Com. v. Sheed, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD SHEED,
Appellant No. 440 EDA 2014
Appeal from the Judgment of Sentence Entered September 10, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004550-2012
BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 12, 2015
Appellant, Edward Sheed, appeals from the judgment of sentence of
an aggregate term of 30 to 62 years’ incarceration, imposed after a jury
convicted him of attempted murder, aggravated assault, possession of a
firearm by a person prohibited, carrying a firearm without a license, and
possessing an instrument of crime (PIC). We affirm.
The trial court summarized the evidence presented at Appellant’s trial,
as follows:
Complainant[,] Marvin Brown, testified that on June 10,
2011, at approximately 1:15 in the afternoon, he was playing
dice on the 1400 block of Allison Street, when [Appellant]
approached him and, pointing a gun at his head, reached into
[Brown’s] pants pocket and took [Brown’s] cell phone. When
[Appellant] left, [] Brown followed[,] asking [Appellant] to return
his phone. After following [Appellant] a short distance, []
Brown, thinking better of his actions, stopped his pursuit,
whereupon, [Appellant] pointed his gun at [] Brown and shot
him multiple times, first in the stomach and then the back,
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severing [Brown’s] spinal cord, leaving him paralyzed from the
neck down.
[] Brown testified that he had “hung out” with [Appellant]
prior to the day of the shooting and had known him only by his
nickname, “Doobie.” He also testified that he [had] learned
[Appellant’s] name earlier [on the] day [of the shooting,] when
he witnessed [Appellant] being stopped and questioned by
police.2
__________________
2
Philadelphia Police Officer Chris Kopecki testified that on
June 10, 2011, he was assigned to the Philadelphia Police
Department’s 12th District Narcotics Division. At
approximately 10:50 a.m., he was in plainclothes and an
unmarked vehicle with his partner, when he stopped
[Appellant], in the vicinity of 1400 South Allison Street,
and verified his identity.
__________________
At trial, [] Brown unequivocally identified [Appellant] as
[the] person who took his phone and shot him. [Brown] also
testified that after waking up in the hospital he told his father
that [Appellant] was the shooter. In addition, [Brown] testified
that on June 21, 2011, eleven days after the shooting, he gave a
statement to the investigating detective in which he identified
[Appellant] as the shooter from a photo array shown to him.
Philadelphia Police Detective Matthew Farley testified that
on June 10, 2011, he was assigned to the Southwest Detectives
Division of the Philadelphia Police Department located at 55 th
and Pine Streets in the City of Philadelphia, when at
approximately 1:15 p.m. he was assigned as the lead
investigator to investigate the shooting of [] Brown. He further
testified that within two hours of the shooting he had developed
[Appellant] as a suspect by tracing back the 9-1-1 calls reporting
the incident and talking to the callers himself.
Using this information, he prepared a photo array of eight
pictures, including [Appellant’s], on a single sheet[,] as well as
individual pictures of each of the individuals included in the
photo array. Detective Farley testified that he first interviewed
[] Brown on June 21, 2011, at which time he took [Brown’s]
statement and displayed a photo array containing [Appellant’s]
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picture. [Detective Farley] further testified that, upon being
shown the phot array, [] Brown immediately and without
hesitation identified [Appellant] as the shooter.
Trial Court Opinion (TCO), 10/1/14, at 4-5 (citations to the record omitted).
Based on this evidence, the jury convicted Appellant of the above-
stated offenses on July 10, 2013. On September 10, 2013, Appellant was
sentenced to a term of 20 to 40 years’ incarceration for his attempted
murder conviction, 5 to 10 years’ imprisonment for his offense of possession
of a firearm by a person prohibited, 3 to 7 years’ imprisonment for carrying
a firearm without a license, and 2 to 5 years’ incarceration for his PIC
conviction. The court imposed each sentence to run consecutively, totaling
an aggregate term of 30 to 62 years’ incarceration. Appellant filed a timely
post-sentence motion, which was denied on February 7, 2014. Appellant
filed a timely notice of appeal, and also timely complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Herein, Appellant presents the following issues for our review:
A. The guilty verdicts in this matter were against the weight of
the evidence because:
[a]. the complaining witnesses [sic] trial testimony was
grossly inconsistent with his prior testimony and
statements; and,
[b]. the 911 calls played at trial provided a description of
the shooter that did not match [Appellant].
