J. S55025/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : v. : : JAMES ALVIN JONES, : : Appellant : No. 3810 EDA 2015
Appeal from the Judgment of Sentence May 12, 2014 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000709-2012
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 19, 2016
Appellant, James Alvin Jones, appeals from the Judgment of Sentence
imposed on May 12, 2014, in the Court of Common Pleas of Chester County.
After careful review, we conclude that Appellant’s sentence was not
excessive relative to his co-defendants where (i) the Commonwealth had
stronger evidence against Appellant; (ii) the evidence indicated Appellant
was more culpable than his co-defendants; and (iii) the trial court
sufficiently explained its reasoning behind the sentence imposed. We,
therefore, affirm on the basis of the trial court’s well-reasoned opinion.
The trial court summarized the facts underlying Appellant’s convictions
as follows:
* Former Justice specially assigned to the Superior Court. J. S55025/16
Appellant's conviction is the consequence of a deadly attack upon rival gang members that occurred on the night of December 3, 2011[,] during the course of a student-arranged bonfire parlay at 1641 Baltimore Pike in New Garden Township, Chester County, PA. Many in attendance at the party were Kennett High School students, and most attendees were not gang members. However, gang activity is rampant in parts of southern Chester County, the principal gangs being the "Surenos" or Sur 13 and its rival, the Vikings, also referred to as the "Vaqueros" or "VK", both comprised principally of members of Mexican/Spanish ancestry.
On that night, [Appellant], who was not a Sur 13 gang member, but a close acquaintance and member of a gang known as "the Bloods", was in the company of several members of Sur 13, who were ultimately charged with third[-]degree murder and other crimes in this case. During that evening, news of the Vikings attendance at the bonfire party became known to Sur 13 gang members and to [Appellant], and was disseminated to other Sur 13 gang members.
Emboldened with mindless machismo, Sur 13 gang members conceived a plan to attack the Vikings who were attending the bonfire party. During the evening before the attack, Appellant had a knife in his possession which he displayed to Sur 13 members and passed around. This knife was later identified as the knife used to kill both victims.
[Appellant] and as many as fifteen gang members and hangers- on drove in two vehicles to 1641 Baltimore Pike. The two groups exited the vehicles and approached the Vikings in two cadres around a house trailer located on the property. Circumstances became immediately chaotic, with many of the party attendees running in fear from the scene. Police believed that three of the five Vikings present locked themselves in vehicles to avoid harm, but the victims, 27[-]year[-]old Cuahuctemoc Bedolla and 29[- ]year[-]old Jose Rodriquez did not reach safety and were attacked and murdered. The victims were attacked by as many as ten Sur 13 gang members.
Trial Court Opinion, dated 3/10/16, at 5-6 (unpaginated) (paragraph breaks
added).
The trial court summarized the procedural history as follows:
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On August 23, 2013, Appellant entered into a counseled written plea agreement with the Commonwealth in which he pled guilty to two counts of murder in the third degree, 18 Pa.C.S.A. § 2502(c)[,] and one count of criminal conspiracy to commit third degree murder, 18 Pa.C.S.A. § 903.
The written plea agreement provided for a negotiated term of imprisonment of 20 years to 40 years for the murder of Cuahuctemo Bedolla. See Count 3 of the information. Under the terms of the plea agreement, Appellant entered an open [plea] of guilty to murder in the third degree in the death of the second victim, Jose Rodriguez, stated in Count 5 of the information, and to Count 1 of the information charging criminal conspiracy. Appellant and the Commonwealth agreed that the sentence to be imposed by the sentencing judge in his discretion on Count 5 would be consecutive to the sentence imposed on [C]ount 3.
[The trial court deferred sentencing] to allow the Commonwealth and the Appellant to submit sentencing memorandums, which were filed on November 4, 2013. On November 6, 2013, [the trial court] sentenced Appellant as follows: Count 3, 20 to 40 years imprisonment; Count 5, 20 to 40 years imprisonment consecutive to Count 3; and Count 1, 10 years consecutive probation.
