, and had fully paid restitution prior to the reconsideration hearing.
Appellant complains the prosecutor erroneously suggested that Appellant had
committed similar conduct either before or after his initial sentencing, which
was untrue. Appellant concludes the court abused its sentencing discretion,
and this Court must grant relief. We agree relief is due.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Watson, 228 A.3d
928, 935 (Pa.Super. 2020). Prior to reaching the merits of a discretionary
aspect of sentencing issue:
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
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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. (quoting Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013),
appeal denied, 621 Pa. 682, 76 A.3d 538 (2013)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (emphasis in original) (internal
quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
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Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa.Super.
2000). A claim that a court imposed a sentence outside of the guidelines
without an adequate explanation presents a substantial question.
Commonwealth v. Goggins, 748 A.2d 721, 728 (Pa.Super. 2000) (en banc),
appeal denied, 563 Pa. 672, 759 A.2d 920 (2000). See also Commonwealth
v. Wilson, 946 A.2d 767, 771 n.6 (Pa.Super. 2008). As well, a claim that the
court relied on impermissible sentencing factors raises a substantial question
warranting review. Commonwealth v. Simpson, 829 A.2d 334, 338
(Pa.Super. 2003).
Instantly, Appellant has filed a timely notice of appeal, preserved his
sentencing issue in a timely-filed post-sentence motion, and included the
requisite Rule 2119(f) statement. See Watson, supra. Additionally,
Appellant’s claims that the court imposed a sentence outside the guidelines
without adequate explanation and relied on impermissible factors raise
substantial questions warranting appellate review. See Goggins, supra;Simpson, supra. Thus, we turn to the merits of Appellant’s sentencing
challenge.
This Court will not disturb the judgment of the sentencing court absent
an abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super.
2006).
[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
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discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.
Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007)
(internal quotation marks, footnotes, and citations omitted).
Pursuant to Section 9721(b), “the court shall follow the general principle
that the sentence imposed should call for confinement that is consistent with
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.” 42 Pa.C.S.A. § 9721(b). “Thus, sentencing is
individualized; yet, the statute is clear that the court must also ‘consider’ the
sentencing guidelines adopted by the Pennsylvania Commission on
Sentencing. If the court imposes a sentence outside of the sentencing
guidelines, it must provide a written statement setting forth the reasons for
the deviation and the failure to do so is grounds for resentencing.” Walls,
supra at 566-67, 926 A.2d at 962-63. Further, this Court shall vacate the
sentence and remand for resentencing if the court sentenced outside the
guidelines and the sentence is unreasonable. 42 Pa.C.S.A. § 9781(c)(3).
Here, in its opinion, the trial court conceded:
While this [c]ourt believes that a state sentence is
appropriate given the unusual nature of the case, and the
harm and damage done to [Victim] and her family, all of
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which far exceeds the “typical” theft case, it concedes that
it stated insufficient reasons for exceeding the guidelines
and imposing a sentence of two and one-half to five years
at the reconsideration hearing held on March 29, 2022, and
that any consideration given to the prosecutor’s comments
regarding the personal impact of its sentence would be
improper. As such, it requests that the matter be remanded
for resentencing.
(Trial Court Opinion at 4). The Commonwealth agrees that remand is
required. (See Commonwealth’s Brief at 10) (stating: “Because the court
failed to give an appropriate justification, rooted in the considerations and
factors espoused in statutory and decisional law, for the upward departure
sentence it imposed, this matter should be remanded for the court to address
these issues”). Based upon the foregoing, we agree relief is due. See Walls,
supra. Accordingly, we vacate and remand for a new resentencing hearing.
Judgment of sentence vacated. Case remanded for further proceedings.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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