Com. v. Wooden, J. ( 2023 )

J-S13009-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAQUAN WOODEN :
:
Appellant : No. 2502 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000521-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAQUAN WOODEN :
:
Appellant : No. 2504 EDA 2022
Appeal from the Judgment of Sentence Entered June 30, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000522-2020
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 24, 2023
Appellant Jaquan Wooden appeals from the judgment of sentence
entered following his conviction for third-degree murder and related offenses.
Appellant contends that the trial court abused its discretion and imposed an
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* Former Justice specially assigned to the Superior Court.
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excessive aggregate sentence without adequate consideration of the
applicable sentencing factors. After review, we affirm.
The trial court summarized the factual background of this matter as
follows:
At trial the Commonwealth presented the testimony of
Philadelphia police officers Padraic Feeney, Jerald Furey,
Jacqueline Brennan, Christine Hilbert, and Paul Ward; Philadelphia
police detectives Paul Scarinci, Thorsten Lucke, Peter Marrero, Jr.,
and Danielle Slobodian; Philadelphia police sergeant Matthew
Lowe; Philadelphia chief medical examiner Dr. Albert Chu; civilian
Milton Abreu; and, by stipulation, forensic scientists Lissette Vega
and Tarah Helsel. [Appellant] presented no evidence. Viewed in
the light most favorable to the Commonwealth as the verdict
winner, the evidence established the following:
At approximately 7:57 p.m., on November 19, 2019, Jose
Espinosa-Molina was walking down the 6100 block of Castor
Avenue in Philadelphia. After Espinosa-Molina crossed the street,
[Appellant] drove up behind Espinosa-Molina in a black vehicle.
As the vehicle approached Espinosa-Molina, [Appellant], as well
as other individuals in the vehicle, fired multiple gunshots at
Espinosa-Molina. Espinosa-Molina was struck in the back of the
head by a .380 caliber bullet and collapsed onto the ground.
The police arrived at approximately 8:04 p.m. and found
Espinosa-Molina laying on the ground and unresponsive. The
police immediately transported Espinosa-Molina to Aria Torresdale
Hospital, where he was pronounced dead two days later. Dr. Chu,
the chief medical examiner, concluded that the death was a
homicide caused by complications of a gunshot wound to the
head.
The police recovered four fired cartridge casings (“FCCs”) from the
scene, as well as two bullet fragments. One of the FCCs was a
.380 caliber, while the other three were all 9mm.
Two days after the Espinosa-Molina shooting, on November 21,
2019, at approximately 8:21 p.m., [Appellant] was standing with
a group of individuals outside the Abreu Super Deli on the corner
of Castor Avenue and Benner Street. [Appellant’s] black Honda
Accord was parked outside of the deli, and [Appellant] was
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wearing dark clothing, a baseball hat, and yellow sneakers. A
vehicle approached the group and fired gunshots. [Appellant]
then ran down the street chasing the vehicle while firing multiple
gunshots in the direction of the fleeing vehicle.
When the police arrived, responding to the sound of gunshots,
they found [Appellant] assisting an injured individual out of the
backseat of a vehicle. As the police attended to the injured
individual, who had been shot, [Appellant] left and went inside the
Abreu Super Deli. [Appellant] went to the back of the deli, where
he encountered Milton Abreu, whose family owned the deli.
[Appellant] handed Mr. Abreu his gun. Mr. Abreu then took the
gun to the basement and placed it on top of a ceiling panel.
The Philadelphia Police Department has a Real Time Crime Center
(the “Crime Center”) where police officers can monitor video
surveillance recorded on cameras connected to the Crime Center.
Because a Crime Center camera was posted outside of the corner
where the shooting occurred, the police at the Crime Center were
able to view footage of the shooting and relay a description of one
of the shooters to the officers on the scene. Those officers
observed that the description of the shooter provided by the Crime
Center matched [Appellant]. Police then viewed surveillance
video from inside the Abreu Deli, which showed [Appellant] inside
of the store. The officers then placed [Appellant] under arrest.
