Com. v. Ventura

• Decision Date: 26 May 2009
• Docket Number: No. 697 MDA 2008.,697 MDA 2008.
• Citation: 2009 PA Super 96,975 A.2d 1128
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Josephy Alberto VENTURA, Appellant.
• Court: Pennsylvania Superior Court

975 A.2d 1128

2009 PA Super 96

COMMONWEALTH of Pennsylvania, Appellee v. Josephy Alberto VENTURA, Appellant.

No. 697 MDA 2008.

Superior Court of Pennsylvania.

Submitted October 27, 2008.

Filed May 26, 2009.

William Costopoulos, Lemoyne, for appellant.

Lance T. Marshall, Asst. Dist. Atty., Bellefonte, for the Com., appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS and DONOHUE, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Josephy Alberto Ventura ("Ventura") appeals from the judgment of sentence entered on November 13, 2007, following his conviction for third-degree murder, 18 Pa.C.S.A. § 2502(c). The conviction stemmed from an incident on February 17, 2006, at Club Love, a bar in State College, Pennsylvania, in which Michael Donahue ("Victim") died following a single stab to the heart. After careful consideration, we affirm.

¶ 2 The facts and procedural history of this case are as follows. On February 17, 2006, friends of Ventura and friends of Victim engaged in a verbal argument concerning Ventura's girlfriend at the bar. The altercation initially ended, but then erupted again. Victim stepped in and was stabbed and died later at the hospital. Bar security, campus police, and State College police interceded, and Ventura was transported to the police station. Upon arrival at the station, police briefly searched Ventura, but did not uncover anything. Later while monitoring Ventura in his holding cell via video surveillance, police witnessed him trying to put something in his jacket. Police conducted a second search and recovered a knife inside the lining of one of Ventura's jacket pockets. Police then administered Miranda¹ warnings and Ventura signed a form waiving his Miranda rights before giving a statement to police.

¶ 3 Ventura was charged with first- and third-degree murder of Victim. Following a two day trial, a jury found him guilty of third-degree murder. On November 13, 2007, the trial court sentenced Ventura to 20 to 40 years of imprisonment. Ventura filed post-sentence motions, which were denied following a hearing. He then filed a notice of appeal and complied with the trial court's directive to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court filed an opinion pursuant to Pa. R.A.P. 1925(a) in response. This timely appeal followed, in which Ventura presents the following issues for our review:

1. WHETHER THE COURT ABUSED ITS DISCRETION AND COMMITTED AN ERROR OF LAW IN IMPOSING THE STATUTORY MAXIMUM SENTENCE ON [VENTURA] BY FOCUSING EXCLUSIVELY ON THE SEVERITY OF THE OFFENSE TO THE EXCLUSION OF MITIGATING AND OTHER FACTORS AND BY FAILING TO FASHION AN INDIVIDUALIZED SENTENCE THAT TOOK INTO ACCOUNT THE PUBLIC'S NEED FOR PROTECTION AND THE REHABILITATIVE NEEDS OF [VENTURA], WHICH RESULTED IN A MANIFESTLY EXCESSIVE SENTENCE?

2. WHETHER THE COURT FAILED TO ARTICULATE PROPER AND SUFFICIENT REASONS ON THE RECORD IN

SUPPORT OF ITS IMPOSITION OF THE STATUTORY MAXIMUM SENTENCE ON [VENTURA]?

3. WHETHER THE COURT ERRED IN REFUSING TO SUPPRESS [VENTURA'S] STATEMENTS WHICH WERE OBTAINED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS BECAUSE HE WAS TOO INTOXICATED TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHTS AND POLICE FAILED TO TIMELY AND PROPERLY ADMINISTER THE MIRANDA WARNINGS TO HIM?

4. WHETHER THE COURT ERRED IN REFUSING TO SUPPRESS EVIDENCE SEIZED FROM [VENTURA'S] JACKET WITHOUT A SEARCH WARRANT AND HIS BLOOD WHICH EVIDENCE WAS OBTAINED IN VIOLATION OF THE STATE AND FEDERAL CONSTITUTIONS?

