Com. v. McCorkle, A. ( 2021 )

J-S23039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTHUR MCCORKLE :
:
Appellant : No. 67 EDA 2021
Appeal from the Judgment of Sentence Entered October 14, 2020
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0000595-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 15, 2021
Appellant, Arthur McCorkle, appeals from the judgment of sentence of
21 to 42 years’ incarceration imposed upon his resentencing. After review,
we affirm.
The sentencing court relied on the following recitation of the underlying
facts in this matter, as set forth by the assistant district attorney at Appellant’s
resentencing hearing:
[O]n November 26th of 2016, at approximately 3:36 p.m.,
Bucks County police radio received a call of a male covered in
blood at the Grey Friars apartment complex in New Britain
Township, Bucks County. On scene responding officers located
Thomas Grimes, the victim, who had been stabbed, beaten and
his throat slashed and blood pouring out of a gaping wound in his
throat. Because of his throat being slashed, Grimes was unable to
communicate with police officers. However, he was able to write
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* Retired Senior Judge assigned to the Superior Court.
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a few notes on the notepad before feeling like he was passing out
due to the significance of his injuries.
Grimes indicated that approximately 30 minutes earlier, he
was awakened by two black males later identified as Appellant and
[co-defendant Daron] Davis standing at his bed and pointing guns
in his face. Grimes noted that they were strangers to him.
Responding officers noted that there were no signs of forced entry
to the apartment. Investigation revealed that entry to the
apartment was arranged and the robbery set up by co-defendant
Keliyah Reaves. Reaves had been an acquaintance of Grimes’
roommate and had been in the apartment and met Grimes several
times prior because of her appointments with Grimes’ roommate
Rafiq James. Specifically, Reaves had a romantic relationship with
James’ nephew -- with whom she stayed at the apartment
numerous times and has been met by James and Grimes.
While in the apartment, Reaves noticed that James had
numerous very nice items such as shoes, watches and other
items, and arranged with Appellant and Davis to take James’ items
from the apartment when he was not present on November 26th.
On November 26th[, the] investigation revealed that Reaves
had entered the Blue Dog Tavern in New Britain Township on
multiple occasions and asked to speak with James who was
working there that day. When speaking with James, Reaves
mentioned that she was supposed to meet James’ nephew at the
apartment, a made-up story told to facilitate James calling his
roommate, Grimes, to allow Reaves to come into the apartment
and allegedly wait for James’ nephew. James did call Grimes and
instructed Grimes to allow Reaves in to wait for Anthony Bizzell,
his nephew. Grimes unlocked the front door to allow Reaves entry
and went back to sleep in his room after working much of the
previous night. Minutes later Grimes was awoken by Davis and
Appellant standing above him each with firearms asking where
James’ items were and questions about a combination to a safe.
Grimes continuously answered that he did not know, and Davis
and Appellant continued getting more violent.
Reaves was located in the living room at this time. Grimes
was pistol whipped by Appellant … causing multiple wounds to his
head. He also had one of the -- he also had one of the pistols
placed on his testicles as he was on all fours on the floor with both
[Appellant and Davis] continuing to ask about the items in the
safe. Grimes’ arms and legs were bound by the actors. Grimes
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was handed a picture of his infant daughter that had been on the
wall and told that this was the last time he was going to see her
if their demands were not met. The picture was held in front of his
face and recovered from the room.
Despite attempting to comply with the actors, Grimes was
beaten and cut multiple times on his body. After this time period
Appellant left the room and ransacked James’ room with the
assistance of Reaves. Multiple bags of items were taken including
dozens of shoes, watches, two X-Box consoles and cash.
While Appellant and Reaves were ransacking the apartment,
Davis remained in the bedroom with Grimes. Grimes was asked
two questions that made him believe that he was not going to
make it out alive. First, whether his neighbors downstairs were
home; and, secondly, whether he had a sack of potatoes to use
as a firearm silencer. When Grimes responded that his neighbors
were home and he had no potatoes, Davis pushed Grimes down
onto the bed, held [him] with one hand, and sliced his throat with
a box cutter. When Grimes tried to push back up, [Davis] sliced
the back of his throat. Davis[, Appellant,] and Reaves rushed out
of the house with all the items including Grimes’ phone[,] leaving
him for dead. Grimes played dead for a short period of time,
staggered to his feet, wrapped a towel around his neck and with
blood pouring out of his neck made it to a neighbor’s front door[,]
who called for help as Grimes was unable to speak.
