Com. v. Perkins, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MATTHEW KANE PERKINS :
:
Appellant : No. 442 MDA 2020
Appeal from the Judgment of Sentence Entered February 22, 2013
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003892-2011
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020
Appellant, Matthew Kane Perkins, appeals nunc pro tunc from the
aggregate judgment of sentence of 20 to 40 years’ incarceration, followed by
20 years’ probation, imposed after a jury convicted him of two counts of third-
degree murder, three counts of aggravated assault, possession of a firearm
by a person prohibited, possession of a firearm by a minor, possessing an
instrument of crime, and recklessly endangering another person.1 On appeal,
Appellant challenges the sufficiency and weight of the evidence to sustain his
convictions, as well as the discretionary aspects of his sentence. After careful
review, we affirm.
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1 18 Pa.C.S. §§ 2502(c), 2702(a)(1), 6105(a)(1), 6110.1(a), 907(a), and
2705, respectively.
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The trial court summarized the facts underlying Appellant’s convictions,
as follows:
The incident which gave rise to Appellant’s conviction[s]
occurred sometime between the late night of July 29, 2011[,] to
the early morning of July 30, 2011. On that date, a party was
being held in a garage that was located at Green and 11th Street,
Reading, Berks County. See Notes of Testimony, Jury Trial,
1/30/13, 1/31/13, 2/1/13, at 35. (hereinafter N.T.[] Jury Trial).
Between twenty-five to fifty Hispanic people were present at the
party, [as well as] Appellant, who is African American. At some
point, the party ended for an unknown reason, and people started
to leave. Id. at 37. However, after people started to leave the
party, a confrontation occurred between a group that included
some people who were at the party, including Juan Carlos
Pimental, Ceasor Rivera,[2] and Tyre Little, and a group of four or
five African Americans, including Appellant, near an unnamed
alleyway between Heckmans Court and Mulberry Street. Id. at
219, 256-57. A gun was visible [i]n Appellant’s pants. Id. at 221.
Appellant stated that he did not want any trouble, and Rivera
approached Appellant and reached for Appellant’s gun. Id. at
214, 218. At this point, the other African Americans started to
attack Rivera. Id. at 219. Rivera was able to break free and
continued to fight[,] aided by Pimental and a number of other
people. Id. at 222, 258. At some point, Appellant was knocked
down, and when he stood up, he pulled out the gun he was
carrying and told everyone not to move while waving the gun in
front of him. Id. at 223. He then tried to leave through the
alleyway towards Mulberry Street. Id. at 224. He was followed
by those who were involved in the fight, including Pimental and
Rivera. Id. at 237.
In the alleyway, Appellant fired several shots. Id. at 43-44.
One shot struck Pimental in the neck. Id. at 126. Appellant then
started to run towards Mulberry Street. Rivera and about five
other people pursued Appellant. While fleeing, Appellant, without
looking back, continued to fire several shots behind him. Id. at
45-47. Five shots struck Rivera, one of which struck him in the
chest. Id. at 305. Little, who attempted to flee after shots were
fired, was also shot in the leg. Id. at 262-63[]. During this
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2 We note that the transcript uses the spelling “Cesar” rather than “Ceasor.”
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confrontation, no one else present had a gun, however, a knife
blade and a knife handle were later located in the alleyway. Id.
at 264, 391-92.
Rivera died that night as a result of the wound to his chest.
Id. at 308. Pimental was transported to Reading Hospital and was
intubated. Id. at 126. Until the time of his death six months
later, Pimental was on a ventilator and quadriplegic. Id.
Pimental’s cause of death was due to the injuries he sustained.
Id. at 130. Little had trouble walking for a few days, but fully
recovered and has no present medical issues. Id. at 263.
A short time after the incident, Appellant called and spoke
to Brina Mayton over the phone. Mayton knew Appellant because
her sister was in a relationship with one of Appellant’s brothers.
Id. at 324. Mayton asked Appellant about what had happened
that night, and Appellant stated that one of his boys was in trouble
and that he went to protect him then ran. Id. at 327. Appellant
admitted over the phone that he shot someone, but said the
person had pulled out a knife. Id. at 334. After the incident,
Appellant fled to Florida, where he was later arrested and
extradited to Pennsylvania.
Trial Court Opinion (TCO), 5/21/20, at 3-4.
