Com. v. Stewart, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN A. STEWART
Appellant No. 1622 MDA 2015
Appeal from the Judgment of Sentence entered August 3, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0005521-2014
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 25, 2016
Appellant, Shawn A. Stewart, appeals from the judgment of sentence
entered on August 3, 2015 in the Court of Common Pleas of Dauphin County
following his convictions of, inter alia, robbery, burglary and criminal
conspiracy.1 Appellant contends the evidence was insufficient to support his
convictions, that his convictions were against the weight of the evidence,
that a Commonwealth witness offered false testimony, that the prosecutor
committed prejudicial misconduct in the Commonwealth’s closing argument,
and that his sentence was excessive. Following careful review, we affirm.
In its November 20, 2015 opinion, the trial court provided a thorough
factual summary of this case, the accuracy of which is confirmed by our
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1
18 Pa.C.S.A. §§ 3701(a), 3502(a)(1) and 903(a), respectively.
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review of the record. See Trial Court Opinion (“T.C.O.”), 11/20/15, at 1-8.
We adopt the trial court’s summary as our own and incorporate it herein by
reference as if fully set forth.
Briefly, in the two years leading up to early January 2014, Appellant
and Sandra Matos (“Sandra”) were engaged in a “friends with benefits”
relationship. As of January 2014, Sandra lived in a Middletown,
Pennsylvania townhome with her 13-year old twin sons. In the two months
leading up to January 6, 2014, Sandra’s father, Samuel Matos (“Matos”),
lived with Sandra and her sons after moving to Middletown from Puerto Rico.
On the morning of Monday, January 6, 2014, Sandra was at work and
her sons were at school when Matos heard a knock on the front door of the
townhome. He opened the door to find two males and one female who
asked for Sandra. When Matos explained she was not there, the three
entered the home uninvited. One intruder put a gun to Matos’ chest,
ordered him to the floor, zip-tied his wrists behind him, and placed an item
over his head. The other two intruders went upstairs and ransacked
Sandra’s bedroom and Matos’ bedroom before leaving the home with a small
blue suitcase belonging to Matos.
Matos was able to leave the home and summon assistance from a
neighbor who called the police. The police, in turn, called Sandra who
returned to the home. In the course of discussions with the police, Sandra
explained that she had fabricated a story—playing to Appellant’s perpetual
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interest in money—telling Appellant she was traveling to Puerto Rico over
the January 3-5 weekend to conduct business for her father and she was
returning to Middletown with $87,000 in a locked bag.
Following a police investigation, Appellant was arrested and charged
with burglary, robbery, conspiracy and other crimes. Following trial, a jury
found Appellant guilty of all ten counts against him. On August 3, 2015, the
trial court sentenced Appellant to consecutive terms of imprisonment
totaling not less than 28 years nor more than 56 years in a state correctional
institution, plus fines totaling $4,000.2 Each of the sentences fell within the
standard range for the crime committed. T.C.O., 11/20/15, at 8-9.
Appellant filed post-sentence motions, which the trial court denied.
This timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents the following five issues for our consideration, the
same five issues raised in his Rule 1925(b) statement of errors complained
of on appeal:
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2
The aggregate sentence included 8-1/2 to 17 years plus a $1,000 fine for
robbery; 7 to 14 years plus a $1,000 fine for burglary; 6 to 12 years plus a
$500 fine for criminal conspiracy to commit robbery; 4 to 8 years plus a
$500 fine for criminal conspiracy to commit burglary; 1-1/2 to 3 years plus a
$500 fine for criminal conspiracy to commit unlawful restraint; and 1 to 2
years plus a $500 fine for recklessly endangering another person. The trial
court did not impose any further sentence for criminal conspiracy to commit
false imprisonment, simple assault, theft by unlawful taking, or criminal use
of a communication facility. Costs of prosecution were also assessed for all
ten counts. Sentencing Hearing, 8/3/15, at 14-16.
