Com. v. Young, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRITTANY L. YOUNG : No. 176 WDA 2023
Appeal from the Judgment of Sentence Entered February 2, 2023
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0001045-2021
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: December 8, 2023
The Commonwealth of Pennsylvania appeals from the judgment of
sentence, entered in the Court of Common Pleas of Butler County, following
Brittany L. Young’s convictions of one count each of aggravated assault –
attempt to cause serious bodily injury,1 aggravated assault – attempt to cause
bodily injury with deadly weapon,2 recklessly endangering another person,3
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1 18 Pa.C.S.A. § 2702(a)(1).
2 Id. at § 2702 (a)(4).
3 Id. at § 2705.
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disorderly conduct,4 simple assault – attempt to cause bodily injury,5 and
simple assault – physical menace.6 After careful review, we affirm.
On July 18, 2021, Robert Avondo and Nancy Defalle had been drinking,
kayaking, and fishing from the morning until the early afternoon. See N.T.
Jury Trial, 11/8/22, at 27-28, 31, 54-56, 74. As they returned home, they
observed an elderly neighbor7 failing to clean up after his dog defecated on
another neighbor’s lawn. Id. at 33, 56. Defalle went inside to change, and
Avondo confronted the elderly neighbor. Id. at 33-34, 56-57. Avondo used
“very strong profanity” and “a lot of the [‘]F[-]word[’] and what the F[.]” Id.
at 56-57. Avondo continued berating the elderly neighbor for a short time.8
During the above-described argument, Avondo also began yelling at
Christina Mazza, his next-door neighbor. Young,9 who was in her vehicle
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4 Id. at § 5503(a)(4).
5 Id. at § 2701(a)(1).
6 Id. at § 2701(a)(3).
7 The elderly neighbor passed away prior to trial in this case.
8 We note that Avondo had numerous arguments over the years with several
neighbors regarding the neighbors’ collective failure to clean up after their
pets. By each neighbor’s account, and Avondo’s own account, Avondo was
often aggressive and yelling profanities when people did not clean up after
their pets. See id. at 30, 45-46, 53, 73, 157-58, 168-70.
9 Young was in the neighborhood visiting Mazza. Id. at 158-59. Young’s
eldest child had spent the night at Mazza’s house, and Young had brought her
two younger children to pick up her eldest child. Id.; see also id. at 181. At
(Footnote Continued Next Page)
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parked on the street and saw the arguments occur, asked Avondo what was
going on and he told Young it was none of her business. See id. at 58-60.
Avondo continued his belligerent behavior and began screaming and yelling
at Young as well. Id. at 58-60, 160-61, 183-84. During this argument, Mazza
went inside to comfort Young’s children. Id. 161-62. Avondo and Young
continued to argue, and Avondo called Young a “bitch” and, in turn, she called
him an “M F-er.” Id. at 58-59. At some point, Young and Mazza informed
Avondo that there were children in Mazza’s home and Avondo said he “didn’t
give a fuck about [the] kids.” Id. at 112, 170. As the argument continued,
Young reached into her vehicle and pulled out her licensed firearm10 and
pointed it towards the ground. Id. at 58-59, 184-86. Avondo asked if the
gun was supposed to scare him, and called Young the “C-word.” Id. at 60,
186. Young raised the firearm and aimed it at Avondo. Id. at 60. Avondo
continued to use profanity and taunted Young telling her “she didn’t even know
how to use it.” Id. Ultimately, Avondo turned away and began to walk back
towards the house he shares with Defalle. Id. at 60-62. As Avondo was
walking back towards the house, Young fired the weapon into the ground,
between the two. Id. at 63. Avondo was approximately 12 feet away. Id.
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the time of the argument, Young was in her vehicle making a phone call. Id.
at 159-60, 182.
10 At the time, Young was licensed to carry a firearm.
See id. at 179; see
also N.T. Jury Trial, 11/9/23, at 4 (Young’s firearm permit admitted as
Defense Exhibit 2). The firearm was a Ruger Security 9, a 9mm semi-
automatic handgun with a 15-round magazine. Id. at 100.
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Avondo called 9-1-1 and Defalle, who had heard the gunshot from inside
the home, ran across the street to the police station.11 Id. at 35, 64. Mazza
also heard the shot and ran outside and began video recording the remainder
of the interaction, which was presented at trial. See id. at 163-64 (Mazza
testifying she video recorded incident after gunshot); id. at 88 (admitting
Mazza’s video as Commonwealth Exhibit 8). Police arrived on the scene and
detained Young. Young was compliant with the police officers’ commands.
