Com. v. Garner, J. ( 2018 )

J-A05044-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JOSHUA GARNER :
: No. 1637 EDA 2016
Appellant
Appeal from the Judgment of Sentence May 5, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002730-2015
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 14, 2018
Appellant, Joshua Garner, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County, after he pleaded
guilty to charges of Robbery, Aggravated Assault, and Possessing an
Instrument of Crime. Sentenced to an aggregate sentence of nine and one-
half to 25 years’ incarceration, Appellant challenges both the legality and
discretionary aspects of his sentence. We affirm.
The trial court sets forth the facts and procedural history of the case as
follows:
The underlying undisputed facts stem from a violent attack that
occurred on March 2, 2015, upon Mr. Bruce Kates inside the “We
Buy Gold” store, located [in] . . . Northeast Philadelphia. On that
date, at about 10:30 a.m., Mr. Kates was operating his business
as usual when Appellant entered the store as a returning
customer, inquiring about the sale status of a previously pawned
“Aztec” ring. Appellant previously successfully pawned multiple
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* Former Justice specially assigned to the Superior Court.
J-A05044-18
jewelry items that he had taken from family members to support
his drug habit. After briefly speaking, Appellant exited the store
stating that he would return later.
Appellant returned to the store roughly 45 minutes later, sat down
at a desk across from Mr. Kates and struck up a conversation
during which Appellant inexplicably erupted and pulled out a B.B.
pistol, pointed it at Mr. Kates’ head and threatened him. A violent
struggle ensued during which Mr. Kates successfully wrestled the
pistol away from Appellant. Appellant reacted with further
violence and produced a four-inch blade-folding knife and stabbed
Mr. Kates multiple times slicing him in the face, head, neck and
back. . . . Mr. Kates survived this vicious assault by fighting with
Appellant. He received emergency treatment at the Aria Hospital,
Torresdale Division, including numerous stitches for stab wounds
to the left side of his face below his ear, under his face on the right
side, under his neck area, and at least two more in his back.
During the course of the attack, Appellant removed roughly
between $600.00 and $800.00 from Mr. Kates’ office desk. Mr.
Kates unequivocally identified Appellant as the perpetrator[,
whom he clearly knew well.] Appellant was later arrested at his
home . . . five hours after the assault.
...
Appellant was charged with [18 Pa.C.S.A. § 901(A), Criminal
Attempt-Murder] graded as a Felony of the First Degree; [18
Pa.C.S.A. § 3701(A)(1)(ii)], Robbery, graded as a Felony of the
First Degree; [18 Pa.C.S.A. § 2702(A)], Aggravated Assault,
graded as a Felony of the First Degree; [18 Pa.C.S.A. § 907(A)],
Possessing an Instrument of Crime, graded as a Misdemeanor of
the First Degree; [18 Pa.C.S.A. § 2701(A)], Simple Assault,
graded as a Misdemeanor of the Second Degree; and [18
Pa.C.S.A. 2705], Recklessly Endangering Another Person, graded
as a Misdemeanor of the Second Degree. Following arraignment
and [a] preliminary hearing, the case was eventually scheduled
for a jury trial.
On February 1, 2016, which was the scheduled date of the jury
trial, Appellant [decided to] tender[] a guilty plea to [the trial
judge], the Honorable Anne Marie B. Coyle, to the charges of
Robbery (F1), Aggravated Assault (F1), and Possessing [an]
Instrument of Crime (M1). Pursuant to negotiations, all other
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offenses, including the most serious offense of Attempted Murder
were marked “Nolle Prosequi” or withdrawn by the
Commonwealth’s representative, Assistant District Attorney Erica
Rebstock.
Following . . . [an] oral and written colloquy of Appellant, [the
trial court] accepted the entry of the guilty pleas as proffered
intelligently, knowingly, and voluntarily. [The trial court] then . .
. directed the completion of Presentence Investigative Reports and
Mental Health Assessments and deferred the sentencing hearing
until April 8, 2016. Appellant’s bail remained the same as within
pre-trial status. On April 8, 2016, the sentencing was further
continued to April 15, 2016, due to defense counsel’s
unavailability.