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A. Whether Appellant’s conviction for “home invasion” crimes,
including robbery and burglary, must be overturned and
judgment arrested because the evidence is insufficient to
demonstrate beyond a reasonable doubt that he was one of
the three perpetrators of the crimes, particularly because
the victim repeatedly testified that the Appellant was not the
male who pointed the gun at him and could not identify him
as the other male, and the remaining circumstantial
evidence was too weak to sustain the convictions otherwise?
B. Whether Appellant’s convictions for “home invasion” crimes,
including robbery and burglary, were against the weight of
the evidence and must be vacated and a new trial granted
because the evidence is insufficient for a reasonable jury to
conclude beyond a reasonable doubt that he was one of the
three perpetrators of the crimes, particularly because the
victim repeatedly testified that the Appellant was not the
male who pointed the gun at him and could not identify him
as the other male, and the remaining circumstantial
evidence was too weak to sustain the convictions otherwise?
C. Whether the arresting officer wrongly and prejudicially
testified at trial that the Appellant was observed in one of
the vehicles near the scene of the “home invasion” at the
relevant time on surveillance video, which testimony was
flatly false and contrary to the evidence because, in fact,
there were no photos showing him in any of the vehicles?
D. Whether the prosecutor committed prejudicial misconduct
by arguing in his closing speech to the jury that the
Appellant “might” have been the male who held the gun to
the victim’s chest during the home invasion, which
argument was contrary to the evidence the Commonwealth
itself adduced at trial, to wit, the victim repeatedly testified
that the Appellant was not the male who pointed the gun at
him and could not identify him as the other male?
E. Whether Appellant’s aggregate judgment of sentence of 28
to 56 years of incarceration is manifestly excessive and far
too harsh a punishment because, although the individual
sentences were in the standard range of the applicable
guidelines, the sentencing court ran the sentences
consecutively, thereby focusing solely on the severity of the
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offenses to the exclusion of mitigating evidence and
effectively circumventing the guidelines in the process?
Appellant’s Brief at 8-9.
In his first issue, Appellant contends the evidence was insufficient to
support his convictions. As this Court has explained:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the factfinder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Jones, 954 A.2d 1194, 1196-97 (Pa. Super. 2008)
(citations and brackets omitted).
The trial court determined Appellant’s sufficiency challenge was limited
to his convictions for robbery and burglary, as well as conspiracy to commit
both of those crimes, based on his phrasing of the issue in his Rule 1925(b)
statement. In his 1925(b) statement, as in his brief filed with this Court,
Appellant states that his convictions for “home invasion crimes, including
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robbery and burglary” must be overturned for insufficiency of evidence
because the victim testified that Appellant was not the male who pointed the
gun at him, he could not identify Appellant as the second male intruder, and
the “remaining circumstantial evidence was too weak to sustain the
convictions.” Rule 1925(b) Statement at 1; Appellant’s Brief at 8. We
believe the trial court appropriately confined its review to the issues
preserved in Appellant’s 1925(b) statement, i.e., whether the evidence was
sufficient to support the home invasion crimes “including robbery and
burglary.”
The Commonwealth argues Appellant has waived the sufficiency issue
entirely for failure to identify the elements of the crimes Appellant contends
were not proven.3 The Commonwealth relies on a recent decision by this
Court in which we reiterated:
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3
Pursuant to 18 Pa.C.S.A. § 3701(a), “A person is guilty of robbery if, in the
course of committing a theft, he . . . (ii) threatens another with or
intentionally puts him in fear of immediate serious bodily injury[.]” Further,
pursuant to 18 Pa.C.S.A. § 3502(a)(1), “A person commits the offense of
burglary if, with the intent to commit a crime therein, the person: (1) enters
a building or occupied structure[.]” Finally, “A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he: (1) agrees with such other
person or persons that they or one or more of them will engage in conduct
which constitutes such crime or an attempt or solicitation to commit such
crime; or (2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
crime.” 18 Pa.C.S.A. § 903(a).
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If an appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the
element or elements upon which the evidence was insufficient.