Based on this evidence, the jury convicted Appellant of the above-stated
charges. On February 21, 2013, he was sentenced to an aggregate term of
20 to 40 years’ incarceration, followed by 20 years’ probation. He did not file
a post-sentence motion or a direct appeal. However, on March 6, 2014,
Appellant filed a timely petition under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, seeking the restoration of his post-sentence motion
and appeal rights. After delays caused by changes in Appellant’s counsel, the
court granted Appellant’s petition on November 18, 2019. Appellant filed a
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post-sentence motion on December 2, 2019.3 After a hearing, the court
denied Appellant’s post-sentence motion on February 4, 2020. He filed a nunc
pro tunc notice of appeal on March 4, 2020,4 and he complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on May 21,
2020.
Herein, Appellant presents three issues for our review:
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3 Appellant’s motion was not filed within 10 days of the court’s order granting
his petition. In the motion, Appellant’s counsel explained that it was untimely
because he had not received the court’s November 18, 2019 order until Friday,
November 29, 2019, which was a court holiday, making the next possible filing
date Monday, December 2, 2019. See Nunc Pro Tunc Post-Sentence Motion,
12/2/19, at 1 (unnumbered); see also 1 Pa.C.S. § 1908 (“When any period
of time is referred to in any statute, such period in all cases … shall be so
computed as to exclude the first and include the last day of such period.
Whenever the last day of any such period shall fall on a Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).
Appellant’s counsel expressly requested that the “[c]ourt grant [Appellant] a
[n]unc [p]ro [t]unc filing on []his post-sentence motion….” Nunc Pro Tunc
Post-Sentence Motion at 2 (unnumbered). On December 5, 2019, the court
issued an order scheduling a hearing for February 4, 2020, thus expressly
permitting the filing of Appellant’s post-sentence motion nunc pro tunc and
tolling the 30-day appeal period. See Commonwealth v. Capaldi, 112 A.3d
1242, 1244 (Pa. Super. 2015) (stating that a defendant’s untimely post-
sentence motion may toll the appeal period where he explains the
untimeliness and requests that the trial court accept his motion nunc pro tunc,
and the court expressly permits the filing of the motion nunc pro tunc).
4We observe that Appellant’s notice of appeal incorrectly stated that he was
appealing from the February 4, 2020 order denying his post-sentence motion.
Because an appeal properly lies from the judgment of sentence, we have
corrected the caption accordingly. See Commonwealth v. Shamberger,
788 A.2d 408, 410 n.2 (Pa. Super 2001) (en banc).
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1. Whether the evidence was insufficient to find [Appellant] guilty
of murder of the third degree, aggravated assault, possession of
a firearm by a minor, and possession of instruments of crime?
2. Whether the verdicts of guilty of murder of the third degree[,]
aggravated assault, possession of a firearm by a minor, and
possession of instruments of crime were against the weight of the
evidence?
3. Did the trial court abuse its discretion in imposing sentence, in
light of the imposition of a maximum sentence, as it is manifestly
excessive so as to inflict to[o] severe a punishment on [Appellant]
and was not warranted under the circumstances of the within case
or the factors enumerated in the Sentencing Code[,] which did not
militate in favor of total confinement of the length imposed in this
case[,] by failing to give proper consideration [to] any
rehabilitative incentive on behalf of [Appellant] and the mitigating
factors presented at sentencing[,] and focusing only on the
punitive needs of the Commonwealth to the exclusion of all
others[?]
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
Appellant first contends, generally, that none of his convictions can
stand because “the Commonwealth had no real, direct evidence that
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[Appellant] was the shooter. None of the eyewitnesses to the crimes that the
Commonwealth called to the witness stand ever identified [Appellant] as the
person who shot a gun.” Appellant’s Brief at 14-15.
Appellant’s argument is belied by the record. For instance, Daniel
DeLaRosa testified that he was at the party on the night of July 30, 2011, and
he witnessed the shooting afterwards from a distance of approximately 30
feet. N.T. Jury Trial at 35-36, 40. He stated that he was able to see the
shooter, whom he recognized from school. DeLaRosa then identified Appellant
in court as the person he saw shooting that night. Id. at 44. Additionally,
Brina Mayton testified that Appellant admitted to her that he had shot
someone on the night of the party. Id. at 327. This evidence was sufficient
for the jury to find, beyond a reasonable doubt, that Appellant was the
individual that shot the victims in this case.
Appellant also challenges the sufficiency of the evidence to sustain his
conviction of third-degree murder, claiming that the Commonwealth failed to
prove that he acted with malice. According to Appellant, the evidence
demonstrated that he fired the shots to stop the fight, and he did so as he ran
away from the crowd that was “surg[ing] after him.” Appellant’s Brief at 17.
Appellant also maintains that the evidence did not prove that he intentionally
shot Little so as to support his conviction of aggravated assault.
