J-S85037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 commit 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 years 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 11. 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 argues that, when sentencing him, the sentencing court’s primary 

focus was the seriousness of the crime, and the distinction between codefendants. 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 assaultive 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. 
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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: 2/13/2017
1 

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. § 2705. 

"18 Pa.C.S.A. § 5503(aX4). 

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. Kitcherman 

answer 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 

Assault1, Simple Assault', Recklessly Endangering Another Person3, and Disorderly Conduct4 

I. FACTS AND PROCEDURE 

Pennsylvania 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. 

COMMONWEALTH OF PENNSYLVANIA No. CP-09-CR-1359-2015 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

CRIMINAL DMSION 

18

Circulated 01/09/2017 12:32 PM
2 

II. STATEMENT OF MAITERS COMPLAINED OF ON APPEAL 

On April 1, 2016, the appellant submitted a Concise Statement of Errors Complained of 

on Appeal, raising the following issues 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 subsequently diagnosed with "a punctured lung and 

several broken ribs.'' 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 years 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 was 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 years 

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 provision 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. Ct. 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 discretionary 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 partiality, prejudice, 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 days at the Community Service 

Foundation Restorative 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 his 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 sixty 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 probation 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 less 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 smoking marijuana at approximately the same 

age and started drinking heavily at about thirteen years old. The appellant was given many 

services through the Juvenile Court system, but he failed to take full advantage of these 

opportunities. PSI, p. 11. The appellant's age was also specifically 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 seriousness of the injuries involved," 

the Court emphasized that this was a "brutal assault" where the victim's "bones were broken." 

Furthermore, the appellant went to victim's home. N.T. 1/19/16, p. 16; N.T. 11/25/15, pp. 31, 

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BY THE COURT, 

factors before imposing sentence. Thus, the appellant's contentions are without merit 

After careful review of the record, this Court gave appropriate consideration of relevant 

and the Court reconsidered sentence on that basis. N.T. 1/19/16, p.6. 

of thirty months to ten years would make it more likely that the appellant would be denied parole 

It should be noted that at the reconsideration hearing, the appellant argued that a sentence 

the presentence investigation recommendation. N.T. 1/19/16, p. 9. 

Counts 3 and 4. N.T. 1/19/16, pp. 8-9. Additionally, the Court sentenced the appellant below 

concurrent two years probation. N.T. 1/19/16, p. 8. No further penalty was imposed as to 

consecutive five years probation. N.T. 1/19/16, p. 8. As to Count 2, he was sentenced to a 

6/15/15. As to Count 1, the appellant was sentenced to two and-a-half to five years and a 

RS for Count 4. Guideline Sentence Forms 1-4, Pennsylvania Commission on Sentencing, 

ranges for all Counts are as follows: 22-36 for Count l; RS-1 for 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. 1/19/16, p. 14; N.T. 11/25/15, pp. 34-35. 

32. The Court carefully compared the relative histories and roles of the appellant and Mr. Baker 

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