Com. v. McCarthy, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARNELL MCCARTHY :
:
Appellant : No. 839 WDA 2020
Appeal from the Judgment of Sentence Entered December 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No: CP-02-CR-0006471-2018
BEFORE: STABILE, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 30, 2021
Appellant, Darnell McCarthy, appeals from the judgment of sentence of
10 to 20 years’ incarceration plus 10 years of probation, which was imposed
after his non-jury trial conviction for Kidnapping, Robbery, Robbery of a Motor
Vehicle, Aggravated Assault, Terroristic Threats, Unlawful Restraint, Simple
Assault, and Person Not to Possess a Firearm.1 We affirm.
The facts underlying this appeal are as follows, taken from the Trial
Court Opinion (TCO).
On February 28, 2018, Michael Halloran [the victim] was
violently assaulted as he was walking down Boggs Avenue
in the Mt. Washington section of the City of Pittsburgh
toward a CoGo’s convenience store. As he crossed the
street, he was approached by two black males near a white
van. A person, later identified as [Appellant], grabbed [the
victim] by the arm and stated, “Hey bro, I’m not playing,”
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2901(a), 3701(a)(1)(ii), 3702, 2702(a)(4), 2706(a)(1),
2902(a), 2701(a)(3) and 6105(a)(1), (b), and (c)(7), respectively.
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and displayed a firearm from his waistband. [Appellant]
reached into [the victim’s] pocket and removed $20.00 and
the keys to [the victim’s] vehicle. [The victim] was “pistol
whipped” on his head and was punched in the mouth. He
was struck approximately five to six times. Both men
instructed [the victim] to place his hands on a truck and
they patted him down to find more money.
Both men then asked [the victim] how much money he had
on his ATM card. The men led [the victim] to the CoGo’s
store and stood with him as he withdrew money from the
ATM machine. While inside the CoGo’s, [Appellant]
threatened [the victim] by saying, “if you mess up one time,
I’ll put your brains all over this floor.” [Appellant] and [the
victim], while at the ATM machine, were captured by the
video surveillance camera inside CoGo’s store.
Both actors and [the victim] then walked back toward [the
victim’s] residence on Boggs Avenue. The actors again
demanded money and asked about narcotics. [The victim]
informed them that he didn’t know what they were talking
about. [The victim] was then instructed to get on his knees.
[Appellant] pressed his firearm against [the victim’s] head
as [the victim] was on his knees. The actors asked him
where his vehicle was located and demanded that [the
victim] get inside of his vehicle in the passenger seat.
[Appellant] drove the vehicle and the other actor sat in the
back seat behind [the victim] with a gun pointed at [the
victim’s] back. [Appellant] then drove to a housing
complex. The three men exited [the victim’s] vehicle and
walked to a residence. A third male came outside.
[Appellant] said to the third person, “look what we got.
Look how scared he gets with a gun in his face.” [Appellant]
then pointed the gun at [the victim’s] face. The two actors
and [the victim] drove off. They dropped [the victim] off in
Mt. Washington, wiped the vehicle clean and fired three
shots into the air. The two actors ran from the scene. At a
subsequent line-up, [the victim] identified [Appellant] as
one of the persons who assaulted and kidnapped him.
TCO at 2-3.
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Appellant was arrested and charged with Kidnapping, Robbery, Robbery
of a Motor Vehicle, Aggravated Assault, Terroristic Threats, Unlawful Restraint,
Simple Assault, Conspiracy and Person Not to Possess a Firearm. Appellant
proceeded to a non-jury trial on September 10, 2019. The trial court granted
Appellant’s motion for judgment of acquittal as to the Conspiracy charge.
N.T., 9/10/19, at 101. The trial court found Appellant guilty of the remaining
charges. On December 5, 2019, the trial court sentenced Appellant to 120
months’ to 240 months’ incarceration on the Kidnapping charge and 10 years
of consecutive probation on the Robbery charge. A determination of guilt
without further penalty was ordered for the remaining charges.2 Order,
12/5/19.
