J-S10022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID LEE SUMNEY :
:
Appellant : No. 471 WDA 2023

Appeal from the Judgment of Sentence Entered November 17, 2022

In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002776-2020

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM BY KING, J.: FILED: May 3, 2024

Appellant, David Lee Sumney, appeals nunc pro tunc from the judgment

of sentence entered in the Allegheny County Court of Common Pleas, following

his guilty plea for third degree murder.1 We affirm.

The relevant facts and procedural history of this case are as follows.

The Commonwealth charged Appellant with one count each of criminal

homicide, robbery, and abuse of corpse, and six counts of theft by unlawful

taking in connection with the death of Appellant’s mother. On August 17,

2022, Appellant pled guilty to third degree murder. The Commonwealth

withdrew all remaining charges pursuant to the plea agreement. At the plea

hearing, Appellant admitted to the following factual basis for his plea:

The Commonwealth would have called as a witness Ms.

____________________________________________

1 18 Pa.C.S.A. § 2502(c).
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Peggy Prosseda, … who would have testified that she and

her sister, Ellen Micenko, … are the daughters of the victim,
Margaret Sumney, [(“Victim”)] and they are both the
stepsisters of [Appellant], who had a different biological
father than [them].

Ms. Prosseda lived out of state at the time of the murder.

[Ms.] Prosseda would have testified that [Victim]’s biological
brother, John Shade, passed away around the date of
Saturday, August 31, in the year 2019. And subsequent to
receiving that information, Ms. Prosseda and other family
members tried repeatedly to contact [Victim] to discuss
[Mr.] Shade’s death and the impending funeral
arrangements.

[Ms.] Prosseda would have testified that multiple phone calls

to [V]ictim went unanswered during the time period of
August 31 through September 2, 2019, with [Appellant],
often answering the household phone or his cellphone.

During these conversations with [Ms.] Prosseda, [Appellant]

would claim that the victim was, … “sleeping” … and that
[Victim] was already aware of the death of her brother[.]

[Ms.] Prosseda became increasingly concerned when she

was unable to contact [V]ictim after multiple attempts. This
concern was borne out of an awareness that [V]ictim
suffered from multiple health problems and also [Appellant]
had recently moved into [V]ictim’s residence[.]

[Appellant]’s presence was of particular concern to family

members as they were aware that [Appellant] had been
accused of physically abusing [V]ictim in the past. This
concern caused [Ms.] Prosseda to contact the South Fayette
Police Department to conduct a welfare check around 11:00
a.m. on September 2, 2019.

* * *

South Fayette police went to the residence multiple times,

… and left the residence being unable to make contact with
anyone inside the residence.

* * *

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With heightened concern for [V]ictim’s well-being and

having exhausted all other options, the South Fayette Police
made forced entry into the residence at approximately
11:45 p.m. on September 2, 2019.

Sergeant Wesolek, Officer Sawyer Gray, and Officer Blocher

… would have testified that they entered the residence to
observe the home to be in disarray with noticeable blood
smeared on the furniture and the walls of the residence.
Upon ascending the stairs to the second floor, the police
found the deceased remains of [Victim] in the bathtub of the
main bathroom in the residence.

* * *

Dr. W. Ashton Ennis, … a pathologist with the Allegheny

County Office of the Medical Examiner, would have testified
… that he performed the autopsy upon the remains of 67-
year-old [Victim.] Dr. Ennis would have testified that
[V]ictim suffered lacerations covering the entire scalp and
that her face and body was also covered in contusions. More
pathologically significant, however, was the multiple
fractured ribs on both sides of the ribcage, including multiple
fractures of each rib creating what the doctor would have
testified and described as a flailed chest[.] This injury would
have prevented [V]ictim from breathing.