...
[On April 15, 2016,] evidence from recorded prison calls were
introduced establishing that after being placed in custody,
Appellant bragged that he intended to pretend to be mentally
infirm to avoid prosecution for this assault. In addition, the
Commonwealth introduced a video recording previously made by
Appellant using his cellular telephone when he was in his
bathroom at his home that he had proudly posted on the internet
via You Tube. Appellant used the camera in his phone to voice his
multiple intentional homicidal ideations before the attack upon Mr.
Kates.
...
[A]fter the . . . evidentiary hearing and review of all sentencing
factors and data submitted, including the Presentence
Investigative Reports and the Mental Health Assessments, [the
trial court] formally sentenced Appellant as follows:
[Aggravated Assault - State term of confinement for a
minimum period of seven years six months to a
maximum period of twenty years to run concurrently
to the sentence imposed for Robbery;
Robbery - State term of confinement for a minimum
period of seven years six months to a maximum
period of twenty years; and
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Possession of Instrument of Crime - State term of
confinement for a minimum period of two years to a
maximum period of five years to run consecutively to
the sentence imposed for Robbery.]
Thus, the aggregate sentence imposed totaled a state term of
confinement for a minimum period of nine and one-half to twenty-
five years. The [statutory] maximum sentence that [the trial
court] could have imposed . . . was a minimum period of
confinement of twenty-two and one-half years to the maximum
period of forty-five years.
As part of the Sentencing Order, Appellant was ordered to be fully
evaluated and treated for any mental health and addictive
conditions once classified within the State Correctional Institution.
[The trial court] recommended that Appellant’s sentence be
served at State Correctional Institution Waymart in an effort to
properly address Appellant’s [history of mental illness and drug
addiction]. Additional conditions were imposed to reduce the risk
of Appellant’s predicted recidivism. These requirements included
Appellant’s compliance with recommended mental health and
drug and alcohol treatment and the taking of prescribed
medication. State parole authorities were directed to conduct
random drug and alcohol testing and perform random visits upon
Appellant’s future residence during the parole period.
[The trial court] ordered that Appellant be paroled, when eligible,
to a mental health facility consistent with recommended treatment
in lieu of residence with his parents. This condition was fashioned
due to [the trial court’s] stated concerns for the future safety of
the Appellant’s parents gleaned from testimony presented during
sentencing hearings and concerns raised within the evaluative
investigative reports. [The trial court also noted its concerns
caused by] Appellant’s premeditative homicidal intentions
evidence within Appellant’s self-video recording taken in his
bathroom shortly before [he] attacked Mr. [Kates]. As a result,
as part of the sentence, Appellant was ordered to have no contact
[with Mr. Kates] or with his place of business while under [the trial
court’s] supervision.
...
On April 22, 2016, a Motion for Reconsideration of Sentence was
filed by Attorney Brian Fishman, Esquire, on behalf of Appellant.
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After an additional hearing conducted on May 5, 2016, the trial
court entered an Amended Sentencing Order [imposing new
sentences of five and one-half to 15 years for Robbery, four to 10
years for Aggravated Assault, to run consecutive to Robbery, and
six months to five years for PIC, to run concurrently to Robbery].
In essence, the aggregate sentence, although restructured,
remained an imposed minimum period of confinement of nine and
one-half to 25 years within the State Correctional Institution.
[Appellant timely filed a counseled] Notice of Appeal . . . on May
19, 2016. [The trial court issued an] Order pursuant to Pa.R.A.P.
1925(b) on May 25, 2016. Counsel for Appellant filed a Statement
of Matters Complained of on Appeal [asserting] that [the trial
court] erred when imposing [an allegedly excessive and
manifestly unreasonable aggregate sentence].
Trial Court Opinion, 2/7/17 at 1-6.