Young was taken to the police station, where she waived her Miranda12 rights
and agreed to give a statement.13 Young was ultimately charged, inter alia,
with the above-mentioned offenses.
On November 8-9, 2022, Young proceeded to a jury trial, after which
she was convicted of the above-mentioned offenses. The trial court deferred
sentencing and ordered the preparation of a pre-sentence investigation report
(PSI). On December 6, 2022, the Commonwealth filed a sentencing
memorandum, in which it requested that the trial court apply the deadly
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11 The police station was located across the street from the altercation. Id.
at 80.
12 Miranda v. Arizona, 384 U.S. 436 (1966).
13 In Young’s statement, she stated that she knew she had made a mistake in
firing the weapon, but that she was concerned due to Avondo’s behavior that
her kids may be in danger. See id. at 112-14 (Young’s statement being read
into record).
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weapon enhancement.14 On February 1, 2023, Young filed a response, in
which she included 14 letters from community members detailing the impact
a significant jail sentence would have on Young, her children, and the
community at large.
On February 2, 2022, the trial court conducted a sentencing hearing.
The trial court expressly stated that it was following standard range of the
guidelines for aggravated assault (22 to 36 months), which did not include the
deadly weapon enhancement. The trial court sentenced Young to seven days
to 12 months in county jail, followed by 24 months’ probation, for each of
Young’s convictions of aggravated assault, to run concurrently. The trial court
further ordered that Young complete 150 hours of community service, and
pay fines and costs of prosecution. The trial court imposed no further penalty
at Young’s remaining convictions. Finally, the trial court ordered that Young
be immediately paroled upon reaching her minimum jail sentence of seven
days, and that the remainder of her county jail sentence be served on house
arrest.15
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14 The deadly weapon enhancement “used matrix” adds an additional 18
months to the lower and upper limits of the standard range for sentencing
guidelines. See 204 Pa. Code § 303.10(a)(6)(iii) (deadly weapon
enhancement adds 18 months to lower and upper limits of standard range for
OGS 9 -14).
15 In the aggregate, Young was sentenced to serve seven days in county jail,
the remainder of 12 months on house arrest, followed by 24 months’
probation, to complete 150 hours’ community service, and pay fines and costs.
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The Commonwealth filed a timely post-sentence motion challenging the
trial court’s failure to apply the deadly weapon enhancement. In particular,
the Commonwealth argued that Young’s use of a firearm during the incident
necessarily added 18 months to the guideline range, making the guideline
range 40 to 54 months. Young filed a response, and, on February 10, 2023,
the trial court conducted a hearing. At the hearing, the trial court agreed with
the Commonwealth that it had erred in failing to properly state the enhanced
guidelines at Young’s sentencing hearing. See N.T. Post-Sentence Motion
Hearing, 2/10/23, at 7-9. Additionally, the trial court noted that even with
the enhancement, it was deviating from the guidelines and keeping Young’s
sentence as stated above. Id. On the same day, the trial court issued an
order stating the same. See Order, 2/10/23, at 1.
The Commonwealth filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The
Commonwealth now raises the following claims for our review:
[1.] Whether the trial court abused its discretion by unreasonably
deviating from the applicable sentencing guidelines when the
court imposed an excessively lenient sentence of seven days of
incarceration for shooting at the victim with a firearm.
[2.] Whether the trial court abused its discretion or erred as a
matter of law by considering improper mitigating circumstances
that do not justify such a vast departure from the sentencing
guidelines.
[3.] Whether the trial court abused its discretion or erred as a
matter of law in not considering the deadly weapon enhancement
mitigation deviation provisions of 204 Pa. Code § 303.13(b)(6).
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Commonwealth’s Brief, at 4.
The Commonwealth’s claims16 challenge the discretionary aspects of
Young’s sentence, from which there is no automatic right to appeal. See
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
Before addressing such a challenge, we must first determine:
(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, [see] 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.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, the Commonwealth filed a timely notice of appeal, post-sentence
motion, and properly included a Rule 2119(f) statement in its brief.
