Com. v. Heffner, B.

J-A09006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRIAN GEORGE HEFFNER :

:

Appellant : No. 262 MDA 2022

Appeal from the Judgment of Sentence Entered October 1, 2021

In the Court of Common Pleas of Northumberland County

Criminal Division at No(s): CP-49-CR-0000716-2018

BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY PANELLA, P.J.: FILED: JULY 28, 2023

Brian George Heffner appeals from the judgment of sentence entered in

the Northumberland County Court of Common Pleas on October 1, 2021. On

appeal, Heffner raises multiple challenges to the discretionary aspects of his

sentence. After careful review, we affirm.

As Heffner raises no challenge to his convictions, the following factual

summary is undisputed for purposes of this appeal. This case arises from the

death of Sean Maschal in the evening of September 12, 2017. Heffner,

Maschal, David Brown, and Robert Villari drove around a mountainous and

wooded area in Coal Township, stopping a few times, during which they all

got high on bath salts. Villari possessed a gun he had stolen the day before

and they had made a plan to sell it later that day for drugs.

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Heffner, who at that point was seated in the rear passenger seat behind

Maschal, discharged the gun, killing Maschal. Heffner exited the vehicle and

opened the front passenger door where Maschal’s body fell to the ground. The

three remaining individuals then left Maschal’s body in the woods and drove

away. No one called the police.

Brown and Villari testified that Heffner told them not to call the police.

Heffner testified that he did not know if he shot Maschal because he does not

remember holding the gun or discharging it. He further testified that he tried

to call the police but he was unable to unlock Maschal’s phone and no one else

had a usable phone.

The three individuals drove back to a house Brown was staying at, and

cleaned blood from their clothes and bodies. They then drove to trade the gun

for bath salts. On the way, they cleaned blood from the vehicle at a gas station

and dumped some clothing they had used to clean the car into trash cans.

After trading the gun for more bath salts, the group got high again.

Several days later, police arrested Heffner and charged him with

multiple crimes arising from Maschal’s death. On August 20, 2021, a jury

found Heffner guilty of involuntary manslaughter, possession of a firearm,

possession of a firearm without a license, conspiracy to receive stolen

property, receiving stolen property, aiding consummation of a crime,

recklessly endangering another person, abuse of corpse, and tampering with

physical evidence.

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On October 1, 2021, the trial court imposed consecutive sentences for

each count at the maximum standard range sentence, for an aggregate term

of nineteen and one-half to fifty years’ incarceration. The court denied

Heffner’s post sentence motions. This timely appeal followed.

On appeal, Heffner raises four separate challenges to the sentence

imposed:

1. Did the [trial c]ourt err in sentencing [Heffner] on incorrect

factual assertions?

2. Did the [trial c]ourt sentence [Heffner] excessively and without

adequate consideration of specific mitigating factors sufficient to

individualize [Heffner]’s sentence?

3. Does the disparity in sentencing between Co-Defendant David

Brown and [Heffner] violate a fundamental norm of sentencing?

4. Did the [trial c]ourt hear improper victim witness testimony

from the victim's brother, sister, and mother of his child at

sentencing and did the [trial c]ourt then violate sentencing norms

in sentencing [Heffner] in accord with the victim's request for

specific sentences?

Appellant’s Brief, at 8.

Heffner concedes that his issues challenge the discretionary aspects of

his sentence. See Appellant’s Brief at 16. We review discretionary sentencing

challenges with great deference to the sentencing court:

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.

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Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)

(citations and quotation marks omitted). However, “[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.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted).

To invoke this Court’s jurisdiction over this issue, Heffner must satisfy 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 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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).

Here, Heffner preserved his issues through a timely post-sentence

motion to modify his sentence, and filed a timely appeal. Further, counsel has

included the required Rule 2119(f) statement. We therefore review the Rule

2119(f) statement to determine if Heffner has raised a substantial question.

We must examine Heffner’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for

which the appeal is sought, in contrast to the facts underlying the appeal,

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which are necessary only to decide the appeal on the merits.” Id. (citation

and emphasis omitted); see also Pa.R.A.P. 2119(f).

Heffner “must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274 (citation omitted). That is, “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.” Tirado,

870 A.2d at 365. “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Provenzano, 50

A.3d 148, 154 (Pa. Super. 2012).

