Com. v. Thornhill, T. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAROD TYRELL THORNHILL :
:
Appellant : No. 1829 WDA 2019
Appeal from the Judgment of Sentence Entered January 26, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003463-2015
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 22, 2021
Tarod Tyrell Thornhill appeals the judgment of sentence following his
convictions for three counts of Aggravated Assault; one count each of Firearms
Not to be Carried Without a License and Possession of Firearm by Minor; and
four counts of Recklessly Endangering Another Person (“REAP”).1 He
challenges the discretionary aspects of his sentence. We affirm.
The charges arose from an incident in which Thornhill went into
Monroeville Mall in February 2015 and began shooting inside a Macy’s
department store. Thornhill was targeting one male whom he shot three
times. In the process, he also shot a man and a woman who were there with
their minor child. The three victims survived their injuries. Thornhill was 17
years old at the time.
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1 18 Pa.C.S.A. §§ 2702(a)(1), 6106, 6110.1, and 2705, respectively.
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Following a bench trial, the trial court found Thornhill guilty of the
above-referenced offenses. At sentencing, the court heard testimony from
Thornhill’s parents and from the female victim. It also stated that it had
reviewed a pre-sentence investigation report (“PSI”), which contained reports
from two psychiatrists who had performed mental health evaluations on
Thornhill. The evaluations noted Thornhill’s history of psychiatric issues such
as chronic adjustment disorder with mixed disturbance of emotional conduct
and chronic post-traumatic stress disorder. The court said that given
Thornhill’s mental health history, there was “no doubt in my mind . . . that he
is in need of treatment,” and it was “not going to overlook the treatment
concept.” See N.T., Sentencing, 1/26/17, at 17.
The trial court sentenced Thornhill to 90 to 180 months’ incarceration
for one count of aggravated assault, followed by a consecutive term of 90 to
180 months’ incarceration for the second aggravated assault conviction. For
the third count of aggravated assault, the court imposed a concurrent term of
60 to 120 months’ incarceration, and for the four REAP convictions, it imposed
concurrent terms of one to two years’ incarceration. It imposed no further
penalty for the firearm offenses. Thus, it imposed an aggregate sentence of
15 to 30 years in prison.
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After obtaining leave to file post-sentence motions and an appeal nunc
pro tunc,2 Thornhill filed a Motion to Reconsider Sentence arguing that the
trial court “failed to perceive [the] clear circumstances involved with the case,
including the facts and [Thornhill’s] mental health, demonstrat[ing] that a
guideline sentence with consecutive penalties was unreasonable.” See Motion
to Reconsider Sentence, filed 11/22/19. The trial court denied the motion and
this timely appeal followed.
Thornhill raises one issue: “Did the Sentencing Court abuse its discretion
by sentencing Mr. Thornhill to fifteen to thirty years of incarceration, despite
the presentation of substantial mitigating evidence, including the defendant's
age, mental health, and rehabilitative needs, which indicate the imposed
sentence was unreasonable?” Thornhill’s Br. at 3.
Thornhill’s issue on appeal is a challenge to the discretionary aspects of
his sentence, and there is no automatic right to appellate review of such a
challenge. Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super.
2010). Rather, we must first determine whether: 1) the appeal is timely; 2)
the appellant properly preserved the issue below; 3) the appellant’s brief
contains a Pa.R.A.P. 2119(f) statement; and 4) the Rule 2119(f) statement
raises a substantial question as to whether the sentence is appropriate under
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2 See Order of Court, filed 11/13/19 (granting Post Conviction Relief Act
petition, allowing Thornhill to file a motion to reconsider sentence within 14
days, and reinstating appellate rights).
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the Sentencing Code. See Commonwealth v. Moury, 992 A.2d 162, 170
(Pa.Super. 2010).
Thornhill has satisfied all four parts of this test. His appeal is timely, he
preserved the issue in his motion to reconsider sentence, and his brief contains
a Rule 2119(f) statement. Thornhill has also raised a substantial question, in
that he argues that the trial court “failed to consider Mr. Thornhill's mental
health diagnoses and his rehabilitative needs.” Thornhill’s Br. at 11; see
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa.Super. 2003)
(“Appellant's claim that the court erred by imposing an aggravated range
sentence without consideration of mitigating circumstances raises a
substantial question”). He also maintains that the sentence “only reflects the
seriousness of the crime.” Thornhill’s Br. at 11, 12; see Commonwealth v.