This Court can then analyze the element or elements on appeal.
Where a 1925(b) statement does not specify the allegedly
unproven elements, the sufficiency issue is waived on appeal.
Commonwealth Brief at 18 (quoting Commonwealth v. Tyack, 128 A.3d
254, 260 (Pa. Super. 2015) (citations and brackets omitted)). We agree
with the Commonwealth that Appellant’s sufficiency issue does not specify,
in the traditional sense, which element or elements of robbery and burglary
were not established by sufficient evidence. However, we also recognize
that Appellant has specified that the Commonwealth failed to establish
perhaps the most basic “element” of the crimes of which he was convicted,
i.e., that he was “the person” who perpetrated the crimes. Therefore, we
decline to find Appellant has waived his sufficiency challenge entirely.
We shall limit our sufficiency review to the crimes of robbery, burglary
and conspiracy, as the trial court has done, and as Appellant has done in his
brief. See Appellant’s Brief at 28-38.
At the outset, we recognize, as this Court did in Jones, that the
Commonwealth may sustain its burden of proving elements of a crime by
circumstantial evidence and, importantly, that the jury passes upon the
credibility of witnesses and the weight of the evidence produced. While
Appellant suggests Sandra’s testimony was incredible and should be
completely discounted, that determination was for the jury, which heard
Sandra testify and even admit to lying about things she told Appellant.
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Appellant argues that Sandra’s story was “crazy” and “bizarre” and
that Sandra is a “major-league liar” who should not be believed. Appellant’s
Brief at 29, 31, 32. Despite Appellant’s denunciation of Sandra and her
testimony, our review establishes that parts of her testimony were
supported by testimony of other Commonwealth witnesses. Records from
Sprint revealed that from Friday, January 3, until Monday, January 6, 2014,
Appellant’s phone and Sandra’s phone “communicated with each other 234
times.” Notes of Testimony, 6/9/15, at 134. Further, an expert in the field
of historical cellular record analysis testified he was able to track the location
of Appellant’s cell phone, showing its movement from New York City on the
evening of Sunday, January 5, to Sandra’s Middletown neighborhood on the
morning of Monday, January 6, after the weekend during which Sandra
pitched Appellant her fabricated story of being in possession of a significant
amount of cash. Id. at 96-103.
Sandra’s testimony revealed that in a conversation on the morning of
January 6, Appellant asked Sandra if her sons were going to school. Id. at
50. She found the question odd because she and Appellant never discussed
her family. Id. During Sandra’s final conversation with Appellant before she
started work at 8 a.m. on January 6, Appellant told Sandra he was “coming
to get that money.” Id. at 52. Appellant had been to Sandra’s home
approximately 30 times, and had been on the second floor where her
bedroom was located. Id. at 66-68. Again, only her bedroom and the
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bedroom in which Matos was staying were ransacked. Id. at 56-57. As one
of the responding detectives observed, “It looked like whoever had done this
had known where they were looking—where they were going to look and had
found what they were looking for.” Id. at 118.
Sandra testified that she called Appellant at approximately 10 a.m., as
she was driving from work to her home after being contacted by the police
about the home invasion. She explained that Appellant “was disrespectful.
Angry. Yelling at Me. Cursing at me. . . . And he said to me, ‘Where’s the
fucking bag? I can’t find the bag.’” Id. at 54-55. Sprint records reveal that
the final communication—either call or text—between the two phones took
place at a time consistent with Sandra’s testimony concerning that
conversation. Id. at 134.
The Commonwealth also presented surveillance evidence from
cameras in Sandra’s neighborhood that showed three vehicles “casing” the
area before the home invasion and then driving in tandem after the invasion.
Id. at 131-32, 137-43. One of the three vehicles was an uncommon light
silver-blue Mercury SUV. Id. at 137, 141. Based on Appellant’s frequent
communications from prison with Maritza Melendez, who was identified as
Appellant’s girlfriend, the police drove to her address and observed “the
exact same vehicle in her driveway.” Id. at 142.
