Commonwealth v. Burdge

562 A.2d 864, 386 Pa. Super. 194, 1989 Pa. Super. LEXIS 2199
CourtSupreme Court of Pennsylvania
DecidedJuly 27, 1989
Docket747
StatusPublished
Cited by17 cases

This text of 562 A.2d 864 (Commonwealth v. Burdge) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Burdge, 562 A.2d 864, 386 Pa. Super. 194, 1989 Pa. Super. LEXIS 2199 (Pa. 1989).

Opinion

JOHNSON, Judge:

Maxwell Burdge appeals from the discretionary aspects of a judgment of sentence imposed following his convictions for involuntary manslaughter, aggravated assault, two counts of reckless endangerment, possession of an instrument of crime and attempted criminal homicide. Burdge was sentenced to two and one-half to five years imprisonment for involuntary manslaughter, ten to twenty years imprisonment for aggravated assault, and one to two years imprisonment for reckless endangerment. These sentences were to run consecutively. We determine that Burdge presented us with a substantial question in claiming that the trial court sentenced him significantly in excess of prior and pending sentencing guidelines, and so we reach the *197 merits of his appeal. However, we find that the trial court committed no abuse of discretion and therefore affirm.

This case arose out of a domestic dispute which occurred on March 10, 1988 between appellant Maxwell Burdge and his girlfriend, Kimbra Powley. Burdge discharged a twelve gauge, double barrel shotgun into a motor vehicle occupied by Powley, her two year old brother, Joshua Mefford and her five year old daughter, Cassandra Paden. As a result of the shooting, Cassandra Paden died, Kimbra Powley lost the sight of her right eye and Joshua Mefford received injuries to his hand and forearm. A jury convicted Burdge of involuntary manslaughter in the death of Cassandra Paden, aggravated assault of Kimbra Powley, reckless endangerment of Kimbra Powley and Joshua Mefford and possession of an instrument of crime. The trial court merged the crime of reckless endangerment against Kimbra Powley with the offense of aggravated assault against her for sentencing purposes. In addition, the trial court placed Burdge on five years probation to follow the completion of this sentence for the offense of possession of an instrument of crime. Burdge filed a timely motion to modify sentence which was denied.

Burdge argues that the trial court abused its discretion by: 1) imposing an excessive sentence in light of the underlying crimes; 2) failing to follow the merger doctrine enunciated in Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, — U.S. —, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988); and, 3) improperly applying the mandatory minimum sentence for use of a firearm during the commission of a crime, § 42 Pa.C.S. § 9712.

Burdge does not challenge the legality of his sentence. Thus, an appeal in this case is not taken as a matter of right. See 42 Pa.C.S. § 9781(a). Rather, Burdge challenges the discretionary aspects of the sentence. As such this appeal must be considered as a petition for permission to appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987). We, as an appellate court, may allow such an appeal “where it appears *198 that there is a substantial question that the sentence imposed is not appropriate____” 42 Pa.C.S. § 9781(b).

Burdge has complied with the mandate of Tuladziecki by setting forth a statement of the reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f). Thus, we proceed to consider whether Burdge has demonstrated the existence of a substantial question. “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Id., 513 Pa. at 515, 522 A.2d at 20.

Burdge argues that the length of his sentence is much greater than that suggested by the sentencing guidelines previously in effect. In Commonwealth v. Sanchez, 372 Pa.Super. 369, 372-73, 539 A.2d 840, 841 (1988) this Court, sitting en banc, found that a substantial question existed when the sentence imposed was almost twice as long as that recommended by the sentencing guidelines. While we recognize that no sentencing guidelines were in effect in the present case, the sentence imposed considerably exceeded the recommendations of both the prior and pending sentencing guidelines. Therefore, we find that the propriety of the sentence presents a substantial question and we will review the merits of Burdge’s claim.

Initially Burdge argues that the trial court abused its discretion by imposing a sentence based solely on the nature of the crime without considering the protection of the public or his rehabilitative needs. The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court, and will not be disturbed unless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion. Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985). In the exercise of this discretion the trial court must consider the history, character, and the condition of the defendant, his rehabilitative needs, and the need for protection of the public as well as the gravity of the *199 offense. Id., Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984), 42 Pa.C.S. § 9725.

Burdge argues that the trial court violated these principles when it failed to consider his background and rehabilitative needs, focusing solely on the nature of the crime. This argument, however is not supported by the record. Initially, we note that Burdge’s sentence for each crime was within the statutory limits. Furthermore, a review of the record indicates that Judge Quigley utilized the findings of a comprehensive presentence report in imposing his sentence. Recently, in Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), our supreme court held that where a presentence report exists it will be presumed that the sentencing judge was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating factors. When the sentencing court has been informed by such a pre-sentence report, its discretion should not be disturbed, particularly where it can be shown that the judge had any degree of awareness of the sentencing considerations. Id. The pre-sentence report ordered by Judge Quigley included background information concerning Burdge’s family, work experience, criminal record, education, intelligence, mental, emotional and physical health, his version of the incident and statements of some of the victims and family members. In light of this report, Judge Quigley was well informed and did make a balanced judgment in arriving at Burdge’s sentence. Thus, we find this issue to be without merit.

Next, Burdge argues that the crime of aggravated assault with respect to Kimbra Powley merges with the crime of reckless endangerment with respect to Joshua Mefford.

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Bluebook (online)
562 A.2d 864, 386 Pa. Super. 194, 1989 Pa. Super. LEXIS 2199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-burdge-pa-1989.