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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : DANIEL HOWARTH , : : Appellant : No. 839 EDA 2016 Appeal from the Judgment of Sentence January 19, 2016 in the Court of Common Pleas of Bucks County, Criminal Division, No(s): CP - 09 - CR - 0001359 - 2015 BEFORE: PANELLA, RANSOM and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J. : FILED FEBRUARY 13, 2017 Daniel Howarth (“Howarth”) appeals from the judgment of sentence imposed following his guilty pleas to conspiracy to c ommit aggravated assault, simple assault, recklessly endangering another person and disorderly conduct. 1 We affirm. In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 5/2/16, at 1 - 2. On appeal, Howarth raises the following issue for our review: “Did the [trial c]ourt err in imposing a sentence of not less than two and one half

1 See 18 Pa.C.S.A. §§ 903, 2702(a)(1), 2701(a)(3 ), 2705, 5503(a)(4).J - S85037 - 16

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[years,] nor more than five years [in prison,] followed by five yea rs of probation?” Brief for Appellant at 4. 2 Howarth contends that the sentencing court failed to consider his lack of a criminal record, age, rehabilitative needs, troubled background, decision to plead guilty, and his expression of remorse. Id . at 1 1. Howarth claims that, although the sentencing court described in its Opinion the futile efforts made by the juvenile probation department to rehabilitate Howarth, the court made no mention of this deficiency at the sentencing hearing. Id . Howarth argu es that, when sentencing him, the sentencing court’s primary focus was the seriousness of the crime, and the distinction between co defendants. Id . Howarth contends that the sentencing court abused its discretion by sentencing him to a state prison term, rather than imposing a mitigated - range sentence, which would have permitted Howarth to remain in the county jail. Id . at 12. Howarth emphasizes that this was his first violent crime, the complainant took the first step toward violent behavior, and the a ssaultive behavior resulting in injury was not linked to Howarth. Id . Howarth claims that the sentence imposed is unduly harsh and excessive, given his role in the crimes, his background, and his young age. 3 Id . at 13.

2 Although Howarth stated his issue somewhat differently in his Concise Statement, we will review his issue. See Pa.R.A.P 2116(a). 3 Howarth states that he was 18 - years - old at the time of the crime. See Brief for Appellant at 10.J - S85037 - 16

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In its Opinion, the sentencing court addressed Howarth’s issue, set forth the relevant law, and concluded that the issue lacks merit. See Trial Court Opinion, 5/2/16, at 3 - 7. We agree with the reasoning of the sentencing court and affirm on this basis as to Howarth’s issue. See id . Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/13/20171

1 18 Pa.C . S . A . § 903 and 18 Pa.C . S . A . § 2702(aXI) . 2 18 Pa.C . S . A. § 270l(aX3 ). 3 18 Pa.C.S . A . § 2 7 05 . "18 Pa . C . S . A . § 5503(aX 4) . a verbal altercation with them . N . T . 6/ 15 / 15, p . 15 . 

### Mr . Muldowney pushed 

### Mr . Baker out of Kitcherman ' s stepfather, confronted the co-defendants and the appellant at the front door and had had past contacts with all three individuals . N . T. 6/ 15 / 15, p . 15 . Raymond Muldowney, 

### Mr . defendants, Erwin Baker, David Randall and the appellant. N . T . 6/15 / 15, p . 15 . 

### Mr . Kitchermananswer the front door, but then he heard knocking at his bedroom window and saw the codoor while he was watching TV in bed at home . N . T . 6/ 15/15, p . 14. 

### Mr . Kitcherman did not On the night of October 19, 2014, William Kitcherman heard a loud banging at the front based upon the following facts : On June 15, 2015, the appellant pied guilty to Conspiracy to Commit Aggravated Assault 1 , Simple Assault', Recklessly Endangering Another Person 3 , and Disorderly Conduct4 I . FACTS AND PROCEDURE Pennsy l vania Rule of Appellate Procedure 1925(a). Conspiracy to Commit Aggravated Assault and related charges . This opinion is filed pursuant to On appeal , the appellant challenges the sentence he received from this Court for OPINION DANIEL HOWARTH 

# v. No. CP-09-CR

- 1359-2015 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CRIMINAL DMSION



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II. STATEMENT OF MAITERS COMPLAINED OF ON APPEAL On April 1, 2016, the appellant s ubmitted a Concise Statement of Errors Complained of on Appeal, raising the following is s ues for review , 

