Lower Moreland Home Invader's Prison Sentence Upheld On Appeal

LOWER MORELAND, PA — An area man who had participated in a violent home invasion at a Lower Moreland home four years ago, and who was subsequently sentenced to 14 to 30 years in prison for his role in the crime, had his sentence upheld last week by a state appellate court panel.

Daniel Damian Tucker, Jr., who was one of three individuals convicted of terrorizing the occupants of a township home back in April 2017, had argued that a lower court erred when it dismissed his post-sentencing petition without a hearing. He also argued ineffective assistance of counsel with his appeals lawyers.

Tucker filed his latest direct appeal with the Pennsylvania Superior Court pro se, meaning without the assistance of a lawyer.

Three Superior Court judges participated in the decision.

Tucker asserted that because both his trial attorney and appellate counsel failed to preserve his challenges to the discretionary aspects of his prison sentence, he lost the right to be heard on appeal, and that the Superior Court judges should presume prejudice “with no further showing from the defendant on the merits of his underlying claims,” the appellate panel wrote in the July 8 non-precedential decision.

Tucker, whose participation in the home invasion involved holding what was later determined to be a BB gun to the head of one of the occupants, had been found guilty during a bench trial of four counts of robbery and one count of conspiracy to commit robbery.

He was sentenced by a Montgomery County Common Pleas Court judge on Feb. 26, 2018.

According to the court’s timeline of events, Tucker initially filed a post-sentence motion challenging the discretionary aspects of his sentence, arguing that the trial judge failed to consider mitigating factors that could have potentially worked in his favor in helping to lower his sentence, but the court denied the motion.

Tucker then filed a direct appeal, with his appellate attorney arguing that the 14-to-30-year sentence was “manifestly excessive and imposed without proper consideration of Appellant’s rehabilitative needs in violation of the Sentencing Code,” the recent Superior Court opinion reads.

The appeals court had earlier determined that while Tucker’s post-sentence motion included a challenge to the discretionary part of his sentence, the motion had not included the specific issue when it was raised on initial appeal, so the court determined that Tucker had waived his challenge to the discretionary aspects of his sentence.

This time around, the Superior Court panel ruled that Tucker failed to satisfy elements required to prove his claim of ineffective assistance of counsel.

“Appellant’s proposed challenge to the discretionary aspects of sentencing fails to raise a substantial question for our review,” the panel wrote. “Therefore, even if appellate counsel had developed an argument on the issue raised in Appellant’s Post-Sentence Motion challenging the trial court’s application of mitigating circumstances, this Court would have been without jurisdiction to address it.”

The appeals panel further noted that the judge who handled the post-sentencing motion, who was the same judge who handled the criminal trial, had set forth the statutory and case law relevant to sentencing, noting that at the time of sentencing, he had considered the victims’ testimony, Tucker’s expressions of remorse over his participation in the crime, and his apology to the victims.

That judge had also properly considered a pre-sentence investigation report, probation and parole investigation evaluations, the sentencing code, and sentencing guidelines, and that he had also acknowledged Tucker’s drug addiction, difficult childhood, and prior arrests, at the time of sentencing.

“Appellant’s sentence is not unreasonable: it is neither irrational nor guided by unsound judgment,” the Superior Court panel wrote.