Opinion
2054 EDA 2021 J-S09042-22
04-19-2022
COMMONWEALTH OF PENNSYLVANIA v. KENNETH TROY HELLER Appellant
Joseph D. Seletyn, Esq. Prothonotary
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 7, 2021 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0000172-2021
Joseph D. Seletyn, Esq. Prothonotary
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.[*]
MEMORANDUM
STEVENS, P.J.E.:
Appellant, Kenneth Troy Heller, appeals from the judgment of sentence entered in the Court of Common Pleas of Bucks County after he entered an open guilty plea to criminal charges related to his culpable conduct in a fatal shooting and to his possession of brass knuckles discovered during a search of his home. He contends the court abused its sentencing discretion when it relied on evidence linked to the shooting to impose an aggravated range sentence on the possession charge. After careful review, we affirm.
The trial court's Pa.R.A.P. 1925(a) opinion sets forth the relevant facts and procedural history, as follows:
On October 24, 2020, Appellant was hunting small game in Nockamixon State Park located at Old Ridge Road in Bucks County, Pennsylvania. N.T., 7/7/21, [at] 21. Appellant arrived with the intention of hunting squirrels, but then saw what he
believed to be a groundhog approximately 183 yards away. Id. at 22. Groundhog hunting is illegal in any state park in Pennsylvania, and Appellant claimed he was familiar with hunting regulations. [fn1] Appellant took his .17-caliber Marlin rife, aimed for three seconds, and, after using his scope at five times power, took his shot. Id. Appellant saw his target roll forward and believed he had successfully killed it. Id. at 24.
FN 1 Thus, Appellant should have been aware that he was not permitted to hung groundhogs.
Appellant started to walk forward to claim his game but stopped when he saw a person emerge from the wooded area. Id. at 24. Appellant wanted to avoid a confrontation with this person (he reported having confrontations while hunting in the past), so he turned around and walked back to his truck, abandoning his kill. Id. at 24. Appellant noticed emergency vehicles entering the park as he was leaving, but he claimed he did not think their arrival was related to the shot he fired. Id. at 25.
Jason Kutt, age 18 ("Kutt") and E.R., a minor, (collectively, "Victims") also went to Nockamixon State Park this afternoon. Id. at 16. As Appellant was lining up his shot, E.R. was sitting with her boyfriend by the lake. Id. at 16. When Appellant fired his gun, E.R. heard a single gunshot. Id. She then watched as Kutt slumped over in front of her with blood spilling from his head. Id.
E.R. recalled seeing a white male wearing orange hunting gear approximately one football field away from her at the time the shot was fired.[fn 2] Id. E.R. screamed for help, and although he saw her, he walked away.[fn 3] Id.
FN 2 Later identified as Appellant.
FN 3 E.R. was the person Appellant saw emerge from the woods as he approached his kill.
E.R. called 911 and, following the operator's instruction, performed CPR at the scene. Id. Kutt was subsequently
transported via ambulance to St. Luke's University Hospital in Bethlehem, Pennsylvania. Id. at 17. He was pronounced dead on October 26, 2020, at 2:31 a.m. Id. On October 28, 2020, Dr. Samuel Land ("Pathologist") performed an autopsy and concluded Kutt was killed by a small caliber, fully jacketed copper projectile. Id. at 17. Pathologist determined the cause of death to be a gunshot would to the head. Id.
As Appellant drove home from hunting, he began to suspect he had actually killed a dog and the person that emerged from the woods was its owner. Id. at 25. He claimed this possibility made him feel sick, so much so that he did not go into work the following Monday. Id. On Tuesday, October 27, 2020, Appellant heard District Attorney Matthew Weintraub's press conference that reported a young man had been shot at Nockamixon State Park and requested the community to come forward with any available information. Id. at 25-26. Pursuant to Appellant, it was upon hearing this news three days after he went hunting that he realized he had shot that young man. Id.
Fourteen days after Appellant shot Kutt, the Pennsylvania State Police Crime Laboratory completed a ballistic analysis and identified the shell casings found at the scene as Hornday .17-caliber rimfire. Id. at 18. The projectile of the bullet supported this finding. Id.