Dr. Ennis would have testified that [V]ictim’s spine was

fractured with an associated injury to the spinal column
which would have caused [V]ictim to be paralyzed from the
waist down. Regarding the amount of force necessary to
cause such an injury, Dr. Ennis would have testified that this
injury is most usually seen in fatal automobile crashes. In
terms of whether an implement was used in the attack, Dr.
Ennis could not conclude nor exclude the possibility of an
implement having been used. In conclusion, Dr. Ennis
would have testified that the cause of death in this case was
blunt force impact injuries of the head, neck, and torso and
that the manner of death in this case was homicide.

Allegheny County Police detectives returned to the crime

scene and executed a search warrant for the residence[.] …
Police found and collected various receipts including Giant

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Eagle receipts…. These receipts were dated for the date of

purchase at August 29, 2019.

* * *

The Commonwealth would have introduced video

surveillance from the Giant Eagle store…. The video, which
is date and time stamped September 1, 2019, at
approximately 6:48 p.m., depicts [Appellant] entering the
store and ultimately checking out…. Records related to the
transaction would have showed that [Appellant] purchased
a rotisserie chicken as well as several items of household
cleaning products. Many of those same products were found
at the crime scene by detectives. During the transaction,
records show that [Appellant] used the Giant Eagle
Advantage Card belonging to [Victim].

Detectives Thomas Foley, Steven Hitchings, … and Dale

Canofari, … and others would have testified that they
encountered and detained [Appellant] outside of Slater’s
Funeral Home … on September 4, 2019. Seen in plain view
dangling from [Appellant]’s pocket was an item of jewelry
later affirmatively identified by family members as
belonging to [V]ictim.

[Appellant] was taken to the Allegheny County Police

Headquarters for an interview. Also found on [Appellant]’s
person was a debit card and blank checks bearing [Victim’s]
name … as well as a key card for a room at the Indigo
Hotel…. Also seized was [Appellant]’s iPhone….

…A forensic download was performed [on Appellant’s

iPhone.] Found in the memory bank of the phone was
dozens of photos depicting the beating death of [Victim].
The first photos in the series are time and date stamped
August 30, 2019, at about 4:50 a.m. and depict the victim
injured and in distress. As the photos chronologically
progress according to the time stamps, they depict
increasing injury sustained by [V]ictim. The last
photographs where [V]ictim is arguably alive or conscious
are time and date stamped August 30, 2019 at
approximately 9:58 a.m. The remaining photos show
[V]ictim either unconscious or deceased.

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In between many of the photos of [V]ictim appear selfies of

[Appellant] in which he photographed himself. Clearly seen
in these photographs [is Appellant]’s face with blood
smeared on his face and in one photograph giving a thumbs-
up pose.

* * *

…As part of the forensic analysis of the iPhone … was an

audit of the web search history of [Appellant]’s phone. The
following searches were part of that history[.] On August
30, 2019, at 11:11 a.m., [Appellant] used or entered the
search term, … “How long does it take before a body starts
to decompose?”…. On August 30, 2019, at 3:50 p.m.,
[Appellant] searched the term using the web browser, …
“How long do you wait to dispose of a body?”… Other
searches performed on the phone include one on August 30,
2019 where [Appellant] entered the following search into
the web browser at 3:50 p.m. Searched was, … “How to
keep a decomposing body from smelling.”... On September
1, 2019, at 4:24 a.m., [Appellant] searched the following
term, … “Do you drain a body before dismembering?”... On
September 1, 2019, at 4:29 a.m., [Appellant] searched the
following term, … “Best way to drain a body.”….

(N.T. Guilty Plea Hearing, 8/17/22, at 6-23).

At the conclusion of the hearing, the trial court accepted Appellant’s

guilty plea as knowing, intelligent, and voluntary. The court conducted a

sentencing hearing on November 17, 2022. Jack Vanchieri, an officer at the

Allegheny County Jail, testified on Appellant’s behalf. Mr. Vanchieri stated

that in the approximately three years that Appellant has been at the county

jail, Appellant has not had any formal disciplinary actions taken against him.

Additionally, Appellant was selected to be a pod worker, which is a position

given by the officers to individuals that they believe would not cause problems

or violate rules.