Appellant filed a timely motion for reduction of sentence, pursuant to which, on April 22, 2014 following hearing on the motion, oral argument and consideration of briefs, [the trial court] granted Appellant's motion in part, vacated the sentence on Count 5, and ordered Appellant to be presented for resentencing on May 12, 2014. On the latter date, [the trial court] resentenced Appellant on Count 5 to 14 years, 6 months to 29 years imprisonment consecutive to Count 3. In all other respects, the sentences imposed on November 6, 2013 on Counts 1 and 5 remained unchanged. No direct appeal was taken from the foregoing judgment of sentence.
Id. at 1-4 (unpaginated) (some paragraph breaks added).
On June 11, 2015, Appellant filed a pro se PCRA Petition, which he
amended after the appointment of counsel, seeking the reinstatement of his
direct appeal rights. The PCRA court granted the Petition and Appellant
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timely filed the instant appeal. Appellant raises the following issue for our
review:
Whether the trial judge abused his discretion and sentenced [A]ppellant to an excessive sentence that was unfair when compared to the sentences given his [c]o-[d]efendants.
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of sentencing is not automatically
reviewable as a matter of right. See Commonwealth v. Hill, 66 A.3d 359,
363 (Pa. Super. 2013). Prior to reviewing such a claim on its merits:
[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court’s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code . . . .
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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 Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008)
(citations and quotations omitted).
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Appellant complied with the first two requirements by filing a timely
Notice of Appeal and preserving his sentencing issues by filing a Petition to
Reconsider Sentence. Although Appellant did not include in his brief a
separate Rule 2119(f) Statement, the Commonwealth has not objected to
this defect and, thus, we decline to find that the defect is fatal. 1 Finally,
Appellant’s claim—that the trial court imposed a disparate sentence relative
to his co-defendants—does raise a substantial question regarding the
appropriateness of Appellant’s sentence. See Commonwealth v.
Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010) (concluding that an
appellant raises a substantial question when he avers an unexplained
disparity between his sentence and that of his co-defendant).
We turn to the merits of Appellant’s claim, bearing in mind the
following standard of review:
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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
1 This Court may overlook the appellant’s failure to comply with Rule 2119(f) “where the appellee fails to object to the omission and a substantial question is evident from the appellant’s brief.” Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010).
-5- J. S55025/16
The law governing our inquiry into allegations of a manifest abuse of
discretion in sentencing multiple co-defendants is well-settled:
[C]o-defendants are not required to receive identical sentences. Generally, a sentencing court must indicate the reasons for differences in sentences between co-defendants. This is not to say, however, that the court must specifically refer to the sentence of a co-defendant. Rather, it requires that when there is a disparity between co-defendants' sentences, a sentencing court must give reasons particular to each defendant explaining why they received their individual sentences.
Mastromarino, 2 A.3d at 589 (citation and quotation marks omitted).
In Mastromarino, this Court concluded that the trial court adequately
placed on the record its reasons for sentencing Mastromarino to a greater
sentence than his co-defendants, because Mastromarino had a greater role
in the crime. Id. at 590.
In the instant case, the Honorable Ronald C. Nagle accepted guilty
pleas from Appellant and each of his 11 co-defendants. Judge Nagle also
presided at all 12 sentencing hearings. At Appellant’s initial sentencing, and
again at his re-sentencing, Appellant’s trial counsel relied on the sentences
imposed on Appellant’s co-defendants to argue for a shorter sentence for
Appellant. See N.T., 11/6/13, at 42-45, 52; N.T., 5/12/14, at 3-5. At both
of Appellant’s sentencing hearings, the Commonwealth argued that the
evidence against Appellant was stronger than that against his co-defendants,
Appellant was more culpable than his co-defendants, and Appellant had a
more extensive record of prior criminal conduct than his co-defendants. See
N.T., 11/6/13, at 28-30, 56; N.T., 5/12/14, at 5-8. Judge Nagle carefully
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considered these arguments, along with the report from Appellant’s Pre-
Sentence Investigation and sentencing memorandums from both parties,
before imposing sentence in this case. See N.T., 11/6/13, at 10, 58-60;
N.T., 5/12/14, at 4-5, 8-10.
