Com. v. Morales, C.

• Court: Superior Court of Pennsylvania
• Decided: January 6, 2023
• Docket: 372 EDA 2022
• Status: Unpublished

Opinion

J-A24021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CESAR A. MORALES : : Appellant : No. 372 EDA 2022

Appeal from the Judgment of Sentence Entered November 17, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0001036-2017

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED JANUARY 6, 2023

Cesar A. Morales appeals from the judgment of sentence entered

following his guilty plea to two counts of attempted murder, and one count

each of persons not to possess a firearm, and conspiracy to commit attempted

murder. See 18 Pa.C.S.A. §§ 901, 6105(a), 903(a). Morales argues that the

trial court abused its discretion in imposing an excessive aggregate sentence.

We affirm.

Morales’s convictions arise from his actions as a subcontracted hitman.

Joseph Wesley believed Danielle Miller was the informant police relied on to

charge Wesley with gun and drug trafficking. Wesley therefore hired Darelle

Bean to kill Miller. Although Bean accepted Wesley’s offer to kill Miller, he later

determined that he could not kill a woman. As a result, Bean subcontracted

the job to Morales for $2000. J-A24021-22

On December 2, 2016, Bean drove Morales to Miller’s location in

Norristown. Thereafter, Morales fired three shots at Miller and Stephen Rowl,

striking Miller’s right hand and left bicep, and Rowl’s torso and right leg.

On May 30, 2018, Morales entered an open plea of guilty to two counts

of attempted murder and one count each of persons not to possess a firearm

and conspiracy to commit murder. The trial court deferred sentencing because

Morales agreed to testify at Wesley’s trial. Approximately one week later, Bean

entered an open plea of guilty to two counts of attempted murder and one

count each of persons not to possess a firearm and conspiracy to commit

murder. Like Morales, the trial court deferred Bean’s sentencing hearing

pending Bean’s testimony at Wesley’s trial.

Wesley’s jury trial commenced in November 2021, and Morales testified

at the trial. Thereafter, a jury found Wesley guilty of two counts of attempted

murder, and one count each of solicitation to commit murder and conspiracy

to commit murder. On November 17, 2021, the trial court sentenced Morales

to an aggregate prison sentence of 30 to 60 years. More specifically, the trial

court imposed consecutive sentences of 15 to 30 years for the attempted

murder convictions, which were in the mitigated range, and a concurrent

sentence of 5 to 10 years for the persons not to possess a firearm conviction.

The court found that the criminal conspiracy conviction merged for sentencing

purposes. That same day, the trial court sentenced Bean to an aggregate

prison term of 15 to 30 years. Notably, the trial court imposed concurrent

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prison terms of 15 to 30 years for the attempted murder convictions because

Rowl was not the intended target of Bean’s actions.

Morales filed a timely post-sentence motion for reconsideration of

sentence, which the trial court denied. This timely appeal followed.

On appeal, Morales raises the following question for our review:

Did the trial court abuse its discretion by sentencing [Morales] to an aggregate of 30 to 60 years’ incarceration, because such a sentence was fashioned only to punish Appellant and solely based upon the “seriousness of the offenses,” and [is] contrary to justice as no victim, witness, party or representative of the Commonwealth asked for such a sentence and it is not necessary to prevent [Morales] from committing further crimes, as the trial court explicitly admitted?

Appellant’s Brief at 2-3.

Morales challenges the discretionary aspects of his sentence.1

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010) (citation omitted). Prior to reaching the merits of a

discretionary sentencing issue, this Court conducts a four-part analysis:

(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).

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1 We note that when a defendant enters an open plea, he may challenge the discretionary aspects of the sentence imposed. See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa. Super. 2020).

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Moury, 992 A.2d at 170 (citation and brackets omitted).

Here, Morales filed a timely appeal and preserved his claim in his post-

sentence motion. Morales also included a separate Rule 2119(f) Statement in

his brief; accordingly, we will review his Rule 2119(f) statement to determine

whether he has raised a substantial question. See Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (stating that “we cannot

look beyond the statement of questions presented and the prefatory 2119(f)

statement to determine whether a substantial question exists.” (citation

omitted)).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013). “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.” Id. (citation omitted).

In his Rule 2119(f) statement, Morales argues that the trial court

improperly failed to consider the standards for sentencing set forth by 42

Pa.C.S.A. § 9721(b), did not provide adequate reasons for the sentence, and

focused solely upon the seriousness of the crimes in imposing the sentence.

See Appellant’s Brief at 7-8. Morales’s claims raise a substantial question. See

Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)

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(recognizing that a claim that impugns the trial court’s failure to offer specific

reasons for the sentence, which “comport with the considerations required in

section 9721(b)[,]” raises a substantial question); see also Commonwealth

v. Knox, 165 A.3d 925, 929 (Pa. Super. 2017) (stating that claim that trial

court focused on the seriousness of the crime while ignoring other factors

raises a substantial question).