In his brief, Appellant presents the following question for our
consideration:
DID THE TRIAL COURT ABUSE ITS DISCRETION IN
IMPOSING AN EXCESSIVE AND MANIFESTLY
UNREASONABLE AGGREGATE SENTENCE OF NINE AND
ONE-HALF (9½) TO TWENTY-FIVE (25) YEARS ON
ROBBERY, AGGRAVATED ASSAULT AND POSSESSING AN
INSTRUMENT OF CRIME, WHERE APPELLANT HAD A PRIOR
RECORD SCORE OF ZERO, PLEAD[ED] GUILTY, EXPRESSED
REMORSE, PROVIDED THE COURT WITH ABUNDANT
MITIGATION IN A SENTENCING MEMORANDUM AND THE
COURT FAILED TO CONDUCT AN INDIVIDUALIZED
ASSESSMENT OF APPELLANT’S REHABILITATIVE NEEDS
AND INSTEAD SENTENCED SOLELY BASED ON
RETRIBUTION AND PUNISHMENT, FAILED TO PROVIDE
REASONS ON THE RECORD JUSTIFYING ITS DECISION AND
WHERE THE COURT MERELY REFASIONED [SIC] THE SAME
PUNITIVE SENTENCE FOLLOWING THE FILING OF POST-
SENTENCE MOTIONS TO FIT THE EXCESSIVE AND UNJUST
SENTENCE WITHIN THE SENTENCING GUIDELINES AFTER
THE COURT FAILED TO DO SO AT THE ORIGINAL
SENTENCING HEARING?
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Appellant’s brief at 14.1
Appellant raises several challenges to the discretionary aspects of his
sentence. Our standard and scope of review is as follows:
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 a 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.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation
omitted). Before we reach the merits of Appellant's claim, we observe that
there is no automatic right to appeal from the discretionary aspects of
sentencing. Id. at 759. To invoke this Court’s jurisdiction, we must first
determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of his appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation
and footnotes omitted). If the appeal satisfies each of these four
requirements, we will then proceed to decide the substantive merits of the
case. Antidormi, 84 A.3d at 759.
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1Appellant’s question presented is virtually identical to his Pa.R.A.P. 1925(b)
concise statement filed with the trial court.
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In Appellant’s Pa.R.A.P. 2119(f) statement, he first contends the trial
court misapplied the sentencing guidelines for the robbery offense by using
an Offense Gravity Score (“OGS”) of 12 instead of 10 in its calculations. See
204 Pa.Code § 303.15 (F1 Robbery at 18 Pa.C.S. § 3701(a)(1)(ii) carries OGS
of 10). The court imposed a 66-month sentence for the robbery, which would
have represented a low-end standard range sentence for a robbery with an
OGS of 12, but, as it was, represented an aggravated range sentence for
Appellant’s robbery offense that carried an OGS of 10. Had the court correctly
applied an OGS of 10 within the enhanced matrix, see 204 Pa.Code § 303.18,
infra, it is reasonable to conclude the court would have imposed a low-end
standard range sentence of 40 months, Appellant contends.
Compounding this problem, Appellant maintains in his Rule 2119(f)
statement, is that the court also applied the Deadly Weapon
Enhancement/Used (“DWE/Used”) Matrix2 at 204 Pa.Code § 303.18 instead of
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2The Sentencing Guidelines explains the “use” deadly weapon enhancement
as follows:
(a) Deadly Weapon Enhancement.
...
(2) When the court determines that the offender used a deadly
weapon during the commission of the current conviction offense,
the court shall consider the DWE/Used Matrix (§ 303.18). An
offender has used a deadly weapon if any of the following were
employed by the offender in a way that threatened or injured
another individual:
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the Basic Sentencing Matrix at 204 Pa.Code § 303.16, as it erroneously found
the knife he used on the victim was a deadly weapon. As the trial court clearly
intended to sentence Appellant in the low-end standard guideline range,
Appellant posits, this panel should grant remand to permit the court to impose
the proper low-end standard range sentence within the proper matrix, which
is the Basic Sentencing Matrix.
Challenges to the trial court's application of the sentencing guidelines
address the discretionary aspects of Appellant's sentence. See
Commonwealth v. Krum, 533 A.2d 134, 135 (Pa. Super. 1987) (en banc).
