Com. v. Storms, M. ( 2018 )

J-S02027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK T. STORMS :
:
Appellant : No. 1860 EDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004007-2016
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY NICHOLS, J.: FILED MARCH 13, 2018
Appellant Mark T. Storms appeals from the judgment of sentence
imposed after a jury found him guilty of voluntary manslaughter–
unreasonable belief that killing was justifiable1 and recklessly endangering
another person (“REAP”).2 Appellant contends that the evidence was
insufficient to sustain his conviction for voluntary manslaughter because the
Commonwealth failed to disprove his self-defense claim. He also challenges
the discretionary aspects of his sentence. We affirm.
We state the facts as set forth by the trial court:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. § 2503(b).
2 18 Pa.C.S. § 2705.
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[Appellant] shot and killed 27-year-old Robert E. Braxton, III
[(“Decedent”)], on April 24, 2016, during a Sunday morning
service at Keystone Fellowship Church in Montgomery Township,
Montgomery County. The events leading to the shooting, which
occurred in the midst of numerous parishioners, began when
[Decedent] entered the church in an agitated state shortly after
the service had begun and moved into a row of chairs in the
overflow seating area. A fellow parishioner in the row behind
tapped [Decedent] on the back to alert him that he may be in a
section of seats already occupied by others who had momentarily
left. [Decedent] told the person not to touch him, using obscene
language, and created a verbal disturbance that prompted ushers
to try to calm him down.[fn2] During this time, [Decedent] told
anyone who attempted to intervene to leave him alone. An
associate pastor, seeing that the ushers’ efforts only exacerbated
[Decedent]’s agitation, had them back away and directed
someone to call the police.
[fn2] [Appellant] told investigators he saw [Decedent]
pushing the parishioner, but the parishioner testified at trial
that [Decedent] never touched him nor got close to him.
[Appellant], who was sitting nearby with his wife and young
son, did not believe enough was being done and decided to
intervene.[fn3] He was armed at the time with a loaded 9-
millimeter semi-automatic pistol concealed in a holster on his right
hip.[fn4] [Appellant] had observed [Decedent] become agitated
each time someone addressed him and believed [Decedent] would
not leave the church without violence.[fn5] He admittedly
approached [Decedent] not with the intent to calm him down but
to get him out of the church.
[Appellant] had no position of authority with the church
[fn3]
at the time and was not a law enforcement officer.
[fn4][Appellant] had a permit to carry a concealed weapon.
As soon will become relevant, he also obtained a gold
concealed weapon permit “badge.” The unofficial badge is
not issued in connection with the permit but can be obtained
on the Internet.
[fn5]While [Appellant] attempted in his trial testimony to
distance himself from his statement to investigators that he
did not think [Decedent] would leave without violence, the
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jury as fact-finder was free to disbelieve his self-serving
testimony.
With the two separated by a row of chairs, [Appellant] asked
[Decedent] to go outside with him. When [Decedent] refused,
[Appellant] flashed his unofficial concealed weapon permit badge.
[Decedent] recognized it as a fake, telling [Appellant] as much in
colorful language. [Appellant] then revealed his 9-millimeter
pistol. The victim reacted by punching [Appellant] in the face and
proceeding toward him. [Appellant] absorbed the blow and,
rather than retreat down the open aisle behind him or call for help
from the hundreds of people in church, squared himself into a
ready fire stance and shot the unarmed [Decedent] twice.[fn6] One
of the bullets pierced [Decedent]’s heart and he died soon
thereafter despite life-saving efforts by fellow parishioners and
emergency medical responders.
[fn6][Appellant] testified that [Decedent] did not have a
visible weapon and no trial witness stated they ever saw
[Decedent] in possession of a weapon.
Trial Ct. Op., 8/7/17, at 1-3 (citations and footnote omitted).