Appellant relies heavily on the testimony of Matos, contending that
he—as the victim of the crime—“repeatedly testified that Appellant was not
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the male who pointed the gun at him” and could not identify him as the
second male intruder. Appellant’s Brief at 28. However, Matos’ testimony
was not as unequivocal as Appellant suggests. When asked if the man who
held the gun to his chest was in the courtroom, Matos replied, “I believe no.”
Id. at 30. However, Matos also testified that he never saw the face of the
other male. Id. at 20-21. When asked if he recalled testifying at the
preliminary hearing that Appellant was not one of the people in his home, he
answered, “Well, I didn’t see him. Because one of those men, I didn’t see
their face.” Id. at 34.
One of the responding detectives, Detective Appleby, testified about
showing Matos a photo lineup, stating:
[W]e had placed [Appellant’s] photo in with seven other people
who look similar in nature to him.
And we’ve done these for years, and we do a lot of them. When
I set the photo array down for [] Matos to look at, he
immediately pointed to [Appellant] and said, “Not him.
Definitely not him.” I’ve never seen anybody do that in my
entire career as a police officer. He just immediately said, “that
is not him,” and pointed at his picture—[Appellant’s].
Id. at 127. Detective Appleby was asked about Matos’ demeanor
throughout the investigation and responded that Matos was “scared to
death. I don’t think this a situation he’s ever been in before, but he and
Sandra both seemed extremely scared of this situation. Sandra had stated
to us, too, that she had feared retaliation.” Id. at 129.
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Based on the entire record,4 we conclude the evidence was sufficient
to support Appellant’s convictions of robbery and burglary. To the extent
Appellant preserved a challenge to his conspiracy convictions, we find the
evidence was sufficient to support those convictions as well. As the trial
court noted:
[E]ven if the jury were unable to determine [Appellant’s] precise
role in the robbery and burglary, evidence supported his
participation as a conspirator. The Commonwealth’s burden to
establish that a defendant was part of a joint effort may be
established by wholly circumstantial evidence. Further, the
general rule of law [] pertaining to the culpability of conspirators
is that each member of the conspiracy is criminally responsible
for the acts of his co-conspirators committed in the furtherance
of the conspiracy.
T.C.O., 11/20/15, at 12-13 (quotations and citations omitted).
Viewing all of the evidence, including circumstantial evidence, in the
light most favorable to the Commonwealth, we find the evidence was
sufficient to support Appellant’s convictions. Appellant’s first issue fails.
Appellant next contends that the verdict was against the weight of the
evidence. Appellant preserved this issue by raising it in his post-sentence
motion. Post-Sentence Motion, 8/13/15, at 2-3. See R.Crim.P. 607(A) (“A
claim that the verdict was against the weight of the evidence shall be raised
with the trial judge in a motion for a new trial . . . (3) in a post-sentence
motion.”)
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4
We note that Appellant did not present any testimony or evidence on his
own behalf.
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Our Supreme Court has instructed:
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Commonwealth v.
Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984). Thus,
the trial court is under no obligation to view the evidence in the
light most favorable to the verdict winner. An allegation that the
verdict is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Brown, 538
Pa. 410, 648 A.2d 1177 (1994).
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citation
omitted). Further:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Id. at 753 (citations omitted). “It has often been stated that a new trial
should be awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.” Commonwealth v.
Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal quotations and citations
omitted).
The trial court concluded the evidence supported the jury’s findings
and “demonstrated that [Appellant] schemed to locate the supposed cash,
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forced his way in to the residence, tied up and held [] Matos at gunpoint and
removed a suitcase believed to contain the cash.” T.C.O., 11/20/15, at 14.
As reflected in our discussion of the evidence above, the Commonwealth
introduced ample evidence, including circumstantial evidence, to support
Appellant’s convictions. The jury was free to weigh the evidence as it did
and return a verdict of guilty. We cannot conclude that the trial court
abused its discretion by rejecting Appellant’s weight of evidence challenge.
