Com. v. Black, J. ( 2021 )

J-S29015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JONATHAN BLACK :
:
Appellant : No. 349 EDA 2021
Appeal from the Judgment of Sentence Entered December 12, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004447-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 30, 2021
During a botched illicit commercial interaction, Appellant Jonathan Black
shot at a car full of people while shouting “I’m going to fucking kill this whole
car, like this whole fucking car is going to die.”1 One of the shots shattered
the car’s window and struck passenger Derek Cooper in the face, causing
serious injuries. Appellant challenges the sufficiency of the evidence
supporting his attempted homicide conviction and alleges an abuse of
discretion in the discretionary aspects of his sentence, an aggregate of fifteen
to thirty years of imprisonment.2 We affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Trial Ct. Op., 4/23/21, at 7.
2 Id. at 2, Order of Sentence, 12/12/19; Appellant’s Brief at 3-4.
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This matter took a tortured turn, procedurally, and thus we recount only
the relevant period. On October 8, 2020, after multiple motions had been filed,
the trial court reinstated nunc pro tunc Appellant’s ability to file post-sentence
motions and a direct appeal.3 On November 5, Appellant filed post-sentence
motions. On January 11, 2021, the trial court denied those motions. On
February 4, Appellant filed the present timely appeal.
Appellant frames the issues presented as follows:
Was the evidence insufficient as a matter of law to convict
Appellant of criminal attempt[ed] homicide where the
Commonwealth failed to prove beyond a reasonable doubt that
[Appellant] had the specific intent to kill?
Did the [trial] court abuse its discretion by imposing an
unreasonable and manifestly excessive sentence that failed to
adhere to the general sentencing principles set forth in 42 Pa.C.S.[]
§ 9721(b), in that the [trial court] imposed a sentence that
exceeded what was necessary to protect the public, the
complainants, and the community, failed to fully consider
[Appellant’s] background and character, and imposed a sentence
that was well beyond what was necessary to foster the
rehabilitative needs of Appellant, and failed to state adequate
reasons for imposing such a lengthy sentence on the record?
Appellant’s Brief at 3-4 (questions reordered).
We review a challenge to the sufficiency of the evidence to determine
whether, when viewed in a light most favorable to the verdict winner, the
____________________________________________
3 We note that prior to nunc pro tunc reinstatement, a petition pursuant to
the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 was filed. Because
that filing occurred prior to nunc pro tunc reinstatement of Appellant’s direct
appellate rights, the PCRA petition is a legal nullity that will not prevent
Appellant from pursuing an initial, timely-filed PCRA petition in the future,
should he choose to do so.
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evidence at trial and all reasonable inferences therefrom sufficiently establish
each element of the crimes charged beyond a reasonable doubt. See
Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).
Appellant’s only challenge to his conviction raises the issue of whether
the evidence at trial was sufficient to establish specific intent. “The
circumstances of this case do not evidence [Appellant] firing his weapon with
the specific intent to kill; they evince a man who acted with reckless disregard
for the value of human life.” Appellant’s Brief, at 9-10.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901. Additionally, one “is guilty of
criminal homicide if he intentionally, knowingly, recklessly, or negligently
causes the death of another human being.” 18 Pa.C.S. § 2501. Intentional
killing, for purposes of Pennsylvania law, includes “any . . . kind of willful,
deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). Pennsylvania has
long recognized that “specific intent to kill may be inferred from the use of a
deadly force upon a vital part of the human body.” Commonwealth v.
Meredith, 416 A.2d 481, 485 (Pa. 1980); see also Commonwealth v.
Shank, 883 A.2d 658, 664 (Pa. Super. 2005). Here, Appellant loosed multiple
gunshots, striking one of his victims in the face. This evidence, standing alone,
was sufficient to establish a specific intent to kill.
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However, though this inference sufficiently supports the conviction, we
need not rely only on this inference. Appellant’s own statement at the time of
the shooting, credited by the factfinder, is also sufficient on its own to support
a finding of specific intent to kill. One who says “I’m going to fucking kill this
whole car, like this whole fucking car is going to die” may be presumed to
intend to do exactly that, especially when, as here, his behavior matches his
words. This claim must fail.
Second and finally, Appellant challenges the discretionary aspects of the
sentence imposed, an aggregate sentence of fifteen to thirty years of
imprisonment. “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.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004). When challenging the discretionary aspects of the sentence
imposed, an appellant must present a substantial question as to the
inappropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d
362, 365 (Pa. Super. 2005). “Two requirements must be met before we will
review this challenge on its merits.” McAfee, 849 A.2d at 274. “First, an
appellant must set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence.” Id. “Second, the appellant must show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code.” Id. That is, “the sentence violates either a specific provision of the
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sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Tirado, 870 A.2d at
365.
Appellant acknowledges, as he must, that he “must establish that the
sentence imposed is inappropriate under the Sentencing Code and raises a
substantial question.” Appellant’s Brief at 10 (citing Commonwealth v.
Kenner, 784 A.2d 808, 810-11 (Pa. Super. 2001); 42 Pa.C.S. § 9781(b);
Pa.R.A.P. 2119(f)). His brief, which includes a discrete statement of reasons
per Rule 2119(f), is technically compliant. See Appellant’s Brief at 10-13. He
argues that the trial court failed to consider Appellant’s “unique
circumstances” and rehabilitative needs. See id. at 12.
Even if assume that Appellant has raised a substantial question, we
conclude he is due no relief. “Our Supreme Court has determined that 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. Ventura, 975 A.2d 1128, 1133 (Pa. Super.
2009) (citation omitted). Here, the trial court had the benefit of a pre-sentence
report and we must presume it considered all relevant factors. And even if it
had not had the benefit of the pre-sentence report, we note the court
thoroughly addressed all of the required factors:
In imposing sentence, I accept that [Appellant] has had a
difficult upbringing.
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…
This episode did not end with the firearm transaction.
Indeed, it progressed, the jury concluded, to an attempt to rob
the victims, and then proceeded to a shooting in which four lives
were placed in danger, and the whole series of events concludes
with [Appellant] fleeing the authorities. All of those decisions are
consistent with very entrenched criminal thinking, and it’s clear to
me that not only does [Appellant,] based on the jury’s verdict and
conclusion as to what transpired, have significant drug[,] alcohol,
and mental health needs, but his identification with criminal
thinking needs to be addressed and that will take a long-term
period of treatment and intervention. I do consider the fact that
he received treatment and efforts were made to rehabilitate him
in almost every program used by Bucks County Juvenile
Probation. I do consider that. I do consider, however, he has no
significant adult criminal history.
…
So when I look at the fact that his rehabilitative needs are
significant; that the impact of a violent crime like this on the
community is significant; that it is only by chance that this was
not a Third-Degree Murder case, I do consider the need to protect
the community until those issues are addressed.
…
Any way I look at this case, anything less than a lengthy
period of incarceration diminishes the seriousness of this offense,
its impact on the community, and the clear rehabilitative needs of
[Appellant.] I do believe the Presentence Investigation
recommendation is appropriate.
N.T., 12/12/2019, at 19-22.
We cannot conclude that this discussion reveals an abuse of the trial
court’s discretion in imposing sentence. The court explicitly considered not
only Appellant’s upbringing, but also his lack of an adult criminal record and
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his rehabilitative needs. The discussion does not establish a court focused only
on the seriousness of the crime.
As we conclude neither of Appellant’s issues on appeal merit relief, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2021
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