Commonwealth v. Daniel

30 A.3d 494, 2011 Pa. Super. 214, 2011 Pa. Super. LEXIS 3229
CourtSuperior Court of Pennsylvania
DecidedOctober 11, 2011
StatusPublished
Cited by22 cases

This text of 30 A.3d 494 (Commonwealth v. Daniel) is published on Counsel Stack Legal Research, covering Superior 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. Daniel, 30 A.3d 494, 2011 Pa. Super. 214, 2011 Pa. Super. LEXIS 3229 (Pa. Ct. App. 2011).

Opinion

OPINION BY

BOWES, J.:

The Commonwealth appeals from the judgment of sentence of eleven and one-half to twenty-three months imprisonment followed by five years probation that was imposed after Appellee pled guilty to two counts of aggravated assault and one count of possession of an instrument of crime. We vacate the sentence and remand for re-sentencing.

On June 29, 2010, Appellee entered an open plea of no contest to two counts of aggravated assault graded as first-degree felonies and possession of an instrument of crime, a first-degree misdemeanor. He faced forty-five years imprisonment. The factual basis for the plea was as follows. On September 6, 2008, there was a party involving the use of drugs and alcohol on North Broad Street, Philadelphia, that was attended by two cliques. After the party ended and everyone exited the premises, a person in Appellee’s group noticed that his cell phone was missing and concluded that someone in the other group possessed it. Members of the two cliques contacted each other, and they agreed to meet at a Wawa Market at the intersection of Grant Avenue and Bluegrass Road, Philadelphia. After the phone was returned to its owner, an argument ensued between Appellee and an individual from the other group, Nicholas Cutrera. Appellee retrieved a knife from his pocket and stabbed Mr. Cutrera, [496]*496who suffered a lacerated liver and abdominal injuries. When Mr. Cutrera’s friend, Daniel Maveiro, saw him bleeding, Mr. Maveiro confronted Appellee, who then stabbed that victim numerous times. Mr. Maveiro’s liver also was lacerated and a lung was punctured. Appellee immediately fled in a car. Both victims were hospitalized in critical condition and identified Appellee, whom they knew by his nickname, as their attacker from photographic arrays shown to them by police.

When the case proceeded to sentencing on September 10, 2010, Appellee had served between seventeen and eighteen months in county prison on the present charges. The court had the benefit of a pre-sentence report, which is contained in the record certified to this Court. At the time of sentencing, Appellee had a prior record score of three. At twenty years of age, he pled guilty to unauthorized use of a motor vehicle and received probation. In 2005, Appellee was involved in three separate criminal episodes and pled guilty to possession of drug paraphernalia, receiving stolen property, and a felony offense of possession of marijuana with intent to deliver. The pre-sentence report also established that on March 10, 2009, after Appel-lee committed the present crimes, he was charged with the following violations of the Uniform Firearms Act: possession of a firearm by a prohibited person, possession of an unlicensed firearm, and possession of a firearm with an altered or obliterated identification mark. Finally, the report indicates that Appellee was on probation when the present crimes were committed.

The offenses of aggravated assault at issue in this case were assigned an offense gravity score of eleven because both victims sustained serious bodily injury. The district attorney informed the sentencing court that Mr. Cutrera nearly died from his stab wounds. The guidelines called for a standard range sentence for each aggravated assault of four and one-half to six years plus or minus twelve months for the aggravated/mitigated ranges.

The court elected to impose a sentence drastically below the recommended guidelines because: 1) Appellee pled no contest when he could have presented a self-defense claim at trial and thus accepted responsibility for the crimes; 2) he displayed remorse at sentencing; 3) the crimes were committed under the influence of drugs and/or alcohol; 4) Appellee did not begin his criminal activities until he was twenty years old; and 5) he had family support and was one year from graduating from college with a B average. N.T. Sentencing, 9/10/10, at 45-47. Appellee was sentenced to two concurrent terms of eleven and one-half to twenty-three months imprisonment, made immediately eligible for parole, and given a probationary term of five years. Thus, the sentence imposed herein was one-quarter of the sentence outlined as the minimum standard-range sentence for a single aggravated assault.

The Commonwealth filed a motion for reconsideration. At the hearing on that motion, the Commonwealth revealed more details about Appellee’s crimes, including that he had used a butterfly double-edged knife in the attack. N.T. Motion, 10/8/10, at 9. It also noted that Appellee had pled guilty to the 2009 weapons offenses. Furthermore, Mr. Cutrera’s family did not know for three or four days whether he would survive. After the attack, Mr. Cutr-era was unable to return to school for two semesters and still suffered from digestive problems and pancreatitis. The Commonwealth also noted that eyewitnesses told police that Appellee had the knife in his possession before his group arrived at the Wawa Market and that the unarmed victims had done nothing to provoke the knife attack. This timely appeal followed the [497]*497sentencing court’s refusal to reconsider its sentence.

On appeal, the Commonwealth contends that the court’s decision to sentence so dramatically below the guidelines was unreasonably lenient, was dependent upon improper factors and factual findings unsupported by the record, disregarded the serious nature of the offenses, and ignored Appellee’s criminal background, which demonstrated that he had consistently engaged in more serious criminal behavior. These arguments relate to the discretionary aspects of the sentence imposed. As required by Pa.R.A.P. 2119(f), the Commonwealth has included in its brief a statement of reasons relied upon for allowance of appeal. Commonwealth’s brief at 9. Furthermore, the Commonwealth’s allegations raise a substantial question as to the appropriateness of this sentence, permitting us to review the sentence. Commonwealth v. P.L.S., 894 A.2d 120 (Pa.Super.2006) (allegation that court unreasonably sentenced outside the guidelines raises a substantial question); Commonwealth v. Simpson, 829 A.2d 334 (Pa.Super.2003) (averment that the court relied upon an impermissible factor during sentencing raises a substantial question).

In Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), our Supreme Court observed that the parameters of this Court’s review of the discretionary aspects of a sentence is confined by the dictates of 42 Pa.C.S. § 9781(c) and (d). Section 9781(c) states in relevant part that we may “vacate the sentence and remand the case to the sentencing court with instructions” if we find that “the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.” 42 Pa. C.S. § 9781(c)(3). Section 9781(d) provides that when reviewing a sentence, we must consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

The Walls

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Cite This Page — Counsel Stack

Bluebook (online)
30 A.3d 494, 2011 Pa. Super. 214, 2011 Pa. Super. LEXIS 3229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-daniel-pasuperct-2011.