In his 2119(f) statement, Heffner contends the trial court erred by

relying on incorrect factual assertions when sentencing and imposed an

excessive sentence without adequate consideration of mitigating factors.

Further, Heffner argues the disparity between his sentence and the sentence

imposed on his co-defendant Brown violates a fundamental norm of

sentencing. Finally, Heffner contends the trial court heard improper victim

witness testimony and violated sentencing norms by sentencing in accord with

the victim witnesses’ request for specific sentences. As these claims each

present a substantial question, we will review them on the merits. See

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (stating

appellant's claim that trial court relied on incorrect factual assertions in

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imposing sentence asserts substantial question); see also Commonwealth

v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (substantial question raised

where defendant challenged consecutive sentences as excessive and claimed

court failed to consider rehabilitative needs and mitigating factors); see also

Commonwealth v. Canfield, 639 A.2d 46, 49 (Pa. Super. 1994) (overruled

on other grounds) (holding disparity between sentences imposed upon co-

defendants touches upon the fundamental norms which underlie the

sentencing process and, therefore, raises a substantial question); see also

Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (finding claim

that trial court considered improper factors in sentencing raises a substantial

question).

In his first issue on appeal, Heffner contends the trial court erred in

sentencing him based on incorrect factual assertions. Relevantly, in explaining

its reasoning for the sentence on the record, the trial court stated “You patted

him down, you took his wallet. … You left your best friend’s body, [whom] you

had shot, to rot in the woods after stealing his wallet, and then you went about

the rest of your day.” N.T., Sentencing Hearing, 10/1/21, at 21-22. Further,

the trial court stated Heffner still had his wits about him after the shooting.

See id. at 21. Heffner argues it was error for the trial court to consider these

facts in imposing sentence, as the jury acquitted him of theft of the victim’s

wallet at trial, and testimony was presented at trial that Heffner was “nodded

out” prior to the shooting. See N.T., Trial - Volume 1, 8/17/21, at 223.

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Heffner takes issue with the trial court’s reliance on United States v.

Watts, 519 U.S. 148 (1997), in which the Supreme Court of the United States

held that an acquittal does not prevent a sentencing judge from considering

conduct underlying the acquitted charge, so long as that conduct has been

proved by a preponderance of the evidence. Id. at 156.

Heffner argues that Watts is distinguishable from this appeal. He

contends that Watts directly relied upon the explicit language of the Federal

Sentencing Guidelines, which require a finding of probable cause to include

evidence for sentencing purposes. See id. at 152-53.

However, even accepting this distinction, we conclude the underlying

logic of Watts applies with equal force in this case. The Supreme Court in

Watts opined that a jury “cannot be said to have necessarily rejected any

facts when it returns a general verdict of not guilty.” Id. at 155 (internal

quotation marks omitted). As a result, an acquittal does not preclude a

prosecutor from relitigating the defendant’s culpability for a charge at

sentencing. See id. At 156.

Furthermore, although Heffner is innocent in the eyes of the law of

stealing Maschal’s wallet, he was found guilty of involuntary manslaughter.

The sentencing court was therefore entitled to determine whether he stole

Maschal’s wallet while committing the crime of involuntary manslaughter. See

Commonwealth v. Stokes, 38 A.3d 846, 862 (Pa. Super. 2011) (“an

acquittal does not prevent a sentencing judge from considering conduct

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underlying the acquitted charge, so long as that conduct has been proved by

a preponderance of the evidence.” (citation and internal quotation marks

omitted)).

Further, since Heffner was not sentenced above the statutory maximum

for each count, neither his due process rights nor his right to a jury trial have

been infringed under existing precedent. See Stokes, 38 A.3d at 862.

“Moreover, Watts can be reconciled with [Apprendi v. New Jersey, 530

U.S. 466 (2000) and its progeny] where the facts determined by the court do

not increase the defendant's sentence beyond the statutory maximum as

defined in Blakely [v. Washington, 542 U.S. 296, 303-04 (2004)].” Id., 38

A.3d at 863, n.12.1

Here, Heffner was aware of the possible sentencing ramifications if

found guilty. Heffner is not being punished more harshly for a crime he did

not commit. Rather, Heffner’s sentence was within a range of sentences

already provided for by law based on facts determined by the jury. Since

Heffner’s sentence, without any finding that he stole from the victim or was

cognizant at the time of the shooting, could have been the statutory limit, his

____________________________________________

1 In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The Supreme Court

later clarified that “the statutory maximum for Apprendi purposes is the

maximum sentence a judge may impose solely on the bases of the facts

reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S.

at 303-304.