B. The trial court erred by allowing a detective to testify to
impermissible hearsay regarding what the complainant said and
why he ever said it.
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C. The trial court erred by instructing the jury that it’s [sic]
assessment of the performance of the Philadelphia Police
Department’s work in this matter was irrelevant.
D. The trial court erred by denying the jury’s request to review
medical records which were previously admitted into evidence by
way of stipulation.
E. The trial court erred by denying the jury’s request to review
the notes of testimony from the preliminary hearing.
F. The trial court’s sentence of 2[] to 5 years[’] incarceration for
the PIC conviction was an abuse of discretion and manifestly
unreasonable as the trial court sentenced [Appellant] outside the
guideline range without articulating sufficient reasons on the
record[.]
G. The trial court’s aggregate sentence of 30 to 62 years[’]
incarceration which included a determination that each individual
sentence is to be served consecutively was an abuse of
discretion and manifestly unreasonable because:
a. The trial court did not give adequate weight to
[Appellant’s] current family support and past detrimental
upbringing, and
b. The trial court impermissibly double counted both the
seriousness of the injury suffered by the complainant and
[Appellant’s] prior criminal history.
Appellant’s Brief at 7 (unnecessary capitalization omitted).
In Appellant’s first issue, he argues that the jury’s verdict was against
the weight of the evidence.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
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been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
Appellant contends that the jury’s verdict was contrary to the weight
of the evidence because Brown made contradictory statements that called
into question his credibility. Appellant specifically avers:
Brown testified at trial that he knew [Appellant] well before the
shooting. In fact, he told his father that day in the hospital that
“Edward Sheed” had shot him. Yet, Brown painted a much
different picture when he testified at his preliminary hearing. At
the preliminary hearing he told the judge that he did not know
[Appellant’s] real name. Further, the stipulated medical records
indicated that Brown had no independent medical recollection of
the events pertaining to the shooting. This boldfaced
contradiction – knowing [Appellant’s] name and the events
[versus] not knowing his name or the events of the shooting –
are so juxtaposed that they clearly indicate a lack of truth.
Thus, no verdict of guilt should have been based upon it.
Appellant’s Brief at 12.1
In rejecting Appellant’s challenge to the weight of the evidence, the
trial court emphasized that,“the question of a witness’s credibility is reserved
exclusively for the jury.” TCO at 11 (citing Commonwealth v. Alicia, 92
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1
In Appellant’s statement of the issues, he also challenges the weight of the
evidence on the basis that “the 911 calls played at trial provided a
description of the shooter that did not match [Appellant].” Appellant’s Brief
at 7 (unnecessary capitalization omitted). However, Appellant abandons this
claim in the argument portion of his brief. Accordingly, we will not address it
herein.
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A.3d 753, 761 (Pa. 2014) (“[T]he veracity of a particular witness is a
question which must be answered in reliance on the ordinary experiences of
life, common knowledge of the natural tendencies of human nature, and
observations of the character and demeanor of the witness. As the
phenomenon of lying is within the ordinary capacity of jurors to assess, the
question of a witness’s credibility is reserved exclusively for the jury.”)
(citation omitted)). The court also stressed that at trial, Brown identified
Appellant as the person who shot him, and stated “that prior to the shooting
he had known [Appellant] from the neighborhood by [Appellant’s] nickname,
‘Doobie.’” TCO at 10. Brown also testified that he learned Appellant’s ‘real’
name shortly before the shooting, and that while in the hospital, he had told
his father that Appellant had shot him. Id. at 10-11. The jury was also
informed at trial that Brown had identified Appellant from a photo array
“immediately and without hesitation….” Id. at 11.