### verbatim : 1 . The sentencing court focused only on the seriousness of the crimes charged . the doorway, and 

### Mr . Baker fell to the ground. N.T. 6/15 / 15, pp . 15-16. The two co-defendants and the appellant punched 

### Mr . Muldowney in the face causing him to fall, and they "kicked and stomped and punched " him. N . T . 6/ 15 / 15 , p . 16. They all fled before the arrival of the police. N . T . 6/ 15 / 15 , p . 16. Mr . Muldowney was sub s equently diagnosed with " a punctured lung and several broken rib s.' ' N.T . 6/15 / 15, p. 16 . Sentencing was deferred for a presentence investigation report. N . T . 6/ 15 / 15, p . 37 . On November 25, 2015, the appellant was sentenced to thirty months to ten y ears in a state correctional facility as to Count 1. On Count 2 , he was - sentenced to a concurrent two years probation. No further penalty was imposed as to Counts 3 and 4. N.T . 11/25 / 15 , p. 35 . On December 3, 2015, the appellant filed a Motion for Reconsideration of Sentence . On January 19, 2016 , the appellant's Motion for Reconsideration w as granted. N.T. 1 / 19/16 , p . 8. As to Count l , the appellant was sentenced to two and-a-half to five years and a consecutive five years probation. N.T. 1/19/16 , p . 8 . As to Count 2 , he was sentenced to a concurrent two y ears probation. N.T. 1/19 / 16, p . 8 . No further penalty was imposed as to Counts 3 and 4. N. T. 1/19 / 16, pp. 8-9 . On March 2, 2016, the appellant filed a Petition for Post-Conviction Collateral Relief, seeking re-instatement of his direct appeal rights 

### nunc pro tune . On March 15 , 2016 , the appellant ' s Petition was granted. The appellant filed a Notice of Appeal on March 16 , 2016 .



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### or sentencing guidelines . He contends that "[t]he sentencing court focused only on the Here, the appellant does not assert that the sentence was inconsistent with any statutory omitted) . process." Commonwealth y. 

### Caldwell, 117 A.3d 763, 768 (Pa. Super . Ct. 2015) (citations Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing sentencing judge ' s actions were either: ( 1) inconsistent with a specific prov i sion of the substantial question exists only when the appellant advances a colorable argument that the case-by-case basis . " Commonwealth v . Moury , 992 A.2d 162 , 170 (Pa . Super . C t. 2010) . " A " The determination of what constitutes a substantial question must be evaluated on a An 

### appellant must invoke the reviewing court's jurisdiction by satisfying a four-part test : (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 [set forth in a separate section a concise statement of the reasons relied upon for allowance of appeal in accordance with] Pa.R.A.P. 2119(t); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code . the following requirements: (citations omitted). An 

### appellant challenging the discretionary aspects of his sentence must meet review as of right." 

### Commonwealth v . Allen, 24 A.3d 1058, 1064 (Pa . Super. Ct . 

### 2011) " Challenges to the di scretionary aspects of sentencing do not entitle an appellant to ID. DISCUSSION

circumstances of this crime . troubled childhood, guilty plea lack of an adult criminal history and unusual 2. The sentence was manifestly excessive and unduly harsh, in 

### view of Defendant ' s



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In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court ' s discretion, as he or she is in the 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 . To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive . 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 partial i ty , p rejudice, bias or ill will, or arrived at a manifestly unreasonable decision . allegations are without merit. where the sentence was within statutory and sentencing guidelines) . However , even if we were to find that the appellant has raised a substantial question, his defendant ' s rehabilitative needs and was manifestly excessive did not raise a substantial question Super. Ct. 1990) (holding that a claim that the sentence failed to take into consideration needs, age, and educational background); Commonwealth v . Mobley, 581 A . 2d 949, 952 (Pa. substantial question when he claimed that trial court 

### had failed to consider his rehabilitative A . 2d 1222 , 1229 (Pa. Super, Ct. 2008) (concluding that the defendant failed to present a his rehabilitative needs did not raise a substantial question); Commonwealth v . Cannon, 954 (Pa. Super . Ct. 2013) (finding that defendant ' s claim that his sentence failed to take into account (Pa. Super . Ct. 2010) (citation omitted); See also Commonwealth v. Griffin, 65 A . 3d 932 , 936 raise a substantial question for [its] review . " Commonwealth v. Downing, 990 A.2d 788, 794 on numerous occasions that a claim of inadequate consideration of mitigating factors does not The appellant's claims fail to raise a substantial question . "[The Superior Court] has held and unusual circumstances of this crime." harsh, in view of Defendant's troubled childhood, guilty plea[,] lack of an adult criminal history seriousness of the crimes charged," and that "[t]he sentence was manifestly excessive and unduly



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found in violation of his probation during a Violation Hearing, and the Court ordered that the He was placed on indefinite probation with conditions. On October 29, 2013, the appellant was the appellant was adjudicated delinquent in the False Identification to Law Enforcement case . other petitions that had been filed for smoking on school property and non-payment of fines, and Hearing, the petition that resulted in the above Consent Decree was withdrawn, along with two Identification to Law Enforcement on March 4, 2013. At the Adjudication and Disposition Unlawful Taking and Receiving Stolen Property. The appellant was arrested for False was placed on a conditional six month Consent Decree. The underlying offenses were Theft By According to the presentence investigation report, on September 25, 2012, the appellant thorough review of the relevant factors . This Court ordered and considered a presentence investigation which provided a considered. 

