Commonwealth v. Sheller

961 A.2d 187, 2008 Pa. Super. 265, 2008 Pa. Super. LEXIS 3924
CourtSuperior Court of Pennsylvania
DecidedNovember 10, 2008
StatusPublished
Cited by225 cases

This text of 961 A.2d 187 (Commonwealth v. Sheller) 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. Sheller, 961 A.2d 187, 2008 Pa. Super. 265, 2008 Pa. Super. LEXIS 3924 (Pa. Ct. App. 2008).

Opinion

OPINION BY

FREEDBERG, J.:

¶ 1 This matter is before the Court on Michael J. Sheller’s appeal from judgment of sentence of the Court of Common Pleas of Chester County. On September 18, 2007, following a jury trial, Appellant was convicted of voluntary manslaughter, 18 Pa.C.S.A. § 2503(a)(1), for the shooting death of his wife, Christine Love-Sheller. On November 30, 2007, he was sentenced to eight to twenty years imprisonment. [189]*189Appellant challenges the discretionary aspects of his sentence. After review, we affirm.

¶ 2 The record establishes that there was significant tumult in this marital relationship for a considerable time preceding the killing. In the early morning hours of February 4, 2006, Appellant awoke and left his room. He found his wife sleeping on the sofa in the living room. Appellant woke her and asked where his son was. The two apparently exchanged cross words, and, in response to a pointed and accusatory inquiry by Appellant, according to Appellant, wife made a comment acknowledging that she had a boyfriend and suggesting that the children preferred the boyfriend over Appellant. Appellant exited the living room and proceeded to the garage where he retrieved a loaded shotgun. He returned to the living room, where wife was sleeping on the sofa, facing away from Appellant. Appellant placed the barrel of the shotgun against the back of her head and pulled the trigger, killing her instantly. Appellant then went outside and shot himself in the head, inflicting a serious, but non-fatal wound. The wife’s body was discovered by her twelve-year-old daughter, who was upstairs at the time of the shooting.

¶ 3 Appellant was charged with first-degree murder, third-degree murder, possession of an instrument of crime, and voluntary manslaughter. He was found guilty by a jury of voluntary manslaughter. He was sentenced to eight to twenty years imprisonment. A motion to modify sentence was denied. This appeal followed.1

¶ 4 Appellant raises the following issue in this appeal:

Did the sentencing court err in departing from the guidelines and imposing an unreasonable sentence that was beyond the aggravated range of the sentencing guidelines without stating adequate and lawful reasons not subsumed in the guidelines?

Brief for the Appellant, at 4.

¶ 5 The issue raised represents a challenge to the discretionary aspects of sentencing. There is no absolute right to appeal the discretionary aspects of sentencing. Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006). To properly preserve the discretionary aspects of sentencing for appellate review, the issue must be raised during sentencing or in a timely post-sentence motion. Id.; Pa. R.Crim.P. 720. If properly preserved, the applicable procedures and standards governing our review are as follows:

Two requirements must be met before a challenge to the discretionary aspects of a sentence will be heard on the merits. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

[190]*190Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005), appeal denied, 587 Pa. 684, 897 A.2d 451 (2006) (certain internal citations omitted). Appellant has complied procedurally by preserving the issue in the trial court and by including the requisite statement in his brief. We find that Appellant’s contention that the sentencing court exceeded the recommended range in the Sentencing Guidelines without an adequate basis raises a substantial question for this Court to review. Commonwealth v. Holiday, 954 A.2d 6, 12 (Pa.Super.2008); Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super.2007); Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (en banc). As such, we will review the merits of the challenge to the sentence.

¶ 6 This Court set forth the standard for reviewing a claim challenging a discretionary aspect of sentencing in Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006) (citation omitted), as follows:

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.

¶ 7 When imposing a sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118 (2007) (“It is well established that the Sentencing Guidelines are purely advisory in nature.”); Commonwealth v. Walls, 926 A.2d 957, 965 (referring to the Sentencing Guidelines as “advisory guideposts” which “recommend ... rather than require a particular sentence”). The court may deviate from the recommended guidelines; they are “merely one factor among many that the court must consider in imposing a sentence.” Yuhasz, 923 A.2d at 1118. A court may depart from the guidelines “if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super.2001). When a court chooses to depart from the guidelines however, it must “demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines.” Eby, 784 A.2d at 206. Further, the court must “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).

¶ 8 When reviewing a sentence outside of the guideline range, the essential question is whether the sentence imposed was reasonable. Commonwealth v. Walls, 592 Pa.

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Bluebook (online)
961 A.2d 187, 2008 Pa. Super. 265, 2008 Pa. Super. LEXIS 3924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sheller-pasuperct-2008.