J-A27025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

OTILIO COSME,

Appellant No. 1735 WDA 2014

Appeal from the Judgment of Sentence of October 9, 2014

In the Court of Common Pleas of Armstrong County

Criminal Division at No(s): CP-03-CR-0000282-2013

BEFORE: BOWES, OLSON & STABILE, JJ.

MEMORANDUM BY OLSON, J.: FILED DECEMBER 14, 2015

Appellant, Otilio Cosme, appeals from the judgment of sentence 

entered on October 9, 2014, following his guilty plea to involuntary 

manslaughter, 18 Pa.C.S.A. § 2504. Upon review, we affirm.

We briefly summarize the facts and procedural history of this case as 

follows. On March 17, 2013, the Commonwealth charged Appellant with 

criminal homicide, simple assault, recklessly endangering another person 

and harassment1as the result of an altercation wherein Appellant and his 

co-defendants beat a man to death. On August 6, 2014, the Commonwealth 

entered into a plea agreement with Appellant wherein Appellant agreed to 

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1 18 Pa.C.S.A. §§ 2501, 2705, and 2709, respectively.
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plead guilty2to involuntary manslaughter and the Commonwealth agreed to

nolle pros the original charges. On August 7, 2014, the Commonwealth filed 

an amended bill of criminal information conforming to that agreement. On 

that same date, Appellant pled guilty to involuntary manslaughter. On 

October 9, 2014, the trial court sentenced Appellant to an aggravated range 

sentence of 18 to 36 months of imprisonment. At the sentencing hearing, 

Appellant objected to the term of incarceration arguing that the 

Commonwealth admitted that there were no aggravating circumstances in 

the case. He further argued that there was no evidence that he had 

manifested an indifference to the victim’s life, an element of the offense of 

aggravated assault that was nolle prossed. The trial court denied relief and 

entered the sentencing order. This timely appeal followed.3

On appeal, Appellant presents the following issues for our review:

1. Did the [trial] court abuse its discretion in moving 

Appellant’s sentence into the aggravated range based 

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2

 Appellant believed it was in his best interest to plead guilty, but did so 

while maintaining his innocence. See Appellant’s Brief at 4, citing North 

Carolina v. Alford, 400 U.S. 25, 38 (1970) (holding “an individual accused 

of a crime may voluntarily, knowingly, and understandingly consent to the 

imposition of a prison sentence even if he is unwilling or unable to admit his 

participation in the acts constituting a crime.”); see also N.T., 8/7/2014, at 

10-11. 

3 On October 22, 2014, Appellant filed a notice of appeal. On the same day, 

the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely on November 5, 2014. On December 8, 2014, the trial court filed an 

opinion pursuant to Pa.R.A.P. 1925(a).
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upon a finding that Appellant showed a ‘manifest 

indifference to life’ where no testimony was provided as 

to the events in question, the Commonwealth nolle 

prossed all charges having an intent element, and where 

the Commonwealth’s proffer of underlying events in the 

case did not suggest anything which would indicate 

aggravating circumstances?

2. Was there any other evidence, outside of the [trial] 

court’s finding that Appellant evidenced ‘a manifest 

indifference to life’ to support moving Appellant’s 

sentence into the aggravated range?

Appellant’s Brief at 3.4

Initially we note that Appellant’s claims implicate the discretionary 

aspects of his sentence, which is not appealable as of right. 

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015). 

Rather, an appellant challenging the trial court's discretion must invoke this 

Court's jurisdiction by satisfying a four-part test: 

We 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 (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. (citation omitted). 

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4 Appellant raised additional issues in his Rule 1925(b) statement, but 

concedes that he is only challenging the imposition of an aggravated range 

sentence on appeal. See Appellant’s Brief at 3, n.1. Those additional, 

abandoned issues are thereby waived. 
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Here, Appellant preserved his claim at sentencing and by including it in 

his Rule 1925(b) statement. Appellant also filed a timely notice of appeal 

and included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which 

he claims that the trial court imposed an excessive sentence and failed to 

articulate its reasons for doing so. We have previously determined that an 

appellant raises a substantial question when he alleges that the trial court 

failed to state sufficient reasons on the record when imposing an aggravated 

range sentence. Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 

2006). We have also determined that an appellant raises a substantial 

question when he alleges that the trial court, in imposing sentence, 

considered a charge that was nolle prossed as part of a plea agreement. 