5. WHETHER THE COURT ERRED IN PRECLUDING THE EXPERT WITNESS TESTIMONY OF TWO DOCTORS, WHOSE OPINIONS WERE ESSENTIAL TO ESTABLISHING [VENTURA'S] AFFIRMATIVE DEFENSE OF SELF-DEFENSE?

6. WHETHER THE EVIDENCE IS INSUFFICIENT TO SUSTAIN [VENTURA'S] CONVICTION FOR THIRD-DEGREE MURDER?

Appellant's Brief at 7.

¶ 4 Ventura's first two issues on appeal raise challenges to the discretionary aspects of his sentence; thus, we will examine them together. As required by Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), Ventura has included a separate statement of reasons for our review of the discretionary aspects of his sentence in his appellate brief. This Court may only reach the merits of an appeal challenging the discretionary aspects of a sentence, however, if it also appears that a substantial question exists as to whether the sentence imposed is appropriate under the Sentencing Code. Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super.2001). A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Code or is contrary to the fundamental norms underlying the sentencing process. Id.

¶ 5 Ventura contends that the trial court failed to state adequate reasons for the imposition of his sentence on the record. Appellant's Brief at 53. This contention raises a substantial issue. Commonwealth v. Whitmore, 860 A.2d 1032, 1036 (Pa.Super.2004), reversed on other grounds, 590 Pa. 376, 912 A.2d 827 (2006). Ventura further asserts that the trial court imposed his sentence based solely on the seriousness of the offense and failed to consider all relevant factors, which has also been found to raise a substantial question. Commonwealth v. Boyer, 856 A.2d 149, 152 (Pa.Super.2004). Accordingly, we proceed to consider the merits of these claims.²

¶ 6 We review a sentencing court's determination for an abuse of discretion. Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007). "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Id. When reviewing sentencing matters, this Court must accord the sentencing court great weight as it is in best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Hanson, 856 A.2d 1254, 1260 (Pa.Super.2004).

¶ 7 We are also confined by the statutory mandates of 42 Pa.C.S.A. § 9781(c), which states:

(c) Determination on appeal.—The appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds:

(1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence imposed by the sentencing court.

42 Pa.C.S.A. § 9781(c).

¶ 8 We begin with an examination of the sentence imposed in light of the applicable sentencing guidelines.³ According to the pre-sentence report presented to the trial court, the standard range sentence guideline for the third-degree murder charge was 168 to 240 months. See Pre-sentence Investigation, at 2. Ventura was sentenced to 240 months to 480 months of imprisonment, and thus, the minimum sentence imposed was within the standard guideline range. Because Ventura's sentence was within the standard range, Ventura must demonstrate that the "application of the guidelines [was] clearly unreasonable" pursuant to 42 Pa.C.S.A. § 9781(c)(2).

¶ 9 Our Supreme Court in Commonwealth v. Walls, 592 Pa. 557, 568-9, 926 A.2d 957, 964 (2007) determined that a sentence can be deemed unreasonable after a review of the trial court's application of the factors contained in 42 Pa.C.S.A. §§ 9721(b) and 9781(d). Section 9721(b) states:

[T]he 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 the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant [as well as] any guidelines for sentencing[.]

42 Pa.C.S.A. § 9721(b). Section 9781(d) provides that when we review the record, we must have regard for:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant[;] (2) [t]he opportunity of the sentencing court to observe the defendant, including any presentence investigation[;] (3) [t]he findings upon which the sentence was based[;] (4) [t]he guidelines promulgated by the [sentencing] commission.

42 Pa.C.S.A. § 9781(d).

¶ 10 Ventura claims that the sentencing court failed to consider his rehabilitative needs and the protection of the public under Section 9721(b), consider the sentencing factors in Section 9781(d), or to state its reasoning on the record. Here, the trial court had the benefit of a pre-sentence report. Our Supreme Court has determined that where the trial court is informed by a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed. Commonwealth v. Devers, 519 Pa. 88, 101-102, 546 A.2d 12, 18-19 (1988). In discussing Devers, our Court has explained:

In imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant's prior criminal record, age, personal characteristics, and potential for rehabilitation. However, where the sentencing judge had the benefit of a presentence investigation report, it will be presumed that he or she was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Additionally, the sentencing court must state its reasons for the...