J. A34010/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

WALTER R. SCHWEIZER, : No. 369 MDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, December 20, 2013,

in the Court of Common Pleas of York County

Criminal Division at No. CP-67-CR-0008282-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 14, 2015

Appellant appeals his judgment of sentence, challenging the 

discretionary aspects of that sentence. Finding no merit, we affirm.

Appellant was charged with driving under the influence of alcohol 

(“DUI”) and related offenses as a result of a single vehicle motorcycle 

accident in Shrewsbury Township on July 19, 2012. Appellant fled the scene 

of the accident on foot, but was discovered by police nearby in an 

intoxicated state.

On February 14, 2013, appellant entered a guilty plea. However, on 

April 29, 2013, on the advice of new counsel, appellant filed a motion to 

withdraw his guilty plea. Apparently, appellant was subsequently permitted 
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to withdraw his plea.1 On October 11, 2013, a jury convicted appellant of 

DUI -- general impairment, DUI -- highest rate of alcohol, and immediate 

notice of accident to police department.2

On December 20, 2013, the court sentenced appellant for the DUI --

highest rate of alcohol conviction to 8 months’ to 5 years’ imprisonment 

(county jail), a sentence within the standard range of the Sentencing

Guidelines. The court was apprised by a pre-sentence investigative report. 

(Notes of testimony, 12/20/13 at 1; 1/22/14 at 9.) Appellant filed a 

post-sentence motion on December 30, 2013, seeking a reduction of his 

sentence. At a hearing on that motion, the court made the following 

underlined remarks which form the basis of appellant’s present appeal:

However, the Defendant then consulted with 

different counsel and chose to withdraw his guilty 

plea and exercise his right to trial, and he absolutely 

has the right to exercise his right to trial, and we 

note that, and we would never consider punishing an 

individual for going to trial. We just don’t do that. 

We think it’s their constitutional right. They have 

the right to enforce [sic] the Commonwealth to do 

that.

However, we do think that we can, particularly, 

in an instance where someone pleads guilty and then 

decides essentially to go to trial and roll the dice, we 

 

1 We can find no order in the record permitting appellant to withdraw his 

plea. A hearing was held on the motion on May 1, 2013, but the court 

merely continued sentencing until the Commonwealth had an opportunity to 

review the motion. Thereafter, the court held status hearings at which the 

case was continued, but the motion to withdraw the plea was not addressed. 

Ultimately, a jury trial commenced on October 10, 2013.

2 75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3746, respectively.
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think we can take that as an indication from their 

standpoint that they’re attempting to avoid 

responsibility for the criminal act for which they have 

committed, and that can show, also, a lack of 

remorse on the Defendant’s part, and we think that 

those are appropriate considerations.

Notes of testimony, 1/22/14 at 9-10.3

On appeal, appellant challenges the discretionary aspects of his 

sentence.

A challenge to the discretionary aspects of a 

sentence must be considered a petition for 

permission to appeal, as the right to pursue such a 

claim is not absolute. Two requirements must be 

met before we will review this challenge on its 

merits. First, an 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 a sentence. Second, the appellant must 

show that there is a substantial question that the 

sentence imposed is not appropriate under the 

Sentencing Code. 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 trial court inconsistent with the 

Sentencing Code or contrary to the fundamental 

norms underlying the sentencing process.

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa.Super. 2014), 

quoting Commonwealth v. Bowen, 55 A.3d 1254, 1262-1263 (Pa.Super. 

2012), appeal denied, 64 A.3d 630 (Pa. 2013).

 

3 The underlined portion is quoted in appellant’s brief at 23. We have 

included a fuller quote to give a better sense of what the trial court was 

stating.
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Appellant’s brief does contain the requisite concise statement. 

Therein, appellant argues that the trial court relied upon an impermissible 

factor in crafting his sentence. Appellant argues that the trial court 

improperly relied upon his decision to withdraw his plea and proceed to jury 

trial as a reason to impose an excessive sentence. We note that such a 

claim has been found to raise a substantial question and we will, therefore, 

consider the merits of appellant’s claim. Commonwealth v. Allen, 24 A.3d 

1058, 1064-1065 (Pa.Super. 2011).

Our standard of review of a challenge to the 

discretionary aspects of sentence is well-settled:

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.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014), 

quoting Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa.Super.2007).

Appellant argues that he has been given an excessive sentence 

because he exercised his constitutional right to trial. Appellant relies upon 

the following holding by our supreme court:
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We believe the [Commonwealth v.] Staley[, 

324 A.2d 393 (Pa.Super. 1974)] principle that a 

demand for a jury trial is not a factor which warrants 

escalating the severity of a sentence is sound. That 

principle is premised primarily upon the rationale 

that the right to a trial by jury is a fundamental one, 

constitutionally guaranteed to all criminal 

defendants, and that a practice which exacts a 

penalty for the exercise of the right is without 

justification and unconstitutional. The price exacted 

by imposing a harsher sentence on one who chooses 

to put the state to its proof by a jury trial rather than 

plead guilty is obvious. Not only is the individual 

defendant penalized for the present exercise of his 

constitutional right but, should the practice become 

sufficiently well known within a given jurisdiction, a 

substantial chilling effect on the exercise of the right 

would inevitably ensue.

. . . .

Accordingly, we reaffirm the Superior Court’s holding 

in Commonwealth v. Staley that it is 

constitutionally impermissible for a trial court to 

impose a more severe sentence because a defendant 

has chosen to stand trial rather than plead guilty.

Commonwealth v. Bethea, 379 A.2d 102, 104-105 (Pa. 1977).

We find no error under Bethea. Appellant misperceives what behavior 

the trial court was considering when it crafted appellant’s sentence. In the 

fuller quotation that we have provided, it is quite clear that the trial court 

was well aware that it is impermissible to consider a defendant’s choice to go 

to trial rather than plead guilty as a sentencing factor. Rather, the trial 

court simply interpreted appellant’s choice to first plead guilty and then 

withdraw the plea as a failure to take responsibility for appellant’s crime and 

a lack of remorse. Lack of remorse is a proper sentencing factor. 
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Commonwealth v. Bowen, 975 A.2d 1120, 1125 (Pa.Super. 2009). We 

see no error in this.

Moreover, we cannot find that appellant’s sentence was excessive. 

The sentencing range for appellant under the standard range of the 

Sentencing Guidelines was 90 days’ to 9 months’ imprisonment. (Notes of 

testimony, 12/20/13 at 9.) Appellant’s minimum sentence of 8 months was, 

therefore, within the standard range. This court has previously 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). As previously noted, the trial court was apprised of a pre-sentence 

investigative report. Since appellant’s sentence was not excessive, we find 

no prejudice to appellant by the court’s consideration of his lack of remorse.

Accordingly, we shall affirm the judgment of sentence.

Judgment of sentence affirmed.

Shogan, J. joins the Memorandum.

Stabile, J. files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015