Appellant was arrested and charged with voluntary manslaughter and
REAP in reference to the other parishioners. At the three-day jury trial, the
following testimony was elicited. After the ushers backed away and left
Decedent alone, one of the pastors, Rusty S. Williams, III, testified that he
was not yelling. N.T., 11/1/16, at 288-89. However, after Appellant
approached and asked Decedent to go outside, Williams testified he could see
Decedent starting to yell and that “things were escalating again.” N.T.,
11/1/16, at 289-90; see also N.T., 11/2/16, at 16-17, 19 (Joseph McDevitt,
another witness, testified that Decedent had calmed down prior to Appellant
speaking with him). Williams’ police statement, which the Commonwealth
used to refresh his recollection and was admitted into evidence without
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objection, also reflected Williams’ belief that Appellant’s “actions escalated the
situation more than what it had to be.” N.T., 11/1/16, at 315;
Commonwealth’s Ex. 30.
When the incident escalated and Decedent punched Appellant, Appellant
shot Decedent from a distance of about eight feet. N.T., 11/1/16, at 133.
Lauren Hendrie, another witness, testified that no one and nothing impeded
Appellant’s ability to retreat from the situation. Id. at 46. Jeffrey Lemon
similarly testified that no person and no thing was impeding Appellant from
leaving the area. Id. at 166.
Appellant claimed self-defense. Appellant testified he had no
opportunity to retreat after being punched. N.T., 11/2/16, at 59. Appellant
also believed that Decedent was “younger, bigger, faster, and stronger” than
him, could kill him, and would take his gun and use it. Id. at 57.
The jury found Appellant guilty and the court ordered a pre-sentence
investigation and held a hearing, which we discuss in further detail below. The
court imposed its sentence of ten to twenty years’ imprisonment for voluntary
manslaughter, followed by two years’ probation for REAP. The court denied
Appellant’s post-sentence motion.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement. He raises the following issues, which we have reordered
for ease of disposition:
1. Whether the evidence was insufficient to disprove, beyond a
reasonable doubt, Appellant’s affirmative defense of self-defense?
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2. Whether the sentencing court abused its discretion in deviating
above the applicable standard and aggravated guideline range to
impose a sentence of ten to twenty years for voluntary
manslaughter without providing any statement of reasons for its
extreme departure from the guideline range?
3. Whether the sentencing court abused its discretion in imposing
a manifestly unreasonable sentence above the applicable
guideline range for the charge of voluntary manslaughter based
solely upon factors already taken into account by the guidelines,
without giving adequate consideration to mitigating factors such
as Appellant’s clear remorse, his cooperation with law
enforcement, and witness descriptions of Appellant as an
otherwise peaceable man of good character?
Appellant’s Brief at 5.
In support of his first issue, Appellant argues that the Commonwealth
failed to present evidence that in the seconds after he was punched, he could
reasonably retreat. Appellant’s Brief at 31. In Appellant’s view, the
Commonwealth did not establish the unreasonableness of his fear that
Decedent could gain control of and use Appellant’s gun. Id. at 32. He cites
testimony that Decedent’s erratic behavior and punching of Appellant support
the reasonableness of his belief that Decedent would seriously harm him and
others. In addition, Appellant contends that the Commonwealth failed to
prove that he initiated the use of deadly force. Id. Appellant argues that the
record established that he was “calmly speaking” to Decedent, before
Decedent decided to “suddenly and unexpectedly” punch Appellant. Id.
The trial court initially argues that Appellant waived his challenge to the
sufficiency of evidence disproving his claim of self-defense because he failed
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to identify the precise element or elements at issue.3 Trial Ct. Op., 8/7/17, at
8. Regardless, in the court’s view, the record established that Appellant did
not have a reasonable belief that he had to use deadly force to protect the
hundreds of people in the room and that by displaying his gun, Appellant
provoked the use of force. The court notes that Decedent punched Appellant
only after he brandished his weapon. Id. at 9. Finally, the trial court states
Appellant could have safely retreated without having to shoot Decedent.
Our standard of review follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa. Super. 2017)
(citations omitted).