Commonwealth v. Miller, 965 A.2d 276, 276 (Pa. Super. 2009). Thus, 

we turn to Appellant’s claims.

Appellant’s issues are interrelated so we will examine them together. 

In his first issue presented, Appellant contends that the trial court manifestly 

abused its discretion when it enhanced his sentence based upon charges 

that were nolle prossed as part of the guilty plea negotiation. Appellant’s 

Brief at 10. More particularly, Appellant argues “the [trial] court, in 

imposing sentence, specifically found that [Appellant] evidenced a ‘manifest 

indifference to life[,]’ [thereby] adopting the specific language of the nolle 
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prossed charge of aggravated assault.”5 Id. at 12. Appellant maintains that 

the factual basis underlying the plea “is devoid of any mention of the type of 

strike, how many strikes, how quickly this event unfolded, and whether 

[Appellant] had any indication that the victim was unconscious.” Id. 

Appellant posits that the Commonwealth acquiesced and allowed Appellant 

to maintain his innocence as part of his plea and, thus, he did not admit to 

“any of the factual circumstances as presented by the Commonwealth in its 

charging documents, or most importantly as suggested by the sentencing 

court.” Id. (footnote omitted).

Next, Appellant claims that there was no other evidence to support an 

aggravated range sentence. Appellant argues that his prior record score and 

the impact of the victim’s death on the victim’s family are factors already 

taken into consideration under the sentencing guidelines. Id. at 16-17. 

Moreover, Appellant avers that there was no evidence that Appellant is a 

threat to the community, as set forth in the pre-sentence investigation (PSI) 

report. Id. at 17. As such, Appellant contends that there were “no factors 

upon which the [trial] court could have, without abusing its discretion, used 

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5

 In pertinent part, a person is guilty of aggravated assault if he: “(1) 

attempts to cause serious bodily injury to another, or causes such injury 

intentionally, knowingly or recklessly under circumstances manifesting 

extreme indifference to the value of human life[.]” 18 Pa.S.C.A. 

§ 2702(a)(1) (emphasis added).
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to move the sentence into the aggravated range.” Id. at 18. Accordingly, 

Appellant requests vacating his sentence. Id. 

In reviewing a sentencing claim:

We must accord the sentencing court great weight as it is in 

the best position to view the defendant's character, displays 

of remorse, defiance or indifference, and the overall effect 

and nature of the crime. An appellate court will not disturb 

the lower court's judgment absent a manifest abuse of 

discretion. In order to constitute an abuse of discretion, a 

sentence must either exceed the statutory limits or be so 

manifestly excessive as to constitute an abuse of discretion. 

Further, a sentence should not be disturbed where it is 

evident that the sentencing court was aware of sentencing 

considerations and weighed the considerations in a 

meaningful fashion.

Miller, 965 A.2d at 277 (internal citation omitted).

In formulating a sentence, “the court shall follow the general principle 

that the sentence imposed should call for confinement that is consistent with 

the protection of the public, the gravity of offense as it relates to the impact 

on life of the victim and on the community, and the rehabilitative needs of 

the defendant.” Id., citing 42 Pa.C.S.A. § 9721(b). “A court is required to 

consider the particular circumstances of the offense and the character of the 

defendant.” Id. at 277-278 (citation omitted). 

Furthermore,

[42 Pa.C.S.A. §] 9781(c) specifically defines three instances 

in which the appellate courts should vacate a sentence and 

remand: (1) the sentencing court applied the guidelines 

erroneously; (2) the sentence falls within the guidelines, but 

is “clearly unreasonable” based on the circumstances of the 

case; and (3) the sentence falls outside of the guidelines 

and is “unreasonable.” 42 Pa.C.S.A. § 9781(c). Under 42 
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Pa.C.S.A. § 9781(d), the appellate courts must review the 

record and consider the nature and circumstances of the 

offense, the sentencing court's observations of the 

defendant, the findings that formed the basis of the 

sentence, and the sentencing guidelines. The weighing of 

factors under 42 Pa.C.S.A. § 9721(b) is exclusively for the 

sentencing court, and an appellate court could not 

substitute its own weighing of those factors. The primary 

consideration, therefore, is whether the court imposed an 

individualized sentence, and whether the sentence was 

nonetheless unreasonable for sentences falling outside the 

guidelines, or clearly unreasonable for sentences falling 

within the guidelines, pursuant to 42 Pa.C.S.A. § 9781(c).