In regard to Brown’s purportedly inconsistent statements to medical
personnel that he did not know who shot him, the trial court pointed out that
Brown testified at trial that he did not tell medical staff that Appellant had
shot him “[b]ecause it was not any of their concern.” Id. (citing N.T. Trial,
7/9/13, at 34). Additionally, the record confirms that defense counsel cross-
examined Brown with his preliminary hearing testimony in which he stated
that he did not know Appellant’s ‘real’ name. N.T. Trial, 7/9/13, at 40-45.
Therefore, the jury was aware of the inconsistency between Brown’s trial
testimony and his preliminary hearing testimony. We agree with the trial
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court that it was within the province of the jury to weigh these discrepancies
and determine which, if any, portions of Brown’s testimony to believe. In
light of the role of the jury in this regard, the trial court did not consider the
verdict as shocking to “one’s sense of justice….” TCO at 12. Appellant’s
argument on appeal has not convinced us that the trial court abused its
discretion in reaching this decision. Accordingly, his challenge to the weight
of the evidence is meritless.
In Appellant’s second issue, he argues that the trial court erred by
admitting hearsay testimony. We begin by noting that, “[q]uestions
regarding the admissibility of evidence rest within the trial judge’s discretion,
and an appellate court will reverse the judge’s decision only for an abuse of
discretion.” Commonwealth v. Vandivner, 962 A.2d 1170, 1179 (Pa.
2009) (citations omitted). “An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Gray, 867 A.2d 560, 570 (Pa. Super. 2005).
Initially, Appellant’s vague argument inhibits our meaningful review of
his claim. Specifically, Appellant does not identify what testimony was
improperly admitted, or even name the witness that proffered the ostensibly
inadmissible hearsay testimony. Instead, Appellant ambiguously refers only
to “the statement” by Brown, testified to by “the Detective.” See
Appellant’s Brief at 13 (emphasis added). At no point does Appellant quote
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Brown’s statement, directly name the witness who testified to it, or cite to
where in the record that testimony occurred. Thus, Appellant has waived
this claim by not sufficiently developing it for our meaningful review. See
In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (“When briefing the various
issues that have been preserved, it is an appellant's duty to present
arguments that are sufficiently developed for our review. The brief must
support the claims with pertinent discussion, with references to the record
and with citations to legal authorities. … [W]hen defects in a brief impede
our ability to conduct meaningful appellate review, we may dismiss the
appeal entirely or find certain issues to be waived.”).2
In any event, we would conclude that Appellant’s claim is meritless,
even had he properly developed it for our review. Our examination of the
trial court’s opinion and the Commonwealth’s brief indicates that Appellant is
referring to testimony by Detective Farley, wherein the detective described
comments Brown made when he was interviewed at the hospital by the
prosecutor and Detective Farley. See TCO at 13; Commonwealth’s Brief at
____________________________________________
2
We note that the trial court also found this issue waived based on the
vague manner in which Appellant asserted it in his Rule 1925(b) statement.
TCO at 12. The court emphasized that in his Rule 1925(b) statement,
Appellant “not only failed to identify [to] which detective he is referring…,
[but] he has also failed to specify to which testimony he is referring.” Id. at
12. We agree with the trial court that Appellant waived his claim on this
basis, as well. See Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa.
Super. 2001) (finding issue waived where the appellant’s concise statement
“was too vague for the trial court to identify and address the issue to be
raised on appeal.”).
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16. Specifically, the detective testified that during the interview, Brown
asked the prosecutor “to keep [her] voice down” and said that “[h]e didn’t
want anybody outside to hear what [they] were talking about.” N.T. trial,
7/9/13, at 89. The trial court concluded that this testimony “was admissible
as it clearly falls outside the hearsay exclusionary rule as a ‘verbal act.’”
TCO at 13. For its part, the Commonwealth argues that Brown’s statements
were not hearsay because they were “not offered for the truth of the matter
asserted.” Commonwealth’s Brief at 14. Alternatively, both the trial court
and the Commonwealth maintain that even if Brown’s statement was
hearsay, the improper admission thereof was harmless error. For the
following reasons, we agree with the court’s and the Commonwealth’s
harmless error assessment; accordingly, we need not decide whether
Brown’s two statements constituted hearsay.