By way of background,
The use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. When a defendant raises the issue of self-defense, the
Commonwealth bears the burden to disprove such a defense
beyond a reasonable doubt. While there is no burden on a
defendant to prove the claim, before the defense is properly at
issue at trial, there must be some evidence, from whatever
____________________________________________
3We decline to find waiver, as the trial court discerned and responded to
Appellant’s argument in its opinion. Cf. Commonwealth v. Laboy, 936 A.2d
1058, 1060 (Pa. 2007).
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source, to justify a finding of self-defense. If there is any evidence
that will support the claim, then the issue is properly before the
fact finder.
Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations
omitted). After such evidence is adduced, the Commonwealth has the burden
of disproving Appellant’s defense beyond a reasonable doubt. Id.Under the Crimes Code, self-defense falls under the defense of
justification, which is a complete defense to criminal liability. See 18 Pa.C.S.
§ 502. Section 505(a) of the Code provides:
The use of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force by
such other person on the present occasion.
Id. § 505(a). Section 505(b)(2) of the Crimes Code provides as follows:
The use of deadly force is not justifiable under this section unless
the actor believes that such force is necessary to protect himself
against death [or] serious bodily injury . . . ; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious bodily
injury, provoked the use of force against himself in the same
encounter; or
(ii) the actor knows that he can avoid the necessity of using
such force with complete safety by retreating . . . .
Id. § 505(b). Thus, an actor’s belief that he needs to use deadly force must
be reasonable. If the actor actually, but unreasonably, believes that deadly
force is necessary to protect himself against death or serious bodily injury, he
exercises what is referred to as “imperfect self-defense.” Commonwealth v.
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Tilley, 595 A.2d 575, 582 (Pa. 1991). In sum, the Commonwealth meets its
burden of disproving self-defense
if it proves any of the following: that the slayer was not free from
fault in provoking or continuing the difficulty which resulted in the
slaying; that the slayer did not reasonably believe that he was in
imminent danger of death or great bodily harm, and that it was
necessary to kill in order to save himself therefrom; or that the
slayer violated a duty to retreat or avoid the danger.
Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (brackets,
citations, and quotation marks omitted).4
Instantly, we agree with the trial court that the record establishes
Appellant escalated the situation by interjecting himself and brandishing his
weapon, which led to Decedent punching Appellant and subsequently his
death. As set forth above, Williams and McDevitt testified that prior to
Appellant’s actions, Decedent was calm; afterwards, Decedent was
aggravated. N.T., 11/1/16, at 289-90; N.T., 11/2/16, at 16-17, 19.
Moreover, Hendrie and Lemon testified that Appellant could have safely
retreated. See N.T., 11/1/16, at 46, 166. Appellant, therefore, could have
avoided any use of deadly force. See Mouzon, 53 A.3d at 740-41. While
Appellant testified he believed he had no opportunity to retreat, N.T., 11/2/16,
____________________________________________
4 With respect to the defendant’s reasonable belief, there are two factors: “(1)
the defendant’s subjective belief that he had an honest, bona fide belief that
he was in imminent danger, to which expert testimony is admissible; and (2)
the objective measurement of that belief, i.e., the reasonableness of that
particular belief in light of the facts as they appear, to which expert testimony
is inadmissible.” Commonwealth v. Rivera, 108 A.3d 779, 792 (Pa. 2014).
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at 59, it was well within the fact-finder’s province to favor the other witnesses’
testimony to the contrary. See Commonwealth v. Brown, 52 A.3d 1139,
1163 (Pa. 2012). Therefore, Appellant’s claim that the Commonwealth failed
to disprove self-defense merits no relief.
We briefly set forth the following as background for resolving Appellant’s
last two issues. At Appellant’s sentencing hearing, the court acknowledged
that the standard range sentence for voluntary manslaughter, including a
deadly weapon enhancement, is fifty-four to seventy-two months’
imprisonment. N.T., 4/18/17, at 6-7. Numerous witnesses testified; the
Commonwealth moved additional victim impact statements into the record.