Judge Nagle has authored a comprehensive, thorough, and well-
reasoned Opinion, including a detailed discussion of the 11 other sentences
imposed and an explanation for the higher sentence imposed in Appellant’s
case. After a careful review of Appellant’s argument and the record, we
affirm the Judgment of Sentence on the basis of that Opinion. Trial Court
Opinion, at 12-17 (unpaginated). See also N.T., 11/6/13, at 62-65
(explaining the reasons for imposing Appellant’s initial sentence and taking
into account Appellant’s greater admitted culpability); N.T., 5/12/14, at 8-10
(reflecting on the “considerable thought” put into crafting Appellant’s
sentence, and basing the modified sentence on the evidence showing that
Appellant stabbed both victims).
The parties are directed to attach a copy of the trial court’s March 10,
2016 Opinion to all future filings.
Judgment of Sentence affirmed. Jurisdiction relinquished.
-7- J. S55025/16
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/19/2016
-8- Circulated 08/26/2016 09:20 AM I S:\Admin\NAGLE\James Jones, Rule 1925 Opinion.docx I
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON ~lEAS. _.· .1 CHESTER COUNTY, ~~~-.NSY~¥jNIA··;I ,r. . J vs. NO. CP-15-CR-0000709:2012 · '...,· '. . o f_J ,·r' -0 "r: JAMES JONES "' . :. ,.... _.;. -·- ·;.;,- \ \'
CRIMINAL ACTION Defendant ';. :\.; -;J CJ·-
(.;) :----.: ,I-; ..
Nicholas J. Casenta, Jr., Chief Deputy District Attorney for the Commonwealth ! Robert P. Brendza, Esquire, Attorney for the Defendant
BY: NAGLE, S.J. March /Q I 2016 !
OPINION PURSUANT TO Pa.R.A.P. 1925
Appellant, James Alvin Jones appeals the aggregat~ sentence
imposed upon him by the undersigned following his pleas of g~ilty to two
counts of third .degree murder and one count of conspiracy! to comrit
third degree murder. The instant direct appeal was filed on: December .. . I
21, 2015. In his Rule 1925(8) statement, filed on January 18, 2016,
Appellant alleges that we abused our sentencing discretion . by . ! unreasonably imposing an aggregate sentence that is substantially mre
severe than the sentences we imposed on his co-defendants. :
Procedural History.
On August 23, 2013, Appellant entered into a counseled wri,en
plea agreement with the Commonwealth in which he pied g~ilty to two
counts of murder in the third degree, 18 Pa.C.S.A. §2502(c) and ~me . . ' count of criminal conspiracy to commit third degree murder, 1 aj Pa. C.S.A.
§ 903. The written plea agreement provided for a neqotiated term of I
imprisonment of 20 years to. 40. years for the murder of cJahuctemo
Bedolla. See Count 3 of the information. Under the terms ,f the pita
agreement, Appellant entered an open of guilty to murder im the third
degree in the death of the second victim, Jose Rodriguez, stated in
Count 5 of the information , and to Count 1 of the informatio11 charging . I criminal conspiracy. Appellant and the Commonwealth agreet that the I sentence to be imposed by the sentencing judge in his discretion in 13. Count 5 would be consecutive to the sentence imposed or\ count . I Sentencing was deferred to allow the ~ommonwealth and the! Appellant
to submit sentencing memorandums, which were filed on November 4,
2013. On November 6, 2013, we sentenced Appellant as follo1ws: Count
3, 20 to 40 years imprisonment; Count 5, 20 to 40 years imJ.risonmJnt 1probatiJn.
consecutive to Count 3; and Count 1, 10 years consecutive
Appellant filed a timely motion for reduction of sentence, pursuant Ito
which, on April 22, 2014 following hearing on the motion, oral argument
and consideration of briefs, we granted Appellant's motion in palrt, I I vacated the sentence on Count 5, and ordered Appellant to be lpresent~d . for resentencing on May 12, 2014. On the latter date, we resentenckd I
I I
I Appellant on Count 5 to 14 years, 6 months to 29 years imprisonmLt
consecutive to Count 3. In all other respects, the sentences imposed bn
November 6, 2013 on Counts 1 and 5 remained unchangedj No dirLt I
appeal Was taken from the foregoing judgment of sentence.
