Com. v. Gordine, S. ( 2014 )

J-S79006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN GORDINE,
Appellant No. 2219 EDA 2013
Appeal from the Judgment of Sentence entered June 21, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0005860-2007.
BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY ALLEN, J.: FILED DECEMBER 17, 2014
Sean Gordine (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him of second-degree murder and related
charges.1 We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
Appellant[, who was fifteen at the time of the incident,]
and three co-defendants, Eric Gales, Isaiah Ransome and
Jerry Ransome, were each arrested and charged with
murder and related offenses in connection with a robbery
and shooting in the Frankford section of Philadelphia on
October 3, 2006. During the course of the robbery, the
____________________________________________
1
18 Pa.C.S.A. § 2502(b).
*Retired Senior Judge assigned to the Superior Court.
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defendants fired shots at each of the four victims, robbing
all and killing one.
The defendants were jointly tried by jury before the
Honorable Carolyn [Engel] Temin. On June 13, 2008, the
jury returned a partial verdict finding all four defendants
not guilty of first degree murder, but deadlocking on the
remaining charges.
A second jury trial was set to commence in May of
2009. Prior to the start of trial, the Commonwealth asked
Judge Temin to reconsider several evidentiary rulings she
had made prior to [Appellant’s] first trial. Specifically, the
Commonwealth sought the introduction of cell phone
records and writings made by one or more of the
defendants that had been ruled inadmissible at the
previous trial. Judge Temin denied the Commonwealth’s
Motion to Reconsider. The Commonwealth appealed Judge
Temin’s ruling to the Superior Court, which vacated her
Order. On March 3, 2011, defense counsel filed a Petition
for Allowance of Appeal in the Pennsylvania Supreme
Court. This Petition was denied on June 2, 2011.
Appellant’s case was then scheduled for retrial.
On December 14, 2012, at the conclusion of a second
jury trial, the jury found [Appellant] guilty of second
degree murder, three counts of robbery (F-1), three
counts of aggravated assault (F-1), criminal conspiracy,
possession of an instrument of crime and violating §§ 6106
and 6108 of the Uniform Firearms Act.
[Judge Temin retired prior to sentencing Appellant.
Appellant’s case was administratively reassigned to the
Honorable Benjamin Lerner, S.J.] On June 21, 2013, the
court sentenced [Appellant] to a prison term of thirty-five
(35) years to life on the second degree murder bill, and
concurrent prison terms of five (5) to ten (10) years on
each of the robbery bills and two-and-one-half (2½) to five
(5) years on the § 6106 bill. The court also imposed a
sentence of five (5) to ten (10) years imprisonment on
each aggravated assault bill to be served concurrent to
each other, but consecutive to the sentence imposed on
the murder bill. No further penalty was imposed on the
remaining bills. Appellant’s total aggregate sentence was
forty (40) years to life.
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Appellant filed post-sentence motions on July 1, 2013.
Post sentence motions were denied by the court on July 5,
2013.
Trial Court Opinion, 6/23/14, at 1-3 (footnotes omitted). This timely appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant raises the following issues:
1. DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION WHEN IT OVERRULED A MOTION FOR
MISTRIAL PROFFERED AFTER DETECTIVE BAMBERSKI
OPINED THAT HE BELIEVED THAT JERRY RANSOME HAD
TOLD HIM THE TRUTH?
2. IS 18 PA.C.S. § 1102.1 UNCONSTITUTIONAL BOTH
UNDER THE PENNSYLVANIA AND UNITED STATES’
CONSTITUTIONS BECAUSE IT VIOLATES THE CRUEL AND
UNUSUAL PUNISHMENT CLAUSES OF THOSE DOCUMENTS?
3. IS 18 PA.C.S. 1102.1 [] UNCONSTITUTIONAL UNDER
THE UNITED STATES’ CONSTITUTION BECAUSE IT
VIOLATES THE EQUAL PROTECTION CLAUSE IN THAT IT
TREATS JUVENILES CONVICTED OF FIRST OR SECOND
DEGREE MURDER AFTER ITS PASSAGE DIFFERENTLY THAN
JUVENILES CONVICTED OF THE IDENTICAL CRIMES PRIOR
TO ITS PASSAGE?