At trial, Appellant attempted to impeach Brown’s identification of him
as the shooter by emphasizing that Brown had told medical personnel that
he did not know who shot him. In response, the Commonwealth offered
evidence demonstrating that Brown lied to medical personnel about not
knowing the shooter’s identity because Brown did not believe the medical
staff needed to know that information. For instance, Brown testified that he
did not tell the medical staff what happened “[b]ecause it was not any of
their concern.” N.T. Trial, 7/9/13, at 34. Brown also testified that when the
prosecutor and Detective Farley came to interview him, he asked the nurses
and doctors to “step out.” Id. at 35. Thus, through Brown’s own testimony,
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the jury was informed that Brown did not want the medical staff to know the
details of the shooting. Consequently, Brown’s hearsay statements asking
the prosecutor to keep her voice down, and his comment that he did not
want anyone outside the hospital room to hear his interview with the
prosecutor and Detective Farley, were merely cumulative evidence
demonstrating Brown’s desire to keep the details of the shooting private
from the medical staff. Accordingly, even if the trial court improperly
allowed Detective Farley to testify regarding Brown’s hearsay statements,
we would conclude that that error was harmless.
Next, Appellant challenges the trial court’s jury instruction. In
Commonwealth v. Ragan, 743 A.2d 390 (Pa. 1999), our Supreme Court
explained that, “[a] trial court has wide discretion in phrasing jury
instructions.” Id. at 397.
When reviewing an allegation of an incorrect jury instruction, the
appellate court must view the entire charge to determine
whether the trial court clearly and accurately presented the
concepts of the legal issue to the jury and should not reverse, as
a result of the instruction, unless the trial court committed an
abuse of its discretion. We will not examine a phrase or
sentence of an instruction in a vacuum. Rather, when we
evaluate a challenge to a charge, we must consider how each
part fits together to convey a complete legal principle.
Id. (citations omitted).
Initially, we note that Appellant fails to cite to the portion of the record
containing the at-issue jury charge. See Appellant’s Brief at 14. However,
he does quote the challenged instruction, wherein the court instructed the
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jury that, “a trial is not an evaluation of the Police Department.” Id.
Appellant contends that this remark by the court
was clearly prejudicial and likely influenced the jury to disregard
any mistakes made by the police during the investigation of this
case. If the statement had not been made, then the jury would
have likely held the police to a much higher standard. The
message to the jury was essentially telling them to give the
police a free pass and not to factor into their verdict any
mistakes that could have given way to reasonable doubt and a
verdict of not guilty.
Id.
Notably, Appellant does not discuss what purported ‘mistakes’ the
police department made in this case that the jury disregarded because of the
court’s contested instruction. That omission aside, Appellant’s challenge to
the court’s instruction fails, as he essentially asks us to evaluate the court’s
single comment in a vacuum, contrary to our Supreme Court’s mandate in
Ragan. Namely, Appellant disregards the court’s instruction before and
after the at-issue remark, which entailed the following:
[The Court:] [A trial] is not a competition between lawyers. It
doesn’t matter which lawyer did the better job. That’s not the
issue before you. …
Likewise, a trial is not an evaluation of the Police
Department. At the end of the trial when you go back to
deliberate, if you conclude that the Police Department did an A
plus job, could not have done a better job, as good as anything
you’ve ever seen on TV, as good as anything any fiction writer
ever imagined, but the Commonwealth has not proven the
defendant guilty beyond a reasonable doubt, your verdict has to
be not guilty.
***
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Likewise, if at the end of your deliberations you’re thinking
to yourself, geez, the Police Department could have done a lot
better in this case, I wouldn’t even give them a passing grade,
but you’re convinced by all the evidence, the testimony of the
witnesses or whatever other evidence was introduced at trial,
you’re convinced beyond a reasonable doubt that the defendant
is guilty, then your verdict must be guilty, because that’s what a
trial is about. A trial is about not the lawyers, not the police, not
the opinions of the lawyers, not the opinions of the Judge. A
trial is about whether the Commonwealth has proven the
defendant guilty beyond a reasonable doubt.