On June 11, 2015, Appellant filed a non~compliant prol se PCrA
petition, seeking the appointment of counsel and reinstatement of his
right to file a direct appeal. On June 12, 2015, I we appoi~ted PC,~ I counsel and gave him 90 days to file a PCRA petition that complied 1ith
Pa.Rs.Cr. P. 902(-A) through (E). However, on June 15, 201s! Appellant 1he filed a second, prose form PCRA petition (OC-198) in which alle~d
ineffective assistance of trial counsel, a plea of guilty unlawfully induc11ed . . I which caused him to plead guilty in the face of his innocence, ; unavailability of exculpatory evidence at the time of his pleas, and a I violation of his right to competent counsel under the Sixth Am!ndmenJ of . . I I I the United States Constitution. In the latter petition, Appellant claimed hls ! trial counsel were ineffective in allowing him to plead guilty when counsel
knew he was taking medication prescribed by a prison psychiatrist at Jhe I
time his pleas were entered. In this appeal, Appellant claims that five of
his co-defendants who each pied guilty to two counts of tliird degriee
murder pursuant to plea agreements . received disproportionately lesser . sentences than did he. Appellant also claims that those co-defenda~ts
entered. into plea agreements with the Commonwealth tor lighJer
~entences in order to shift direct blame for the murders from tfhlJemselvls - . I to him for the purpose of "framing" him.
On October 7, 2015, PCRA counsel filed an amended PC7A I petition on Appellant's behalf seeking an evidentiary hearin&. allegihg I I ineffective assistance of trial counsel. The petition asserted trail counle1 I I failed to file a direct appeal, upon an. allegation of abuse of discretion by
the sentencing judge in imposing unreasonable and disparate senten~es
in relation to those i_mposed on. Appellant's co-defenda1ts. PCj
counsel specifically declined to pursue Appellant's other pro se clai1s,
finding them to be meritless. On December 9, 2015, we enter~d an orsler
permitting Appellant to file a direct appeal, nunc pro tune withi'n 30 days, . I I I I · upon the Commonwealth's notification that it did not oppose such relief..
Jurisdiction. Appellant's judgment of sentence became -final on
June 11, 2014, thirty days after we re-imposed sentence and his time for ' . filing a timely direct appeal expired. Therefore, he had one year from tKat
I I ! . I II I date to file a petition for collateral relief, specifically until JunJ 11, 2015.
See Pa. R.A.P. 903(a); 42 Pa.C.S.A. §9545(b)(3). I Appellant's first pro I se PCRA petition was timely filed on June 11, 2015, giving us Lrisdictibn I to consider it. I I I
Facts. Appellant's conviction· is the consequence ofj a deadly
attack upon rival gang members that occurred on the night of December
3, 2011 during the course of a student-arranged bonfire pajy at 1611 . I Baltimore Pike in New Garden Township, Chester County, Pf. Many in I
attendance at the party were Kennett High School students, and m?st I I
attendees were not gang members. However, gang activity is rampant in I I I parts of southern Chester County, the principal gangs being the I I . "Surenos" or Sur 13 and its rival, the Vikings, also referred! to as the I
"Vaqueros" or 11VK", both comprised principally of members of I Mexican/Spanish ancestry. On that night, the Appellant, who .was not, a . . I Sur 13 gang member, but a close acquaintance and member I of a gang 11the . I I known as Bloods", was in the company of several memb:ers of Sur
13, who were ultimately charged with third degree murder land otJer
crimes in this case. During that everiing, news of the Vikings JttendanL
at the bonfire party became known to Sur 13 gang memblrs and Ito
Jones, and was disseminated to other Sur .13 gang members. Emboldened with mindless machismo, Sur 13 gang members conceived
a plan to attack the Vikings who were attending the bonfire pahy. Durlg
the evening before the attack, Appellant had a knife in his Jossessitn
which he displayed to Sur 13 members and passed around. !This ! I knife
was later identified as the knife used to kill both victims. ThJ. Appelljnt
and as many as fifteen gang members and hangers- on dr;we in Jo
vehicles to 1641 Baltimore Pike. The two groups exited the v+icles a~d
approached the Vikings in two cadres around a house trailer iocated bn I
the property. Circumstances became immediately chaotic, with many of
the party attendees running in fear from the scene. Police believed that I three of the five Vikings present locked themselves in vehiclJs to avLd
·. harm, but the victims, 27 year old Cuahuctemoc Bedolla and Jg year 0\ld . : I I Jose Rodriquez did not reach safety and w~re attacked and !murdered. I
The victims were attacked by as many as ten Sur 13 gangl members . I I· . with sticks and clubs and by the Appellant, who carried the killing knife. I I See, Sentencing Transcript, 11/6/2013", pp. 18 -33, Prosecuto~'s
Description of the Attack. See Sentencing Transcript 11/6/201;3, forent
crime scene testimony of Detective Kenneth Beam, pp.11-18.
