J-A29023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SCOTT ALLEN KILEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 637 MDA 2020

Appeal from the Judgment of Sentence Entered October 1, 2019,

in the Court of Common Pleas of Juniata County,

Criminal Division at No(s): CP-34-CR-0000128-2017.

BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 23, 2021

Scott Allen Kiley appeals from the judgment of sentence imposed 

following remand from this Court. We affirm.

On March 12, 2018, Kiley pled guilty to possession of precursor 

substances with intent to unlawfully manufacture a controlled substance

(“PPS”), operating a methamphetamine lab (“OML”), and risking a 

catastrophe.1 He also pled guilty to manufacturing a controlled substance

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113.1(a)(3) 780-113.4(a)(1), and 18 Pa.C.S.A. § 3302(b), 

respectively.
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(“MCS”).

2 These charges arose after law enforcement went to Kiley’s 

residence on June 12, 2017 to question him and his wife about the excess 

purchase of Pseudoephedrine, a common cold remedy. As part of this 

interaction, a member of the Pennsylvania State Police observed what he 

believed to be the operation of a methamphetamine laboratory.

The PCRA court summarized the procedural history as follows:

On June 5, 2018, [Kiley] was sentenced to a 4-10 years 

for [MCS], 2-10 years for [OML], and 1-2 years for [PPS]. 

Those sentences were to run Concurrent to one another. 

[Kiley] also received a sentence of 1-2 years for Risking 

Catastrophe, for a total sentence of 5-12 years of 

incarceration.

[Kiley] filed his Notice of Appeal on July 24, 2018, and 

his Statement of [Errors] Complained Of on August 15, 

2018. [Kiley] argued that his sentence was greater than the 

36-48 months he thought he pled to, [his risking a 

catastrophe conviction] should have merged with one of the 

other charges for sentencing purposes, and the consecutive

sentence for [risking a catastrophe] amounts to an 

excessive sentence in the aggravated range, which [was] 

against [the pre-sentence report’s] recommendations.

Trial Court Opinion, 5/4/20, at 1-2. 

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2 See 35 P.S. § 780-113(a)(30). As we explained in our prior opinion in this 

case, this offense is usually abbreviated “PWID.” Commonwealth v. Kiley, 

216 A.3d 1123, 1125 n.2 (Pa. Super. 2019). However, given our review of 

the record, it was “clear that [Kiley’s] plea was based entirely on his 

manufacture of methamphetamine in his home, for personal use.” Id. 

Because “[t]here was no evidence of delivery or intent to deliver, [] for 

clarity,” we referred to this charge as “manufacture of a controlled substance.” 

Id.
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Following the trial court’s denial of Kiley’s post-sentence motion, he filed 

a timely appeal to this Court. In a published opinion filed on August 9, 2019, 

we rejected Kiley’s claim that his sentence exceeded the scope of his 

negotiated plea agreement. Commonwealth v. Kiley, 216 A.3d 1123, 1126-

27 (Pa. Super. 2019). This Court also rejected Kiley’s claim that his risking a 

catastrophe conviction merged with any of his other convictions. 

Nevertheless, we found, sua sponte, that Kiley was “in fact, subject to an 

illegal sentence under the doctrine of merger.” Id. at 1128. After discussing 

the elements of each offense, we concluded:

Based on the facts of this case, in sum and substance, [MCS] 

contains all of the elements of [OML]. [Kiley’s] convictions 

arose from a single criminal act and [MCS] contains all of 

the elements of [OML] lab; therefore, these offenses merge 

for sentencing purposes.

Id. at 1129. In addition, because our conclusion upset the trial court’s 

sentencing scheme, we did not address his discretionary aspect claim, and 

remanded for resentencing. Id. 