Appellant’s arguments are unconvincing. Our Supreme Court has
explained:
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Pennsylvania retains the common law definition of murder, which
is a killing conducted “with malice aforethought.”
Commonwealth v. Santos, … 876 A.2d 360, 363 ([Pa.] 2005);
Commonwealth v. Thomas, … 594 A.2d 300, 301 ([Pa.] 1991).
Section 2502 of the Pennsylvania Crimes Code categorizes murder
into degrees. See generally 18 Pa.C.S. § 2502(a)-(c). Third-
degree murder is defined as “all other kinds of murder,” i.e., those
committed with malice that are not intentional (first-degree) or
committed during the perpetration of a felony (second-degree).
Id. The pertinent provision of the aggravated assault statute
requires proof that the defendant “attempt[ed] to cause serious
bodily injury to another, or cause[d] such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).
… [T]he mens rea required for a conviction of aggravated assault,
like third-degree murder, is malice; only the result of the crimes
differ. See Commonwealth v. O'Hanlon, … 653 A.2d 616, 618
([Pa.] 1995) (“Aggravated assault is, indeed, the functional
equivalent of a murder in which, for some reason, death fails to
occur.”)….
The overarching definition of malice was first provided by this
Court in Commonwealth v. Drum, 58 Pa. 9 (1868):
[I]t is not malice in its ordinary understanding alone, a
particular ill-will, a spite or a grudge. Malice is a legal term,
implying much more. It comprehends not only a particular
ill-will, but every case where there is wickedness of
disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty,
although a particular person may not be intended to be
injured.
Id. at 15. This definition has been continuously repeated and
relied upon in decisions by this Court, see, e.g., Commonwealth
v. Fisher, … 80 A.3d 1186, 1191 ([Pa.] 2013); Santos, 876 A.2d
at 363; Thomas, 594 A.2d at 301; Commonwealth v. McGuire,
… 409 A.2d 313, 316 ([Pa.] 1979), and is incorporated into the
Pennsylvania Suggested Standard Criminal Jury Instructions for
third-degree murder. Pa. SSJI (Crim) § 15.2502C (2016).
While Drum’s definition of malice lacks finite parameters, for the
purpose of third-degree murder or aggravated assault, “our courts
have consistently held that malice is present under circumstances
where a defendant did not have an intent to kill, but nevertheless
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displayed a conscious disregard for ‘an unjustified and extremely
high risk that his actions might cause death or serious bodily
harm.’” Santos, 876 A.2d at 364 (quoting Commonwealth v.
Young, … 431 A.2d 230, 232 ([Pa.] 1981)).
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017).
In this case, the trial court relied on Packer to conclude that malice was
established, reasoning as follows:
In this case, the evidence examined in a light most favorable to
the Commonwealth reveals that Appellant fired multiple shots into
a crowd of people while attempting to flee. One of these struck
Pimental in the neck and another struck Rivera in the chest,
resulting in their deaths. Our Supreme Court has stated that the
reckless firing of a gun into a crowd of people is evidence that the
shooter acted with malice. [Packer, 168 A.3d at 169]. Therefore,
there was sufficient evidence for the jury to conclude that
Appellant acted with malice and to find Appellant guilty of third[-
]degree murder.
TCO at 7.
We agree with the trial court that Appellant’s act of firing a gun into the
crowd of people in the alleyway was sufficient to demonstrate the malice
element of third-degree murder. See Packer, 168 A.3d at 169 (“The
quintessential example of the level of recklessness required to constitute
malice is a defendant who shoots a gun into a crowd. If a man fires a gun
into a crowd and kills another it is murder, because the fact of the reckless
shooting of a gun into a crowd is malice in law. That wicked and depraved
disposition and that recklessness and disregard of human life is malice.”)
(citation and internal quotation marks omitted). The fact that the crowd was
fighting, and that several people were chasing Appellant, does not change our
decision. Initially, Appellant fails to point to any evidence indicating that he
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could not have retreated when the fight first started. Once Appellant did begin
to flee, there is no evidence that he could not have continued to run and made
it to safety without firing his weapon. Instead, Appellant chose to shoot “with
his hand behind” him as he ran, and was “looking over his right shoulder”
towards Cesar as he fired. N.T. Jury Trial at 45, 46. Notably, multiple
eyewitnesses testified that no one, including Cesar, had a gun. See id. at 48-
49, 50, 52, 221, 264. We agree with the trial court that this evidence, viewed
in the light most favorable to the Commonwealth, was sufficient for the jury
to find that Appellant acted with malice in shooting and killing Pimental and
Cesar, and injuring Little. Therefore, his convictions for third-degree murder
and aggravated assault must stand.