Accordingly, we must determine whether the Commonwealth’s claims raise a
substantial question. See Moury, supra.The determination of what constitutes a substantial question is
evaluated on a case-by-case basis. See Commonwealth v. McCain, 176
A.3d 236, 240 (Pa. Super. 2017). A substantial question exists only when the
appellant advances a colorable argument that the sentencing court’s actions
were either inconsistent with a specific provision of the Sentencing Code or
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16 All of the Commonwealth’s claims pertain to whether the trial court issued
an excessively lenient sentence. Accordingly, we determine these claims to
be interrelated, and address them together.
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contrary to the fundamental norms which underlie the sentencing process.
See id.In the Commonwealth’s Rule 2119(f) statement, it asserts that the trial
court abused its discretion in failing to apply and consider the deadly weapon
enhancement to Young’s aggravated assault convictions. It is well settled that
the Commonwealth presents a substantial question when it contends that the
sentence imposed was excessively lenient and unreasonably deviated from
the applicable sentencing guideline range. See Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001) (citing Commonwealth v. Sims, 728
A.2d 357 (Pa. Super. 1999)); see also Commonwealth v. Kneller, 999 A.2d
608, 613 (Pa. Super. 2010) (en banc) (“[A] challenge to the application of the
deadly weapon enhancement implicates the discretionary aspects of
sentencing.”). Additionally, the Commonwealth contends that the trial court
abused its discretion by significantly deviating from the guidelines, and by
considering improper mitigating factors. Together, these two claims raise a
substantial question. See McCain, 176 A.3d at 241 (concluding
Commonwealth had raised substantial question where it alleged trial court’s
sentence failed to protect public and was “unreasonable departure from the
mitigated range of the sentencing guidelines”); see also Commonwealth v.
Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020) (finding substantial
question where appellant asserted trial court considered improper sentencing
factors and deviated from sentencing guidelines). Accordingly, we review the
merits of the Commonwealth’s claims.
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We adhere to the following standard of review:
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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (citation
omitted).
A sentencing judge has broad discretion in determining a reasonable
penalty, and appellate courts afford the sentencing court great deference, as
it is the sentencing court that is in the best position to “view the defendant’s
character, displays of remorse, defiance[,] or indifference, and the overall
effect and nature of the crime.” Commonwealth v. Walls, 926 A.2d 957,
961 (Pa. 2007) (citation omitted). When imposing a sentence, the sentencing
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). “[A] court
is required to consider the particular circumstances of the offense and the
character of the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002). In particular, the sentencing court should refer to the
defendant’s prior criminal record, her age, personal characteristics, and her
potential for rehabilitation. Id.-9-
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Instantly, the Commonwealth argues that the trial court erred in failing
to apply the appropriate sentencing guidelines. See Commonwealth’s Brief,
at 23-25, 29-30. The Commonwealth acknowledges that the trial court later
considered the correct sentencing guidelines with the deadly weapon
enhancement, but maintains that the trial court’s failure to do so at the outset,
undermines the trial court’s sentence. See id. at 30-31, 35. Additionally, the
Commonwealth contends that the trial court improperly referenced a pre-trial
plea offer as improper justification to deviate below the sentencing guidelines.
See id. at 30-32. The Commonwealth concedes that the trial court stated
the plea offer was not a sentencing factor, but nevertheless argues that
the trial court improperly relied upon the plea offer. See id. at 32. Further,
the Commonwealth posits that the trial court relied upon duplicative mitigation
factors in fashioning its excessively lenient sentence. See id. at 29-30.
At the sentencing hearing, the trial court delineated the factors it
considered as follows:
I sat through the trial. There was a [PSI] conducted. I have
reviewed the guidelines. Taken into consideration the victim
impact testimony, letters from friends and relatives, as well as
[Young]’s statement. I will note that [Young] is the mother of
three small minor children. And I agree with what the victim said.
We see too much gun violence in this country. And counsel
pointed out that she [] had a valid permit to carry a gun. But her
use of a gun that day was completely irresponsible. I don’t buy
the argument that this crime occurred in self-defense. I don’t
think that the victim’s conduct in this matter justified the use of a
firearm. [Young] could have easily walked away, minded her own
business, and this whole incident wouldn’t have occurred.
