Com. v. Hayes, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIE JAMES HAYES :
:
Appellant : No. 990 WDA 2020
Appeal from the Judgment of Sentence Entered June 19, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007193-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED: JULY 16, 2021
Willie James Hayes (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to aggravated assault and terroristic threats.1 We
affirm.
The trial court detailed the factual and procedural history as follows:
On May 25, 2019, a Criminal Complaint was filed against
[Appellant] charging him with criminal attempt (homicide) [];
aggravated assault []; and ethnic intimidation []. On January 14,
2020, the Commonwealth withdrew the charge of criminal attempt
(homicide) and replaced the charge of ethnic intimidation with one
count of terroristic threats []; and [Appellant] entered a guilty plea
to one count of aggravated assault and one count of terroristic
threats. …
On January 14, 2020, [Appellant] and the Commonwealth
stipulated to the facts as set forth in the Affidavit of Probable
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(1) and 2706(a)(1).
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Cause as being the factual basis for [Appellant’s] plea. N.T.,
1/14/20, at 6-7. As such, the facts proven by the Commonwealth
are as follows:
On 5/25/19 at around 2057 hrs., Officer
Jamison, Gonze, Richards and I were dispatched to
the Wood Street Subway station for a report of a male
that was laying on the Trolley Tracks.
We arrived on the scene and located this male
who was later identified as Charles Basarab. Basarab
was conscious by [sic] very disoriented upon our
arrival. Basarab was also observed to have a
laceration on the upper right side of his head and both
eyes were found to be swollen and bruised. Basarab
was also covered in what appeared to be his own
blood. While speaking with Basarab, he could not
recall how he ended upon the trolley tracks. Medics
and fire were dispatched to the scene to evaluate,
treat and extricate Basarab from the location he was
at.
While on scene, two witnesses stated that
Basarab was assaulted and then thrown onto the
trolley tracks by an unknown black male. Note, this
male actor was no longer on scene. Both witnesses
did however state that prior to the assault, the black
male actor made statements that he was going to kill
Basarab because he (Basarab) was white. Both
witnesses also did state that after Basarab was on the
tracks and unconscious, the male actor walked to the
edge of the platform and stated, “I fucking told you I
was going to kill you.”
Through investigation, I obtained CCTV video
footage of the incident from the Wood Street Subway
Station Cameras. Upon viewing the footage, I
observed a black male dressed in a lite/white colored
button up shirt, red tie, khaki pants and dark shoes.
This described male did appear to strike Basarab with
a closed fist on (3) separate occasions before
shoving/throwing Basarab onto the tracks. The video
does also show that Basarab landed against the trolley
tracks with the right side of his head making contact
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first. Basarab appeared to be knocked unconscious at
this time. The actor then walked to the edge of the
platform, looked down at Basarab and then left the
Wood Street Station. Note, the CCTV did not indicate
or depict anything that Basarab did to provoke the
attack on his person.
Also through investigation, it was found that the
actor was at the Rivers Casino just prior to the assault
on Basarab. I did speak with Rivers Casino PSP
Division as well as the Rivers Casino security.
Security and PSP officers at the Rivers Casino were
able to provide the identity of the actor as [Appellant].
I did contact Basarab after he was transported
to the hospital. Basarab received several broken
bones including several ribs, arm/wrist and facial
bones. Basarab also received surgery due to internal
bleeding as a result of the assault. Due to the facial
and head injuries, Basarab did also receive multiple
stitches. Basarab also informed me that he recalled
[Appellant] state that he was assaulting him because
he was white.
Affidavit of Probable Cause, at 2. …
[Appellant] requested a pre-sentence report and sentencing
was scheduled for April 9, 2020. Due to the COVID-19 judicial
emergency, [Appellant’s] sentencing was rescheduled first to May
20, 2020 then to August 2020. As [c]ourts opened June 1, 2020,
[Appellant’s] sentencing was expedited and occurred on June 19,
2020. On that date, with regard to the charge of aggravated
assault, [Appellant] was sentenced to serve six to twelve years in
a state correctional institution followed by one year of probation.
[Appellant’s] sentence of six to twelve months for the terroristic
threats charge was to run concurrent to [Appellant’s] sentence for
aggravated assault. [Appellant] was found not to be eligible for
RRRI and was given credit for 387 days of time served since May
30, 2019.