The court also reviewed Appellant’s December 24, 2016 sentencing statement,
which was not made part of the record. N.T., 4/18/17, at 75. According to
the court, in the statement, Appellant discussed three different occasions in
which he “interjected [himself] into a circumstance which could have caused
[his] death to save others.” Id. at 78. The court stated that Appellant’s
actions during those occasions were “problematic” because Appellant
perceived himself “as some type of hero that injects himself into certain
situations[.]” Id. at 80. The court continued:
Certainly, this time, it didn’t work out.
No luck here. Or did these never happen and this was an
opportunity to carry out that fantasy of yours. I don’t know. That
is a mystery. I guess we’ll never know. All I know is that I believe
you are a danger to society.
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In the present case, I have considered your age, the
information about you that you have presented to me and that I
found in the pre-sentence investigation, and that evidence that I
found as the trial judge in considering your sentence.
I can’t imagine -- I cannot imagine the pain of losing a child.
This is probably the most difficult day I have had as a judge. This
is such a heartbreaking circumstance, to lose a child in such a
violent and unusual circumstance. I can’t seem to get it out of my
mind, [Appellant], that -- we can’t forget that we are talking about
the loss of a young man’s life.
And the jury has spoken. I have to balance your rehabilitative
needs, the safety of society, as well as the nature of the crime
when I determine your sentence.
I listened to all the testimony today. And I have come to this
conclusion. I have read your letters of support as well. I know
the heartache your family must feel. How strange it is that such
religious families on both sides of the aisle are placed in this
horrible, horrible heartbreaking situation.
With that said, please stand.
* * *
There has been no dispute as to your personal background and
circumstances found to be set forth in the pre-sentence
investigation except the ones [Appellant’s counsel] mentioned
[when they had corrected the PSI report earlier].
As I said, the jury has spoken. And after considering these
factors, I find that there would be an undue risk that during the
period of probation or partial confinement you will commit another
crime. You, sir, are in need of correctional treatment that can be
provided most effectively by your commitment to an institution.
And once again, a lesser sentence would depreciate the
seriousness of your crime. I, therefore, find that a sentence of
total confinement is proper.
N.T., 4/18/17, at 80-82.
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Turning to Appellant’s arguments, he maintains that the court’s
sentence must be supported by a clear record and reflect a “dispassionate
decision to depart” from the guidelines. Appellant’s Brief at 22 (quoting
Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999)). Appellant
opines the court’s reasoning, as set forth above, does not justify an upward
deviation from the recommended sentence in the sentencing guidelines. Id.
at 25. Appellant assails the absence of any factual basis to support the court’s
conclusion that he is a “danger to society.” Id. He concludes that the court
failed to acknowledge that the sentence departed from the guideline range.
Id. Appellant argues that the court double-counted factors, such as
Decedent’s death, that are already taken into account by the sentencing
guidelines. Id. at 27. The court, Appellant contends, overlooked mitigating
factors such as his age and cooperation with the police. Id.
A discretionary challenge to a judgment of sentence is not appealable
as of right. Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super.
2017). We will exercise our discretion to consider the issue only if (1) the
appellant has filed a timely notice of appeal; (2) he has preserved the
sentencing issue at the time of sentencing or in a motion to reconsider and
modify his sentence; (3) he presents the issue in a properly framed statement
in his brief under Rule 2119(f) of the Rules of Appellate Procedure, pursuant
to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the
words of Section 9781(b) of the Sentencing Code, 42 Pa.C.S. § 9781(b), “it
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appears that there is a substantial question that the sentence imposed is not
appropriate under this chapter.” See, e.g., Commonwealth v. Haynes, 125
A.3d 800, 807 (Pa. Super. 2015). “A defendant presents a substantial
question when he sets forth a plausible argument that the sentence violates
a provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Luketic, 162 A.3d at 1160 (citation omitted).
Here, Appellant has timely appealed and timely filed a post-sentence
motion preserving the sentencing issue he seeks to raise on appeal. See
Luketic, 162 A.3d at 1159. Appellant has also preserved his issue in his Rule
2119(f) statement. See id. We therefore address whether Appellant has
raised a substantial question.