Thirty-four days after Appellant shot Kutt, an anonymous caller, in providing Appellant's license plate as well as the make and model of his car, accused Appellant of being the shooter. Id. at 18. Shortly after, investigators confirmed this car was registered to Appellant. Id. at 19. Forty-five days after Appellant shot Kutt, police obtained cellular telephone records confirming he had been around Nockamixon State Park at the time of the shooting. Id. at 19.
Forty-seven days after Appellant shot Kutt, police executed a search warrant at his home. Id. at 17-20. Police found a .17 caliber Marlin rifle, unfired Hornday .17-caliber ammunition, an orange hunting vest with a map of Nockamixon State park in the pocket, and brass metal knuckles with a blade attached.[fn 4]
FN 4 Brass knuckles are a prohibited offensive weapon. 18 Pa.C.S. § 908(a).
Sixty-six days after Appellant shot Kutt, and sixty-three days after he realized his culpability, Appellant provided a statement to the police, as they came to his workplace and asked him to come to the station. Id. at 21. Appellant stated that he knew he had to turn himself in, but he was in "disbelief and shock." Id. at 26. He blamed procrastination for his failure to come forward. Id. On December 30, 2020, sixty-seven days after Appellant shot Kutt, he was taken into custody. Id. at 26.
Appellant signed a proffer agreement on December 29, 2020, and was charged with Involuntary Manslaughter ("Count 1"), [fn 5]Possession of an Instrument of Crime ("Count 2"), [fn 6] Possession of Offensive Weapon ("Count 3"), [fn 7] Shooting or Causing Injury to Human Beings ("Count 4"), [fn 8] Failure to Assist ("Count 5"), [fn9] and Reckless Endangerment of Another Person ("Count 6").[fn10]
FN5 18 Pa.C.S. § 2504.
FN6 18 Pa.C.S. § 907(a).
FN7 18 Pa.C.S. § 908(a).
FN8 34 Pa.C.S. § 2522(a).
FN9 34 Pa.C.S. § 2523(a).
FN10 18 Pa.C.S. § 2705.
On July 7, 2021, Appellant entered into an open guilty plea and was sentenced to not less than seven nor more than twenty years' incarceration. On July 13, 2021, Appellant filed a Motion for Reconsideration of Sentence asking [the trial court] to reconsider his sentence pursuant to Counts 2, 3, and 6. At a hearing on July 22, 2021, [the trial court] dismissed the Motion as it pertained to Counts 2 and 3. On September 10, 2021, the parties came to an agreement as to the sentence on Count 6. On October 17, 2021, Appellant filed his Concise Statement of Errors Complained of on Appeal[ pursuant to Pa.R.A.P. 1925(b), which averred:]
The sentence of the court on the Count of Prohibited Offensive Weapons [Count 3] of 12 to 60 months, consecutive to all other counts, exceeds the standard range and was excessive for possession of a brass knuckle letter opener that was found at defendant's
house, was not used and was unrelated to the primary crimes in this case and for which there was no justification in fact or given on the record.Trial Court Opinion, 11/12/21, at 1-4.
In Appellant's brief submitted on appeal, the "Statement of Questions Presented" presents the following question for this Court's consideration:
Did the trial court abuse its discretion in sentencing Appellant by imposing manifestly excessive sentences, relying on improper factors, and failing to adequately state the reasons relied upon for imposing said sentence?Brief for Appellant, at 7.
Appellant challenges the discretionary aspects of his sentence. 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).
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).Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). 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); accord Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019).
Here, the record reflects that Appellant filed a timely notice of appeal, properly preserved a challenge to the discretionary aspect of his sentences in a motion for reconsideration of his sentences, and included a Rule 2119(f) concise statement in his brief. See Appellant's Brief at 10-11. The Rule 2119(f) statement presents a colorable argument that the trial court failed to adequately specify sufficient aggravating factors to support the aggravated range sentence for Possession of Offensive Weapons.
To the extent Appellant raises challenges to the imposition of consecutive sentences and that his aggregate sentence is manifestly excessive, we conclude he voluntarily waived his right to these claims and all other challenges to the discretionary aspects of his sentence, other than relating to the particular sentence he received on the Prohibited Offensive Weapons offense, in exchange for the guilty plea deal struck with the Commonwealth. See N.T., 9/10/21, at 3-6 (oral colloquy in which Appellant, with counsel present, agrees the plea is contingent upon his agreement to take no appeal other than appealing the discretionary aspect of the Prohibited Offensive Weapon charge, and he accepts the condition). Moreover, even if we were to address Appellant's challenge to the consecutive sentences on the merits, we would grant no relief, as it is well-settled that the imposition of consecutive sentences lies within the sound discretion of the sentencing court. See Commonwealth v. Ali, 197 A.3d 742, 765 (Pa. Super. 2018).