However, I have taken into consideration other factors. And I
don’t think that [] Young needs to go to state prison for an
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extended period of time. I’m going to give her a sentence that’s
below the guideline range. I have taken into consideration the
factors in 42 Pa.C.S.A. [§] 9721 regarding protection of the public,
the gravity of the offense as it relates to the impact of the life of
the victim and on the community, as well as the rehabilitative
needs of the defendant. Obviously, the victim in this case was
impacted. The fear he must have felt that day and must continue
to feel is probably indescribable. And that is a factor I’ve taken
into consideration. Now, [section] 9722 of [the Sentencing Code]
talks about what the [c]ourt needs to consider whenever it takes
into consideration an order of probation. The criminal conduct of
the defendant neither caused nor threatened serious harm. That’s
not a factor because [Young’s conduct] did do those things. The
defendant did not contemplate that her conduct would cause or
threaten serious harm. Obviously, when you point a firearm in
someone’s direction and pull the trigger, that factor would not
count. The defendant acted under strong provocation. I think
[Young] did act under provocation. There was substantial grounds
tending to excuse or justify the conduct of the defendant[,] though
failing to establish a defense. I don’t think that’s a factor because
[Young] could have easily walked away. The victim of the criminal
conduct induced or facilitated its commission. I do find that he
did[,] although [his conduct] certainly didn’t justify [Young’s]
response. Defendant has compensated or will compensate the
victim for the criminal conduct for any damage or injury. That’s a
factor. The defendant has no history or prior delinquency of
criminal activity [and] has led a law[-]abiding life for [a]
substantial period of time before the commission of the present
crime. I find that, yes, that is a factor. Criminal conduct was the
result of circumstances unlikely to reoccur. I do find that’s a
factor. Defendant’s particularly likely to respond affirmatively to
the probationary treatment. I do find that’s a factor. Confinement
of [the] defendant would entail excessive hardship to her
dependents. I do find that’s a factor.
N.T. Sentencing Hearing, 2/2/22, at 5-8.
Further, at the hearing on the Commonwealth’s post-sentence motion,
the trial court stated as follows:
I think the Commonwealth is correct. I didn’t put in [the
sentence] the guideline range. . . . So[,] I’m going to grant [its]
motion as far as that’s concerned.
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The starting point would be with a prior [r]ecord [s]core and
[o]ffense [g]ravity [s]core of zero. I do find that the deadly
weapon enhancement applies. The guideline range would be a
minimum of 22 to [] 36 months, plus 18 months for the
enhancement. So[,] the starting point would be 40 months
minimum.
***
I think that a departure from the guidelines is appropriate. . . .
It’s well established that sentencing guidelines are purely advisory
in nature. The [d]efendant has no right to have other factors take
preeminence or be exclusive. Therefore, to have the guidelines
considered, whatever they may provide, does not change h[er]
rights. Likewise, the prosecutor has no right to have a particular
sentence imposed. Most important, the [c]ourt has no duty to
impose a sentence considered appropriate by the commission.
I put my reasons on the record for departing [from] the guidelines,
quoting some of the standards used for when appropriate. I found
that there was a strong provocation from the victim, that the
victim induced or facilitated [Young]’s conduct. And [that Young’s
conduct was] not justified. But there is no compensation due,
because there was certainly no physical injury. [Young] has no
criminal history. I find that it’s not likely to recur. I find that
[Young] is likely to respond to probation, that confinement would
be an excessive hardship to [Young’s children]. [Young] has three
minor children, ages 11, 3[,] and 2. I find that if she served a
long prison sentence in state prison, it would have a tremendous
negative effect on them.
And [this] isn’t a reason to depart [from the guidelines], but
the [c]ourt’s sentence is not that much different than what the
Commonwealth thought was an appropriate sentence at the time
it made a plea offer. . . . [Young] didn’t take the
[Commonwealth]’s plea offer. [Young] went to trial and she was
found guilty. And now she is facing a substantially harsher
sentence if I went along with the Commonwealth’s sentencing
recommendation.
[Young] doesn’t need to spend four and a half years in state
prison. She made a stupid, terrible mistake. And the [c]ourt’s
sentence that I issued, I think, reflects that.
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N.T. Post-Sentence Motion Hearing, 2/10/22, at 7-9 (emphasis added)
(citations and quotations omitted).
Our review of the record, and the above excerpts, belies the
Commonwealth’s claims. As conceded by the Commonwealth, the trial court
stated that the Commonwealth’s plea offer was not a reason to depart from
the guidelines. See id. at 9. Therefore, as acknowledged by the
Commonwealth, the trial court did not consider that improper factor.
