J-S34043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT RAYMOND KUNKLE

Appellant No. 1722 MDA 2014

Appeal from the Judgment of Sentence entered August 25, 2014

In the Court of Common Pleas of Bradford County

Criminal Division at No: CP-08-CR-0000719-2013

BEFORE: BOWES, OTT, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 11, 2015

Appellant Scott Raymond Kunkle appeals from the judgment of 

sentence entered in the Court of Common Pleas of Bradford County (“trial 

court”), following his guilty plea to involuntary manslaughter. Upon review, 

we affirm. 

The facts and procedural history underlying this appeal are 

uncontested. On August 26, 2013, Appellant was charged, inter alia, with 

involuntary manslaughter in connection with the death of his wife. The 

affidavit of probable cause accompanying the complaint reveals in part that 

Appellant and the victim had an argument that turned violent. Specifically, 

Appellant and the victim had been taking bath salts for a couple of days. 

When they ran out of the bath salts, the victim wanted Appellant to 

replenish them. Appellant, however, refused, because he did not want to 
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take any more bath salts. A fight ensued, during which, at some point, the 

victim attempted to bite Appellant’s left middle finger, which she had in her 

mouth. To free his finger, Appellant “slammed [the victim’s] head against 

the wall” using his forearm.1 Affidavit of Probable Cause, 8/26/13, at 2.

Following the trial court’s denial of his omnibus pretrial motion, 

Appellant pled guilty to involuntary manslaughter on June 9, 2014. At the 

plea hearing, Appellant admitted the foregoing facts. Appellant particularly 

admitted he slammed the victim’s head against the wall. See N.T. Trial, 

6/9/14, at 6-7. On August 25, 2014, the trial court sentenced Appellant to 

12 to 60 months’ imprisonment. Appellant filed a post-sentence motion, 

challenging the discretionary aspects of his sentence. Following the trial 

____________________________________________

1

In an interview with the police following the victim’s death, Appellant 

recounted:

[The victim] bit me. And right, right there are teeth marks. And 

right there, she tried to bite my fucking finger off. And that was 

after I got at the top of the steps, cause she tried to push me, 

grabbed the bannister, I pushed her back, she threw the beer 

bottle hit me with the beer bottle and I climbed around the beer 

bottle and she grabbed my hand and stuck it in her fucking 

mouth and bit. And I bounced her head of [sic] the wall a 

couple of times because she tried to bite my finger off. And 

there was just bop, bop, bop. And she dropped down and she 

grabbed me, I kicked at her [in her stomach], and I went into 

the other room.

* * * 

I hit the wall pretty hard.

Appellant’s Interview with Pennsylvania State Police, 7/14/13, at 11, 16.
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court’s denial of his post-sentence motion, Appellant timely appealed to this 

Court. 

On appeal, Appellant argues only that the trial court abused its 

discretion in failing to consider “significant facts and circumstances favorable 

to the defense,” Appellant’s Amended Brief at 11, when it imposed a 

statutory maximum sentence of 60 months’ imprisonment.2 

When reviewing a challenge to the trial court’s discretion, our standard 

of review 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. An abuse of discretion is 

more than just an error in judgment and, on appeal, the trial 

court will not be found to have abused its discretion unless the 

record discloses that the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias, or illwill.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) 

(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002), appeal denied, 64 A.3d 630 (Pa. 2013)).

“Initially, we note that when a defendant enters a guilty plea, he or 

she waives all defects and defenses except those concerning the validity of 

the plea, the jurisdiction of the trial court, and the legality of the sentence 

imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super. 

____________________________________________

2 To the extent Appellant challenges the trial court’s remark at sentencing 

that he rejected his family’s support in the past, such a challenge is waived, 

because Appellant did not raise it before the trial court. See Pa.R.A.P. 

302(a). In any event, even if this challenge were not waived, Appellant fails 

to explain its relevance to the issue on appeal. 
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2012) (citation omitted). “Our law presumes that a defendant who enters a 

guilty plea was aware of what he was doing. He bears the burden of proving 

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011) (citation omitted). “However, when the plea agreement is open, 

containing no bargained for or stated term of sentence, the defendant will 

not be precluded from appealing the discretionary aspects of h[is] 

sentence.”3 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super. 