See also Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super.2010)
(en banc) (“a challenge to the application of the deadly weapon enhancement
implicates the discretionary aspects of sentencing.”); Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (explaining that a sentencing
court's application of an allegedly incorrect Offense Gravity Score challenges
the discretionary aspects of sentencing).
As noted above, “[i]ssues challenging the discretionary aspects of
sentence must be raised in a post-sentence motion or by presenting the claim
____________________________________________
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded
or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or
(iii) Any device, implement, or instrumentality capable of
producing death or serious bodily injury.
204 Pa.Code § 303.10(a)(2).
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to the trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.” Commonwealth
v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004 (citations and internal
quotations marks omitted).
Here, Appellant waived his claim that the court used the wrong OGS in
calculating his sentence, as he failed to raise it with the trial court at either of
his sentencing hearings or in his motion for reconsideration of sentence.
Indeed, in both the first sentencing hearing and Appellant’s motion for
reconsideration, he agreed with the court that his robbery offense carried an
OGS of 12 and his aggravated assault offense carried an OGS of 11. See
Sentencing Hearing, 4/5/16 at 5-9; see also Appellant’s Motion to Vacate and
Reconsider Sentence, 4/22/16, at 3. Moreover, at Appellant’s second
sentencing hearing of May 15, 2016, counsel stated in his argument for a
standard range sentence that for “robbery, which is the lead offense, the top
of the standard range is seven years [(84 months),]” which corresponds with
the DWE/Used Matrix where a prior record of zero and an OGS of 12 applies.
N.T., 5/15/16, at 8. Appellant also failed to object to the OGS at any other
time during the hearing, even when the court and Commonwealth likewise
identified the standard range sentence for his robbery offense as 66 to 84
months. N.T., 5/15/16 at 14. Finally, Appellant filed no motion for
reconsideration of sentence after the court imposed his new sentence.
Accordingly, his OGS-based challenge is waived.
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With respect to Appellant’s challenge against the court’s use of the
DWE/Used Matrix, it survives our threshold inquiries, as he raised this
objection in both his post-sentence motion and Pa.R.A.P. 1925(b) concise
statement, and because it presents a substantial question as to sentencing
discretion. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.
Super. 2014) (claim that trial court wrongfully applied deadly weapon
enhancement raises substantial question). Nevertheless, we find the issue
lacks merit.
Specifically, there is no dispute that Appellant attacked Mr. Kates with
a knife in the course of committing the robbery, stabbing him multiple times
in the face, neck and back with the four-inch blade before Mr. Kates managed
to dispatch Appellant from the store. Such facts established that Appellant
used a knife in such a manner to cause potentially serious bodily injury or
even death. Therefore, no abuse of discretion attended the court’s application
of the DWE/Used Matrix in imposing sentence for the offense of robbery. See
Commonwealth v. Chapman, 528 A.2d 990, 992 (Pa.Super. 1987) (finding
razor blade held to victim’s face during robbery had sufficient potential to
cause harm to justify application of deadly weapon enhancement).
The next discretionary aspects challenge Appellant asserts in his
Pa.R.A.P. 2119(f) statement is that the trial court ignored significant
mitigating circumstances, including his pleading guilty, accepting
responsibility for his crime, and expressing remorse. In this regard, he
asserts more fully that he “was afforded no consideration for his tortured
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history of mental health and substance abuse problems, his past educational
and employment background, his community support, the fact that he
[pleaded] guilty and took responsibility for his actions, and showed remorse
for his crimes by apologizing to the complainant and his family.” Appellant’s
Rule 2119(f) statement, at 13.
This challenge has as its corollary the claim that the trial court therefore
failed to conduct an individualized assessment of Appellant, as the court
chose, instead, to impose a purely punitive sentence without consideration of
his mitigating circumstances or his rehabilitative needs. As Appellant has
preserved this claim by raising it with the trial court at his second sentencing
hearing and incorporating it in his Rule 1925(b) statement, we consider
whether this claim raises a substantial question.