Widmer, 744 A.2d at 751-52. Appellant’s second issue fails.
Appellant next argues that the arresting officer “wrongly and
prejudicially testified at trial that the Appellant was observed in one of the
vehicles near the scene of the ‘home invasion.’” Appellant’s Brief at 45.
Appellant contends that the officer’s testimony was false and misleading
because there were no photographs showing Appellant in any of the
vehicles.
The testimony in question involved an exchange between Appellant’s
trial counsel and the arresting officer as follows:
Q. And I asked you about the vehicles. You don’t know who was
in those vehicles. You never got a shot. You think [another
suspect] may have been in one of them but –
A. [Appellant] was in one of them. I don’t know about the other
guys.
Q. I’m sorry?
A. Shawn Stewart was in one of them.
Q. Do you have a picture of it?
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A. No.
Q. Well, the pictures that we saw here don’t show anybody in
those vehicles. Those windows are all blacked out; correct?
A. I don’t know if they’re all tinted.
Q. Well, when you testified you didn’t show us who was in those
vehicles, correct?
A. Correct. What I’m saying to you is those three vehicles—in
my experience as a police officer and detective—were the ones
that committed the crimes. We charged [Appellant]. I believe
he was in those vehicles.
Q. You believe?
A. I believe, yeah.
Q. That’s fair.
A. I believe that was how he got there and how he left.
Notes of Testimony, 6/9/15, at 155-56.
Appellant argues that the detective’s testimony was “false, misleading
testimony.” Appellant’s Brief at 45. We cannot agree. The detective
testified to his belief based on his experience. In fact, he used the word
“believe” three times in the course of the exchange. As the trial court
determined, the detective’s belief that Appellant was in one of the three
vehicles “constituted a credibility determination within the province of the
jury.” T.C.O., 11/20/15, at 14. “The jury was free to accept or reject any
and all facts and conclusions to which [the detective] testified [] in deciding
whether [Appellant] occupied one of the vehicles in the vicinity at the time
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surrounding the robbery.” Id. at 16. We likewise reject Appellant’s
contention that the testimony constitutes a Brady5 violation because the
Commonwealth failed at trial to correct the detective’s testimony. The rule
of Brady involves the discovery, after trial, of information known to the
prosecution but unknown to the defense. See United States v. Agurs, 427
U.S. 97, 103 (1976). Among other things, Brady holds “that a conviction
obtained by the knowing use of perjured testimony is fundamentally unfair.”
Id. Because, as stated, the detective testified as to his belief that Appellant
was in one of the vehicles based upon his experience as a police officer and
detective, the testimony could not be considered perjured and the jury was
free to accept or reject the testimony.6 Appellant’s third issue fails for lack
of merit.
In his fourth issue, Appellant claims prosecutorial misconduct for a
statement made by the prosecutor in the Commonwealth’s closing
argument. In the course of discussing the various crimes at issue, the
prosecutor stated, “So robbery. [Appellant] threatened serious bodily injury
or put in fear of serious bodily injury [] Matos. Well, he was an
accomplice, or we don’t know; he might have been the one holding
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5
Brady v. Maryland, 373 U.S. 83 (1963).
6
In light of our disposition of this issue, we decline to entertain Appellant’s
suggestion that the “plain error” federal standard be adopted in
Pennsylvania.
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the gun right in [] Matos’ chest. I mean, that’s the threat of death.”
Excerpted Transcript of Proceedings – Closing Arguments, 6/10/15, at 21-22
(emphasis added).
The trial court determined that Appellant’s fourth issue was waived for
lack of objection. T.C.O., 11/20/15, at 16. We agree. See, e.g.,
Commonwealth v. Andrulewicz, 911 A.2d 162, 167-68 (Pa. Super. 2006)
(failure to object to statements in prosecutor’s closing argument results in
waiver on appeal). However, even if not waived, we would dismiss
Appellant’s argument as meritless. As the Commonwealth notes, “Generally,
comments by the district attorney do not constitute reversible error unless
the unavoidable effect of such comments would be to prejudice the jury,
forming in their minds fixed bias and hostility toward the defendant so that
they could not weigh the evidence objectively and render a true verdict.”