1999) (citation omitted).

It is well-settled that “[t]he right to appeal a discretionary aspect of 

sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 

1220 (Pa. Super. 2011). Rather, where an appellant challenges the 

discretionary aspects of a sentence, an appellant’s appeal should be 

considered as a petition for allowance of appeal. Commonwealth v.

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in 

Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to determine: (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 

____________________________________________

3 The record in this case reveals that Appellant entered into open guilty 

pleas.
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(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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Whether a particular issue constitutes a substantial question about 

the appropriateness of sentence is a question to be evaluated on a case-bycase basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. 

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002). 

Here, Appellant has satisfied the first three requirements of the fourpart Moury test. Appellant filed a timely appeal to this Court, preserved the 

issue on appeal through his post-sentence motions, and included a Pa.R.A.P. 

2119(f) statement in his brief.4 We, therefore, must determine only if 

Appellant’s sentencing issue raises a substantial question.

We have found that a substantial question exists “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.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 

2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This 

Court does not accept bald assertions of sentencing errors. See 

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4 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary 

aspects of a sentence in a criminal matter shall set forth in his brief a 

concise statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). 

When we examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists, “[o]ur inquiry must focus on the 

reasons for which the appeal is sought, in contrast to the facts underlying 

the appeal, which are necessary only to decide the appeal on the merits.” 

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008) 

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)). 

A Rule 2119(f) statement is inadequate when it “contains incantations of 

statutory provisions and pronouncements of conclusions of law[.]” 

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation 

omitted).

Nonetheless, “[t]his Court has held on numerous occasions that a 

claim of inadequate consideration of mitigating factors does not raise a 

substantial question for our review.” Commonwealth v. Disalvo, 70 A.3d 

900, 903 (Pa. Super. 2013) (citations omitted); see also Commonwealth 

v. Berry, 785 A.2d 994, 996 (Pa. Super. 2001) (explaining allegation that 

sentencing court failed to consider a certain sentencing factor generally does 

not raise a substantial question); see also Commonwealth v. CruzCenteno, 668 A.2d 536, 545 (Pa. Super. 1995) (“[a]n allegation that a 

sentencing [judge] ‘failed to consider’ or ‘did not adequately consider’ 

certain factors does not raise a substantial question that the sentence was 

inappropriate,”), appeal denied, 676 A.2d 1195 (Pa. 1996); see also 

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) 
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(finding absence of substantial question where appellant argued the trial 

court failed to adequately consider mitigating factors and to impose an 

individualized sentence).

Here, as revealed by Appellant’s Rule 2119(f) statement, he argues 

only that the trial court failed to consider certain factors when it fashioned 

the sentence. Specifically, Appellant’s Rule 2119(f) statement states:

It is the contention of [Appellant] that in giving him the 

maximum sentence statutorily permitted by law the [trial] court 

failed to adequately consider all relevant sentencing 

factors. It ignored the nature and circumstances of the offense 

of [sic] wit: [Appellant] was attempting to act in self-defense, 

twice the victim tried to push [Appellant] down a flight of stairs; 

and when [Appellant] slammed the victim against the wall, 

causing her death, the victim held a beer bottle raised high, 

seeking to strike [Appellant] over the head with it, and she was 

also biting a finger of [Appellant] and would not let go. The 

[trial court] also disregarded the fact that [Appellant] had a zero 

prior record score.

Appellant’s Amended Brief at 3 (emphasis added). Thus, given the nature of 

his Rule 2119(f) statement, we cannot conclude he has raised a substantial 

question. See Disalvo, Berry, Cruz-Centeno, and Bershad, supra. We, 

therefore, deny Appellant’s petition for allowance of appeal. 
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Judgment of sentence affirmed. 

Judge Bowes joins the memorandum.

Judge Ott concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/11/2015