An allegation that the sentencing court failed to consider
certain mitigating factors generally does not necessarily raise a
substantial question. Commonwealth v. McNabb, 819 A.2d 54,
57 (Pa. Super. 2003). Accord Commonwealth v. Wellor, 731
A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
sentencing court “failed to consider” or “did not adequately
consider” certain factors generally does not raise substantial
question). Compare Commonwealth v. Felmlee, 828 A.2d
1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial
question is raised, however, where appellant alleges sentencing
court imposed sentence in aggravated range without adequately
considering mitigating circumstances).
When imposing a sentence, 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), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005),
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
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potential for rehabilitation.” Id. Where the sentencing court had
the benefit of a presentence investigation report (“PSI”), 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). Further, where a sentence is
within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code.
See Commonwealth v. Cruz-Centeno, [ ] 668 A.2d 536 ([Pa.
Super.] 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating combination of PSI and standard range sentence, absent
more, cannot be considered excessive or unreasonable). Although
Pennsylvania's system stands for individualized sentencing, the
court is not required to impose the “minimum possible”
confinement. Walls, supra at 570, 926 A.2d at 965. Under 42
Pa.C.S.A. § 9721, the court has discretion to impose sentences
consecutively or concurrently and, ordinarily, a challenge to this
exercise of discretion does not raise a substantial question.
Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006). The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length
of imprisonment. Id. (holding challenge to court's imposition of
sentence of six (6) to twenty-three (23) months imprisonment
and sentence of one (1) year probation running consecutive, did
not present substantial question). Compare Dodge II, supra
(holding imposition of consecutive sentences totaling 58 ½ to 124
years imprisonment for thirty-seven (37) counts of theft-related
offenses presented a substantial question because total sentence
was essentially life sentence for forty-two year-old defendant who
committed non-violent offenses with limited financial impact).
Commonwealth v. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010).
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In the instant case, Appellant’s four-year minimum sentence for
Aggravated Assault3 was in the mitigated guideline range while his five and
one-half year minimum sentence for robbery was in the aggravated guideline
range.4 To the extent Appellant claims the court improperly imposed his
aggravated assault sentence without considering his mitigating
circumstances, he fails to raise a substantial question warranting merits
review. See McNabb, supra; Moury, supra (recognizing precedent that
where trial court had benefit of presentence investigation report, imposition
of standard range sentence, absent more, cannot be considered excessive or
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3 Initially, we note that neither the charging information nor any other part of
the record specifies a numerical subsection to the charge of Aggravated
Assault at 18 Pa.C.S. § 2702(a). Because the offense is identified specifically
as an “F1” offense, however, the only subsection that reasonably applies to
the facts of the case is subsection (a)(1). Moreover, the Commonwealth
indicated at the outset of the guilty plea hearing that it was an F1 Aggravated
Assault “causing serious bodily injury” rather than “attempts to cause serious
bodily injury” to which Appellant was pleading guilty. Appellant thereafter
confirmed his understanding that he was pleading guilty to aggravated
assault, causing serious bodily injury, which corresponds only with subsection
(a)(1). N.T., 2/1/16, at 5, 12.
4Aggravated Assault (causes serious bodily injury) at 18 Pa.C.S. § 2702(a)(1)
carries an offense gravity score of 11. See 204 Pa.Code § 303.15. Under the
DWE/Used Matrix at 204 Pa.Code § 303.18, an OGS of 11 coupled with a prior
record score of zero results in a standard range minimum sentence of 54 to
72 months, plus or minus 12.
Robbery (threatens another with or intentionally puts him in fear of immediate
serious bodily injury) at 18 Pa.C.S. § 3701(a)(1)(ii), carries an offense gravity
score of 10. See 204 Pa.Code § 303.15. Under the DWE/Used Matrix at 204
Pa.Code § 303.18, an OGS of 10 coupled with a prior record score of zero
results in a standard range minimum sentence of 40 to 54 months, plus or
minus 12 months.
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unreasonable). A substantial question is raised, however, by Appellant’s
related claim that the trial court failed to consider his rehabilitative needs in
fashioning his aggravated assault sentence. See Commonwealth v.