Appellant's GuiltyPlea. As part of the facts to which Appellant pied guilty: he ad~itted +it
he was directly and actively involved in the assault on the victims. He I · admitted that the knife used to kill the victims was hi{ and he . I I confessed that he stabbed Cuahuctemo Bedolla to death wit~ the knife.
As a consequence, he agreed to a 20 to 40 year prison sentencefor Jis aime. L I noted, Appellantentered an open guiltyplea to third degree murderin the death of . I Jose Rodriquez, · admltting he was also criminally responsibile for Nlr. . I I Rodriguez' death, although he did not confess that he was thJ~ one who .
inflicted · Rodriguez' fatal knife wounds. None of· his co-conspirators ·
admitted to doing so. Defendant confessed, however, that thj knife t~at . . ! . I inflicted the fatal wounds on both of the victims was brought. by him to the
scene of the crimes, and was wielded by him during the asjaults. T~e
evidence also demonstrated that the killing knife was imiedded in . . Bedolla's vertebrae, but was somehow dislodged and found at the murder I scene near a pool of Bedolla's blood. A blood trail ultimate!) led polile
to Rodriguez' body, a distance away from the location in whibh
Bedolla's blood pool and the murder knife were found. Because the knire
was imbedded for a time in Mr. Bedolla, the investigatinlg officers
theorized that Rodriquez was stabbed first during the assaull when t I
came to Mr. Bedolla's aid. Inferentially, it is therefore logical t~ concluf e
j . I! that Appellant, who admitted to stabbing and killing Bedolla, also stabbed
Rodrequez. Police were unable to place a knife in the hand~ of any .of . . . ; ' the other defendants, and none admitted to employing a knife :during .t\1e • I
attack. DNA evidence proved that Rodriquez' blood wasl found on
Defendant's sneakers. During Defendant's sentencing proceiding, Te
Court asked whether the DNA of anyone other than the Appellant had
been found on the knife, and the Commonwealth responded: that whlile
minor or less intense alleles (genetic markers) other than Appellants were
found· on the handle of the killing knife, they were too mixe~ to pertit
another .actor's DNA profile to be identified. App e 11 ant's DiNA expert
testified that in her opinion, forensic DNA examination revealed that at
some time at least 2 other people had gripped the handle of the knife.
Our April 22, 2014 footnoted Order granting sentencing
reconsideration for Mr. Rodrequez' death includes a general ,6iscussibn
of DNA evid.ence and genetic structures, and need not be repeated hefe.
The State Police Forensic Laboratory Report issued in thisi case wbs
introduced at the post-sentence hearing. Exhibit D-2. This documJnt
was not provided to the court at Appellant's original sente,ncing, Lr
did the Commonwealth produce the report's author to te~tify to· J1is
findings. A discussion of the Report's scientific findings is contained in our . l I ; I April 22, 2014 Order. The State Police Forensics' expert concluded in his
report that 11 of the genetic loci DNA markers found on the !killing knife
matched Defendant's DNA. His conclusions were threefold: (1) the major
component of DNA profile in terms of alleles taken from the handle of the I knife matched the Defendant 's DNA profile; (2) additional ~inor 1Jss I I
intense alleles also present in genetic loci could not be interpreted due to
the complexity of the mixture; (3) the probability of selecting ari unrelated
individual exhibiting Defendant's I DNA found on the knife handle is
approximately 1 in 390 billion from the Caucasian ~,opulation,
approximately 1 in 757 billion from the African American population, ahd I I
approximately 1 in 1.7 trillion from the Hispanic population. ~ppellant is I an African American. Defendant's forensics' expert opined that from tier
examination of the State Police Forensics expert's report, a! least Jo . : I other people had contact with the handle of the killing knife besides the
Defendant; however, she agreed that as to "touch" DNA :· the type I ; I ·measured by the forensic DNA examination of the knife handle - the ! I person who handled the knife handle the most would deposit the I
greatest amount of identifiable DNA. I Discussion: The penalty for third degree murder is provided for in
Section 1102( d) of the Crimes Code, which pertinently states.: I
I I I
111102 (d) Third degree.- Notwithstanding section I 1103, a person who
has been convicted of murder of the third degree ..... shall be sentenced
to a term which shall be fixed by the court at not more than fo years".