[Appellant] filed a Post-Sentence Motion on June 29, 2020,
which was denied on August 19, 2020. [Appellant] filed a Notice
of Appeal on September 18, 2020. An Order of Court directing
[Appellant] to file a Concise Statement of [Errors] Complained of
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on Appeal was entered on October 21, 2020. [Appellant] filed his
Concise Statement on November 10, 2020[.]
Trial Court Opinion, 12/10/20, at 1-3 (footnote omitted, citations
reformatted).
Appellant presents the following question for our review:
Under the circumstances of this case, is not the sentence
imposed of 6 to 12 years of incarceration, followed by one
year of probation, manifestly excessive despite it being a
standard range sentence, because the mitigating
circumstances here render application of the sentencing
guidelines clearly unreasonable and the sentence imposed
an abuse of the sentencing court’s discretion?
Appellant’s Brief at 6.
Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
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code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of the test by raising
his claim in a timely post-sentence motion, filing a timely notice of appeal,
and including in his brief a Rule 2119(f) concise statement. See Appellant’s
Brief at 12-16. Therefore, we examine whether Appellant presents a
substantial question.
Appellant argues that his sentence is “manifestly excessive despite it
being a standard range sentence” because the trial court failed to take into
consideration “the mitigating circumstances here.” Appellant’s Brief at 6.
Appellant raises a substantial question. See Commonwealth v. Caldwell,
117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating “an excessive
sentence claim – in conjunction with an assertion that the court failed to
consider mitigating factors – raises a substantial question.”).
The law is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
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best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019) (citation
omitted).
While Appellant concedes his sentence “is technically a standard range
sentence,” he argues it is unreasonable based on the court’s “failure to
consider mitigating factors.” Appellant’s Brief at 28. He states:
[Appellant] is a veteran who served honorably in Fort Lee,
Alabama, and Bosnia. While [Appellant’s] status as a Veteran is
briefly stated, the sentencing court makes absolutely no mention
of [his] current family or living situation, including being a father
to both a 26 year old and a newborn child which he presumably is
responsible to support. Nor are [Appellant’s] rehabilitative needs
even mentioned by the trial court. Defense counsel had worked
with staffers of Justice Related Services in the Allegheny County
Jail to obtain a plan to address his mental health and substance
abuse rehabilitative needs, but this treatment plan is not even
acknowledged by the sentencing court. See NT, Sentencing at 18
(testimony of JRS worker). Admittedly, the court does off-
handedly refer to [Appellant’s] problems with alcohol and with
mental illness, but it is unclear whether the court understood that
neither condition has ever been adequately addressed by
professionals with treatment. In fact, [Appellant] noted at his
sentencing hearing that even he had not previously known about
his serious need for mental health treatment. Id. at 19. Nothing
in [Appellant’s] sentence addresses his addiction/mental health
needs.
Appellant’s Brief at 25-26 (footnote citing the sentencing transcript and
Appellant’s post-sentence motion omitted). Appellant’s argument is not
persuasive.
The Sentencing Code provides that on appeal, this Court “shall vacate
the sentence and remand the case to the sentencing court with instructions if
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it finds: . . . the sentencing court sentenced within the sentencing guidelines
but the case involves circumstances where the application of the guidelines
would be clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). In determining
whether a sentence is “clearly unreasonable,”
the appellate court must consider the defendant’s background and
characteristics as well as the particular circumstances of the
offense involved, the trial court’s opportunity to observe the
defendant, the presentence investigation report, if any, the
Sentencing Guidelines as promulgated by the Sentencing
Commission, and the ‘findings’ upon which the trial court based
its sentence.
Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)
(citation omitted). See also 42 Pa.C.S.A. § 9781(d).
In addition,
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with 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. . . . In every case in
which the court imposes a sentence for a felony or misdemeanor
. . . the court shall make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
While “the trial court is required to consider the particular circumstances
of the offense and the character of the defendant[, and] should refer to the
defendant’s prior criminal record, age, personal characteristics, and potential
for rehabilitation[, . . . where the sentencing judge had the benefit of a
presentence investigation report, it will be presumed that he or she was aware
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of the relevant information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors.
Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)).