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Jennifer Lynn testified that she is employed by Foundation of Hope as

the program director for the pre-release program at the Allegheny County Jail.

The program offers inmates various classes, such as addiction recovery, anger

management and spiritual foundation. Ms. Lynn became acquainted with

Appellant when Appellant participated in the course. Throughout their

interactions, Ms. Lynn observed that Appellant was always calm, polite and

respectful to her, other staff and other inmates. He also started participating

in Bible studies with other inmates.

Lawrence Guzzardi, a medical toxicologist, testified that he reviewed

Appellant’s medical history and Appellant was prescribed several psychotropic

medications that would affect a person’s mind. Appellant was prescribed

Adderall, Diazepam, Citalopram, and Bupropion. Dr. Guzzardi further noted

that the prescribed amount of Adderall was the highest he had ever seen.

Additionally, Dr. Guzzardi learned from Appellant that he consumed alcohol

for the two days immediately prior to and after the murder. Since he has

been incarcerated, Appellant has stopped taking Adderall and no longer has

access to alcohol. Dr. Guzzardi opined that if Appellant is carefully monitored

with drug testing and alcohol monitors to ensure that he is not consuming

alcohol or drugs, Appellant is likely to demonstrate good impulse control and

otherwise act in a rational manner. On cross-examination, Dr. Guzzardi

confirmed that if Appellant is given access to drugs and alcohol and chooses

to abuse those substances, criminal recidivism is possible.

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Appellant expressed remorse for his actions and apologized to his family

for the hurt that he caused. Victim’s daughter, two sisters, niece, and nephew

gave victim impact statements. They each expressed their deep grief and

anger over losing Victim and explained the lasting traumatic effect that

Appellant’s actions had on their family. Victim’s daughter also informed the

court that Victim had given Appellant a privileged life, paying for private school

and tuition for George Washinton University. She further stated her belief

that Appellant’s violent actions were triggered by Victim telling Appellant to

find a job. Following argument, the court sentenced Appellant to 20 to 40

years’ incarceration.

On Monday, November 28, 2022, Appellant timely filed a post-sentence

motion, which the court denied on January 9, 2023. On March 16, 2023,

Appellant filed a petition for relief seeking to reinstate his direct appeal rights.

On March 21, 2023, the court reinstated Appellant’s appellate rights nunc pro

tunc. Appellant filed a timely notice of appeal nunc pro tunc on April 20, 2023.

On May 30, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and Appellant complied

on June 20, 2023.

Appellant raises the following issue for our review:

Whether the trial court abused its sentencing discretion by

failing to apply all relevant sentencing criteria, including the
protection of the public, the gravity of the offense, and
[Appellant’s] character and rehabilitative needs, as required
by 42 Pa.C.S.A. § 9721(b)?

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(Appellant’s Brief at 5).

Appellant asserts that in fashioning the sentence, the court focused

exclusively on the severity of the crime and the victim impact statements,

while ignoring Appellant’s rehabilitative needs. Appellant argues that although

the court stated that it read the pre-sentence investigation report (“PSI”), the

sentence imposed demonstrates that the court did not consider the mitigating

factors contained therein. Specifically, Appellant claims the court did not give

proper weight to the fact that Appellant had consumed a concoction of

prescription medication and alcohol when he committed the crime and has

since demonstrated good behavior while incarcerated. Appellant further

contends that the court did not take into consideration Dr. Guzzardi’s

testimony that Appellant is capable of good impulse control and rational

behavior if his alcohol and drug consumption is regulated and monitored.

Appellant concludes that the court abused its sentencing discretion, and this

Court should vacate the judgment of sentence. We disagree.

As presented, Appellant’s claim challenges the discretionary aspects of

sentencing. See Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),

appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court

focused solely on serious nature of crime without adequately considering

protection of public or defendant’s rehabilitative needs concerns court’s

sentencing discretion); Commonwealth v. Cruz-Centeno, 668 A.2d 536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)

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(explaining claim that court did not consider mitigating factors challenges

discretionary aspects of sentencing).

