Com. v. Hall, T. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TYREEK S. HALL, : No. 3670 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 26, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0013587-2013
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 15, 2017
Tyreek S. Hall appeals the judgment of sentence in which the trial
court sentenced him to serve a term of 20 to 40 years’ imprisonment for
third-degree murder and a consecutive sentence of 2½ to 5 years’
imprisonment for possession of an instrument of crime (“PIC”).1 After
careful review, we affirm.
Appellant’s convictions stem from a shooting incident. The record
reflects that Josiah McClarence and Daimeen Walker (“Walker”) engaged in a
brief fistfight with Nkingi Jones (“Jones”) and Gianni Bain (“Bain"). Walker
told his uncle about the incident. Walker’s uncle advised Walker to contact
appellant. Appellant asked Walker to identify the individuals involved in the
1
18 Pa.C.S.A. §§ 2502(c) and 907(a), respectively.
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fight. Appellant and Robert Anderson2 approached Jones and Bain who were
playing basketball with two other individuals in a driveway. Appellant pulled
out a gun from his waistband and fired seven shots into the group of young
men who scattered in different directions to escape the gunfire.
Tremaine Rogers, 17 years old and one of the young men playing basketball,
was shot and killed. (See trial court opinion, 6/7/16 at 2-4.)
Following a jury trial, appellant was convicted of the two crimes. On
June 26, 2015, the trial court imposed the sentences set forth above.
On July 2, 2015, appellant filed a post-sentence motion and asked the
trial court to reconsider his sentences because the imposition of the
statutory maximum for both crimes was excessive and he had never been
adjudicated delinquent or convicted of a crime before. Also, with respect to
the PIC conviction, appellant asserted that the trial court did not place on
the record the reasons for the maximum sentence. Additionally, he asked
the trial court to reconsider the imposition of consecutive sentences. By
order dated November 5, 2015, the trial court denied the motion by
operation of law pursuant to Pa.R.Crim.P. 720(B)(3). Appellant filed a notice
of appeal on December 4, 2015 and, on December 9, 2015, was ordered to
file a statement of matters complained of on appeal. Appellant complied
with the request on December 29, 2015.
2
Anderson was convicted of third-degree murder and was sentenced to 20
to 40 years of imprisonment. He was tried and sentenced with appellant.
Anderson has appealed to this court.
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Before this court on appeal, appellant contends that the trial court
abused its discretion when it imposed the maximum sentence on both
charges and ordered them to be served consecutively, when appellant had
no prior record. Appellant challenges the discretionary aspects of his
sentences.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, appellant timely filed his notice of appeal pursuant to
Pa.R.A.P. 902 and 903 and properly preserved his sentencing challenge in a
timely post-sentence motion.
“A failure to include the Rule 2119(f) statement does not automatically
waive an appellant’s argument; however, we are precluded from reaching
the merits of the claim when the Commonwealth lodges an objection to the
omission of the statement.” Commonwealth v. Love, 896 A.2d 1276,
1287 (Pa.Super. 2006), appeal denied, 940 A.2d 363 (Pa. 2007).
Appellant has failed to include a Rule 2119(f) statement in his brief, and the
Commonwealth has objected to this omission. Accordingly, appellant waives
the challenges to the discretionary aspects of his sentencing.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
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