Afterwards, Mr. Abreu informed the police where he had hidden
[Appellant’s] gun, and the police recovered it from the basement.
While [Appellant] was in custody at Curran-Fromhold Correctional
Facility (“CFCF”), police received information from the National
Integrated Ballistic Information Network (“NIBIN”) linking the
ballistics recovered from the November 19, 2019 shooting of Jose
Espinosa-Molina to the firearm [Appellant] used on November 21,
2019, to fire down the street at the fleeing car.[FN3] After receiving
this information from the NIBIN, Detectives Slobodian and
McKenna picked up [Appellant] from CFCF and drove him back to
the Philadelphia Police Department Homicide Unit for an interview.
Following Miranda[1] warnings, [Appellant] gave a statement to
police wherein he confessed to the murder of Jose Espinosa-Molina
and described in-detail the events leading to the murder.
NIBIN is a service run by the ATF, in which a computer
[FN3]
looks for matches of FCCs entered into the computerized
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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system. A match from NIBIN of two or more FCCs would be
a preliminary indication that the FCCs were fired from the
same firearm. After a NIBIN match, a trained ballistician
would examine the actual ballistics to confirm the match.
Trial Ct. Op., 12/1/22, at 2-5 (some formatting altered and citations omitted).
Following a waiver trial, the trial court found Appellant guilty of one
count each of third-degree murder, possession of a firearm by a prohibited
person, carrying a firearm without a license, carrying a firearm on a public
street or public property in Philadelphia, and possessing an instrument of
crime (PIC) at Docket No. 521-2020.2 See N.T., Trial, 3/15/22, at 145. At
Docket No. 522-2020, the trial court found Appellant guilty of one count each
of carrying a firearm without a license, possession of a firearm by a prohibited
person, carrying a firearm on a public street or public property in Philadelphia,
and recklessly endangering another person (REAP).3 See id.On June 30, 2022, the trial court held a sentencing hearing. At Docket
No. 521-2020, the trial court imposed an aggregate term of twenty-six and
one-half to fifty-three years’ incarceration.4 At Docket No. 522-2020, the trial
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2 18 Pa.C.S. §§ 2502(c), 6105(a)(1), 6106(a)(1), 6108, and 907(a),
respectively.
3 18 Pa.C.S. §§ 6106(a)(1), 6105(a)(1), 6108, and 2705, respectively.
4 At Docket No. 521-2020, the trial court sentenced Appellant to consecutive
terms of twenty for forty years of incarceration for third-degree murder, one
to two years of incarceration for carrying a firearm by a prohibited person,
three and one-half to seven years for carrying a firearm without a license, one
to two years of incarceration for carrying a firearm in public in Philadelphia,
and one to two years of incarceration for PIC. See N.T., Sentencing, 6/30/22,
at 49-50.
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court imposed an aggregate term of five and one-half to eleven years of
incarceration.5 The trial court ordered the sentence at Docket No. 522-2020
to run consecutive to the sentence at Docket No. 521-2020, resulting in a total
aggregate sentence of thirty-two to sixty-four years of incarceration. See
N.T., 6/30/22, at 49-50.
Appellant filed post-sentence motions at both trial court dockets which
the trial court denied. Appellant filed a timely notice of appeal at each trial
court docket, and both the trial court and Appellant complied with Pa.R.A.P.
1925.6
On appeal, Appellant raises the following issue:
Did the [trial] court abuse its discretion in sentencing Appellant to
an aggregate sentence [of] 32 to 64 years of incarceration
because the sentencing court did not adequately consider
appropriate retribution, Appellant’s rehabilitative needs . . . , and
specific and general deterrence and there were multiple statutory
maximum sentences for Murder in the Third Degree and VUFA §
6106 without adequate justification of guideline maximums
thereby effectively making Appellant’s sentence a life sentence
also without adequate justification?