18 Pa.C.S.A. §1102(d). Instantly, Appellant used a deadly -v~eapon in
the murder of Jose Rodriquez, thereby implicating the deadly weapon I I . enhancement, warranting at the minimum a sentence of 90 jmonths to
240 months. See Sentencing Guidelines. §303.1 O(a)(2) & §303. 8. I
However, in fixing the penalty, we are not constrainec!j by the
t · .sen encmg gutid e 1·mes , since · t h e gu1id e 1·mes h ave no b.in d.!mg effec , It create no presumption in sentencing,. and do .not predominate~11Ver otJer · · i I sentencing factors. Commonwealth v. Walls, 926 A.2d 957 (Pa. ,2007).
The murders were especially barbaric and the victims suffe~ed brulal I .
· ·deaths. Rodriquez is reported to have suffered 5 stab wounds from 4
stabbing motions, causing gruesome injuries. His blood was fo~nd on tre
blade of the killing knife and his DNA was found on the A~pell_ant's
sneakers. App e 11 ant brought the killing knife to the sce:ne of tre crimes, and was a primary actor in the deadly assaults, alt~ough n!ot
the only· one. Based on the evidence, it is reasonable to bilieve thlat
Rodriquez came to Bedolla's aid and was stabbed in the proces;s of tryilg
to help him. Bedolla suffered 7 stab wounds, one of which oenetrated ~'. I I I I ' I
into his vertebrae. As noted above, the knife was found approLmatel) 8 t feet from a pool of Bedolla's blood, giving credence to ~he pole I
conclusion that it became dislodged from his body before he was taken by
a companion from the crime scene. Rodriquez was found dlad at the . I I scene, at the end of a blood trail, his body lying a substant+ distaTe
from where the knife was recovered. Although the CommonJealth was ! I unable to prove by direct evidence that App e 11 ant inflicted the fatal
wounds to Rodriquez, the circumstantial evidence is sufficient to!warrant lhe : I . conclusion that he was immediately and directly complicit in the
administration of the fatal knife wounds that resulted in the djath of : t.I Rodriquez. The DNA evidence, taken in conjunction with lall of Te
'other evidence, was strongly corroborative of the conclusidn that the I I Appellant wielded the knife when Mr. Rodriquez was statbed. The
Commonwealth has likened the difficulty of the investiqatioj of thelse
crimes to the "fog of war" due to the difficulty of proving thef individJ1al
complicity of the multiple co-conspirators prosecuted for these deatf s.
Of the multiple defendants prosecuted for the deaths of these tf o victi1s,
none received a sentence as severe as the one we imposed on tpe ' Appellant for these killings, precisely because the Commonwealth's proofs l 1· i I I and assessments of individual conspiratorial culpability varie,j with ealch I I I
defendan~ but were greatest when tt cameto Appellant's culpability.. I Alleged Sentence Disparity. · iI I I The undersigned · judge was· assigned all of the cases brought ! I ! I against 12 defendants in the death of the two victims. Each of the · . I. .I sentences imposed on these defendants necessarily varied in Jproportii:m
to the degree of culpability the Commonwealth was able toi establiJh.