Following remand, the trial court held a new sentencing hearing on 

October 1, 2019. At the conclusion of the hearing, the trial court resentenced 

Kiley as follows: 16 months to 3 years for PPS; 14 months to 3 years of 

incarceration for his risking a catastrophe conviction; and 21 months to 6 

years of incarceration for his OML conviction. In accordance with our remand, 

the trial court found that Kiley’s MCS conviction merged for sentencing 
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purposes. The trial court imposed all of these sentences consecutively, 

resulting in an aggregate sentence of 51 months to 12 years of incarceration. 

Kiley filed a timely post-sentence motion, which was denied by operation 

of law. This timely appeal followed.3 Both Kiley and the trial court have 

complied with Pa.R.A.P. 1925.

Kiley now raises the following issues:

A. Should the sentence imposed for possession of a 

precursor/residue substance have merged with another 

count set forth in the information?

B. Did the consecutive sentences for [each conviction] raise 

the aggregate sentence to an unreasonably excessive 

level in light of the conduct at issue in this case and 

[Kiley’s] mitigating circumstances?

Kiley’s Brief at 6 (excess capitalization omitted). 

In his first issue, Kiley raises a claim of statutory merger pursuant to 42 

Pa.C.S.A. section 9765, which reads as follows:

No crimes shall merge for sentencing purposes unless the 

crimes arise from a single criminal act and all of the 

statutory elements of one offense are included in the 

statutory elements of the other offense. Where crimes 

merge for sentencing purposes, the court may sentence the 

defendant only on the higher graded offense.

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3 This Court has held that court breakdown occurs when the trial court fails to 

enter an order deeming post-sentence motions denied by operation of law 

pursuant to Pa.R.Crim.P. 720(B)(3)(c). See generally, Commonwealth v. 

Patterson, 940 A.2d 493 (Pa. Super. 2007). Here, the clerk of courts did not 

enter an order denying post-sentence motions until April 2, 2020. Kiley timely 

filed his appeal within thirty days of this date. 
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42 Pa.C.S.A. § 9765. A question of sentencing merger involves the legality of 

a sentence. “When we address the legality of a sentence, our standard of 

review is plenary and is limited to determining whether the trial court erred 

as a matter of law.” Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa. 

Super. 2011) (citation omitted), abrogated on other grounds, 

Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020).

As we stated in Kiley’s prior appeal:

It is undisputed that all of the charges to which [Kiley] pled 

guilty arose from a single criminal act, i.e., [Kiley’s] 

production of methamphetamine in his home. However, 

“there is no merger if each offense requires proof of an 

element the other does not.” Commonwealth v. Quintua, 

56 A.3d 399, 401 (Pa. Super. 2012).

 Kiley, 216 A.3d at 1127. 

In his brief, Kiley contends that the sentence imposed for PPS should 

have merged with his sentence for OML. We first cite the elements for each 

crime.

The offense of PPS prohibits “[p]ossessing [pseudoephedrine or a 

different] precursor substance with intent to unlawfully manufacture a 

controlled substance.” 35 P.S. § 780-113.1(a)(3). The offense of OML is 

defined as follows:

 (a)(1) A person commits the offense of operating a 

methamphetamine laboratory if the person knowingly 

causes a chemical reaction involving [pseudoephedrine] or 

any other precursor or reagent substance under [35 P.S. 

section 780-113.1], for the purpose of manufacturing 

methamphetamine or preparing a precursor or reagent 

substance for the manufacture of methamphetamine.
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35 P.S. § 780-113.4(a)(1).

In arguing that these two crimes merge, Kiley asserts that “[i]t makes 

sense (both legal and common) for [PPS] [to] merge with [OML]” because 

OML “also proscribes possessing the precursor substances with intent to 

manufacture a controlled substance.” Kiley’s Brief at 11, 21.

