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COMMONWEALTH PENNSYLVANIA v. MAXWELL HARRY BURDGE (07/27/89)

filed: July 27, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
MAXWELL HARRY BURDGE, APPELLANT



Appeal from the Judgment of Sentence entered October 14, 1988, Court of Common Please of Juniata County, Criminal Division at No. 42 of 1988.

COUNSEL

Arthur Goldberg, Harrisburg, for appellant.

Ralph A. Germak, Dist. Atty., McAlisterville, for Com., appellee.

Rowley, Popovich and Johnson, JJ.

Author: Johnson

[ 386 Pa. Super. Page 196]

Maxwell Burdge appeals from the discretionary aspects of a judgment of sentence imposed following his convictions for involuntary manslaughter, aggravated assault, two counts of reckless endangerment, possession of an instrument of crime and attempted criminal homicide. Burdge was sentenced to two and one-half to five years imprisonment for involuntary manslaughter, ten to twenty years imprisonment for aggravated assault, and one to two years imprisonment for reckless endangerment. These sentences were to run consecutively. We determine that Burdge presented us with a substantial question in claiming that the trial court sentenced him significantly in excess of prior and pending sentencing guidelines, and so we reach the

[ 386 Pa. Super. Page 197]

    merits of his appeal. However, we find that the trial court committed no abuse of discretion and therefore affirm.

This case arose out of a domestic dispute which occurred on March 10, 1988 between appellant Maxwell Burdge and his girlfriend, Kimbra Powley. Burdge discharged a twelve gauge, double barrel shotgun into a motor vehicle occupied by Powley, her two year old brother, Joshua Mefford and her five year old daughter, Cassandra Paden. As a result of the shooting, Cassandra Paden died, Kimbra Powley lost the sight of her right eye and Joshua Mefford received injuries to his hand and forearm. A jury convicted Burdge of involuntary manslaughter in the death of Cassandra Paden, aggravated assault of Kimbra Powley, reckless endangerment of Kimbra Powley and Joshua Mefford and possession of an instrument of crime. The trial court merged the crime of reckless endangerment against Kimbra Powley with the offense of aggravated assault against her for sentencing purposes. In addition, the trial court placed Burdge on five years probation to follow the completion of this sentence for the offense of possession of an instrument of crime. Burdge filed a timely motion to modify sentence which was denied.

Burdge argues that the trial court abused its discretion by: 1) imposing an excessive sentence in light of the underlying crimes; 2) failing to follow the merger doctrine enunciated in Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, U.S. , 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988); and, 3) improperly applying the mandatory minimum sentence for use of a firearm during the commission of a crime, § 42 Pa.C.S. § 9712.

Burdge does not challenge the legality of his sentence. Thus, an appeal in this case is not taken as a matter of right. See 42 Pa.C.S. § 9781(a). Rather, Burdge challenges the discretionary aspects of the sentence. As such this appeal must be considered as a petition for permission to appeal. 42 Pa.C.S. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987). We, as an appellate court, may allow such an appeal "where it appears

[ 386 Pa. Super. Page 198]

    that there is a substantial question that the sentence imposed is not appropriate . ...


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