Commonwealth Brief at 31 (quoting Commonwealth v. Strong, 563 A.2d
479, 483 (Pa. 1989) (internal quotations, citation and brackets omitted)).
Further, when delivering closing arguments, “the prosecutor is permitted
wide latitude in making argument to the jury.” Commonwealth v.
Chester, 587 A.2d 1367, 1377 (Pa. 1991). Because the prosecutor’s
remarks were not likely to prejudice the jury or prevent them from weighing
the evidence objectively, we decline to find that the remarks approach the
level of prosecutorial conduct warranting relief.
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In his fifth and final issue, Appellant argues that his sentence was
manifestly excessive due to the fact the trial court imposed his sentences
consecutively. Appellant also contends the trial court “focused exclusively
on the severity of the offenses arising from the home invasion to the total
exclusion of mitigating factors and his rehabilitative needs, thereby
effectively circumventing the Sentencing Code’s mandate that a sentence be
‘individualized.’” Appellant’s Brief at 54.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011). As this Court explained in Allen,
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Id.
In this case, Appellant filed a timely notice of appeal and preserved
the issue in a motion to modify his sentence. Appellant’s Post-Sentence
Motion, 8/13/15, at 2. Also, in his brief, Appellant included a Rule 2119(f)
Statement of the Reasons to Allow an Appeal to Challenge the Discretionary
Aspects of [his] Sentence. See Appellant’s Brief at 21-27. Therefore, we
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must determine whether Appellant has presented a substantial question that
the sentence appealed from is not appropriate under the Sentencing Code.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011). “An appellant making an excessiveness claim
raises a substantial question when he sufficiently articulates the manner in
which 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.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)
(internal citations and quotations omitted).
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011). The imposition of consecutive
rather than concurrent sentences will present a substantial question in only
“the most extreme circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.
Super. 2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013).
Nevertheless, as this Court has explained:
[A] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges
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if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in
an excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a sentence
will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal
denied, 91 A.3d 161 (Pa. 2014) (emphasis in original). This Court has since
held that an appellant’s “challenge to the imposition of his consecutive
sentences as unduly excessive, together with his claim that the court failed
to consider his rehabilitative needs upon fashioning its sentence, presents a
substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015). We
likewise find that Appellant’s claim of excessiveness, paired with his claim
the trial court failed to consider mitigating factors and rehabilitative needs,
presents a substantial question. Therefore, we grant the petition for
allowance of appeal and shall consider the merits of Appellant’s claim.
Appellant asserts that the trial court “looked entirely at the crimes with
which Appellant was convicted and the retributive aspect of the punishment,
and no weight at all was given to his rehabilitative needs and potential for
redemption.” Appellant’s Brief at 56-57. “Nor was the Appellant’s judgment
of sentence in keeping with the protection of the public, the gravity of the
offenses and his rehabilitative needs.” Id. at 57. We cannot agree.
As the trial court explained, “In properly exercising its discretion to
impose consecutive sentences, the court considered numerous relevant
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factors including the violent crimes upon an elderly man, [Appellant’s] lack
of amenability to rehabilitation and the danger he poses to the community.”
T.C.O., 11/20/15, at 16-17. The transcript from Appellant’s sentencing
hearing bears this out.
During the hearing, the Commonwealth provided a synopsis of
Appellant’s extensive criminal history, dating back to 1994, when Appellant
was 17 years old. Sentencing Hearing, 8/3/15, at 4-6. Before imposing
sentence, the trial court explained, “For the record, I have reviewed the
presentence report. I have also reviewed letters from Reverend Assistant
Pastor Anita Braxton of the McLamb Memorial Church of the Living God;
Gloria Stewart, [Appellant’s] mother; Maritza Melendez; Shaisa White. . . .