4. IS THE SENTENCE IMPOSED ON APPELLANT UNDER 18
PA.C.S. 1102.1 UNCONSTITUTIONAL UNDER THE UNITED
STATES’ AND PENNSYLVANIA CONSTITUTIONS BECAUSE
IT VIOLATES THEIR RESPECTIVE EX POST FACTO
CLAUSES?
5. DID THE SENTENCING COURT COMMIT AN ABUSE OF
DISCRETION BY IMPOSING A SENTENCE THAT WAS FAR
GREATER THAN NECESSARY TO REHABILITATE APPELLANT
AND WHICH FAILED TO ADEQUATELY CONSIDER THAT
APPELLANT WAS A JUVENILE WHEN THE CRIME HEREIN
WAS COMMITTED AS WELL AS THE FACTORS SET FORTH
IN [Miller v. Alabama, 132 S.Ct. 2455 (2012)] AND THE
SENTENCING CODE?
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Appellant’s Brief at 3.
In his first issue, Appellant asserts that the trial court erred in denying
his motion for mistrial. We recently reiterated the applicable standard of
review as follows:
It is well-settled that the review of a trial court’s denial
of a motion for mistrial is limited to determining whether
the trial court abused its discretion. An abuse of discretion
is not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice bias or ill-will . . . discretion is
abused. A trial court may grant a mistrial only where the
incident upon which the motion is based is of such a
nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from
weighing and rendering a true verdict. A mistrial is not
necessary where cautionary instructions are adequate to
overcome prejudice.
Commonwealth v. Brooker, 2014 PA Super 209, *10-11, ___ A.3d. ___
(Pa. Super. 2014) (citation omitted).
The following exchange at trial, between the Commonwealth and a
police detective who took a statement from one of Appellant’s co-
defendants, provides the basis for Appellant’s claim:
Q. Detective Bamberski, I notice that you documented in
here if [Jerry Ransome] was given a soda and the
opportunity to use a bathroom. Why did you do that?
A. Just, basically, to show that there was no coercion on
anybody’s part. I mean, it’s - - you know, there are times
when allegations are made and things of that nature in
regards to what goes on in the Homicide Division. And in
this case he was very forthcoming. He indicated that he
wanted to talk and in my opinion was very truthful about
the fact - -
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[JERRY RANSOME’S COUNSEL]: Objection.
N.T., 12/12/12, at 33.
The trial court responded:
THE COURT: The objection is sustained. The
jury will totally disregard that last statement by the
detective. What is true and what is not true is up to you to
decide and nobody else’s opinion, including mine, is
relevant on that issue.
So you are to totally wipe from your mind what
the detective said. You are not to consider it in any way,
shape or form. Truthfulness and accuracy of any
testimony, including the statements that are being read to
you so far are totally up to you to determine.
Id. at 33-34.
We initially note that the record supports the Commonwealth’s
contention that Appellant’s claim is waived because he failed to make a
timely motion for mistrial. See Pa.R.A.P. 605(b) (explaining that, in order to
be timely, a motion for mistrial “shall be made when the [allegedly
prejudicial] event is disclosed”). Here, Appellant did not join in Jerry
Ransome’s request for a mistrial until the conclusion of Detective
Bamberski’s testimony. See N.T., 12/12/12, at 74. Case law has held that
such a delay renders a motion for mistrial untimely. See, e.g.,
Commonwealth v. Boring, 684 A.2d 561, 568 (Pa. Super. 1996)
(explaining that a motion for mistrial was untimely when it was made a
considerable length of time after the prejudicial reference was made, and
after the Commonwealth had concluded direct examination of its witness).
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Even if not waived, the trial court found Appellant’s claim to be
meritless and belied by the record. According to the trial court:
At trial, Detective Bamberski testified about the facts
and circumstances surrounding Jerry Ransome’s decision
to give a detailed statement to police following his arrest.
Detective Bamberski stated that he gave Jerry Ransome a
soda and allowed him to use the rest room during the
course of his interview. This testimony was elicited to
demonstrate that Ransome was not coerced into giving his
statement. Detective Bamberski further testified that
Ransome was “very forthcoming” and in his opinion “very
truthful.” At that point, Jerry Ransome’s attorney
objected. He did not request a mistrial, as [Appellant]
claims herein. The court sustained counsel’s objection and
immediately gave a curative instruction. The court told
the jury it was to disregard Detective Bamberski’s
statement, and that it was up to the jury to determine the
truthfulness and accuracy of any statement, including
statements being read into evidence.