Each sentence was imposed upon the courts' approval of ~egotiatld '
written plea agreements, with the facts admitted by each deferldant as to . I his involvement in the killings spread upon the record. ~he; extent of
proven and admitted culpability of each defendant varied, as reflected in
the sentences imposed. Each of the Appellant's 11 co-defendants
entered written plea agreements, pied guilty and was sentenced, as : I ! I follows: ' Cristian Eumana: Conspiracy to commit 3d degree murder]" (6 yea.rs consecutive probation) and 2 counts of 3d degree murder (11 to 22 ye~.rs concurrent) - aggregate 11 to 22 years imprisonment, plu(s 6 ye~rs consecutive probation. · I Edwin Romero: Conspiracy to commit 3d degree murder J(10 yeJ.rs probation consecutive), 2 counts third degree murder (9 to1 20 ye~.rs concurrent on each) - aggregate 9 to 20 years imprisonment, plus ro years consecutive probation. I 1· Stephen Andrew Daddezio: Conspiracy to Commit 3d degree murder, i i and 2 counts of third degree (8 Yi to 17 concurrent on all) -- a~gregatd 8 I Yi to 17 years imprisonment. i I .I Rafael Lopez Alvarado: Conspiracy to commit 3d degree murder and 2 I counts of 3d degree murder (8 to 16 concurrent on all) -- aggriegate 8 to 16 years imprisonment. i Manuel · Salvador . Mora Chavez - Conspiracy to commit 3d I degree I murder (10 years probation consecutive), and 2 counts 3d degree I I murder (7 to 18 years concurrent on each) -- aggregate 7 tc;> 18 years imprisonment, plus, 10 years consecutive probation. ! I I
Orlando Diaz: Conspiracy to commit Aggravated. Assault (5? Yi to 115 years), and 2 counts of Aggravated Assault ( 5 Yi to i 15 years concurrent) - aggregate 5 Yi to 15 years imprisonment.
Fabian Cortez; Conspiracy to commit Aggr?lvated Assault (3 tp 6 year1s ), and .2 ·counts Involuntary Manslauqhter (1 to 2 concurrent or1l each but consecutive to conspiracy) - aggregate 4 to 8 years imprisonment. . I Jorge Ramirez Torres: Conspiracy to commit Aggravated A~sault (8 Yi to 23 months - but waived credit for approx. 32 months of tinie servep), 2 counts of Aggravated Assault (8 Yi to 23 months - but waiveb credit for 32 months of time served - concurrent with conspiracy), 2j counts of Involuntary Manslaughter (2 years consecutive probation or,1 each) -- aggregate 8 Yi to 23 months plus 4 years consecutive probation.
Junior Noel Lopez Moreno: Conspiracy to commit Aggravated Assault (8 Yi to 23 months - but waived credit for approx. 32 months of tir1ne served), 2 counts of Aggravated Assault (8 Yi to 23 months - but waived credit for 32 months of time served - concurrent with conspiracy), 2 counts of Involuntary Manslaughter (2 years consecutive prbbation on each) -- aggregate 8 Yi to 23 months plus 4 years cpnsecutive probation. I I
Ken Fitzsimons: Conspiracy to commit Aggravated Assault (1.1 Yi to 2·3), 2 counts of involuntary Manslaughter (2.5 years probation on each) 2 counts .ot Aggravated Assault (11 /12 to 23 months concurrent) 1 -- I aggregate 11 Yi to 23 months imprisonment plus 5 years consecutive probation.
Domenic Daddezio - Decertified and handled in juvenile court. I The Appellant's admitted and proven conduct was I the mbst
serious, as was his criminal history. In sentencing Appellant, Jve had Jhe I I benefit of a lengthy sentencing memorandum submitted by ihe . ! Commonwealth and heard testimony. We respectfully direct the I Courts I
attention to the Commonwealth's memorandum, particularly pages 4
through 7, which we do not wish to repeat at length here. Thpse pages
aptly express the conclusions we reached after giving full considerati~n I to defense counsels' memorandum and arguments as respects the I Appellants culpability in the death of the two victims. . Given that Appellant agreed to our imposition of a prison sentete
of 20 to 40 years for the murder of Mr. Bedolla, and a· c/Jnsecutre
sentence in the murder of Mr. Rodrequez, the issue now before the I
Court implicates only an alleged abuse of our discretion in sentencihq
Appellant to 14 and 1/2 to 29 years imprisonment for the mu;der of ~r I Rodriquez. See Hearing Transcript, 1/16/2014. In our view, asldescribed I
above, there was compelling circumstantial evidence proving t~at
Appellant was directly responsible for the stabbing murder of Mr. . Rodriquez, thereby warranting a sentence disproportionate to the otrier I • .'