At sentencing, the trial court stated:
[Appellant’s sentence] is in the standard range. I am taking into
consideration [Appellant’s] eight years of honorably
serving in our Armed Forces, but nevertheless, this was a
very violent crime. Not only was Mr. Basarab down on the train
tracks at a subway station and when he landed it looked to me as
if his head hit the track and he didn’t move once he was down
there. Then I was impacted by [Appellant] just walking away and
not showing any concern. [Appellant], Mr. Basarab, the victim,
could have been very easily killed just from that incident. If a
train would have approached him, it probably would have been
catastrophic for him. I am also taking into consideration the fact
that Mr. Basarab, the victim, does have lifelong injuries based on
his testimony. He was seriously impacted not only in a physical
sense, but also in a mental sense from what I gathered from his
impact statement. I am also basing the sentence on [Appellant]
had a previous felony of a stabbing incident. Perhaps it was
mitigated, it was [defense counsel’s] claim that it stemmed
from a complex of domestic incidents, but nevertheless,
there is that conviction. [Appellant] obviously has
alcoholic dependency issues and perhaps some mental
health issues also.
N.T., 6/19/20, at 21-22 (emphases added).
The court subsequently opined:
The evidence presented at sentencing and considered by
this [c]ourt included the contents of the Pre-Sentence Report,
including amendments made thereto at the time of sentencing,
the CCTV video referenced in the Affidavit of Probable Cause; the
testimony of the victim, Charles Basarab; the very limited
testimony of Danielle Meizner of JRS; and the testimony of
[Appellant]. As stated on the record at the time of sentencing,
this [c]ourt considered [Appellant’s] eight years of honorably
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serving in our Armed Forces; the lifelong physical and mental
injuries that were sustained by Mr. Basarab; [Appellant’s] prior
personal injury convictions, including an aggravated assault that
stemmed from a stabbing; and [Appellant’s] alcohol and mental
health issues. This [c]ourt found to be particularly egregious the
fact that [Appellant] saw Mr. Basarab lying unconscious on the
train tracks and walked away without showing any concern or
remorse for his actions.
Given that [Appellant] has had two previous instances of
criminal conduct that resulted in incarceration in a state
correctional institution, this [c]ourt did not believe that
[Appellant] was amenable to rehabilitation in a less restrictive
setting and found that a sentence of total confinement was
necessary. As set forth in the sentencing guidelines submitted in
this matter, the standard range for total confinement is 60-72
months. Thus, this [c]ourt’s sentence of six to twelve years (i.e.—
72 to 144 months) is within the standard range of the guidelines.
This [c]ourt considered the mitigating factors presented by
[Appellant] to be outweighed by his prior criminal history,
including periods of incarceration, and the circumstances of this
crime. Thus, this [c]ourt did not find that deviation from the
standard range of the guidelines was appropriate.
Trial Court Opinion, 12/10/20, at 4-5 (unnumbered, footnoted omitted).
Pertinently, the trial court “had an opportunity to review the
presentence report” before sentencing. See N.T., 6/19/20, at 2; see also
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (“Where the
sentencing court imposed a standard-range sentence with the benefit of a pre-
sentence report, we will not consider the sentence excessive.”). In addition,
Appellant concedes his sentence is in the standard range, Appellant’s Brief at
28, and “where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
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Finally — and contrary to Appellant’s argument — the trial court
considered mitigating factors. The court specified it “considered [Appellant’s]
eight years of honorably serving in our Armed Forces . . . and [Appellant’s]
alcohol and mental health issues.” N.T., 6/19/20, at 21-22. Thus, we “shall
continue to presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth
v. Rosario, 248 A.3d 599, 614 (Pa. Super. 2021) (citation omitted, emphasis
added).
Ultimately, and in its discretion, the trial court imposed a standard range
sentence because it “considered the mitigating factors presented by
[Appellant] to be outweighed by his prior criminal history, including periods of
incarceration, and the circumstances of this crime.” Trial Court Opinion,
12/10/20, at 5 (unnumbered); see Commonwealth v. Riggs, 63 A.3d 780,
786 (Pa. Super. 2012) (“The sentencing court is given broad discretion in
determining whether a sentence is manifestly excessive because the
sentencing judge is in the best position to measure factors such as the nature
of the crime, the defendant’s character and the defendant’s display of
remorse, defiance, or indifference.”) (citations omitted).
For the above reasons, we discern no sentencing error by the trial court.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/16/2021
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