Commonwealth v. Grace, 2015 WL 6108065, at *3 (Pa. Super. 2015).

Additionally, we are mindful that when a sentencing court has the 

benefit of a PSI, we must presume that the sentencing judge was aware of, 

and duly considered, any character-related information contained therein. 

Commonwealth v. Raven, 97 A.3d 1244, 1254 n.12 (Pa. Super. 2014), 

citing Commonwealth v. Devers, 5546 A.2d 12 (Pa. 1988).

Finally, with regard to Appellant’s contention that the trial court 

improperly relied upon the nolle prossed aggravated assault charge in 

fashioning its sentence, our decision in Miller, supra, is instructive. In that 

case, Miller pled guilty to third-degree murder after the Commonwealth 

agreed to nolle pros additional criminal charges including, inter alia, arson. 

Miller argued that the trial court abused its discretion when it considered the 

arson charge at sentencing. More specifically, Miller averred that the trial 

court’s reference to “[t]he tragedy of the fire as well as the lives of [the] 

firefighters and police and everyone else that were risked in putting out that 

fire [was] something [the trial court] consider[ed] because [] there could 
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have been even more lives either injured or taken.” Miller, 965 A.2d at 

279-280. Upon review in Miller, we examined the trial court’s rationale in 

imposing sentence, as stated on the record, and concluded:

[the trial court] carefully reviewed the PSI and [three victim 

impact] letters presented, and considered many factors in 

imposing sentence, including: the seriousness of the 

offense; the situation that faced firefighters and police when 

they arrived at [the victim’s] residence; the manner in 

which the murder of [the victim] impacted her family and 

friends and [Miller’s] family; [Miller’s] apparent 

unwillingness to accept responsibility for his actions; and 

[Miller’s] misconduct while incarcerated. Contrary to 

[Miller’s] assertion that the trial court improperly considered 

the charge of arson that was nolle prossed as part of the 

plea agreement, we do not find that the court's mere 

reference to the fact that the lives of firefighters and police 

were at risk due to [the victim’s] residence being ablaze 

when these individuals arrived on the scene indicates that 

the court specifically considered the charge of arson and 

enhanced [Miller’s] sentence based thereon. Cf. 

[Commonwealth v.] Stewart, 867 A.2d [589,] 593 [(Pa. 

Super. 2005)] (trial court specifically indicated that it was 

sentencing the appellant in the aggravated range because 

of three (3) counts that were nolle prossed). 

Miller, 965 A.2d at 280.

In this case, at the guilty plea hearing, while Appellant maintained his 

innocence, he stated he was “aware of the case that the Commonwealth 

would be prepared to present at trial.” N.T., 8/7/2014, at 10. Appellant 

agreed the evidence against him was sufficient to convict him of the charge 

of involuntary manslaughter beyond a reasonable doubt. Id. at 13. 

Appellant further agreed that the facts would show that a co-defendant 

struck the victim and caused him to fall to the ground, fracturing the victim’s 
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skull, and rendering him unconscious. Id. at 8. Appellant and his two codefendants then struck the victim causing the victim’s vena cava aorta to 

rupture. Id. Medical evidence showed “that the fractured skull and/or the 

ruptured aorta [] was the cause of death[.]” Id. Thus, the Commonwealth 

contended, “[t]he basis of the charge of involuntary manslaughter [was] the 

striking of [the victim] by [Appellant] []as a cause of the ruptured aorta and 

subsequent death as a result of that ruptured aorta.” Id. 

Just prior to sentencing, the trial court heard victim impact testimony 

from two of the victim’s sisters and the victim’s mother. N.T., 10/9/2014, at 

15-21. At sentencing, the trial judge stated that he had considered the 

following factors in imposing Appellant’s sentence:

[] I have been provided with the [PSI report] and I have 

read and studied that document. I’ve considered in 

formulating a sentence, your age, the information about you 

and in the [PSI report]. I’ve also reviewed the sentencing 

guideline form[.]