In Appellant’s next issue, he challenges the weight of the evidence to
support the jury’s verdict.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
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Presently, Appellant solely argues that the verdict was against the
weight of the evidence because “it was based on speculation as to who actually
fired [the] shots and who actually possessed the gun.” Appellant’s Brief at
18. For the reasons set forth in our discussion of Appellant’s sufficiency claim,
we disagree. Several witnesses identified Appellant as the shooter, and
testified that he was the only individual who had a gun that night. Accordingly,
his cursory weight-of-the-evidence argument is meritless.
In Appellant’s third and final issue, he challenges the discretionary
aspects of his sentence.
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:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
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.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann, 820
A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
A.2d 599 (2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
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exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant timely filed his nunc pro tunc appeal, and he has
included a Rule 2119(f) statement in his appellate brief. Therein, he claims
that the court’s sentence of 20 to 40 years’ imprisonment, followed by 20
years’ probation, is “manifestly excessive, clearly unreasonable, and contrary
to the fundamental norms underlying the Sentencing Code.” Appellant’s Brief
at 10. Specifically, he contends that the court only gave “limited consideration
[to] the statutory factors” set forth in 42 Pa.C.S. § 9721(b), and it “failed to
offer reasons for its sentence that comport with the considerations required
under [s]ection 9721(b).” Id. at 11. We conclude that Appellant preserved
these claims in his post-sentence motion, and that they present substantial
questions for our review. See Commonwealth v. Derry, 150 A.3d 987, 992
(Pa. Super. 2016) (finding that a claim that “the trial court failed to
consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense and the rehabilitative needs
of Appellant, as 42 Pa.C.S.[] § 9721(b) requires[,] presents a substantial
question for our review in typical cases”) (internal quotation marks and
citations omitted); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.
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Super. 2003) (declaring that a claim that the sentencing court failed to state
sufficient reasons for the sentence imposed raises a substantial question).
However, in the argument section of Appellant’s brief, he only baldly
remarks that the court “failed to give proper consideration [to] any
rehabilitative incentive on behalf of [Appellant,]” and offers no developed
argument regarding this claim. Appellant’s Brief at 19. He also provides no
discussion of his assertion that the court did not properly consider the other
section 9721(b) factors. Instead, Appellant focuses his argument on
contending that the court’s sentence is excessive in light of mitigating factors,
such as his young age, his lack of family support, and the circumstances of
his case, which indicate he was just “a fearful child who made a rash decision”
after a fight broke out and individuals attacked his friends. Id. at 20. Based
on these mitigating factors, Appellant insists that “[h]is sentence should have
been in the lower end of the sentencing guidelines.” Id.
Appellant did not argue that mitigating factors warranted a lesser
sentence in his post-sentence motion, or in his Rule 2119(f) statement.
Therefore, he has waived this claim. See Commonwealth v. Griffin, 65
A.3d 932, 936 (Pa. Super. 2013) (“[I]ssues challenging the discretionary
aspects of a sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”) (citation omitted).
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Notwithstanding waiver, we would conclude that Appellant’s sentencing
challenge is meritless. We note:
[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, 169–70 (Pa. Super. 2010)
(citation omitted).
In this case, the trial court explained its sentencing decision in its Rule
1925(a) opinion, as follows:
In this case, the [c]ourt imposed sentences for Appellant’s
convictions of third[-]degree murder, aggravated assault,
possession of firearm prohibited, possession of firearm by minor,
and possessing instrument of crime. For third[-]degree murder,
the standard range sentence is 84-240 months, mitigated to 72
months, and the statutory maximum is 480 months. For
aggravated assault, the standard range is 42-60 months,
aggravated to 72 months, mitigated to 30 months, and the
statutory maximum is 240 months. For possession of firearm
prohibited, the standard range is 30-42 months, aggravated to 54
months, mitigated to 18 months, and the statutory maximum is
120 months. For possession of firearm by a minor, the standard
range is restorative sanctions to 6 months, aggravated to 9
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months, and the statutory maximum is 60 months. For
possessing instrument of a crime, the standard range is
restorative sanctions to 9 months, aggravated to 12 months, and
the statutory maximum is 60 months. Therefore, the sentence
the [c]ourt imposed on Appellant went above the Sentencing
Guidelines, but were within the statutory maximum.
At the time of sentencing, the sentencing guidelines were
placed on the record in accordance with 42 P[a.]C.S.[] § 9721(d).
