Com. v. Johnson, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYREE JOHNSON
Appellant No. 2149 EDA 2014
Appeal from the Judgment of Sentence June 2, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006509-2013
CP-51-CR-0006510-2013
BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED APRIL 07, 2015
Tyree Johnson appeals from an aggregate sentence of 14-28 years’
imprisonment following his open guilty pleas to six counts of robbery,1 four
counts of burglary,2 three counts of aggravated assault,3 two counts of
conspiracy,4 one count of firearms not to be carried without a license 5 and
____________________________________________
1
18 Pa.C.S. § 3701.
2
18 Pa.C.S. § 3502.
3
18 Pa.C.S. § 2702.
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 6106.
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one count of carrying a firearm on public streets.6 Johnson contends the
trial court abused its discretion by imposing a substantially greater sentence
than that imposed on his co-defendant. We affirm.7
The charges against Johnson arise from two separate incidents on
February 24, 2013 and March 4, 2013, respectively. On February 24, 2013,
Christian Diaz and Todd Banks went to the area of 18th and Gratz Streets in
Philadelphia after arranging for the sale of Diaz’s dirt bike on Craig’s list.
N.T. 2/12/14, p. 16. Upon their arrival, Diaz and Banks met an unidentified
male whom they believed to be the purchaser of the dirt bike. While the
unidentified male was examining the bike, Johnson approached from behind
and pointed a gun at Diaz’s and Banks’ heads. The unidentified male fled
with the dirt bike while Johnson continued to hold Diaz and Banks at
gunpoint. Id. at 16. Defendant next ordered the men to “get in your
fucking car and get out of here.” Diaz and Banks entered their vehicle and
began chasing the unidentified male on the dirt bike. As they turned onto
Gratz Street, Johnson emerged from behind two parked cars and fired into
the front passenger side panel of the vehicle. Diaz and Banks were unable
to recover the dirt bike. Id. at 17.
____________________________________________
6
18 Pa.C.S. § 6108.
7
The court sentenced Johnson on June 2, 2014. On June 9, 2014, Johnson
filed timely post-sentence motions which the court denied on June 12, 2014.
On July 4, 2014, Johnson filed a timely notice of appeal. Both Johnson and
the trial court complied with Pa.R.A.P. 1925.
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On March 4, 2013, Kimberly Flack was walking home in the area of
18th and Berks Streets in Philadelphia. As she reached her front door,
Johnson approached from behind, placed a gun against her head and
ordered her inside. As Johnson pushed Flack up the stairs with the gun to
her back, co-defendants Malcolm Murray and Elijah Washington entered the
property and followed them. When they reached the second floor, Johnson
placed the gun to Flack’s head and ordered her into the kitchen, where he
bent her over the counter and duct-taped her mouth shut upon
Washington’s order to “shut her up.” Id. at 11-12. Murray and Washington
proceeded to the second floor of the apartment, where they robbed Flack’s
roommates, Katie Tressel, Katie Arthur and Annabelle Maxon, at gunpoint,
taking money, debit cards, computers and cell phones. Id. at 12-13. After
binding their hands and feet with duct tape, Murray and Washington told
Tressel, Arthur and Maxon: “Please don’t move, if you don’t move, we won’t
hurt you, but if you move, we’ll kill you, stay here for 30 minutes.” Id. at
13. Murray and Washington proceeded downstairs, where Johnson was
holding Flack at gunpoint. Johnson proceeded to take money from Flack,
and the three men exited the property. Id.
Police subsequently recovered video showing the three men using one
of the victims’ debit cards. Johnson and both co-defendants were identified
when the video was aired on the news. Id. Police also recovered video of
the men fleeing the victims’ apartment. A search of Johnson’s house yielded
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a red hoodie matching the one that Johnson wore in the video. Id. at 14.
When police stopped Johnson one day later, they recovered from his person
one of the i-pad’s stolen from Flack’s apartment. Id.
Diaz and Banks saw Johnson on the news in the video relating to the
March 4, 2013 home invasion and contacted police concerning the February
24, 2013 robbery. Diaz and Banks subsequently identified Johnson from
photo arrays. Id. at 17.
The lower court imposed an aggregate sentence of 14-28 years in CP-
51-CR-0006509-2013, the home invasion case, consisting of consecutive
sentences of 5-10 years’ imprisonment for the robbery charges at counts 1
and 6 and consecutive sentences of 2-4 years’ imprisonment for count 8
(firearms not to be carried without a license) and count 10 (carrying
firearms on public streets). The court imposed concurrent sentences on all
remaining charges. In CP-51-CR-0006510-2013, the dirt bike robbery case,
the court imposed sentences of 5-10 years’ imprisonment on the robbery
charges at counts 1 and 7 and the conspiracy charge at count 3. These
sentences ran concurrent to each other and to all charges at CP-51-CR-
0006509-2013.
In this appeal, Johnson raises a single issue:
Was the lower court’s sentence of 14-28 years at CP-
51-CR-0006509-2013 manifestly excessive and
disproportional to defendant’s conduct in that the
court failed to give adequate weight to defendant’s
lack of prior record and imposed a disproportionately
longer sentence than that imposed on defendant’s
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co-defendant (Malcolm Murray, CP-51-CR-0006508-
2013) who received an aggregate sentence of only
10-20 years despite engaging in the same conduct
as defendant?
