Com. v. Rusling, S. ( 2019 )

J-A07013-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STYLLES J. RUSLING :
:
Appellant : No. 93 EDA 2018
Appeal from the Judgment of Sentence December 1, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008004-2016
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2019
Appellant, Stylles J. Rusling, appeals from the judgment of sentence
imposed on December 1, 2017, as made final by the denial of post-sentence
motions on December 18, 2017. We affirm.
The factual background of the case is as follows.1 On July 16, 2016,
Appellant was involved in an altercation with the victim, Kevin Twist.
Appellant spent the hours leading up to the altercation drinking in Reale’s
Sports Bar. Appellant worked as a bouncer at the bar, but he was not on duty
that night. After exiting the bar, at approximately 8:20 p.m., Appellant
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1 This factual summary is based on the notes of testimony from Appellant’s
plea hearing on October 3, 2017. At that hearing, the Commonwealth read
the facts underlying the plea into the record and then Appellant’s plea counsel
had the opportunity to add certain facts to that summary. See. N.T.,
10/3/2017, at 17-31. The entire incident described herein was captured on
video and played for the sentencing court prior to Appellant’s sentencing
hearing.
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* Former Justice specially assigned to the Superior Court.
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encountered the victim in the parking lot. The victim was a passenger in a
minivan, which was blocking the entrance to the parking lot. The victim, his
mother, and his 16-year-old son were in the minivan, waiting for the return
of the driver, who was assisting a wheelchair-bound woman into a bingo hall.
Appellant’s boss, the manager of the bar, was blocked by the minivan.
Appellant approached, gesturing at the minivan and his boss’s car, and the
victim got out of the minivan. The men argued for about a minute, then the
victim walked back to the minivan. Appellant followed the victim back to the
minivan and they argued for another minute. Appellant walked to his boss’s
car and the victim followed. Then, the victim got back into the minivan, but
before he could shut the door, Appellant bent down and called him a “clown”
and a “pussy.” The victim got out of the minivan and punched Appellant in
the face twice. Appellant pushed the victim against the minivan and the victim
continued to throw punches, causing Appellant to suffer multiple fractures to
his nose. Appellant went to his knees and began pulling on the victim’s shirt.
The victim tried to pull away, and Appellant held on to the bottom of his shirt.
At that point, Appellant pulled out a .40 caliber firearm and fired two shots at
the victim in quick succession. One shot hit the victim in the arm and the
other hit him in the chest. Both Appellant and the victim’s mother attempted
to stop the bleeding with their shirts. Appellant performed chest compressions
on the victim, but he was pronounced dead by paramedics on the scene. A
toxicology report indicated that the victim had methamphetamine, cocaine,
and PCP in his system.
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On October 3, 2017, Appellant pled guilty to voluntary manslaughter 2
and possession of an instrument of crime (“PIC”).3 On December 1, 2017, the
sentencing court sentenced Appellant to ten to 20 years’ incarceration on the
voluntary manslaughter charge and five years’ probation on the PIC charge,
to be served consecutively. On December 4, 2017, Appellant filed a motion
for reconsideration of sentence. On December 18, 2017, the motion was
denied without a hearing. This timely appeal followed.4
Appellant presents a single issue for our review:
Whether the [sentencing] court abused its discretion in sentencing
the [A]ppellant to an unduly harsh and excessive sentence by
imposing a sentence that was far outside of the applicable
sentencing guidelines?
Appellant’s Brief at 4.
In his lone issue, Appellant argues that he received an excessive
sentence. This issue challenges the discretionary aspects of his sentence.
Pursuant to statute, Appellant does not have an automatic right to appeal the
discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,
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2 18 Pa.C.S.A. § 2503(b).
3 18 Pa.C.S.A. § 907(a).
4 On December 27, 2017, Appellant filed a notice of appeal to this Court. On
January 10, 2018, the sentencing court issued an order requiring Appellant to
file a concise statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied. The court issued its opinion
on April 9, 2018.
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Appellant must petition this Court for permission to appeal the discretionary
aspects of his sentence. Id.
In order to reach the merits of a discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his or her
issue; (3) whether Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the Sentencing Code.
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned
up). Appellant filed a timely notice of appeal and preserved the issue in his
post-sentence motion.5 Appellant’s brief contains the requisite 2119(f)
concise statement and, as such, is in compliance with the procedural
requirements to challenge the discretionary aspects of his sentence.
Generally, to raise a substantial question an appellant must “advance a
colorable argument that the trial judge’s actions were: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. McKiel,
629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). When determining whether an appellant has set forth a substantial
question, “[o]ur inquiry must focus on the reasons for which the appeal is
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5 In his post-sentence motion, Appellant only challenged his sentence for
voluntary manslaughter. He did not preserve a challenge to his probationary
sentence for PIC.
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sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005).