On December 19, 2019, the trial court issued an Order withdrawing the
appearance of trial counsel and appointed new counsel. On December 20,
2019, new counsel entered her appearance and filed a “Motion to Reinstate
Post-Sentence Rights Nunc Pro Tunc.” Motion, 12/20/19. The trial court
granted Appellant’s motion to reinstate his post-sentence rights nunc pro tunc.
Order, 1/3/20. The trial court granted Appellant 60 days to file a post-
sentence motion. Order, 1/6/20. On March 2, 2020, Appellant filed a timely
post-sentence motion challenging the discretionary aspects of his sentence.
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2 We note that the sentence on the remaining charges was not announced in
open court during Appellant’s sentencing hearing, but rather were stated in
the trial court’s 12/5/19 sentencing order. See N.T., 9/10/19; Order,
12/5/19.
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Motion, 3/2/20. The trial court denied Appellant’s post-sentence motion.
Order, 7/29/20. Appellant filed this timely direct appeal on August 3, 2020.3
Appellant presents the following issue for our review:
Did the [trial court] abuse its discretion in sentencing
[Appellant] to 10 to 20 years of incarceration?
Appellant’s Brief at 3 (suggested answer omitted).
Appellant argues that the trial court erred as a matter of law and abused
its discretion when it did not consider all the statutory factors for sentencing
codified in 42 Pa.C.S. § 9721 and sentenced Appellant solely based on the
seriousness of the crime. Appellant's argument on appeal relates to the
discretionary aspect of his sentence. A defendant does not have an automatic
right of appeal of the discretionary aspects of a sentence and instead must
petition this Court for allowance of appeal, which “may be granted at the
discretion of the appellate court where it appears that there is a substantial
question that the sentence imposed is not appropriate under” the Sentencing
Code. 42 Pa.C.S. § 9781(b); see also Commonwealth v. Luketic, 162 A.3d
1149, 1160 (Pa. Super. 2017).
Prior to reaching the merits of a discretionary sentencing issue, we must
engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his [or her] issue; (3) whether Appellant's brief
includes a concise statement of the reasons relied upon for
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3 The trial court issued its Pa.R.A.P. 1925 order on August 4, 2020. Appellant
timely complied and filed his Rule 1925(b) statement on August 11, 2020.
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allowance of appeal with respect to the discretionary aspects
of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
whether the concise statement raises a substantial question
that the sentence is [not] appropriate under the
[S]entencing [C]ode.
Commonwealth v. Williams, 198 A.3d 1181, 1186 (citations omitted) (first
and fourth brackets in original).
Appellant satisfied the first three requirements. We must, therefore,
determine whether Appellant’s concise statement raises a substantial question
that the sentence is not appropriate under the Sentencing Code.
Whether a particular issue constitutes a substantial question
about the appropriateness of sentence is a question to be
evaluated on a case-by-case basis. . . . We have found that
a substantial question exists “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.” [W]e cannot look
beyond the statement of questions presented and the
prefatory [Rule] 2119(f) statement to determine whether a
substantial question exists.
Commonwealth v. Radecki, 180 A.3d 441, 467-68 (Pa. Super. 2018)
(citations omitted) (brackets in original). Appellant asserts in his Pa.R.A.P.
2119(f) statement,
the [trial court] imposed a sentence that is manifestly
excessive, without sufficient legal justification for the
penalty. . . . [T]he [trial court] failed to consider and
reference the statutory factors in 42 Pa.C.S. Section
9721(b), and instead fashioned a sentence that only
reflected the seriousness of the crime, which is contrary to
the fundamental norms that underlie the sentencing
process.
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Appellant’s Brief at 11-12.
This Court has found a substantial question exists where a sentencing
court failed to consider a defendant's individualized circumstances in its
imposition of sentence in violation of the Sentencing Code. See
Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008); See
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (averment
that court “failed to consider relevant sentencing criteria, including the
protection of the public, the gravity of the underlying offense and the
rehabilitative needs” of the defendant raised a substantial question).
In the current action, we find that Appellant presents a substantial
question by setting forth an argument that his sentence is contrary to the
fundamental norm of the sentencing process that a defendant's sentence must
be individualized, because the trial court considered only the gravity of the
offense and did not consider his rehabilitative needs. See Appellant's Brief at
12; Luketic, 162 A.3d at 1160. We, therefore, consider the substantive
merits of Appellant's sentencing claim.