N.T. Trial, 7/10/13, at 9-10 (emphasis added).
Examining this instruction as a whole, rather than focusing solely on
the emphasized comment (as does Appellant), we ascertain no abuse of
discretion by the court. The court explained that the jury’s verdict should
not be premised on any evaluation of how well, or poorly, the police had
conducted their investigation. The court directed that, instead, the jury
must focus on whether the Commonwealth’s evidence proved Appellant
guilty beyond a reasonable doubt. Appellant’s scant challenge to the court’s
instruction (reproduced in its entirety, above) does not convince us that the
court’s comments were legally incorrect and/or an abuse of the court’s
discretion. Consequently, Appellant’s third issue does not warrant relief.
Appellant’s fourth and fifth issues are related and, thus, we will
address them together. Appellant maintains that the trial court erred by
denying the jury’s request to view, during their deliberations, Brown’s
medical records and the transcript of his testimony from Appellant’s
preliminary hearing.
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“Whether an exhibit should be allowed to go out with the jury during
its deliberation is within the sound discretion of the trial judge.”
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012). Here,
the court explained why it denied the jury’s request to see Brown’s medical
records, and the transcripts of his testimony at the preliminary hearing, as
follows:
The court denied these requests because [] Brown’s
medical condition was not at issue. The records were
voluminous and only one entry was introduced for the purpose of
impeaching [] Brown’s testimony[,] and the requested notes [of
testimony from the preliminary hearing] contained testimony not
in evidence at trial.
TCO at 16.
In asserting that the trial court abused its discretion in reaching this
decision, Appellant provides the following argument, in its entirety:
The jury requested the medical records during their
deliberation. It can be assumed that the records were important
to some members of the jury as they attempted to reach their
decision. Failure to provide these records to the jury resulted in
an unfair prejudice to [Appellant]. The trial court assumes in its
opinion that there was no prejudice because the medical
condition of Brown was not in question and there was only a
short submission in the report which contradicted the testimony
previously provided by Brown. This was not for the trial court to
assume and there is no justifiable reason why the medical
records should not have been provided.
…
[Appellant’s] argument [regarding the jury’s request for
Brown’s preliminary hearing testimony] is similar to the
argument above concerning medical records. For the sake of
judicial economy, [Appellant] would repeat the arguments made
above. Specifically, that the jury deemed that the notes of
testimony from the preliminary hearing were relevant and
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therefore the notes of testimony should have been provided to
the jury upon their request. The failure to do so by the trial
court was unfairly prejudicial and did not provide [Appellant] a
fair [trial].
Appellant’s Brief at 14-15.
Appellant seems to suggest that simply because the jury requested
these documents, the court should have permitted the jury to have them.
This argument is unconvincing, as it disregards the trial court’s discretion to
decide whether to permit jurors to view exhibits during deliberations.
Barnett, 50 A.3d at 194. Here, the court exercised that discretion,
concluding that it was inappropriate to allow the jury to view Brown’s entire
medical records, and the transcript of his preliminary hearing testimony,
where those exhibits were voluminous and contained material that was not
discussed at trial, and/or pertinent to Appellant’s guilt. Appellant has not
convinced us that the court’s decision was “manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the evidence of
record.” Gray, 867 A.2d at 570. Accordingly, Appellant’s fourth and fifth
issues are meritless.
In Appellant’s final two issues, he challenges discretionary aspects of
his sentence. We will address his arguments together. To begin, we note:
A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to
pursue such a claim is not absolute. When challenging the
discretionary aspects of the sentence imposed, an appellant
must present a substantial question as to the inappropriateness
of the sentence. Two requirements must be met before we will
review this challenge on its merits. First, an appellant must set
forth in his brief a concise statement of the reasons relied upon
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for allowance of appeal with respect to the discretionary aspects
of a sentence. Second, the appellant must show that there is a
substantial question that the sentence imposed is not
appropriate under the Sentencing Code. That is, [that] the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process. We
examine an appellant’s [Pa.R.A.P.] 2119(f) statement to
determine whether a substantial question exists. Our inquiry
must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.