The trial court did not abuse its discretion in failing to
order a mistrial sua sponte. The testimony in issue was
related only to Jerry Ransome’s statement. It was not
entered into evidence against [Appellant]. Moreover, the
court gave an immediate instruction to the jury that it
should not consider Detective Bamberski’s opinion.
Appellant was in no way prejudiced by the court’s ruling.
Trial Court Opinion, 6/23/14, at 12.
Our review of the record supports the trial court’s conclusions. The
trial court’s immediate curative instruction remedied any prejudice caused
by detective’s unsolicited opinion. Brooker, supra. Appellant’s first issue
fails.
Appellant next claims that the recently enacted juvenile sentencing
provision found at 18 Pa.C.S.A. section 1102.1 is unconstitutional because it
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“violates the United States and Pennsylvania constitutions’ prohibition
against cruel punishment found in the Eighth Amendment and Article 1,
section 13, respectively, because it requires the imposition of a mandatory
minimum sentence of thirty years’ incarceration upon defendants fifteen
years or older convicted of second-degree murder, a sentence that is the
equivalent of a life sentence, without consideration of the factors set forth”
in Miller, supra. Appellant’s Brief at 26.
This Court has recently rejected a similar claim under the federal
constitution made by a juvenile who was sentenced following the passage of
Section 1102. See Brooker, supra; Commonwealth v. Lawrence, 99
A.3d 116 (Pa. Super. 2014). As we are bound by these decisions, we need
not discuss Appellant’s claims further.
Moreover, as to Appellant’s claim under the Pennsylvania constitution,
we agree with the Commonwealth that Appellant has waived his challenge
because his brief is devoid of the requisite independent constitutional
analysis. See generally, Commonwealth v. Edmunds, 586 A.2d 887 (Pa.
1991). Rather, Appellant concedes that the protection provided under both
constitutions is co-extensive, and that Pennsylvania courts have repeatedly
held that “the Pennsylvania Constitution affords no broader protection
against excessive sentences than that provided by the Eighth Amendment to
the United States Constitution.” Appellant’s Brief at 26 n.7. Accordingly,
our decisions in both Brooker and Lawrence amply demonstrate why
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Appellant’s constitutional challenge is equally meritless under the
Pennsylvania Constitution.
In his next two issues, Appellant asserts that Section 1102.1 is
unconstitutional because it violates both the equal protection clause of the
United States Constitution, as well as the prohibition against ex post facto
laws contained in both the federal and state constitutions. Although
Appellant did not raise these claims in his post-sentence motions, he asserts
that they implicate the legality of his sentence and cannot be waived. See
Appellant’s Brief at 36-37. Addressing this same factual circumstance in
Lawrence, supra, this Court thoroughly reviewed the distinction “between
legal sentencing questions and an illegal sentence” claim. Lawrence, 99
A.3d at **13. We then concluded:
Because Appellant’s Equal Protection and Ex Post Facto
Clause arguments directly seek protection from
legislatures, not judges, we hold that these arguments fall
into the category of a sentencing issue that presents a
legal question rather than a claim that the sentence is
illegal.
***
As a result, we conclude that the trial court was correct
that Appellant waived his arguments under the Equal
Protection and Ex Post Facto Clauses by not raising them
in his post-sentence motion below.
Id. at **17-18 (citation omitted).
Here, given our holding in Lawrence, we agree with the trial court
that Appellant has waived his remaining constitutional challenges.
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Moreover, we note that in Brooker, supra, this Court addressed and
rejected a claim that Section 1102 violated the ex post facto clauses of both
the federal and state consitutions. See Brooker, 2014 PA Super 209, at
**30-40.
In his final issue, Appellant challenges the discretionary aspects of his
sentence. As this Court has summarized:
Appellant challenges the discretionary aspects of sentencing
for which there is no automatic right to appeal. This appeal
is, therefore, more appropriately considered a petition for
allowance of appeal. Two requirements must be met before
a challenge to the judgment of sentence will be heard on
the merits. First, the appellant must set forth in his [or her]
brief a concise statement of matters relied upon for
allowance of appeal with respect to the discretionary
aspects of his [or her] sentence. Pa.R.A.P. 2119(f).