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5 At Docket No. 522-2020 , the trial court imposed consecutive sentences of
one to two years of incarceration for carrying a firearm by a prohibited person,
three and one-half to seven years of incarceration for carrying a firearm
without a license, and one to two years of incarceration for REAP. See id. at
50. The trial court also imposed a sentence of one to two years of
incarceration for carrying a firearm in public in Philadelphia, to run
concurrently with Appellant’s sentence for carrying a firearm without a license.
See id.
6Appellant filed a motion to consolidate the appeals at 2502 EDA 2022 and
2504 EDA 2022 on October 18, 2022, which this Court granted. See Order,
1/3/23.
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Appellant’s Brief at 4.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] 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 inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted). “To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”). Here, Appellant filed a timely post-
sentence motion, a timely appeal, and included a Rule 2119(f) statement in
his brief. Accordingly, we must next determine whether Appellant has raised
a substantial question for review. Corley, 31 A.3d at 296.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
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1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
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.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
We note that “an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (en banc) (citations omitted). Further, this Court has 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 and mitigating factors upon fashioning its sentence,
presents a substantial question.” Commonwealth v. Swope, 123 A.3d 333,
340 (Pa. Super. 2015).
In his Rule 2119(f) statement, Appellant argues that the sentence was
manifestly excessive. Appellant asserts that that the trial court failed to
consider mitigating factors and Appellant’s rehabilitative needs, abused its
discretion by imposing consecutive sentences, and imposed “an effective life
sentence.” See Appellant’s Brief at 9-11. We conclude that Appellant has
raised a substantial question for our review. See Swope, 123 A.3d at 340;
Caldwell, 117 A.3d at 770. Accordingly, we will review the merits of
Appellant’s underlying claim.
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Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted). Additionally, “[w]e cannot re-weigh the sentencing factors and
impose our judgment in the place of the sentencing court.” Commonwealth
v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
“[T]he trial court is required to consider the particular circumstances of
the offense and the character of the defendant[,]” including the defendant’s
“prior criminal record, age, personal characteristics, and potential for
rehabilitation.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.
Super. 2009) (citation omitted). This Court has held that “where the
sentencing judge had the benefit of a [PSI report], it will be presumed that he
or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
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factors.” Id. (citation omitted). This Court may only disturb a standard-range
sentence if we find that the circumstances of the case rendered the application
of the guidelines “clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).
It is well settled that “Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation
omitted). Further, this Court has explained that “defendants convicted of
multiple offenses are not entitled to a ‘volume discount’ on their aggregate
sentence.” Commonwealth v. Foust, 180 A.3d 416, 434 (Pa. Super. 2018)
(citations omitted), abrogated on other grounds by Commonwealth v.
Felder, 269 A.3d 1232 (Pa. 2022).
Here, at sentencing, the trial court stated as follows:
Thank you. All right. The first thing I’m going to do is say what
I’m going to take into account in determining an appropriate
sentence. I’ll take into account everything presented during the
history of this case, everything presented during the trial,
everything presented during the sentencing hearing, all of the
materials that I received in preparation for sentencing, including
the [PSI] report, the investigation, the prior record score and the
mental health evaluation.
I’ll take into account the statements that I heard today from
[Appellant], [Appellant’s] father and his two friends who are in the
courtroom. I’ll take into account the statement that I heard from
the mother of the decedent in this case. I’ll take into account and
consider carefully the sentencing guidelines, all of the mitigating
factors that were highlighted by [Appellant’s counsel] on behalf of
[Appellant].
There are statutory factors I’m required to consider. One is the
need for the protection of the public. I have grave concerns. The
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problem is that I think [Appellant] summed it up how a typical
person would react that may explain what happened on the 21st,
but what happened on the 19th was a drive-by shooting in your
car. You drove up and fired guns out of a window at a young man
walking down the street who was shot in the head and killed and
that I hope is not the typical way that people in the city will react
to any kind of a threat and that’s never okay no matter what’s
going on in your neighborhood to react with a drive-by shooting.