Commonwealth v. Ahmad, 961 A.2d 884, 886-887 (Pa. Super. 2008)
(emphasis in original; citations, quotation marks, and footnote omitted).
Here, Appellant includes a Rule 2119(f) statement in which he,
argues that the trial court imposed an excessive sentence where
it gave no meaningful consideration to the Guidelines, but
merely sentenced [] [A]ppellant to essentially the statutory
maximum on each count. The sheer magnitude of the trial
court’s deviation from the Sentencing Guidelines presents a
substantial question of excessiveness that should warrant this
Court’s review.
Appellant’s Brief at 16.
Even if we accepted the claims set forth in Appellant’s Rule 2119(f)
statement as presenting substantial questions for our review, he essentially
abandons those assertions in his argument section, instead presenting
substantially different claims. For instance, Appellant contends that the
court erred by sentencing him to 2 to 5 years’ imprisonment for his PIC
offense because the court failed to state reasons on the record for going
“above and beyond the recommended guideline sentence.” Appellant’s Brief
at 17. This specific assertion was not mentioned in Appellant’s Rule 2119(f)
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statement. Likewise, Appellant’s argument that his “sentence was
manifestly unreasonable because the trial court did not give weight to his
current family structure and his past detrimental upbringing” was also not
set forth, nor even suggested, in Appellant’s Rule 2119(f) statement. Id.Because Appellant failed to raise either of these challenges to the
discretionary aspects of his sentence in his Rule 2119(f) statement, he has
not demonstrated that either claim presents a substantial question
warranting our review. Additionally, the claims set forth in Appellant’s Rule
2119(f) statement are waived, based on his failure to meaningfully develop
them for our review.
Nevertheless, even had Appellant satisfied the requirements for review
of his discretionary aspects of sentencing claims, we would conclude that he
is not entitled to relief. First, Appellant has not convinced us that the trial
court’s deviation from the Sentencing Guidelines for his PIC conviction was
unreasonable or an abuse of the court’s discretion. See 42 Pa.C.S. §
9781(c)(3) (directing that the appellate court shall vacate a sentence if “the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable”); Commonwealth v. Gould, 912 A.2d 869, 872
(Pa. Super. 2006) (“Our standard of review when an appellant challenges
the discretionary aspects of his … sentence is very narrow; the Court will
reverse only where [the] appellant has demonstrated a manifest abuse of
discretion by the sentencing judge.”). We are cognizant that,
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[w]hen a sentencing court makes the decision to deviate from
the sentencing guidelines, “it is especially important that the
court consider all factors relevant to the determination of a
proper sentence.” Commonwealth v. Ruffo, 360 Pa. Super.
180, 520 A.2d 43, 47 (1987). This means that a sentencing
court must give consideration not only to the nature of the
crime, but also to the individual character and circumstances of
the offender. See[] 42 Pa.C.S. § 9721(b).
Commonwealth v. Eby, 784 A.2d 204, 207-208 (Pa. Super. 2001).
Additionally, “[c]ourts must apply the guidelines unless the circumstances of
the individual case require deviation, and in that situation where deviation is
required the court must articulate sufficient reasons to justify this
conclusion.” Id. at 209.
Here, the trial court was informed at the sentencing proceeding of the
applicable guidelines ranges for each of Appellant’s offenses, including PIC.
N.T. Sentencing, 9/10/13, at 16-18. In its opinion, the trial court also
emphasizes that,
[b]ecause of the violent nature of [Appellant’s] acts, the [c]ourt
ordered a pre-sentence investigation report (PSI) be prepared
prior to sentencing. The PSI, prepared on September 9, 2013,
reveal[ed] that [Appellant was] 22 years old with a juvenile
record of four arrests, including three in Texas. [Appellant] also
[had] three arrests as an adult, resulting in two convictions,
including the current matter. The report also note[d] that
[Appellant] refused to cooperate and that “he does not appear to
be a good candidate for community supervision.”