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174

L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of

sentencing issue:

[W]e 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).

When appealing the discretionary aspects of a sentence, an appellant

must invoke this Court’s jurisdiction by including in his brief a separate concise

statement demonstrating a substantial question as to the appropriateness of

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an

appellant separately set forth the reasons relied upon for allowance of appeal

furthers the purpose evident in the Sentencing Code as a whole of limiting any

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challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.” Phillips, supra at 112

(emphasis in original) (internal quotation marks omitted).

“The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). “A substantial question exists only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015)

(en banc) (quoting Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.

2011)).

This Court reviews discretionary sentencing challenges based on the

following standard:

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. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting

Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).

Pursuant to Section 9721(b), “the court shall follow the general principle

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

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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.” 42 Pa.C.S.A. § 9721(b). Additionally, “a court is

required to consider the particular circumstances of the offense and the

character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10

(Pa.Super. 2002), cert. denied, 545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d

902 (2005). “In particular, the court should refer to the defendant’s prior

criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id.

…Where the sentencing court had the benefit of a [PSI

report], we can assume the sentencing court “was aware of
relevant information regarding the defendant’s character
and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 519 Pa.
88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.Super.
2005) (stating if sentencing court has benefit of PSI, law
expects court was aware of relevant information regarding
defendant’s character and weighed those considerations
along with any mitigating factors).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

Instantly, Appellant raised his sentencing issue in a timely post-

sentence motion, filed a timely notice of appeal, and included in his appellate

brief a Rule 2119(f) statement. Further, Appellant’s assertion that the court

exclusively focused on the seriousness of the crime and failed to weigh his

rehabilitative needs and/or consider mitigating factors as required by Section

9721(b) arguably raises a substantial question. See Commonwealth v.

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Trimble, 615 A.2d 48 (Pa.Super. 1992) (holding defendant’s claim that court

failed to consider factors set forth under Section 9721(b) and focused solely

on seriousness of defendant’s offense raised substantial question). Thus, we

proceed to address the merits of Appellant’s sentencing issue.

At the sentencing hearing, the court explained its sentencing rationale

as follows:

Now as to the sentence itself, the court has, consistent with

my obligation, considered the sentencing guidelines which
are made part of the record in this matter. I noted them
earlier. The court has considered the presentence report
which, in addition to [Appellant]’s statements today, reflects
his statement of remorse and also the presentence report
which has detailed the character of [Appellant], his prior
criminal record such as it was or was not, his age, personal
characteristics, his potential for rehabilitation as well as the
testimony of Dr. Lawrence Guzzardi today, the psychiatrist,
on his behalf, his positive adjustment in the Allegheny
County Jail as reflected in the testimony of the jail personnel
and the Hope program. The court notes that his plea of
guilty is a consideration. Of course, that has to be taken in
the context of the exposure [to a potential] first degree
murder conviction and a less sentence, but, in any event, in
light of the psychiatric testimony, the facts of the case seem
to be an appropriate disposition as we have litigated
previously.

The court has also taken into account the factors articulated
in the Section 9721(b) of the sentencing code, protection of
the public, gravity of the offense as it relates to the impact
on the victim, of course the surviving family members, and
members of the community. The court notes in this instance
that the court, obviously, has taken into account the
[e]ffects on the extended family, the surviving family
members[.] [N]oted earlier today [Victim] was a mother, a
grandmother, a sister, an aunt, and a friend. Again, the 20-
plus letters and testimony that I have heard and reviewed
reflects what a wonderful person she was, caring and
giving[.] [T]hat particularly reflected in [Appellant]’s

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background, having been sent to one of the premiere prep

schools in the area as well as the finest university in the
eastern half of the states, George Washington University,
through her efforts. In that regard there is no dispute as to
her character, the impact that this has had on her surviving
family members, the impact of the letters I received from
her granddaughter, her niece, everybody[.] [I]t was just a
very profound impact that her death will have and profound
enduring emotion and psychological for all of those persons.