As our review confirms Appellant has satisfied the first three parts to our analysis, we inquire into whether Appellant's issue raises a substantial question. A substantial question exists when an 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). A claim that the trial court, in fashioning its sentence, relied on impermissible factors raises a substantial question. See Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (holding substantial question raised with claim that trial court relied on charges that were nolle prossed in a guilty plea to sentence in the aggravated range).
Therefore, we proceed to consider the merits of Appellant's discretionary sentencing claim.
The statement otherwise baldly contends that the aggregate sentence imposed by the trial court was manifestly excessive and unreasonable.
Sentencing is a matter vested in the sound discretion of the [trial court], 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 [trial] 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. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
"When imposing sentence, a [trial] court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Kitchen, 162 A.3d 1140, 1146 (Pa. Super. 2017). In making this inquiry, "[a] sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question[.]" Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010) (citation omitted).
It is also presumed a trial court properly considered and weighed all relevant factors appearing in a pre-sentence investigation report in fashioning the defendant's sentence. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). "[W]hen a trial court imposes a sentence that is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment." Commonwealth v. Mouzon, 812 A.2d 617, 625 (Pa. 2002) (original quotation marks omitted).
Here, it is undisputed that the trial court imposed a sentence of 12 to 60 months' incarceration for the offense of Prohibited Offensive Weapons that exceeded the standard range guidelines by one day, thus placing it at the lowest end of the aggravated range. Appellant contends the court erred by considering only what he deems the unrelated acts associated with the shooting when it imposed this sentence, but a review of the sentencing record confirms that the court's approach to sentencing on this offense was consistent with jurisprudence directing courts to consider both the underlying crime and the character of the defendant.
Appellant argues that the present facts are analogous to those in Stewart, in which this Court found an abuse of sentencing discretion occurred when the trial court relied on charges that had been nolle prossed to penalize the defendant with an aggravated sentence. For the reasons expressed more fully infra, we find Stewart factually distinguishable, as the trial court in the case sub judice considered Appellant's sentence for Prohibited Offensive Weapons within the context of charges to which Appellant pleaded guilty and which further demonstrated Appellant's conscious disregard for safety-oriented rules and laws pertaining to weaponry, a keen interest of his.
At the hearing on Appellant's motion to reconsider sentence, the court viewed the record as revealing Appellant had knowingly acted unlawfully during the relevant time, not only with respect to both the immediate and extended aftermath of the tragic shooting but also concerning his possession of the brass knuckles with a blade attached.
Regarding such possession, the court agreed this was another instance where Appellant knew better but chose to act unlawfully anyway, as it accepted the Commonwealth's argument that "[Appellant] holds himself out to be [a weapons] expert and, nonetheless, had a prohibited offensive weapon in his home." N.T., 7/22/21, at 34-35. Reflecting again on its rationale announced during sentencing, which included its expressed dismay over Appellant's reckless disregard for the safety of persons in the community, it elected to keep Appellant's sentence in the aggravated range "by one day." N.T. 7/7/21 at 75; N.T. 7/22/21, at 35-36.
Immediately after the Commonwealth made the above-quoted argument at the hearing on Appellant's motion to reconsider sentence, the trial court commented, "I certainly remember articulating essentially what [the Commonwealth] said." N.T. at 35.
This record, therefore, belies Appellant's contention that the court failed to articulate a legitimate reason specific to his possession of the brass knuckles to support the aggravated range sentence on the Prohibited Offense Weapon charge. While the court also considered Appellant's sentence within the context of his broader, weapon-related criminal conduct over the two-month period in which the brass knuckles were discovered, such evidence was nevertheless pertinent to the question of Appellant's character and the circumstances under which he possessed the prohibited offensive weapon. Accordingly we discern no merit to Appellant's discretionary sentencing claim.
Judgement of sentence affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.