N.T. Sentencing Hearing[, 2/21/13,] at 42-45. Additionally, the
[c]ourt placed numerous reasons for Appellant’s sentence on the
record:
In fashioning a sentence, I have considered everything in
the pre-sentence report. I have considered the impact on
the victims and the victims’ family. I have considered the
fact that [Appellant]’s conduct caused Mr. Pimental
immense[,] immeasurable suffering over six months. I
have considered the sentencing guidelines. I have
considered the testimony of [Appellant’s] probation officers
- Juvenile Probation Officers, the testimony of Mr. Snyder
and Mr. Heydt. I’ve consider his juvenile record and his
successes and failures during his supervision in the Juvenile
Justice System. I’ve considered his family background. It
is clear that he had a very weak family structure. He had
virtually no parental supervision. I’ve considered the fact
that he did not do very well in the juvenile system. He did
not do very well under supervision. He violated his juvenile
probation on a number of occasions. I’ve certainly
considered the testimony of Investigator Carrasquillo and
the videotape of Mr. Pimental. I can’t even imagine what it
would have been like for Mr. Pimental and his family during
those long six months that he was confined to a hospital bed
before he succumbed to his injuries. And I’ve certainly
considered the testimony of Mrs. Rivera. I have considered
the threat to the safety of the public that may be posed by
[Appellant] at this time and I have considered the degree of
[Appellant’s] culpability in fashioning my sentence…. And I
have considered the rehabilitative needs of [Appellant].
[Appellant’s] conduct caused the unnecessary deaths of two
young men. What began as an innocent dance party on a
hot summer night turned into a tragedy because [Appellant]
brought a gun to the party. [Appellant] was in possession
of a gun [and] he was not legally allowed to possess a gun.
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Id. at 59-60.
The decision to sentence outside the Sentencing
Guideline[s] is not a decision this [c]ourt undertakes lightly. This
[c]ourt carefully considered the Sentencing [G]uidelines;
Appellant’s juvenile record; the testimony of his Juvenile
Probation Officers and his failure in the Juvenile Justice System;
the seriousness of the crime and the pain and suffering he
infl[i]cted on his victim’s [sic] and their families; the need to
protect the community and deter similar future conduct; the
recommendation of the district attorney; and statements made by
Appellant.
The crime[s] committed by Appellant [were] incredibly
serious and caused immeasurable pain and suffering. This
tragedy only occurred because Appellant brought a gun he was
not legally allowed to possess to a dance party. His actions
resulted in the death of two young m[e]n, one [of] who[m] went
through incredible suffering for six months before succumbing to
his injuries. This [c]ourt also considered that Appellant had a
substantial history in the Juvenile Justice System, … which he did
not respond to positively[,] and [he] continued to involve himself
in crime.
Therefore, the [c]ourt properly considered the
circumstances of this case, stated on the record the reason why it
went above the Sentencing Guidelines and imposed this sentence,
and, in light of this, imposed a sentence that was reasonable and
not manifestly excessive.
TCO at 13-15.
Based on the court’s discussion and the record in this case, we would
discern no abuse of discretion in the court’s sentencing decision. The court
clearly considered the mitigating factors mentioned by Appellant herein, as
well as the statutory factors set forth in section 9721(b). It also offered a
thorough explanation for his sentence. Accordingly, even if not waived, we
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would deem Appellant’s challenge to the discretionary aspects of his sentence
meritless.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
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5 We note that Appellant also cursorily mentions that his third-degree murder
sentences are illegal, claiming they exceed the statutory maximum term of
incarceration of 40 years. See Appellant’s Brief at 19; 18 Pa.C.S. § 1102(d)
(“[A] person who has been convicted of murder of the third degree … shall be
sentenced to a term which shall be fixed by the court at not more than 40
years.”). At the sentencing hearing, the court initially imposed 20 to 40 years’
incarceration, plus a consecutive term of 20 years’ probation, for each of
Appellant’s third-degree murder convictions. See N.T. Sentencing at 68-69.
Appellant is correct that those sentences were illegal. 42 Pa.C.S. § 9754(a)
(“In imposing an order of probation the court shall specify at the time of
sentencing the length of any term during which the defendant is to be
supervised, which term may not exceed the maximum term for which the
defendant could be confined, and the authority that shall conduct the
supervision.”). However, Appellant ignores that the Commonwealth notified
the court of the illegality of those sentences, and the court amended them to
omit the probationary tail. See N.T. Sentencing at 71. Accordingly,
Appellant’s sentences of 20 to 40 years’ incarceration for his third-degree
murder convictions are not illegal.
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