In Kiley’s prior appeal we rejected Kiley’s claim that his risking a 

catastrophe conviction merged with one of his other charges for sentencing 

purposes. See Kiley, 216 A.3d at 1127-28. In fact, applying the doctrine of 

statutory merger, we concluded that Kiley’s MCS should have merged with his 

OML conviction for sentencing purposes. Id. at 1129. At that time, we had 

the opportunity to consider sua sponte whether other charges should have 

merged for sentencing purposes but found none. See also Commonwealth 

v. Hardik, No. 16 WDA 2019 (Pa. Super. 2020), unpublished memorandum 

at 14 (remanding for resentencing based upon this Court’s holding in Kiley 

that MCS merges with OML, but not addressing merger with regard to the 

consecutive sentence imposed for possession of precursor materials). 

Here, we are presented with the specific issue of whether Kiley’s PPS 

conviction merges for sentencing purposes with his conviction for OML. We 

find that they do not. In his prior appeal, this Court rejected Kiley’s claim that 

his risking a catastrophe conviction should have merged with his conviction 

for [PPS]: “Specifically, risking a catastrophe includes the element of actual 

employment of dangerous means—in this case, chemicals—not just their 

possession.” Kiley, 216 A.3d at 1128. Likewise, here, the definition of OML 
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does not specifically criminalize the possession of the precursor substances, 

but rather, criminalizes causing a chemical reaction or preparing precursor 

materials for the manufacture of methamphetamine. Section 780-

113.4(a)(1). Thus, we find crimes of PPS and OML do not merge for 

sentencing purposes. Kiley’s first claim fails.

4

In his second issue, Kiley challenges the discretionary aspects of his new 

sentence. “It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.” Commonwealth v. 

Austin, 66 A.3d 798, 807–08 (Pa. Super. 2013) (citation omitted).

Before [this Court may] reach the merits of [a challenge to the 

discretionary aspects of a sentence], we must engage in a four 

part analysis to determine: (1) whether the appeal is timely; (2) 

whether Appellant preserved his issue; (3) whether Appellant's 

brief includes a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of 

sentence [see Pa.R.A.P. 2119(f) ]; and (4) whether the concise 

statement raises a substantial question that the sentence is 

appropriate under the sentencing code . . . . [I]f the appeal 

satisfies each of these four requirements, we will then proceed to 

decide the substantive merits of the case.

Id. (citation omitted).

Our review of the record reveals that Kiley filed a timely appeal, 

preserved his sentencing claim in a post-sentence motion, and specified the 

reasons for his challenge to the discretionary aspects of sentence in a separate 

____________________________________________

4 Within his argument on this issue, Kiley argues in the alternative that his 

PPS conviction should have merged with his MCS conviction. We reject this 

claim for the same reasons we rejected Kiley’s claim that his PPS conviction 

should have merged with his OML conviction. 
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statement as required under Pa.R.A.P 2119(f). Accordingly, we must 

determine whether he has raised a substantial question for our review. An 

appellant raises a “substantial question” when he “sets forth a plausible 

argument that the sentence violates a provision of the [S]entencing [C]ode or 

is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation 

omitted).

In his Rule 2119(f) statement, Kiley asserts that he “appeals his 

consecutive part of a sentence for making a batch of methamphetamine 

utilizing the ‘one-pot’ method at home.” Kiley’s Brief at 14. He further argues 

that his aggregate sentence of 41⁄2 [sic] to 12 years of incarceration “is 

contrary to the norms underlying the sentencing process because the sentence 

is unduly harsh and excessive and does not properly consider the mitigating 

factors and [his] rehabilitative needs as required by 42 Pa.C.S. §9721(b).” 

Id.5 According to Kiley, the trial court “did not justify the lengthy period of 

incarceration imposed.” Id. at 15.

These claims raise a substantial question. See, e.g., Commonwealth 

v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (finding claim 

that imposition of consecutive sentences was unduly excessive, together with 

a claim that the sentencing court failed to consider a defendant’s rehabilitative 

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5 Kiley’s aggregate resentence minimum was 51 months or 41⁄4 years of 

imprisonment.
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needs raises a substantial question). Thus, we will review the merits of Kiley’s 

sentencing claim. 