The court believes in this instance that the sentence I will

impose reflects in what I’ve stated so far[.] [Additionally,]
the circumstances of [Appellant]’s conduct before [Victim]’s
death, his conduct during her death, during the incident
itself, and his conduct in the aftermath of her suffering and
dying, dictate the sentence … that will be imposed, in the
context of everything I said. The fact of imprisoning her in
her own home, the deception and the subterfuge that he
exhibited in talking with Ms. Shade, her sister, during that
[time], her sister frantically and other members trying to
reach her to communicate during that course of time, the
circumstances of [Appellant]’s conduct during the … the
prolonged and tortuous path leading to [Victim]’s death[.]
[T]he brutal beating, in effect, the paralyzing condition she
was in [] her own home, the extreme disparity between the
physical size, age, and prowess have to be taken into
account. Finally, the circumstances of [Appellant]’s conduct
in the aftermath of [Victim]’s death, leaving her body dead
and dying in her own bathtub to die and decompose, … and
then attempts to cover it up by going to the local Giant Eagle
and buying bleach and other materials to clean it up. The
final indignity of taking her own jewelry and using it to
entice the attention of … female staff workers at the hotel.
All of these factors, of course attempted to be explained in
court by Dr. Guzzardi today but the period of several days,
the malice that was exhibited by [Appellant] leaves the
court to the conclusion that the only sentence that should
be imposed is a maximum sentence allowed by law. He will
be sentenced to count four for the murder to 20 to 40 years
incarceration.

(N.T. Sentencing Hearing, 11/17/22 at 40-44).

The court not only stated that it read the PSI report but specifically

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noted that it considered the mitigating factors contained therein. Specifically,

the court stated that it considered Appellant’s character, personal

characteristics, prior criminal history, and expression of remorse. The court

further acknowledged Dr. Guzzardi’s testimony that Appellant’s actions may

have been fueled by the substances in his system at the time of the murder.

Thus, the record belies Appellant’s claim that the court failed to consider the

mitigating factors contained within the PSI report. See Moury, supra.

Likewise, the record belies Appellant’s claim that the court failed to

consider Appellant’s rehabilitative needs. Prior to Dr. Guzzardi’s testimony,

the Commonwealth objected, arguing that Dr. Guzzardi’s proposed testimony

was relevant only to the subject of diminished mental capacity which was

irrelevant for purpose of sentencing. The court overruled the

Commonwealth’s objection, specifically stating, “there is also the sentencing

factor 9721(b), the court has to consider the rehabilitative needs of

[Appellant].” (N.T. Sentencing at 15). Thus, the record makes clear the court

was aware of its duty to consider Appellant’s rehabilitative needs and ensured

that it had all necessary information to properly weigh the Section 9721(b)

factors. Additionally, in explaining its sentencing rationale, the court

specifically acknowledged Dr. Guzzardi’s testimony regarding the substances

that Appellant had consumed at the time of the murder and Appellant’s

potential for rehabilitation if his alcohol intake and medications were regulated

and monitored. The court further acknowledged Mr. Vanchieri and Ms. Lynn’s

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testimony regarding Appellant’s positive adjustments since he has been

incarcerated.

The court explained its reasoning for imposing the maximum sentence

despite its consideration of Appellant’s rehabilitative potential. The court

noted the brutal manner in which Appellant murdered his own mother, who

by all accounts was loving and provided Appellant with many opportunities in

life. The court further noted the malice demonstrated by Appellant’s actions

during the murder and thereafter, in taking photos and leaving her body to

decompose in the bathtub. The court also considered the profound and lasting

impact Appellant’s actions had on the surviving family members. The court

further heard testimony from Dr. Guzzardi that if Appellant had access to

drugs and alcohol and chose to abuse them, there is a possibility of criminal

recidivism. The record confirms the court considered Appellant’s rehabilitative

needs but ultimately determined that the severity of the crime and the need

to protect the public warranted the maximum sentence. On this record, we

see no reason to disrupt the court’s sentencing discretion. See McNabb,

supra. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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DATE: 05/03/2024

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