Com. v. Johnson, J. ( 2023 )

J-S31040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME JOHNSON :
:
Appellant : No. 3120 EDA 2022
Appeal from the Judgment of Sentence Entered July 11, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000789-2021
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED DECEMBER 27, 2023
Jerome Johnson appeals from the judgment of sentence entered on his
convictions for burglary, criminal trespass, indecent assault-forcible
compulsion, and indecent assault-without consent of other.1 He challenges the
discretionary aspects of his sentence. We affirm.
At Johnson’s bench trial, the victim, Q.S., testified that one night in
January 2021, she was asleep on her mother’s couch, and her 11-year-old
sister was lying on the floor. N.T., Apr. 22, 2022, at 13-15. Q.S. said she felt
Johnson touching her chest area, which woke her up. Id. at 15. Once awake,
Q.S. stood up, got into a “tussle” with Johnson, and ran out the door. Id. at
16. She screamed for help, and her sister came to the front door and threw a
grill fork at Johnson. Id. at 16-17. Johnson, who lives five doors away from
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1 18 Pa.C.S.A. §§ 3502(a)(1), 3503(a)(1), 3126(a)(2), and 3126(a)(1),
respectively.
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Q.S.’s mother’s house, ran down the street. Id. at 16-17. Q.S. testified that
Johnson was naked during the encounter. Id. at 16. She said she and Johnson
had never spoken before, she did not give her consent for Johnson to touch
her, and she did not give permission for him to enter the house. Id. at 18-19.
Q.S.’s sister, M.D, testified that on the night of the incident, she heard
someone come in the house, and thought it was her nephew. Id. at 37. She
then heard her sister scream, and saw Johnson touching her sister’s chest.
Id. at 38. Johnson testified in his own defense, and denied that he was in the
house on the night in question. He also denied touching Q.S. Id. at 60-61.
The trial court found Johnson guilty of burglary, criminal trespass, and
two counts of indecent assault.
At sentencing, the parties agreed that Johnson’s prior record score was
a repeat felon, the offense gravity score was a 10, and the sentencing
guideline range was 72 to 84 months’ incarceration for the burglary conviction,
plus or minus 12 months. N.T., July 11, 2022, at 4. Johnson’s counsel
informed the trial court that Johnson had had a troubled childhood and
adulthood, suffered from anger issues that stemmed from trauma in his
childhood, including the rape of his mother by an ex-boyfriend. Id. at 4.
Counsel stated that Johnson witnessed violence in his family, lived in a house
that had been firebombed, and had been shot. Id. at 5. Counsel further stated
Johnson suffered from diabetes and abused PCP “heavily,” using six or seven
bundles in a weekend. Id. at 5-6.
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The Commonwealth read a letter from the victim regarding the life-
changing impact the incident had had on her, including that she is afraid to be
alone in the house. Id. at 8. It asked for a guideline sentence of total
confinement with “a significant period of supervision following that,” and
asked that the sex offender probation unit supervise Johnson. Id. at 9.
Johnson refused to sign the notice of registration requirements for Tier
II SORNA offenders. Id. at 14. When the court informed him that he had to
abide to the terms when released regardless whether he signed, Johnson
stated, “Well, then I’ll be brought up on new charges. I did not do this. I’m
not signing that. I’m not signing that.” Id. at 15.
During his allocution, Johnson repeatedly denied the conduct underlying
the convictions and made threatening comments, including, “You can give me
all the time that you want. I will not die in jail. I refuse to die in jail until I get
out and get my revenge. You think I’m playing. I’m dead serious.” Id. at 21.
After he finished, he left the courtroom without permission. Id. at 24.
The trial court noted on the record that during his allocution, Johnson
had yelled and stared down defense counsel and the trial court. It stated the
sentence it imposed was based on the threats made, Johnson’s demeanor at
sentencing, and Johnson’s PCP use and prior record:
At this point, [Johnson] has gotten up and exited the
courtroom without the authority of this Court.
I want to place on the record some of the things that are
not translated well onto the full record, in particular Mr.