I
defendants. The Commonwealth sought a consecutive 6 tf 12 yyr
prison sentence on the Conspiracy conviction which we declined, I instead
imposing a consecutive 10 year probationary sentence.
The right to appeal the discretionary aspects of a sent,nce is J°t
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. ' 2004), appeal denied, 860 A.2d 122 (Pa. 2004). When I I an! appellant
challenges the discretionary aspects of the sentence imposeJ. he mJst
present "a substantial question as to the appropriatene!s of t~e I I . I sentence. Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. ' I I 2003) (citations omitted). An appellant must, pursuant to Pehnsylvania I I · Rule of Appellate Procedure 2119(f), articulate "a colorablel argument
that the sentence violates a particular provision of the Sentefing co6e
or is contrary to the fundamental norms underlying the ~entenc1g
scheme." Commonwealth v. Kimbrough, 872 A.2d 1244, 11263 (Pia. I I I I Super. 2005) (en bane), appeal denied, 887 A.2d 1240 (Pa. 2005)
(citation omitted). Instantly, Appellant cannot claim that the lentencihg
court unreasonably imposed a consecutive sentence, since h~ agreed to
its imposition in his written plea agreement. Even had he no~ done ~o, . I ' Pennsylvania law "affords the sentencing court discretion to impose ·its
sentence concurrently or consecutively to other sentences being I I .. I
I imposed at the same time or to sentences already imposed. ~ny I
challenge to the exercise of this discretion ordinarily does riot .raisJ a . I I substantial question." Commonwealth v. Pass, 914 A.2d 44~. 44617
(Pa.Super. 2006) (citation omitted); see also Cotnmonweetth v. Hoag,
665 A. 2d 1212, 1214 (Pa. Super. 1995) (holding that appeilant is Lt I I entitled to "volume discount" by having sentences run concurre.ntly). I I A claim that a defendant received a grossly disprc~portionche ! I sentence relative to co-defendants may raise a substantial q~1estion, 'as . .. I I required to reach merits of a discretionary sentencing issue: however, l I sentencing is a matter vested in the sound discretion of the J,entencirg I . judge, and a sentence will not be disturbed on appeal absent ~ manifest
abuse of discretion. In this context, an abuse of discretion is hot sholn , I I I merely by an error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or ~isapplit . the law, exercised its judgment for reasons of partiality, prejudice, bias or I . I I •
ill will, or arrived at a manifestly unreasonable decision. Commonwealth I v. Anderson, 830 A.2d 1013, 1018 (Pa.Super.2003) ( quotation pmitted),.
The law is well-settled that co-defendants are not required Ito ! I .
receive identical sentences. Commonwealth v. Mastromarin~, 2 A.~~d I
581 (Pa. Super. 2010) citing Commonwealth v. Krysiak, 369 'Pa.SupJr. I I I 293, 535 A.2d 165, 167 (1987).Generally, a sentencing court must
indicate the reasons for differences in sentences : bet;ween co- I defendants. Id. "This is not to say, however, that the dourt mlst
specifically refer to the sentence of a co-defendant. Rather, lit requirls I
that when there is a disparity between co-defendants' s~ tences, a 1I
sentencing court must give reasons particular to each )defendant
explaining why they received their individual sentences." Commonwealth I v. Mastromarino, citing Commonwealth v. Cleveland, 703 t\.2d 1046,
1048 (Pa.Super.1997). I I
Instantly, in sentencing Appellant we concluded that his conduct
was the most egregious relative to the proven conduct of the otJer
murder defendants. We also gave due consideration to fppellan:t's
criminal history and prior conduct. See Commonwealth's Sentencing I ! . I i Memorandum, filed 11 /4/2013 and· Prosecutor's Sentencing Statement, ! 1. Sentencing Transcript, 11/6/2013, pp. 18 -33. And, we stated our
sentencing rationale on the record at Appellant's res~ntenciJg, I t
incorporating our rationale stated in our April 22, 2014 Orde,. See Re- l I Sentencing Transcript, 5/12/2014. For these reasons, we rrspectfui"y
recommend that the judgment of sentence be affirmed. J
BY THE COURT