In his 2119(f) statement, Appellant argues that the sentencing court
abused its discretion by imposing a sentence outside of the sentencing
guidelines without considering certain mitigating factors. Appellant’s Brief at
11-13. Thus, Appellant presents a substantial question and we will review his
appeal on the merits. See Commonwealth v. Felmlee, 828 A.2d 1105,
1107 (Pa. Super. 2003) (en banc)(stating that a substantial question is raised
where appellant alleges the sentencing court imposed an aggravated range
sentence without adequately considering mitigating circumstances).
In reviewing a [discretionary] sentencing claim, we are mindful
that[ w]e must accord the sentencing court great weight as it is
in the best position to view the defendant's character, displays of
remorse, defiance or indifference, and the overall effect and
nature of the crime. An appellate court will not disturb the lower
court's judgment absent a manifest abuse of discretion. In order
to constitute an abuse of discretion, a sentence must either
exceed the statutory limits or be so manifestly excessive as to
constitute an abuse of discretion. Further, a sentence should not
be disturbed where it is evident that the sentencing court was
aware of sentencing considerations and weighed the
considerations in a meaningful fashion.
Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009)(internal
quotation omitted), citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.
Super. 2000).
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Preliminarily, Appellant received a sentence of ten to 20 years’
incarceration for voluntary manslaughter. He had a prior record score of zero.
With the deadly weapon enhancement, the standard guideline range for
voluntary manslaughter is four and one-half to six years, plus or minus one
year for an aggravated or mitigated sentence. See 204 Pa.C.S.A.
§ 303.17(b). However, the record reflects that, as part of his plea agreement
with the Commonwealth, Appellant consented to a sentence of not less than
six years’ imprisonment. At Appellant’s plea hearing, the court confirmed that
Appellant understood his sentence could be greater than six years, but not
less. N.T., 10/3/2017, at 17.
First, Appellant argues that his sentence is excessive because it is “far
outside of the aggravated range[.]” Appellant’s Brief at 11. It is well settled
that the sentencing guidelines are not mandatory—they “recommend [] rather
than require a particular sentence.” Commonwealth v. Walls, 926 A.2d
957, 965 (Pa. 2007). When a sentencing court imposes a sentence outside of
the statutory guidelines, it must “provide a contemporaneous written
statement of the reason or reasons for deviation from the guidelines,” or it
must state those reasons on the record in the presence of the defendant. 42
Pa.C.S.A. § 9721(b); Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.
Super. 2014). When fashioning a sentence, the court shall, “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.
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§ 9721(b). Moreover, “where the trial court is informed by a pre-sentence
report, it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.” Commonwealth v. Bullock, 170
A.3d 1109, 1126 (Pa. Super. 2017)(internal quotation and citation omitted).
Here, the sentencing court put its reasons for deviation from the
guidelines on the record, in Appellant’s presence, at the sentencing hearing.
N.T., 12/1/2017, at 43-51. The court took into consideration a pre-sentence
report and letters written on behalf of the victim and on behalf of Appellant.
The sentencing court then highlighted the aspects of the case that it found
warranted a sentence outside of the aggravated range. The court noted that
Appellant was carrying a loaded gun when he had been drinking for hours and
he shot the victim in front of the victim’s mother and son. It also noted that
Appellant involved himself in a dispute, essentially over parking, which had
nothing to do with him. The court considered the fact that Appellant was
“gigantic next to [the victim],” and that Appellant instigated the physical fight
by following the victim back to the van and continuing to call him names.
N.T., 12/1/2017, at 45. Additionally, the court pointed out that the victim was
unarmed and, “[t]here was absolutely no need to pull a gun in this case.”
N.T., 12/1/2017, at 46. Finally, the sentencing court discussed a social media
post made by Appellant, which the Commonwealth included in its sentencing
memorandum. The post featured a photograph of Appellant pointing a gun at
the camera with the caption, “f**k wit me.” The court was troubled by the
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post and said it reflected a “vigilante” attitude and that Appellant was “looking
for trouble.” N.T., 12/1/2017, at 46 and 47. Appellant argues that the
sentencing court afforded impermissible weight to the photograph when
fashioning his sentence. He avers that the photograph was taken 13 years
before his sentencing, when Appellant was 15 years old. Appellant, however,
does not allege that the photograph was somehow inadmissible. Instead, he
argues that the sentencing court ignored certain mitigating factors, including
his rehabilitative potential, and placed too much emphasis on the photograph.
We find Appellant’s argument unavailing.
As stated above, the sentencing court was informed by a pre-sentence
report. The court also noted on the record that Appellant had no record, a
great deal of family support, and a background as an EMT and volunteer
firefighter. N.T., 12/1/2017, at 43-44. Obviously, “the sentencing court was
aware of sentencing considerations and weighed the considerations in a
meaningful fashion.” Miller, 965 A.2d at 277. The sentencing court’s decision
was not manifestly excessive or unreasonable. Thus, Appellant is not entitled
to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/19
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