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
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.
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Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted).
Appellant first argues that the trial court failed to take adequate
consideration of all the factors in 42 Pa.C.S. § 9721(b). Appellant’s Brief at
14-15. Appellant argues that the trial court solely focused on the seriousness
of the crime in fashioning the sentence and erroneously failed to consider or
reference Appellant’s personal characteristics, potential for rehabilitation, or
his rehabilitative efforts. Appellant’s Brief at 9. 42 Pa.C.S. § 9721(b) states,
the court shall follow the general principle that the sentence
imposed should call for total confinement that is consistent
with section 9725 (relating to total confinement) and 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. § 9721(b).
The trial court, in its 1925(a) opinion, stated that it reviewed the
presentence report (PSI) and considered the contents of that report in
imposing its sentence. TCO at 6. The trial court stated that it considered the
fact that Appellant was serving a probation sentence at the time he committed
this offense. Id. The trial court indicated it believes the sentence it imposed
is appropriate due to the nature and length of the events involving the
innocent, vulnerable complainant. Id. at 7. The court also considered the
lasting impact of this crime on the complainant. Id. The trial court stated
that it “considered the defendant’s age and criminal history, noting that the
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defendant has been provided with other opportunities to conform his conduct
to the law, but he chose not to do so.” Id. at 8.
Regarding individualized sentencing, this Court has held,
The Sentencing Code prescribes individualized sentencing
by requiring the sentencing court to consider the protection
of the public, the gravity of the offense in relation to its
impact on the victim and the community, and the
rehabilitative needs of the defendant, . . . and prohibiting a
sentence of total confinement without consideration of the
nature and circumstances of the crime[,] and the history,
character, and condition of the defendant[.]
Luketic, 162 A.3d at 1160-61 (internal citations and quotation marks
omitted) (first brackets in original); See also 42 Pa.C.S. §§ 9721(b), 9725.
Concerning the PSI, this Court has made clear,
[w]here [PSI] reports exist, we shall continue to presume
that the sentencing judge was aware of relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.
A [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly
that [sentencing courts] are under no compulsion to employ
checklists or any extended or systematic definitions of their
punishment procedure. Having been fully informed by the
pre-sentence report, the sentencing court's discretion
should not be disturbed. This is particularly true, we repeat,
in those circumstances where it can be demonstrated that
the judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion.
Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (quotation
marks omitted) (second-fourth brackets in original) (citing Commonwealth
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v. Devers, 546 A.2d 12, 18 (Pa. 1988)). See also Commonwealth v.
Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018).
During the sentencing hearing, the trial court stated that it received and
reviewed the PSI report in its entirety. N.T., 12/5/19, at 3. Additionally, at
the hearing, Appellant’s counsel stated that she would like to “reiterate some
of the information in the presentence report,” and told the court that Appellant
is the father of four young children and pointed out that Appellant had family
present in the courtroom who had been very supportive of Appellant during
the process. Id. at 5-6.
Appellant acknowledges the presumption afforded a trial court having
the PSI, but argues this presumption is “expressly rebutted in this case
because the trial court’s statements confirm the single-minded focus on the
seriousness of the crime.” Id. at 17-18. However, this assertion is belied by
the record.
In addition to the fact that the trial court obtained and reviewed the PSI
report prior to sentencing, during the sentencing hearing it acknowledged that
it had read all of Appellant’s filings, and noted that some of them
“demonstrated that [Appellant was] doing anything but acknowledging [his]
responsibility for this conduct.” Id. at 7. The trial court acknowledged that
Appellant maintained his innocence to the pre-sentence investigator, but
recognized that Appellant stated that he would feel bad if a person was beaten,
robbed, kidnapped, and victimized in any type of way. Id. at 6. The trial
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court heard and addressed at length Appellant’s stated issues with his trial
counsel and process. Id. at 8-31.