Johnson’s demeanor as he continued to stare down [defense
counsel] and this Court. He has been yelling since he began
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speaking. This Court has been trying to exercise as much
patience as possible to ensure that Mr. Johnson has his right
to be heard.
That being said, given the fact that I now have four sheriffs
who have come to my room due to the security risk that Mr.
Johnson is currently posing as he looked as though he may,
frankly, attack [defense counsel], I am going to pronounce
this sentence without him being present.
I will, however, ask, [defense counsel], for you to submit in
writing to him his appellate rights. We will give them to him,
and we will give him a written copy of his SORNA
registration requirements.
On the burglary, a felony of the first degree, I do sentence
him to 10 to 20 years of incarceration. A consecutive period
on the indecent assault as an M1, 2-and-a-half to 5. No
further penalty on the criminal trespass or the indecent
assault as an M2.
This is to be consecutive to the sentence that he is serving
with Judge Schultz, which would be -- and, Counsel, please
correct me if I’m wrong -- CP-51-CR-291-2020.
Any credit that he may have on this case is to be given. This
sentence is above the guidelines, and I’ll start out by saying
that.
Particularly, in fashioning this sentence here today, given
the threats that Mr. Johnson made on this record to seek
revenge; the obvious, not just anger, but threating tone he
took to the complaining witness in this particular case, given
that coupled with Mr. Johnson’s history, I don’t see another
way for this Court to ensure the safety of this complainant
given Mr. Johnson’s outburst here in court.
The fact that he felt comfortable to say those things in open
court in front of a judge as well as multiple law enforcement
officers, and the tone that he took here today, as well as the
sustained PCP use that was described in the presentence
investigation and in defense counsel’s argument to this
Court.
All of these are seen as aggravating factors for this
particular sentence, as well as the nature of the crime, the
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fact that these were very young women in this house, the
fact that Mr. Johnson was naked in that home, touching the
complainant without permission while her younger sister
was also present.
All of those factors are taken into account by this Court in
sentencing above the guidelines and aggravating the
sentence on Mr. Johnson, as well as this Court’s decision to
make that sentence consecutive to the one that he is
currently serving.
The aggregate sentence here today will be 12-and-a-half to
25 years of state incarceration.
Additionally, in terms of parole, this Court is ordering that
Mr. Johnson complete therapeutic community, as well as
treatment for PTSD, drug and alcohol treatment. He is to
stay away from the complainant during the duration of his
sentence.
Additionally, he is subject to all sex offender conditions. All
supervision will be done by the state sex offender unit.
Id. at 24-27.
Johnson filed a motion to reconsider the sentence, arguing the sentence
was above the recommended guidelines and excessive. The motion was
denied by operation of law.2 Johnson filed a timely notice of appeal.3
Johnson raises the following issue:
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2 Defense counsel filed a motion to reconsider “in an abundance of caution,”
but advised the defendant he would be seeking to withdraw as counsel due to
the conduct at the sentencing hearing. Letter from W. Chris Montoya to
Jerome Johnson, dated July 12, 2022. The court denied the post-sentence
motion by operation of law and, in November 2022, counsel filed a motion to
withdraw. The court granted the motion and appointed new appellate counsel.
Order, dated Nov. 18, 2022.
33 The trial judge was no longer sitting on the court of common pleas at the
time of the appeal and therefore there is no trial court opinion pursuant to
Rule 1925(a).
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A. Did the lower court abuse its discretion by imposing an
unreasonable and manifestly excessive sentence that failed
to adhere to the general sentencing principles outlined in 42
Pa.C.S.A. § 9721(b), in that the Court imposed a sentence
that exceeded what was necessary to protect the public and
the community, failed to consider the Appellant’s
background and character fully and imposed a sentence that
was well beyond what was necessary to foster the
rehabilitative needs of Appellant?
Johnson’s Br. at 4.
Johnson claims the court “abused its discretion when it imposed a
manifestly excessive aggregate sentence” of 12½ to 25 years’ incarceration.