TCO at 20 (citations to the record omitted). At the sentencing proceeding,
the court stated that it considered the PSI, “listened to the arguments of
counsel, the evidence that was presented, as well as [Appellant’s]
presentation.” N.T. Sentencing, 9/10/13, at 33. Notably, the
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Commonwealth stressed to the court that, in light of Appellant’s criminal
record and the severity of his instant offenses, he posed a danger to the
community. Id. at 18-23. The Commonwealth also emphasized that
Appellant exhibited a complete lack of remorse for his present offenses. Id.
at 19, 24.
Prior to imposing its sentence, the court stated:
[The Court:] The offense gravity score in this case is high
because the crime is serious, but even this offense gravity score
understates the seriousness of this offense because of the
horrible injuries suffered by the victim.
There are so many different ways to commit aggravated
assault. And serious bodily injury is a definition that includes so
many different kinds of injuries, but the injury that we saw in
this courtroom was just horrific, and the jury found that it was
caused by [Appellant].
So on count one, charge of attempted murder, I impose
the maximum sentence, which is 20 to 40 years in a state
correctional institution.
Count three is possession of a firearm by a prohibited
person, and that law exists because the idea is that certain
people by their conduct have demonstrated that they should not
have a firearm. And based on what I heard, [Appellant’s] adult
and juvenile record, there’s no question that he should never be
anywhere near a firearm. And on that count, I impose the
maximum sentence of five to ten years in a state correctional
institution.
Count four is also a firearm violation, carrying a concealed
weapon. I impose a sentence of three to seven years. And
[PIC], a sentence of two to five years.
All of those sentences run consecutive for a total of 30 to
60 years in a state correctional institution.
Id. at 33-34.
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We concede that the court did not provide a lengthy statement of its
reasons for fashioning Appellant’s sentence. However, “a lengthy discourse
on the trial court’s sentencing philosophy is not required.” Commonwealth
v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (citation omitted).
“Rather, the record as a whole must reflect the court’s reasons and its
meaningful consideration of the facts of the crime and the character of the
offender.” Id. (citation omitted).
Here, the record evinces that the court considered the PSI, as well as
arguments and information presented by Appellant and the Commonwealth
regarding Appellant’s prior criminal history, lack of remorse, the danger he
poses to the community, the circumstances of his upbringing, and his
individual characteristics. Moreover, the court’s opinion bolsters our
interpretation of the record. There, the trial court stated:
In fashioning [Appellant’s] sentence, the [c]ourt agreed
with the Commonwealth’s assessment that [Appellant]
demonstrated a “complete lack of remorse” and has failed “to
take responsibility for anything that has happened in his life….”
The [c]ourt also agreed with the PSI assessment that [Appellant]
is not a good candidate for rehabilitation.
***
[Appellant’s] … complaint that the [c]ourt failed to
articulate “sufficient reasons” for imposing its sentence on the
charge of [PIC] misstates the record. The nature of [Appellant’s]
unprovoked shooting of [] Brown makes it abundantly clear that
[Appellant] poses a real threat to the community, has a callous
disregard for human life and should be forever barred from ever
having a gun in his possession.
***
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J-S65005-15
Likewise, [Appellant] … states that in sentencing [him], the
[c]ourt failed to take into account current family support and his
detrimental upbringing[, which] also misstates the record. Other
than argument by counsel, [Appellant] presented no evidence
relating to his current family support. His fiancé denied he was
involved in the shooting. Furthermore, the salutary effect of any
such evidence would have been negated by [Appellant’s] lack of
remorse and failure to accept responsibility for his acts.
TCO at 21-22.
The record of the sentencing proceeding, the statements by the court
prior to imposing Appellant’s sentence, and the rationale offered by the court
in its opinion demonstrate that Appellant’s term of incarceration for each
conviction, and his aggregate sentence, is not unreasonable or a manifest
abuse of the trial court’s discretion. Accordingly, even had Appellant
properly presented his discretionary aspects of sentencing claims in his Rule
2119(f) statement, and convinced us that they present substantial questions
for our review, we would deem them meritless.
In sum, all of Appellant’s issues are either waived and/or meritless.
Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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