* * *

I’ve considered all of your personal information, your 

educational background, your marital status. I’ve 

considered the nature of this offense, the affidavit of 

probable cause. I’ve considered the plea agreement. And 

the plea agreement essentially is that the Commonwealth 

would proceed only with this involuntary manslaughter 

charge and the remaining charges that were contained on 

the information, criminal homicide, aggravated assault, 

simple assault, recklessly endangering another person, 

these were not prosecuted in the case. That was the plea 

agreement.

 

* * *
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I’ve considered the statements of family members [of the 

victim] here in the courtroom as well as a statement [] that 

was provided to me and it was put into the [PSI report]. 

I’ve considered your prior criminal history and the 

evaluative history that was prepared by the Adult Probation 

Office. [...T]he sentencing guideline form does reveal a 

standard range of sentence of three to 12 months. The 

mitigated range is restorative sanctions, which is probation. 

The aggravated range is 18 months which is six months 

added onto the standard range higher end. 

As far as mitigating factors, I think that you do have a prior 

record score of zero. And [I take] that into account in 

imposing a sentence. However, I don’t find it as a 

mitigating factor. I simply find it as something that needs 

to be computed in the guideline form. You had prior 

involvements. It’s my understanding that you have a prior 

DUI and have a pending drug charge, although that may be 

disposed of. [...] But, I’m not holding that against you. I’m 

just saying I don’t find any mitigating factors because there 

have been prior involvements even though your prior record 

score is in fact a zero.

 

In computing a sentence, [the trial court] considers that 

this is a misdemeanor charge that [] you have pled to. And 

we went through at great lengths at the pleas that you 

entered your plea based upon the fact that was the only 

remaining charge. 

That being said, [the trial court] also finds that the victim 

involved here was unconscious when the fatal blow was 

delivered. [The trial court] takes that as evidence of a 

manifest indifference to life. [The trial court] views the 

circumstances surrounding the killing of this victim as 

extreme. The victim was rendered unconscious by a skull 

fracture. But he was further victimized by you and others 

causing a ruptured aorta. In other words, an unconscious 

victim was beaten to death by three individuals. 

All right. I’ve found a factual basis for the guilty plea to 

involuntary manslaughter as stated at the plea proceeding. 

After considering all of these factors, I find that you are in 

need of correctional treatment that can be provided most 

effectively by your commitment to an institution and that 
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any lesser sentence would depreciate the seriousness of this 

crime.

Id. at 23-28. The trial court then imposed an aggravated range sentence of 

18 to 36 months of incarceration. Id. at 28. 

In reviewing the totality of circumstances, we discern no abuse of 

discretion or error of law in imposing Appellant’s sentence. Initially we note 

that the sentencing court specifically stated that it was not considering the 

nolle prossed charges in fashioning sentence. Similar to our decision in 

Miller, here, a mere passing reference to the language used in the 

aggravated assault statute does not indicate that the court specifically 

considered that charge in enhancing Appellant’s sentence. The trial court 

was required to consider the particular circumstances of the offense and 

Appellant’s character in imposing sentence, which it did. Furthermore, on 

the record at sentencing, the trial court specifically balanced the protection 

of the public, the gravity of offense as it relates to the impact on life of the 

victim and on the community, and the rehabilitative needs of the defendant 

under Section 9721. The trial court determined that an aggravated sentence 

was appropriate because Appellant’s conduct was extreme. Appellant 

ganged up with two others to strike an unconscious victim, causing an injury 

that ultimately contributed to the victim’s death. As previously noted, the 

court heard victim impact testimony from the victim’s family. In its written 

opinion, the trial court described that impact as a “quite drastic effect that 

the victim’s resultant death has caused on his family.” Trial Court Opinion, 

12/8/2014, at 10. Moreover, the trial court had the benefit of a PSI report 
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and, thus, we presume it was aware of, and duly considered, any characterrelated information contained therein. Based upon all of the foregoing, we 

conclude the trial court did not improperly rely upon the nolle prossed

aggravated assault charge in sentencing Appellant. The trial court fashioned 

an individualized sentence for Appellant and clearly articulated its reasons on 

the record at sentencing. Hence, both of Appellant’s appellate claims fail.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2015