What happened the next day I think was terrible, but nothing like
what happened two days before that and what happened the next
two days was terrible because people with ordinary sensibilities
even after they’re threatened don’t fire off a gun down the street
when it is a commercial corridor, whereas I have seen in my
practice here you have people waiting at a bus stop or people
crossing the street or a three-year-old in a carriage who winds up
getting killed because someone thinks it’s okay to go out into the
street and fire off their gun like you’re in the wild west at
somebody whose car is down the road. That’s not how people can
react in a civilized society, so because you think that’s okay, I
have concerns for the protection of the public.
Also, the gravity of the offense in relation to its impact by the
victim and the community, I’ll start with the community. This kind
of senseless use of guns -- I’m not talking about carrying a gun
that’s unlicensed. That’s bad. All right. I’m talking about using
a gun, pulling it out and shooting at somebody, that is the kind of
thing that has had a horrible impact on our community and you
contributed to that with your behavior on two different days in this
case, also, its impact on the gravity of the offense, its impact on
the victim and the family.
This is a special young man who’s gone. He’s gone forever.
Whatever happened to you, he doesn’t get another day on this
earth and that’s a result of what you did in this case, and that’s
just a terrible -- I’m also going to take into account your
rehabilitative needs. There are some aggravating factors that I
think are present in this case.
This is not I think what I would consider to be garden variety third-
degree murder, a drive-by shooting where a decedent takes a
bullet in the head. That is the kind of shooting where this is a
case that had this gone to a jury very well may have proven first-
degree murder. It did not and I understand that’s not an issue in
this case. You weren’t convicted of that.
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I’m just saying ordinarily typical third-degree murder cases we
don’t see a bullet to the back of somebody’s head. Whether you
fired it or not, you were part of the team of people who pulled up
in your car and fired bullets out -- you fired more than they did.
You fired three times, he shot once, that’s an aggravating factor
as well.
Also, you did this while you were on probation for robbery
adjudication while you were under the supervision of the court.
You still thought it was okay to walk around with a gun with an 18
round magazine and pull it out and use it. That’s an aggravating
factor to me, the fact that you were on probation.
There are mitigating factors here, too. I was moved by the
support you have which I believe was sincere from your father
who I think is a victim here almost as much as – not as much, but
almost as much as a lot of the other people in this room because
he has suffered and will suffer as a result of your behavior. Okay.
But when he tells me it’s situational, as I said before, I’ll say it
again: A drive-by shooting is never situational. It just doesn’t
apply here. I’m going to take that into account and consider
whatever is appropriate. . . .
Every sentence I’m going to impose is in the standard range of
the sentencing guidelines starting with the transcript for
November 19, 2019 -- before I forget, I’m going to order
restitution in the amount of $1,641 to be paid in accordance -- I
should say to the victims outlined on the paperwork which has
been handed up. That will be paid in accordance with [Appellant’s]
ability to pay which will be determined by the Department of
Corrections and that should be imposed on the murder transcript.
N.T., 6/30/22, at 43-49.
In its Rule 1925(a) opinion, the trial court further explained:
Here, in fashioning an appropriate sentence, the court explicitly
considered everything presented throughout the history of the
case, during the trial and at the sentencing hearing. The court
also explicitly considered the [PSI] report, the investigation of
[Appellant’s] prior record score, his mental health evaluation, and
the sentencing guidelines. The court took into account statements
from [Appellant], [Appellant’s] father, [Appellant’s] two friends,
and the victim impact statement from the decedent’s mother. The
court also considered all of the mitigating evidence that was
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presented on behalf of [Appellant]. In addition, the court
reviewed and analyzed the required statutory sentencing factors,
including the need for the protection of the public, the gravity of
the offense in relation to the impact on the victim and on the
community, and [Appellant’s] rehabilitative needs. In addition,
the court delineated and weighed both the mitigating and
aggravating factors in the case.