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sentence was one that the court could have imposed solely based on the facts

reflected by the jury's verdict.

In sum, since the sentencing court's findings did not mandate an

increase in his sentences beyond that which the court could have handed down

solely based on the jury verdict, the court did not err in referencing unproven

facts during sentencing. Accordingly, Heffner’s first issue is without merit.

In his second issue, Heffner contends the trial court imposed an

excessive and unreasonable sentence without consideration of his

rehabilitative needs and mitigating factors. This issue is without merit.

The trial court stated that it considered the following in fashioning

Heffner’s sentence: a PSI, victim impact statements, and Heffner’s

statements. See N.T., Sentencing Hearing, 10/1/21, at 21-22.

Where the trial court had the benefit of reviewing a pre-sentence report,

we must

presume that the sentencing judge was aware of relevant

information regarding the defendant’s character and weighed

those considerations along with mitigating statutory factors. A

pre-sentence report constitutes the record and speaks for itself.

In order to dispel any lingering doubt as to our intention of

engaging in an effort of legal purification, we state clearly that

sentencers are under no compulsion to employ checklists or any

extended or systematic definitions of their punishment procedure.

Having been fully informed by the pre-sentence report, the

sentencing court’s discretion should not be disturbed. This is

particularly true, we repeat, in those circumstances where it can

be demonstrated that the judge had any degree of awareness of

the sentencing considerations, and there we will presume also that

the weighing process took place in a meaningful fashion. It would

be foolish, indeed, to take the position that if a court is in

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possession of the facts, it will fail to apply them to the case at

hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992).

The reasons the trial court offered for the sentence imposed, in

conjunction with the court’s review of the PSI, were more than sufficient to

conclude that the court properly considered all relevant factors in fashioning

Heffner’s sentence. Accordingly, Heffner’s claim that the trial court failed to

consider the appropriate factors in imposing his sentence lacks merit.

In his third issue, Heffner asserts the disparity between his sentence

and that of his co-defendant, Brown, was contrary to the fundamental norms

of the sentencing process.

This Court has previously determined:

A sentencing court is not required to impose the same sentence

on all participants in a crime. Moreover, when a defendant's

accomplice is tried, or pleads guilty, in a separate proceeding, and

is sentenced by a different judge, the sentencing court is not

required to explain a disparity between the defendant's sentence

and that of the accomplice.

Myers, 536 A.2d at 430 (citations omitted).

Here, co-defendant Brown pleaded guilty, and was sentenced to thirty-

eight months to fifteen years’ imprisonment. Heffner did not plead guilty,

instead choosing to go to trial, and was sentenced to nineteen and one-half to

fifty years’ imprisonment.

Further, while there is a distinct disparity between the sentences, a

review of the sentencing transcript reveals the court articulated factors that

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were sufficient to support Heffner’s sentence. See N.T., Sentencing Hearing,

10/1/21, at 21-22. In addition, the sentencing court had the benefit of a PSI

report. In light of all of these factors, the court sentenced Heffner to the

maximum standard range sentence on each count. On this record, we cannot

conclude that the sentence imposed constituted an abuse of discretion.

In his final issue raised on appeal, Heffner contends it was improper for

the trial court to hear victim witness testimony regarding what sentence the

court should impose. He further claims the trial court violated sentencing

norms by sentencing Heffner in accord with the victim witness’ sentence

request.

While Heffner takes issue with the court hearing the victim witness

testimony, our review of the record reveals that Heffner did not object to any

portion of the victim witness testimony at any point of the sentencing hearing.

Accordingly, Heffner has waived this issue. See Pa.R.A.P. 302(a) (providing

that issues not raised before the lower court are waived and cannot be raised

for the first time on appeal).

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As none of Heffner’s issues merit relief, we affirm the judgment of

sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/28/2023

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