The trial court then discussed the effect the experience had on the victim
of the crime, stating,
This is a particularly . . . harmful, emotionally harmful
experience for the victim because of the prolonged nature
of this event and the terror that was put upon the victim by
the actions of the [Appellant]. . . .
As many cases as I have seen over 40 years, the length of
this, the length of this event, it requires a sentence that
reflects that.
N.T., 12/5/19, at 31.
Immediately after sentencing Appellant, the trial court stated, “this
sentence reflects not only the [Appellant] used a deadly weapon in this event
but that it was a prolonged event involving several locations.” Id. at 32. The
trial court added, “[I]n my view, acting on behalf of the community, and
considering what you did in this case, I just can’t take the chance that you
might do this again to somebody.” Id. at 34-35. The trial court stated,
I note that you have a prior record score of five already,
which is one of the reasons I’m imposing this sentence
because you have had opportunities through the criminal
justice system in the past to change your ways, and you
haven’t.
Id. at 35.
After a thorough review of the record, including the briefs of the parties,
the applicable law, and the sentencing transcripts, we conclude Appellant's
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issue merits no relief.4 The trial court adequately considered Appellant’s
rehabilitative needs, ultimately deciding that Appellant was not amenable to
being rehabilitated due to his past record and the fact that he committed this
current crime while on probation. The trial court also stated that the sentence
was based on the gravity of the offenses, which it found particularly egregious
and had affected not only the victim but the community. Importantly, the
trial court was informed by a PSI report, and aspects of that report were
reiterated to the trial court by Appellant’s counsel. Watson, 228 A.3d at 936;
Conte, 198 A.3d at 1177.
Appellant further argues that the sentence is in clear contradiction to
Commonwealth v. Ruffo, 520 A.2d 43 (Pa. Super. 1987), because his
sentence falls outside the sentencing guidelines. Appellant's Brief at 16-17.
Even if the trial court sentences outside the sentencing guidelines, we must
affirm if the sentence is reasonable. See 42 Pa.C.S. § 9781(c)(3) (stating
that the appellate court shall vacate the sentence and remand the case to the
sentencing court with instructions if it finds . . . the sentencing court sentenced
outside the guidelines and the sentence is unreasonable). We first note that
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4 Neither the PSI report nor a copy of the sentence guideline form utilized by
the trial court in calculating Appellant’s sentence is included in the certified
record. “It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to allow
a complete and judicious assessment of the issues raised on appeal.”
Commonwealth v. Shreffler, __ A.3d __, 2021 WL 1257446 *8 (filed April
6, 2021) (citation omitted); Everett Cash Mutual Insurance Company v.
T.H.E. Insurance Company, 804 A.2d 31, 34 (Pa. Super. 2002) (citation
omitted).
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Ruffo was decided by this Court over one year before the Pennsylvania
Supreme Court decided Devers, 546 A.2d at 18 (stating that where a PSI
exists there is a presumption that the sentencing judge was aware of relevant
information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors and in circumstances
where it can be demonstrated that the trial judge had any degree of awareness
of the sentencing considerations, the presumption exists that the trial court
conducted weighing process meaningfully).
Secondly, this Court determined that the trial court in Ruffo failed to
consider any factor other than the nature of the crime. By contrast, the trial
court in this case had the benefit of the PSI and, as discussed above, we find
that that the trial court did adequately consider the statutory elements of 42
Pa.C.S. § 9721(b) when sentencing Appellant. Additionally, we find that the
trial court considered the nature and the circumstances of the offense and the
history and characteristics of Appellant, had the opportunity to observe
Appellant, had the benefit of the PSI report, adequately stated its findings
upon which the sentence was based, and considered the guidelines
promulgated by the commission. See 42 Pa.C.S. § 9781(d); See
Commonwealth v. Durazo, 210 A.3d 316, 324 (Pa. Super. 2019) (sentence
outside the guidelines found reasonable where trial court considered all the
factors in § 9781(d) and had a PSI report). We, likewise, find Appellant’s
sentence is reasonable. Based on the foregoing, we will not disturb the trial
court’s discretion. See Lekka, 210 A.3d at 353; Conte, 198 A.3d at 1177.
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Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2021
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