Brief For Appellant, p. 3.
This claim raises a challenge to the discretionary aspects of Johnson’s
sentence. Challenges to the discretionary aspects of sentencing do not
entitle a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d
1058, 1064 (Pa.Super.2011). Before this Court can address such a
discretionary challenge, an appellant must comply with the following
requirements:
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.
Allen, 24 A.3d at 1064. The determination of whether a particular issue
raises a substantial question is to be evaluated on a case-by-case basis.
Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005).
Generally, however, in order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent with the
Sentencing Code or contrary to the fundamental norms underlying the
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sentencing process. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa.Super.2003).
Here, Johnson filed a timely notice of appeal and preserved his issues
in a post-sentence motion for reconsideration. Johnson’s brief includes a
concise statement of the reasons relied upon for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). Finally, Johnson has raised a substantial
question for review, namely an “excessive sentence claim [] in conjunction
with an assertion that the court did not consider mitigating factors.”
Commonwealth v. Gonzalez, -- A.3d --, 2015 WL 252446, *15
(Pa.Super., January 21, 2015).
Nevertheless, Johnson’s excessiveness claim is devoid of merit. We
find persuasive the trial court’s thorough analysis of this question:
[Johnson] essentially claims that he should have
received a sentence identical to his coconspirator,
Malcolm Murray. For the reasons that follow, this
claim is without merit.
It is well-settled that sentencing is a matter vested
in the discretion of the sentencing court and will not
be disturbed on appeal absent a manifest abuse of
discretion. Commonwealth v. Gribble, 703 A.2d
426, 437 (Pa.1997). ‘In this context, an abuse of
discretion is not shown merely by an error in
judgment. Rather, the [Johnson] must establish, by
reference to the record, that the sentencing court
ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or
ill will, or arrived at a manifestly unreasonable
decision.’ Commonwealth v. Rodda, 723 A.2d
212, 214 (Pa.Super.1999) (en banc) (citations and
internal quotations omitted). A reviewing court must
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accord great weight to the sentencing court’s
discretion because it is in the best position to view a
defendant’s character, exhibition of remorse,
indifference, and the general nature of the crime.
See Commonwealth v. Sierra, 752 A.2d 910, 915
(Pa.Super.2000); Commonwealth v. Brown, 741
A.2d 726, 735 (Pa.Super.1999) (en banc).
Here, it bears underscoring at the outset that, unlike
his co-conspirator, Mr. Murray, [Johnson] committed
another savage gunpoint robbery via a Craigslist
ruse prior to the home invasion, and fired a shot at
his victims on the public streets of Philadelphia. This
fact alone defeats [Johnson]’s argument.
Nonetheless, the record demonstrates that this
[c]ourt considered all relevant facts and
circumstances prior to imposing sentence.
Specifically, in addition to [Johnson]’s presentence
investigation report and the sentencing guidelines,
this [c]ourt expressly considered the violent nature
and circumstances of [Johnson]’s offenses, the
protection of the public, the gravity of the offenses,
the character and condition of [Johnson], including
his ADHD and anger issues, his lack of prior record,
his family background and support, his expression of
remorse, and his station in life as a young adult.
Additionally, this [c]ourt observed on the record:
‘It’s hard to describe the violence that was inflicted
upon four completely innocent Temple students in
the safety of their home that they were sharing in
order to educate themselves, to get their college
degree. To have been violated the way they were
truly has changed their lives forever. It must have
been so completely and utterly terrifying. I do note
that [Johnson] denies having a gun in the
presentence investigation, although in the
courtroom, he did admit to the facts which included
holding these girls at gunpoint while Mr. Murray duct
taped them and tied them up. He also, of course,
pled guilty to the second offense here involving
Craig’s List and the guy who showed up to buy a dirt
bike or sell a dirt bike, rather, and ended up getting
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held at gunpoint and actually being shot at in his van
by [Johnson]. For somebody with a zero prior record
score, it’s unusual to find this level of violence and
utter disregard for human life and safety and, quite
frankly, Mr. Johnson, you are fortunate that you’re
not in the homicide room here today. It’s a difficult
job when sentencing somebody who has no prior
record and has never before shown, at least in any
law enforcement way, this type of violent proclivity
or behavior. In crafting this sentence, I believe I
have considered both the fact that [Johnson] has
taken responsibility and has no prior record, as well
as the egregious violence that he committed both
against you girls as well as against the other victim
[Christian Diaz]....’
N. T. 06/02/14, pp. 29-30.
Thus, the record demonstrates that, contrary to
[Johnson]’s contention, this [c]ourt duly considered
all relevant factors and circumstances, including his
lack of prior record, in fashioning an appropriate
sentence. Accordingly, [Johnson] is due no relief.
Pa.R.A.P. Opinion, pp. 4-6. Based on the trial court’s analysis, we conclude
that Johnson’s sentence was within the court’s discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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