Macias, 968 A.2d 773, 776 (Pa.Super. 2009) (concluding substantial question
raised for claim that court imposed sentence based solely on seriousness of
offense).
We review challenges to discretionary aspects of sentence for abuse of
discretion. Commonwealth v. Blount, 207 A.3d 925, 934 (Pa.Super. 2019).
An abuse of discretion occurs where “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.” Id. at 934-
35 (citation omitted).
The trial court has discretion to impose consecutive or concurrent
sentences. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2014)
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(citation omitted). Nonetheless, an aggregate sentence composed of
consecutive sentences may be excessive, when viewed in light of the criminal
conduct at issue in the case. See Mastromarino, 2 A.3d at 587. When
imposing sentence, the trial court must “make as a part of the record, and
disclose in open court at the time of sentencing, a statement of the reason or
reasons for the sentence imposed.” Commonwealth v. Antidormi, 84 A.3d
736, 760 (Pa.Super. 2014) (citation omitted). Furthermore, “[w]here pre-
sentence reports exist, [this Court] shall . . . presume that the sentencing
judge was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.” Id.
at 761 (citation omitted).
Thornhill contends that although the court at sentencing mentioned his
mental health diagnoses, his young age, and his rehabilitative needs, it failed
to give meaningful consideration to his youth and mental health issues when
it fashioned its sentence. He notes that “the [c]ourt briefly mentioned
[Thornhill’s] youthful age, mental health, and need for rehabilitation at
sentencing,” but that the sentence it imposed clearly shows that it did not
adequately consider those factors. Thornhill’s Br. at 18. He also argues that
the “sentence appears to be solely based on the gravity of the offense in
relation to the impact on the victim and the community.” Id. at 19.
Prior to sentencing Thornhill, the trial court was aware of Thornhill’s
juvenile age at the time of the shooting. See N.T., Sentencing, at 27. It also
heard from Thornhill’s parents, who acknowledged their son’s mental health
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issues. Thornhill’s father expressed that he believed the shooting would have
never occurred had Thornhill taken his mental health medication that day.
See id. at 5, 7, and 11. The court made note of the PSI and two reports from
two doctors commenting on Thornhill’s mental health. Id. at 3. Thornhill also
testified, expressing his remorse, and apologizing to the victims. Id. at 24.
Upon review of all this information, the trial court stated that the sentence
imposed factored in the need to address Thornhill’s mental health issues,
stating, “There is no doubt in my mind, based on the evidence presented, that
[Thornhill] is in need of treatment.” Id. at 17.
It then stated it had considered all the information before it and
explained the overarching concerns that criminal sentencing is intended to
address:
In any event, I have reviewed all the materials that been
presented in Court, and I understand that sentencing
functions all play a part here.
One, of course, is rehabilitation. I don’t know whether you
can be or will be or will choose to be rehabilitated, but we
haven’t changed the matrix in our state correctional
institutions to provide for that, particularly for youthful
offenders. So you need to take advantage of those kinds of
programs that are available to you.
Punishment, of course, is one of those issues that we deal
with when we deal with very serious crimes.
Incapacitation is another, meaning to ensure that
[Thornhill] will not commit another crime. I don’t have a
crystal ball that would tell me whether or he would or would
not, but the odds are that once out of the youthful
environment, a youthful criminal environment, a person
tends to fair rather well in that concept of rehabilitation;
therefore, it is not necessarily incapacitated.
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There’s one more little aspect here that I think is of
significance. That’s what we call deterrence.
I never really believed that deterrence actually works, other
than to deter the person who was convicted of a crime. But
deterrence sometimes is there to set an example. To send
a message. We, as a society, need to know that our
shopping malls, our schools, our places of worship, our
theaters, all public gathering places, are safe havens. Places
where these kinds of events cannot occur. That also is a
consideration of sentencing.
Id. at 26-28.
The trial court did not abuse its discretion in imposing consecutive
sentences. It considered all the factors Thornhill now cites, and it did so in a
thoughtful way. While it may not have given them the weight Thornhill
contends it ought to have, that does not make the sentence excessive. See
Macias, 968 A.2d at 778 (affirming trial court’s choice “not to give the
mitigating factors as much weight as Appellant would have liked and decided
that the facts did not warrant imposition of a sentence lower than the standard
range”). Rather, it acted within its discretion in weighing the information
before it at sentencing, determining the sentences for individual convictions,
and requiring Thornhill to serve some of the sentences consecutively. We
accordingly affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2021
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