Downing, 990 A.2d 788, 793 (Pa. Super. 2010).
As for his claim that the court imposed his aggravated range robbery
sentence without consideration of individualized circumstances, mitigating
factors, or rehabilitative needs, this Court has previously held such a claim
presents a substantial question warranting merits review. See Felmlee,
supra; Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(addressing merits where appellant alleges sentencing court erred by
imposing aggravated range sentence without consideration of mitigating
circumstances); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super.
2008) (noting claim that sentencing court failed to state adequate reasons on
record for imposing aggravated-range sentence raises substantial question).
Though Appellant’s statement is adequate to raise a substantial question
for our review, he must still show his sentences were inconsistent with the
gravity of the offense, the protection of the public, or Appellant's rehabilitative
needs. With respect to the last sentencing consideration, Appellant argues
that the court altogether disregarded Appellant's rehabilitative needs.
The record belies Appellant's claim. At the sentencing hearing of May
5, 2016, the court's observations, stated on the record, reflected a
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consideration of Appellant's individual circumstances,5 both aggravating and
mitigating, and his rehabilitative needs before it imposed sentence:
THE COURT: Well, number one, had the defendant not
entered a plea of guilt and been found guilty before a jury, I can
guarantee you that the sentence that would have been imposed
by this court would have been commensurate with that and would
possibly have been doubled, at the very least. So to say that I
did not take into account the mitigating circumstance of an entry
of a plea is a misnomer. To say that I did not take into account
his individual situation is so off the grid, I find it offensive, because
I took great pains to evaluate all aspects of this defendant.
Unfortunately, --and I did not create this difficulty – at this point
in time I have a defendant who is potentially deadly to the persons
that care about him the most. I listened very carefully. And you
[Mother] keep shaking your head and I understand you love your
son. I get that. . . .But, ma’am, you’re the same person who told
this court and revised history with respect to the time period when
you could have pursued a matter within the court’s supervision,
and you discounted the danger that your son posed to you. And
you told this court when I asked you why did you drop the assault
charge, you gave this court a rendition of facts that indicated to
this court that your love for your son sometimes blinds your ability
to deal with difficulties.
The difficulties are so great. He stopped using his medicine. He
becomes an immediate danger. Everyone here knows full well
and has tried time and time and time again to help him. It hasn’t
worked. He acknowledged himself that when he’s not taking his
medicine all bets are off. I don’t know whether the use of PCP
preceded the mental health difficulties or was commensurate with
that. I don’t know that. I can only glean from the information
that’s been given to me. . . .But I fashioned within my sentence
the court’s attempt to do just what you asked me to do, which is
[to] help him become someone who is not a danger.
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5At the first sentencing hearing of April 15, 2016, the court acknowledged
having the benefit of the PSI report and mental health assessments. N.T.
4/15/16 at 4.
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The person that I saw – have a seat. The person that I saw – just
give me, let me go through it here with you. All right? I know
this is hard. I know this is heart-breaking. The person I saw on
[Appellant’s self-video in which he describes his plan to attack Mr.
Kates] sent chills down my spine. As I watched the video, I
watched your son and his lack of how he responded to the video
was telling to me.
I have to bear into account the protection of the public and the
likelihood for recidivism with respect to his sentence, because the
person or persons that are possibly at risk include you [Mother],
his brother, his father, because by all accounts there was a good
relationship between the victim and the defendant preceding this.
The person who I saw on the video exhibited all kinds of mental
difficulties, homicidal ideations, the likes of which the only thing
that I can compare it to is the same ideations that one sees in
folks in Columbine and similar circumstances. I can’t help that.
The only person that can help that is the defendant by doing his
best to follow the recommended treatment, which he did not.
I also bear in mind the defendant’s statements to his girlfriend,
who was also listed as a prior victim on one of the cases who
withdrew the matter, wherein he identified his intent to use the
mental health difficulties as a way to get away with what horrific
act he did.