And finally I have the letter from [Appellant].” Sentencing Hearing, 8/3/15,
at 9. The court then summarized the evidence, which it characterized as
“overwhelming.” Id. at 9-11. The court next considered Appellant’s record,
stating:
Let’s take a look at his record. He has a prior record score
of 5. [On] October 10, 1994, he was charged with aggravated
assault, criminal conspiracy. It was reduced to recklessly
endangering another person, three days to six months,
immediate release. He would have been –
Second, July 10, 1996, two years later, he’s found guilty of
endangering – recklessly endangering another person, six
months to two years SCI; carrying a firearm without a license,
six months to one year SCI consecutive; recklessly endangering
another person, six months to one year SCI, consecutive one
and a half to three years. That was in ’96. In September of ’96,
he receives a one and a half to five year sentence for unlawful
possession of drug paraphernalia and criminal conspiracy
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possession with intent to deliver, and he receives one and a half
to five years for that. In 2005, he’s found guilty by a jury of
criminal conspiracy, attempted burglary, and receiving stolen
property and gets 18 to 60 months SCI, one and [a] half to five
years. That’s in 2005. In 2006, he’s sentenced to five years in
Federal prison for possession with intent to deliver a controlled
substance, and he we are in 2014. So 2006, he would have
gotten out[,] I would think, in 2011 or so, and within three years
of that he is – or close to four years – convicted of robbery,
burglary, criminal conspiracy to commit robbery and burglary,
criminal conspiracy to commit unlawful restraint, false
imprisonment, recklessly endangering another person, simple
assault by physical menace, theft by unlawful taking, and
criminal use of a communication facility.
Of course, we’ve reviewed the entire presentence report.
We’ve taken into consideration the letters that were introduced.
Quite frankly, with all due respect, because everybody is sincere
in their beliefs, but I find it hard to believe that some of those
people that wrote those letters know this young man because
they’re certainly contrary to his record and to the present case.
In sentencing a [d]efendant, the [c]ourt has to consider
the offense committed, the danger to the community that he
poses, the need for rehabilitation and the amount that is needed.
Of course, I have to consider his past record, which is extremely
violent, his past positive things that some of the letters spelled
out but that are – that pale next to the horrific crime that was
committed here, and it was very clear he believed that there was
a great deal of money in the house. [Sandra] foolishly was
testing him, and she’s lucky it didn’t end with the death of her
father.
Based on all of the information presented, a complete
review of this presentence report – And I note in particular what
the police said in here. He has a propensity for violence and is
concerned – this was Detective Appleby – about him being a free
man.
Well, based on all that I’ve indicated here, the
overwhelming evidence against him in the trial, and the fact to
give any lesser sentence to this man would place all of society in
danger, we sentence him as follows: . . . .
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Sentencing Hearing, 8/3/15, at 11-14. The trial court then imposed the
sentence set forth previously in this memorandum, totaling 28 to 56 years in
a state correctional institution, plus fines and costs. Id. at 14-16.
The provisions of 42 Pa.C.S.A. § 9781 specifically allow the imposition
of consecutive sentences and direct that the sentencing 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.” 42 Pa.C.S.A. § 9781(a) and
(b). Our review establishes that the trial court imposed consecutive
sentences as authorized by § 9781(a) and followed the mandates of
§ 9781(b). In doing so, the trial court neither ignored nor misapplied the
law. Further, we find that the trial court did not exercise its judgment for
reasons of partiality, prejudice, bias or ill will and did not impose a
manifestly unreasonable sentence. Therefore, we hold that the trial court
did not abuse its discretion in imposing Appellant’s aggregate sentence.
Appellant is not entitled to relief on his fifth issue challenging the
discretionary aspects of his sentence.
We find that each of Appellant’s issues is either waived or fails for lack
of merit. Therefore, we shall affirm his judgment of sentence. In the event
of further proceedings, the parties shall attach a copy of the trial court’s
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November 20, 2015 opinion to their filings in light of our incorporation
herein of the trial court’s summary of the factual background of this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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