Additionally, as acknowledged by the Commonwealth, the trial court did
reconsider its sentence with the appropriate guidelines and still found
sufficient mitigating factors to deviate from the sentencing guidelines. See
id. at 7-9; see also Trial Court Opinion, 3/31/23, at 1-3 (trial court indicating
its intention to include factors considered at February 2, 2022 sentencing
hearing in February 10, 2022 post-sentence motion hearing); N.T. Sentencing
Hearing, 2/2/22, at 5-8. Therefore, to the extent that the Commonwealth
argues the trial court considered the incorrect guidelines, this claim is
disproved by the record.17 Moreover, our review reveals that the
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17 We are cognizant that the deadly weapon enhancement provisions of the
sentencing guidelines provide that the enhancement “shall apply to each
conviction offense for which a deadly weapon is possessed or used.” 204 Pa.
Code § 303.10(a)(4) (emphasis added). Additionally, the trial court may not
disregard an applicable enhancement when determining the appropriate
sentencing ranges. See Commonwealth v. Cornish, 589 A.2d 718, 720
(Pa. Super. 1991). Further, “[i]t is imperative that the sentencing court
determine the correct starting point in the guidelines before imposing
sentence.” Id.; see also Commonwealth v. Diamond, 945 A.2d 252, 259
(Pa. Super. 2008) (“[T]he sentencing court must correctly apply the
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Commonwealth’s argument that the trial court did not understand the
guidelines is also belied by the record. At the February 10, 2022 post-
sentence motion hearing, the trial court agreed with the Commonwealth’s
assessment of the guidelines, and endeavored to correct its error in misstating
those guidelines at the February 2, 2022 sentencing hearing. See N.T. Post-
Sentence Motion Hearing, 2/10/22, at 7-9; Order, 2/10/23, at 1.
Furthermore, upon review of the record, it is apparent that the trial court
considered all the relevant factors under 42 Pa.C.S.A. § 9721(b) in deviating
from the sentencing guidelines and fashioning its sentence. The trial court
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sentencing guidelines to reach the correct point of departure, before
exercising its discretion to depart from the guidelines in any particular case.
These rules apply to the deadly weapon enhancement.”). Therefore, if “the
trial court erroneously calculates the starting point under the guidelines,” we
will vacate the judgment of sentence and remand for resentencing.
Commonwealth v. Scullin, 607 A.2d 750, 754 (Pa. Super. 1992).
Instantly, the Commonwealth is correct that the trial court was required to
apply the deadly weapon enhancement to the sentencing guidelines. See
Cornish, supra. However, the trial court’s initial failure to properly state and
consider the enhanced sentencing guidelines at the February 2, 2023,
sentencing hearing does not end our review.
It is clear from the record, as we detailed supra, that the trial court agreed
with the Commonwealth, reconsidered Young’s sentence with the proper
guidelines’ calculation, and resentenced Young to the same sentence. See
N.T. Post-Sentencing Motion Hearing, 2/10/23, at 7-9 (trial court
acknowledging error on record, and agreeing it should have applied deadly
weapon enhancement); see also Order, 2/10/23, at 1 (granting
Commonwealth’s post-sentence motion, applying enhanced guidelines,
resentencing Young to same sentence); Trial Court Opinion, 3/31/23, at 1-3.
Accordingly, the question before this Court is whether the trial court abused
its discretion in deviating from the enhanced sentencing guidelines, which we
address infra. See Diamond, supra.- 14 -
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also had the benefit of a PSI. See N.T. Sentencing Hearing, 2/2/22, at 5-6;
see also Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super.
2009) (citation omitted) (where trial court informed by PSI, it is presumed
trial court was aware of all appropriate sentencing factors and considerations;
where trial court has been so informed, “its discretion should not be
disturbed”). Additionally, the trial court listed numerous factors detailing why
deviation below the guidelines was appropriate. See N.T. Sentencing Hearing,
2/2/22, at 5-8; N.T. Post-Sentence Motion Hearing, 2/10/22, at 7-9.
Therefore, our review confirms that the trial court considered all relevant
sentencing factors, and appropriately set forth its reasons for imposing a
below-the-guidelines sentence. See Ventura, supra; 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.
Super. 2009) (appellate court cannot reweigh sentencing factors in place of
trial court merely because trial court did not weigh factors as appellant would
have liked). Accordingly, we conclude that the trial court did not abuse its
discretion in imposing Young’s sentence, and that the Commonwealth’s
challenges to the discretionary aspects of the sentence are without merit. See
Robinson, supra.Judgment of sentence affirmed.
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DATE: 12/8/2023
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