I balanced all of that with the fact that he did accept responsibility
for his actions. And as he sits here before me today and that day,
I do believe that he is remorseful. I’m quite sure he wishes he
could turn back time, but you can’t.
...
The only reason that I did not go as far as part of my brain is
thinking maybe I should have is that he did accept responsibility,
and I do have within the back part of this sentence supervision
through the state parole board with specific conditions of
compliance with mental health and drug and alcohol components
and recommended and ordered that when he is released, that he
is not to go home. He is to go, first and foremost, into a facility
that will help him step down the process to going back into the
civilian population.
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The reason for the court’s recommendation of the sentence to be
served at SCI Waymart was because as an individual that I
considered, I considered his need for what I believed to be the
best place that has mental health treatment and counseling and
[the] best supervision to the point where one does not have to
worry about where he is and what he’s doing at what particular
point in time.
5/5/16 at 14-19.
On balance of all mitigating and aggravating considerations addressed
above, the court determined that a nine and one-half to 15 year aggregate
sentence comprising guideline sentences was fair and reasonable, and we
discern no abuse of discretion in that conclusion. We note, further, that the
imposition of consecutive sentences for the crimes of violence at issue, which
Appellant also assails, does not amount to a virtual life sentence, as Appellant
will be eligible for parole at age 34.6
Finally, Appellant raises a challenge to the legality of his sentence where
he posits that his robbery and aggravated assault offenses merged for
____________________________________________
6 To the extent Appellant's discretionary aspects argument focuses on the
imposition of consecutive sentences, we refer to our well-settled
jurisprudence, cited supra, that a sentencing court has discretion to impose
consecutive sentences, 42 Pa.C.S.A. § 9721, and that the imposition of
consecutive sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Lamonda, 52 A.3d at 372.
Here, the imposition of an aggregate sentence of nine and one-half to 15 years
is not manifestly excessive given the violent nature of Appellant’s crime, which
included pointing a bb handgun in the store owner’s face before cutting and
stabbing him in the face, neck, and back multiple times with a knife in
furtherance of a robbery. Therefore, we deny that Appellant’s challenge to his
consecutive sentences raised a substantial question.
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purposes of sentencing. Contrary to Appellant’s position, the crimes do not
merge.
“A claim that the trial court imposed an illegal sentence by failing to
merge sentences is a question of law.” Commonwealth v. One, 88 A.3d 983,
1020 (Pa. Super. 2014). Accordingly, our standard of review is de novo and
our scope of review is plenary. See Commonwealth v. Brougher, 978 A.2d
373, 377 (Pa. Super. 2009).
The Sentencing Code provides as follows:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. “Accordingly, merger is appropriate only when two
distinct criteria are satisfied: (1) the crimes arise from a single criminal act;
and (2) all of the statutory elements of one of the offenses are included within
the statutory elements of the other.” Commonwealth v. Raven, 97 A.3d
1244, 1249 (Pa. Super. 2014).
While the crimes in the instant case arise from the same criminal
episode, the statutory elements of Appellant’s robbery and aggravated assault
convictions are plainly different, as each crime requires proof of one element
that the other does not. Specifically, Appellant pled guilty to first-degree
felony aggravated assault at 18 Pa.C.S.A. § 2702(a)(1), one element of
which—causing serious bodily injury--is not an element to robbery at 18
Pa.C.S.A. § 3701(a)(1)(ii). Appellant’s robbery offense, in turn, contains the
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element of theft, which aggravated assault does not. See, e.g.,
Commonwealth v. Walls, 950 A.2d 1028, 1030-32 (Pa. Super. 2008)
(holding sentences for robbery at Section 3701(a)(1)(ii) and aggravate assault
at Section 2702(a)(1) arising from same facts do not merge because each
requires proof of an element which the other does not); see also
Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa. Super. 2005)
(Concluding crimes of aggravated assault and robbery “do not merge, for
robbery requires proof of theft, which aggravated assault does not, and
aggravated assault as a felony of the first degree requires proof of
circumstances manifesting extreme indifference to the value of human life,
which robbery does not.”). This claim fails.
Judgment of sentence is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/18
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