Our standard of review of a challenge to the discretionary aspects of a

sentence 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. Watson, 228 A.3d 928, 936-37 (Pa. Super. 2020)

(citation omitted).

Morales contends the trial court abused its discretion by imposing a

sentence based upon the seriousness of the crimes and without properly

considering the Section 9721(b) factors. See Appellant’s Brief at 9, 11-12, 14.

Morales suggests that his crimes were not exceptional because he did not

make a full effort to execute Miller and Rowl, noting that no vital body parts

were struck by the bullets. See id. at 11. Morales points out that neither Miller

nor Rowl provided a victim impact statement at the sentencing hearing. See

id. at 13. Morales further argues that other defendants convicted of similar

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crimes received lesser sentences, including his co-defendant Bean. See id.;

see also id. at 12-13 (noting that Bean, not Morales, was the mastermind of

the plot to kill Miller). Moreover, Morales highlights that the trial court stated

that there was not a real risk that he would commit further crimes. See id. at

12.

Morales also claims that the trial court failed to provide adequate

reasons for the sentence, including addressing the Section 9721(b) factors.

See id. at 13-14. Morales concludes that the sentence was arbitrary because

the trial court emphasized the seriousness of the crimes and failed to consider

that he will not be eligible for parole until he is 67 years old. See id. at 14.

Here, the trial court considered the presentence investigation report.

See N.T., 11/17/21, at 5, 27; see also Presentence Investigation Report at

1-10. The trial court also noted Morales submitted a sentencing memorandum,

and 26 exhibits attesting to Morales’s character, his rehabilitation in prison,

and his good behavior in prison. See N.T., 11/17/21, at 5, 8-10; see also

Sentencing Memorandum at 1-18. In addition, Morales’s fiancé, Tasliym

Goodman, testified regarding Morales’s growth in prison and his positive

relationship with their son, who was born while Morales was in prison. See

N.T., 11/17/21, at 10-15. Morales testified regarding his remorse and read

letters of apology to the victims. See id. at 16-22. Finally, the Commonwealth

detailed Morales’s cooperation since he was arrested, his truthfulness, and his

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valuable testimony at Wesley’s trial regarding the murder for hire scheme.

See id. at 24-26.

In stating its reasons for the sentence, the trial court noted that it

considered the protection of the public, the gravity of the offenses, the impact

on the victims and the community, and Morales’s rehabilitation needs. See id.

at 27. The court stated that it considered the impact of Morales’s cooperation

in the case, which the Commonwealth had noted was critical in Wesley’s trial.

See id. at 27-28, 30. The trial court also weighed Morales’s positive character

attributes, his exemplary behavior in prison, his remorse, and the seriousness

of the crimes. See id. at 28-29. Although the trial court maintained that there

was not an undue risk that Morales would commit another crime, the trial

court imposed the above sentence, noting that any lesser sentence would

depreciate the seriousness of the crimes. See id. at 29-30.

Upon review, the court’s sentence was consistent with the factors set

forth in Section 9721(b). Indeed, the trial court considered the protection of

the public, the gravity of the offenses relating to the victim and society, and

Morales’s rehabilitative needs. Moreover, the trial court took into account

mitigation evidence, including Morales’s positive character, age, education,

family history, remorse, lack of risk of recidivism, and cooperation with the

Commonwealth. The trial court also highlighted the seriousness of the crimes,

noting that there were “two separate victims, one who was [Morales’s] initial

intended target and the one he was hired to murder; the second her

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companion whom [Morales] maliciously fired upon and attempted to kill.” Trial

Court Opinion, 3/24/22, at 16; see also Commonwealth v. Taylor, 277

A.3d 577, 593 (Pa. Super. 2022) (noting that the “imposition of consecutive

rather than concurrent sentences lies within the sound discretion of

the sentencing court.” (citation omitted)).

Here, the trial court was properly apprised of and considered all relevant

factors in fashioning Morales’s sentence, and there is no indication that the

trial court ignored any factors. See Watson, 228 A.3d at 936 (stating that

where the trial court is informed by a presentence investigation report, it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed). Further, the fact that the trial court imposed

different sentences for Morales and Bean does not establish an abuse of

discretion. See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa.

Super. 2010) (stating that “co-defendants are not required to receive identical

sentences.”); Commonwealth v. Myers, 536 A.2d 428, 430 (Pa. Super.

1988) (“A sentencing court is not required to impose the same sentence on

all participants in a crime.”). Therefore, the trial court did not abuse its

discretion in imposing the aggregate sentence. See Commonwealth v.

Walls, 926 A.2d 957, 961 (Pa. 2007) (stating that “the sentencing court

enjoys an institutional advantage to appellate review, bringing to its decisions

an expertise, experience, and judgment that should not be lightly disturbed.”).

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/6/2023

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