Our standard of review when deciding a sentencing claim is 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 to be 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. Shull, 148 A.3d 820, 831 (Pa. Super. 2016) (citation 

omitted).

At the re-sentencing hearing, the trial court referred to the original presentence report and stated that it had “read it multiple times here again.” 

N.T., 10/1/19, at 6. Additionally, the court stated that it would incorporate 

“everything from the last sentencing,” and that it had reviewed the original 

sentencing transcript. Id. at 13-15. The trial court heard argument from 

defense counsel and the Commonwealth. Kiley also addressed the court.

The court then made the following comments:

All right. [Kiley you have] done some nice things since 

you’ve been in prison. Then, again, I guess you had a 

choice, but you really have nothing else to do besides those 

classes, et cetera, while you’re there. I’m actually more 

impressed with the fact there’s been no write-ups. 

The problem you have is what you did is still what you 

did from the last time we were here at sentencing. And I 

can tell that there’s no doubt that I think this is - - these are 

more serious offenses than I think what you or [defense 
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counsel] think. Meth is extremely dangerous. That’s why 

these charges and the guidelines are so high. They 

incorporate that and reflect that. And so, as Superior Court 

noted, the sentencing scheme has changed, not really the 

facts or the circumstances, but the sentencing scheme has 

changed. The only facts that have changed are the things 

that you have done since you’ve been in prison. But other

than that, the facts of the case are still the same as last 

time.

N.T., 10/1/19, at 22-23.

The trial court then imposed each sentence for the charges 

consecutively. The court further explained:

I didn’t want to go higher than my original maximum. 

My problem when I restructured, I had to increase the tails 

on a couple of the charges to make that happen.

***

At sidebar, we just talked a little bit about the fact that I 

increased the sentence on a couple of the original charges, 

but I kept the overall sentencing scheme less than it was 

before. And it was brought to me - - and I agree - - that 

there is case law that says coming back, you can’t increase 

sentences. Well, actually, in my opinion, I decreased the 

sentence today overall from what it was before but changed 

the individual charges to accommodate that.

Id. at 26-27. 

The trial court further agreed with defense counsel that this Court did 

not address the discretionary aspects of Kiley’s sentence in his prior appeal. 

The trial court noted:

As far as discretionary aspects of sentencing, I will say 

everything is within the standard range. In accordance with 

the Superior Court Opinion nothing else merged; and I am 

cognizant of the fact that individual sentences have 

increased. One was decreased. The overall sentence was 
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decreased. So, you know, I think it’s somewhat six of one 

half dozen of another. I think if Superior Court’s intent was 

everything had to stay the same except for that, they could 

have just said that it mergers and wiped out the 4 to 10-

year sentence and that would have been the end of it, and 

there would have been no need to send it back. That’s my 

opinion of it. Maybe the two of you and the Superior Court 

may disagree again. I don’t know. I’m sure we’ll find out.

N.T., 10/1/19, at 29.

This Court has held that “where the sentencing court imposed a 

standard-range sentence with the benefit of a pre-sentence report, we will not 

consider the sentence excessive.” Commonwealth v. Corley, 31 A.3d 293, 

298 (Pa. Super. 2011). Under such circumstances, “we can assume the 

sentencing court ‘was aware of relevant information regarding the defendant’s 

character and weighed those considerations along with mitigating statutory 

factors.’” Id. (quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 

1988). Here, in addition to the original pre-sentence report, the trial court 

considered Kiley’s conduct while incarcerated.

Our review of the original sentencing and re-sentencing transcripts

reveals that the trial court considered Kiley’s mitigating circumstances, but 

explained why it decided to run all of Kiley’s sentences consecutively upon 

resentencing. In short, the court wanted to keep its maximum sentence the 

same, but actually reduced the aggregate minimum sentence by nine months. 

In choosing to do so, the court ran the sentences for each offense 

consecutively. We discern no abuse of discretion.
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In sum, Kiley’s new consecutive sentence was neither illegal nor 

excessive. We therefore affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/23/2021