The sentences imposed by the court were manifestly reasonable.
Contrary to [Appellant’s] averment in the Statement of Errors,
every sentence imposed by the court was within the standard
range of the sentencing guidelines. Moreover, the magnitude of
[Appellant’s] criminal behavior establishes that the court was well
within its discretion in running most of the sentences
consecutively. In particular, and as the court noted in imposing
sentence, this was not a typical third-degree murder case.
[Appellant] participated in a drive-by shooting and fired multiple
gunshots at the decedent, one of which killed the decedent by
striking the back of his head. Moreover, [Appellant] participated
in this murder while on probation for a robbery adjudication.
Additionally, two days following the murder, after being fired upon
by a group of individuals in a vehicle, [Appellant] chased the
vehicle down the street of a commercial corridor and fired multiple
gunshots down a busy public street, endangering many lives.
Accordingly, the record demonstrates that the court’s aggregate
sentence was fully commensurate with [Appellant’s] criminal
conduct and in no way unreasonable. Finally, [Appellant’s]
contention that the court’s sentence was “effectively . . . a life
sentence” is frivolous. [Appellant] was 21 years old when
sentenced, and therefore will be eligible for parole when he is 53
years old. Clearly, that is not a de facto life sentence. No relief
is due.
Trial Ct. Op., at 6-8 (formatting altered and footnotes and citations omitted).
After review, we discern no abuse of discretion by the trial court. See
Raven, 97 A.3d at 1253. The record reflects that the trial court thoroughly
considered the facts of this case, Appellant’s background, the PSI report, the
appropriate sentencing factors, and the mitigating evidence presented at the
sentencing hearing. See Ventura, 975 A.2d at 1135. The trial court
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concluded that an aggregate sentence of thirty-two to sixty-four years of
incarceration was appropriate in light of the context of this drive-by murder
case. See Trial Ct. Op. at 7-8. On this record, we have no basis upon which
to conclude that the trial court’s application of the guidelines was “clearly
unreasonable” or that the trial court abused its discretion in structuring
Appellant’s sentences consecutively.7 See 42 Pa.C.S. § 9781(c)(2); Foust,
180 A.3d at 434; Austin, 66 A.3d at 808. For these reasons, Appellant is not
entitled to relief. Accordingly, we affirm.
Judgment of sentence affirmed. Jurisdiction relinquished.
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7 As noted above, due to the consecutive nature of the sentences, Appellant
claims that the trial court imposed an effective life sentence. Appellant’s Brief
at 10. We find this claim meritless. See, e.g., Commonwealth v. Bradley,
237 A.3d 1131, 1140-41 (Pa. Super. 2020) (explaining that a defendant who
was forty-seven years old at the time of sentencing and who would be eligible
for parole at age sixty-four, fourteen years before he reaches the average life
expectancy of seventy-eight and one-half years, did not receive a de facto life
sentence). Here, Appellant asserts that his life expectancy is seventy-one and
three-fourths years. Appellant’s Brief at 10. However, as the trial court
explained, Appellant will be fifty-three years old when he becomes eligible for
parole, see Trial Ct. Op., at 8, and therefore, we agree with the trial court’s
conclusion that Appellant did not receive a de facto life sentence. See id.;
Bradley, 237 A.3d 1140-41. Moreover, to the extent that Appellant briefly
mentions that the trial court should have considered his maximum release
date rather than his minimum parole date, see Appellant’s Brief at 14,
Appellant fails to develop this argument in any meaningful way, and we
conclude that the issue is waived. See Commonwealth v. Johnson, 985
A.2d 915, 924-25 (Pa. 2009) (stating that “where an appellate brief fails to
provide any discussion of a claim with citation to relevant authority[,] or fails
to develop the issue in any other meaningful fashion capable of review, that
claim is waived. It is not the obligation of this Court, . . . to formulate [an
a]ppellant’s arguments for him.” (citations omitted)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2023
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