Johnson’s Br. at 6. He argues the sentence was above the aggravated range
of the guidelines and claims the court “based its sentence entirely on perceived
safety concerns without considering the other section 9721(b) factors.” Id.
Johnson claims the court did not impose an individualized sentence and the
circumstances did not necessitate the sentence imposed. Rather, he contends
that the “court unfairly focused on . . . Johnson’s physical expression of his
innocence through his body language and tone while exercising his right of
allocution.” Id. at 12. He claims he never threatened anyone and maintains
an “emotional expression of innocence should not have been the basis of
imposing a sentence outside of the guidelines.” Id. He acknowledges that the
court stated it had reviewed the pre-sentence report, but alleges the court
erred because it did not refer to how the report helped the court fashion the
sentence. He concludes that the record did not suggest Johnson was past
redemption and “there was no justified reason for the . . . court to sentence
him to such a long term of imprisonment.” Id. at 13.
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There is no absolute right to appeal the discretionary aspects of a
sentence. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super.
2013) (en banc). Rather, before addressing a challenge to discretionary
aspects of sentence, this Court must determine whether the appellant: (1)
filed a timely notice of appeal; (2) properly preserved the issue at sentencing
or in a motion to reconsider or modify the sentence; (3) included in the
appellate brief a concise statement of the reasons relied upon for appeal; and
(4) has asserted a substantial question that the sentence is not appropriate
under the Sentencing Code. See Commonwealth v. Austin, 66 A.3d 798,
808 (Pa.Super. 2013); 42 Pa.C.S.A. § 9781(b). “[I]f the appeal satisfies each
of these four requirements, we will then proceed to decide the substantive
merits of the case.” Austin, 66 A.3d at 808 (citation omitted).
Here, Johnson filed a timely notice of appeal, preserved his issues in a
post-sentence motion, and included in his brief a concise statement of reasons
relied upon on appeal. Further, his claims—that the court failed to state
sufficient reasons for the above-the-guidelines sentence and imposed an
excessive sentence without considering all relevant sentencing criteria—raise
substantial questions. Commonwealth v. Holiday, 954 A.2d 6, 10
(Pa.Super. 2008) (stating that “[a] claim that the sentencing court imposed a
sentence outside of the guidelines without specifying sufficient reasons
presents a substantial question for our review.”); See Commonwealth v.
Snyder, 289 A.3d 1121, 1126 (Pa.Super. 2023) (defendant raised substantial
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question when claimed court disregarded rehabilitative potential and sentence
her to manifestly excessive sentence).
“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.” Snyder, 289 A.3d at 1126 (citation omitted). “An abuse of
discretion occurs where ‘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.’” Id. (citation omitted). When
imposing a sentence, the court must consider “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. § 9721(b).
“Where the court has the benefit of a PSI report, we presume the court
was aware of all appropriate sentencing factors and considerations and
consider the requirement that the court place its reasoning on the record to
be satisfied.” Snyder, 289 A.3d at 1126 (citation omitted). On appeal, “we
may not reweigh the sentencing factors and impose our own judgment in place
of that of the trial court.” Id. at 1126-27.
Further, “the [s]entencing [g]uidelines are purely advisory in nature.”
Id. at 1127 (citation omitted) (alteration in original). If a sentencing court
deviates from the Sentencing Guidelines, it must place on the record its
reasons for the deviation:
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the sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account
the protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the
community, so long as it also states of record the factual
basis and specific reasons which compelled it to deviate
from the guideline range.
Id. (quoting Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa.Super.
2012)).
Here, the trial court did not abuse its discretion. It did impose an above-
the-guideline sentence for the burglary conviction. In so doing, however, it
stated adequate reasons for the deviation. It noted, among other things, that
Johnson threatened the victim and “stared down” his counsel and the court.
The court also noted Johnson’s prior history and his PCP use. Furthermore,
contrary to Johnson’s contention, the court considered the pre-sentence
report and other sentencing factors, including his potential for rehabilitation,
when imposing the sentence, which was not excessive. This claim is meritless.
Judgment of sentence affirmed.
Date: 12/27/2023
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