Second, he or she must show that there is a substantial
question that the sentence imposed is not appropriate under
the Sentencing Code. 42 Pa.C.S.A. § 9781(b)[.]
The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case
basis. Generally, however, in order to establish that there
is a substantial question, the appellant must show actions
by the sentencing court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the
sentencing process.
Commonwealth v. Marts, 889 A.2d 608, 611-12 (Pa. Super. 2005)
(footnote and citations omitted).
In his 2119(f) statement, Appellant asserts:
[T]he sentencing court failed to consider [the Miller]
factors, and thus further review should be granted.
In the light most favorable to the Commonwealth, the
evidence shows that [Appellant] was a minor participant in
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the crime and that he was one of the youngest of the four
persons who committed the crime. Moreover, given his
age and involvement, it is respectively submit[ted] that a
sentence of forty years to life was unreasonably harsh and
requires further review.
Appellant’s Brief at 53. We conclude that Appellant’s sentencing claim has
raised a substantial question. See Commonwealth v. Seagraves, 2014
PA Super 252, *7, ___ A.3d ___ (Pa. Super. 2014) (citing Commonwealth
v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) (concluding that defendant’s
discretionary sentencing claim raised after he was resentenced in light of
Miller raised a substantial question; “prior decisions from this Court
involving whether a substantial question has been raised by claims that the
sentencing court ‘failed to consider’ or ‘failed to adequately consider’
sentencing factors “has been less than a model of clarity and consistency”).
Thus, we reach the merits of Appellant’s claim.
Our standard of review is well settled:
In reviewing a challenge to the discretionary aspects of
sentencing, we evaluate the court’s decision under an
abuse of discretion standard. When, as here, the trial
court has the benefit of a presentence report, we presume
that the court was aware of relevant information regarding
the defendant’s character and weighed those
considerations along with any mitigating factors.
Seagraves, at *8 (citations omitted).
As noted by the trial court, “[t]he transcript from [Appellant’s]
sentencing hearing on June 23, 2013 is not available. On June 20, 2014,
this court held a hearing for purposes of re-creating the record [] from
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[Appellant’s] sentencing proceedings and directed counsel to submit a
Statement [in lieu of transcript] pursuant to Pa.R.A.P. 1923 and 1924 for
this court’s approval.” Trial Court Opinion, 6/23/14, at 2 n.4.
After receiving the statements, the trial court provided the following
explanation for its sentencing choice in its Pa.R.A.P. 1925(a) opinion:
In fashioning its sentence, the court considered
[Appellant’s] pre-sentence investigation, the facts and
circumstances of [Appellant’s] crimes, all of the testimony,
evidence and arguments presented at [Appellant’s] trial
and sentencing hearing. The court also considered each of
the factors listed above and the age-related factors
espoused in Miller. Appellant’s sentence was completely
appropriate, and this court did not abuse its discretion
when it imposed sentence.
Trial Court Opinion, 6/23/14, at 9-10.
Within his brief, Appellant provides no basis upon which we may
conclude that the sentencing court abused its discretion. Because the
sentencing court possessed a presentence report, we assume the court “was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with any mitigating factors.”
Seagraves, supra. Of necessity, some of the information regarding
Appellant disclosed in the presentence report would involve the factors
discussed in Miller.
Moreover, the only statement made by Appellant in his Pa.R.A.P. 1923
statement was that the defense argued Appellant “was a follower, not a
leader, and is amenable to rehabilitation.” Rule 1923 Statement, 6/30/14,
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at 1. We note, however, statements made by the Commonwealth in its
detailed sentencing memorandum, submitted prior to Appellant’s sentencing
hearing. See Sentencing Memorandum, 5/16/13. This memorandum
demonstrates that, despite his youth, Appellant had multiple contacts with
the juvenile justice system and, in fact, was on probation at the time of the
victim’s murder.
Finally, because a thirty year sentence for Appellant’s second-degree
murder was mandatory, the only real discretion exercised by the sentencing
court was in its sentencing of Appellant to an additional five years for the
murder conviction, and its decision to run one of Appellant’s remaining
sentences consecutive to the sentence for the murder conviction. Given
Appellant’s multiple convictions and multiple victims, Appellant’s sentencing
claim fails. See generally, Dodge, supra.In sum, because his claims on appeal are either waived or without
merit, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2014
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