### Com, y . Cruz-Centeno, 668 A.2d 536, 546 (Pa . Super . Ct. 1995). range of the Sentencing Guidelines and a presentence investigation report was sentence cannot be considered excessive, absent more, when it was within the standard Griffin, 65 A.3d at 937 (citations and internal quotation marks omitted). A trial court's When imposing a sentence , a court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation. Where the sentencing court had the benefit of a presentence investigation report ("PSP'), we can assume the sentencing court was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code . We further note : Commonwealth v. Perry, 883 A . 2d 599, 602-03 (Pa. Super. Ct. 2005) (citations omitted). best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference .



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appellant be placed on probation, cooperate with ninety day s at the Community Service Foundation Re s torative Reporting Center (RRC), undergo electronic monitoring and attend school at Pennsbury . The appellant was discharged from the RRC, but the Twilight Program (an alternative school) noted a decline in his effort in school immediately after hi s being discharged. The appellant received a citation for underage drinking on Mar~h 30, 2014, and the Court ordered that he be returned to the RRC during a Disposition Review Hearing on April 8, 2014. On July 1, 2014, at a Violation Hearing, the appellant was 

### found in violation of his probation and ordered to be held at the Bucks County Youth Center pending placement at the Abraxas Leadership Development Program for s ixty days . On August 29, 2014 , at a Placement Review Hearing, the Court ordered that the appellant be discharged from Abraxas and returned home on indefinite prob ation with conditions . On October 19, 2014, the appellant committed the assault on Mr . Muldowney in this case . PSI , pp . 4-6. After 

### reviewing the appellant ' s juvenile history, the Court concluded that Daniel Howarth

" has a le ss lengthy history than 

### Erwin Balcer, in Juvenile Court . N.T . 1/19 / 16 , pp. 10, 14; N.T. 11/25 / 15 , pp . 6 , 7 , 21 . It should be noted that the appellant was caught shoplifting from a 7-11 Store at the age of eleven or twelve. He began s moking marijuana at approximately the same age and s tarted drinking heavily at about thirteen years old . The appellant was given many services through the Juvenile Court sy s tem , but he failed to take full advantage of these opportunitie s. PSI, p . 11. The appellant 's age was al s o s pecifically considered . N . T . 11/25 / 15, p. 34; N . T . 1/19/16, pp . 8 , 9 . When assessing " the nature of the offense and the seriousnes s of the injuries involved," the Court emphasized that thi s was a "brutal assault " where the victim ' s "bones were broken . " Furthermore , the appellant went to v ictim ' s home . N . T . 1/19 / 16, p. 1 6; N . T . 11/25/15, pp . 31,



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### BY THE COURT,

factors before imposing se ntence. Thus, the ap pellant's conte ntions are wi th out merit After careful 

### review of the record , thi s Court gave appro p riate consider ation of relevant an d the Court reconsidered sente n ce on that bas i s. N.T . 1/19 / 16 , p . 6 . of thirty 

### months to ten years would make it more l ikely that the appellant would be denied p arole It s hould be 

### noted that at the reconsideration hearing, the ap pellant argued that a sen tence the pre s e ntence inve s tigation recommendati on . N . T . 1/ 1 9 / 1 6 , p . 9. Counts 3 and 4 . N . T . 1/ 1 9/16, pp . 8

- 9. Additio n ally, the Court sentenced th e appe ll ant below concurrent two years p ro b ation. N . T. 1/19/16, p . 8. 

### No further penalty was 

### impo s ed as to consecutive five year s pro b ation. N . T . 1 /19 / 1 6 , p . 8. A s to Count 2, he was sente n ced to a 6/ 15 / 15 . As 

### to Count 1 , the appellant was sentenced to two and

- a - half to five year s and a RS for Count 4. Guideline Se ntence Forms 1-4, P ennsy l vania Co mmi s s io n on Sentencing, ranges for all Counts are as follows : 22-36 for Count l ; 

### RS

- 1 fo r Count 2 ; RS- 1 for Count 3; RSThe Court's sentence was within the standard range of the guidelines . The standard in this assault. N.T. 1/ 1 9 / 16, p . 14; N . T . 11/25/15 , pp . 34-35 . 32. The Court careful l y compared the relative his tories and ro l es of the appe ll ant and 

### Mr. Baker



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