A defendant presents a substantial question when he sets forth
a plausible argument that the sentence violates a provision of the
sentencing code or is contrary to the fundamental norms of the
sentencing process. One of the fundamental norms in the
sentencing process is that a defendant’s sentence be
individualized. . . .
. . . [S]entencing must result both from a consideration of
the nature and circumstances of the crime as well as the
character of the defendant.
Thus, a sentencing court abuses its discretion when it considers
the criminal act, but not the criminal himself. 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[.]
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In [Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)], the
Supreme Court set forth the following regarding the two-part duty
of sentencing judges:
The first responsibility is a fact-finding responsibility: the
judge must be sure he had enough information. The second
responsibility is an application-and-explanation
responsibility: the judge must apply to the information he
has gathered the guidelines specified in the Sentencing
Code, 42 Pa.C.S. §§ 9701 et seq., and explain how the
sentence he has selected is responsive to, and reflects the
standards embodied in, those guidelines. If the judge fails
to fulfill these responsibilities, we must vacate the sentence
and remand for resentencing.
Luketic, 162 A.3d at 1160. A substantial question exists when the claim is
that the court imposed a sentence outside the guidelines and by double-
counting factors already considered by the guidelines. Commonwealth v.
Goggins, 748 A.2d 721, 728 (Pa. Super. 2000) (en banc).
Here, Appellant argued the court “failed to articulate sufficient reasons”
for imposing a ten-year minimum sentence and the court double-counted the
impact of Decedent’s death and Appellant’s unreasonable belief in the use of
force. Appellant’s Brief at 20-21. This argument raises a substantial question,
which we review on the merits. See Goggins, 748 A.2d at 728.
Section 9721 of the Sentencing Code states that in sentencing a
defendant
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with 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. The court shall also
consider any guidelines for sentencing and resentencing adopted
by the Pennsylvania Commission on Sentencing . . . . In every
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case where the court imposes a sentence or resentence outside
the guidelines adopted by the Pennsylvania Commission on
Sentencing . . . , the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation from
the guidelines to the commission . . . . Failure to comply shall be
grounds for vacating the sentence or resentence and resentencing
the defendant.
42 Pa.C.S. § 9721(b).
Section 9781(d) sets forth the factors considered by this Court in
evaluating the reasonableness of a sentence outside the guidelines:
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d). Where a pre-sentence investigation report exists, we
shall “presume that the sentencing judge was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Walls, 926 A.2d 957, 967 n.7 (Pa. 2007) (citation omitted). “Even if a
sentencing court relies on a factor that should have not been considered, there
is no abuse of discretion when the sentencing court has significant other
support for its departure from the sentencing guidelines.” Commonwealth
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v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008); Commonwealth v. P.L.S.,
894 A.2d 120, 133 (Pa. Super. 2006).
In this case, the court complied with Section 9721(b). The court noted
that the standard range sentence was fifty-four to seventy-two months in
prison for voluntary manslaughter. The court, as set forth above, stated
reasons for imposing a minimum sentence of ten years’ imprisonment. The
court acknowledged Appellant’s PSI and stated it considered his age,
rehabilitative needs, protection of the public, and the nature of the crimes at
issue, as well as their impact on the community. N.T., 4/18/17, at 80-82.
Because a PSI exists, which the court acknowledged reviewing, we also
presume that the court weighed the information contained within the PSI. See
Walls, 926 A.2d at 967 n.7.
We acknowledge that the court did not explicitly state it was departing
from the recommended sentence set forth in the guidelines, but the court
explicitly expressed its reasons for imposing the sentence it did. N.T.,
4/18/17, at 80-82. Even if the court improperly double-counted factors, such
as Decedent’s death, the court indicated it considered the impact his death
had on family and friends and that it was troubled by Appellant’s tendency to
insert himself into circumstances that could cause his death and portray him
as a hero. Thus, any departure from the sentencing guidelines was supported
by independently valid reasons. See, e.g., Sheller, 961 A.2d at 192. For
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these reasons, we affirm the judgment of sentence. See generally 42
Pa.C.S. § 9781(d).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/18
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