At approximately 11:00 p.m. that evening[, Appellant,
Davis, and Reaves] were stopped in Bensalem at a Neshaminy
Valley Inn during another investigation. At that time Davis was in
possession of a Smith & Wesson .38 caliber firearm and was
arrested. Appellant and Reaves were let go that evening;
however, [they were] picked up two days later in Philadelphia
after being positively identified by Grimes during a photo lineup.
A search warrant was conducted at the home of Appellant
in Philadelphia and multiple items from the New Britain incident
were found inside the home. When Davis was arrested, he was
wearing multiple items of James[’s,] including a Gucci watch and
Gucci sneakers.
During the course of the police investigation[,] police
executed numerous search warrants and court orders on cell
phones belonging to all three individuals. During review of those
phone dumps[,] specific conversations between Reaves, who was
inside the apartment at the time, and Appellant were retrieved
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during which specific instructions were given about when it would
be the right time to enter the apartment. Additionally[,]
conversations about the set up of the robbery were retrieved, and
it was discovered that it had been set up three days prior to the
event between [Appellant, Davis, and Reaves].
Following the event[,] there were multiple discussions
retrieved from Appellant’s cellphone revealing discussions of
selling numerous items that were stolen from the robbery.
Interviews with Reaves [indicated] that she … observed
Davis leave Grimes’ bedroom with a bloody box cutter and blood
all over a book bag and camouflage pants he was wearing.
Reaves described Appellant[’s] backing into a parking spot
directly in front of the apartment and opening the trunk of the
[vehicle] to put the items in. Additionally[,] Reaves described
multiple conversations that occurred while the three [of them]
were driving away from the scene between Davis and Appellant
where they bragged about what they had done to Grimes[,]
believing him to be dead and noted that, [“]I slit his throat, his
stuff was hanging out of his neck.[”] Additionally Davis said, [“that
nigga would not die and I had to stab him in the back of his neck
because he would keep on moving.[”] Davis and Appellant were
laughing when discussing Grimes’ injuries[,] according to Reaves.
It was Reaves’ belief that both Appellant and Davis believed
Grimes to be dead when they left the apartment. Grimes’ phone
was thrown out of the window of Appellant’s [vehicle] as they were
leaving Route 309. Reaves advised that all Appellant’s clothing
was discarded in Philadelphia.
Grimes was rushed to Abington Memorial Hospital where he
underwent life[-]saving surgery to repair life[-]threatening
wounds to his esophagus from his throat being cut multiple times
with a box cutter. After waking up from surgery[,] doctors
explained while his life was saved[,] it was 90 percent likely that
his voice was going to be lost. Following ten days in the hospital[,]
Grimes regained partial use of his voice; however, [he] remained
with a feeding tube for several months following the incident.
N.T. Resentencing, 10/14/20, at 4–13 (name designations altered and
unnecessary capitalization omitted); see also Sentencing Court Opinion,
4/5/21, at 2–5; N.T. Sentencing, 9/26/2017, at 5–14.
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A prior panel of this Court set forth the procedural history of this matter
as follows:
[Based on the foregoing, o]n November 29, 2016, Appellant was
charged with numerous offenses relating to the home invasion and
assault. On June 20, 2017, he entered an open guilty plea to all
charges set forth in the criminal information[: two counts of
aggravated assault, robbery, burglary, theft by unlawful taking,
possession of an instrument of crime, unlawful restraint, and false
imprisonment, as well as counts of conspiracy to commit each of
the above offenses.1] On September 26, 2017, prior to
sentencing, the Commonwealth requested and was granted leave
to nolle pros certain counts.3 Appellant’s plea to the remaining
counts, as provided above, stayed unchanged. The matter then
proceeded to sentencing.4 The court imposed the following
sentence: (1) a term of 106 to 212 months’ [incarceration] for
aggravated assault; (2) a consecutive term of 118 to 236 months’
incarceration for robbery; and (3) a consecutive term of 76 to 152
months’ [incarceration] for burglary[, which resulted in an
aggregate term of 25 to 50 years’ incarceration].5 Appellant filed
a post-sentence motion for reconsideration, which was denied by
the court without a hearing on October 20, 2017.
_____
3 Specifically, the Commonwealth nolle prossed charges of
attempted homicide, criminal trespass and attempt and
conspiracy to the same, and attempt and conspiracy to
receiving stolen property.
4 Appellant was sentenced at the same time as Davis and
Reaves.
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1 18 Pa.C.S. §§ 2702(a)(1) and (a)(4), 3701, 3502(a)(1), 3921(a), 907(a),
2902(a)(1), 901(a), and 903, respectively. Co-defendants Davis and Reaves
also pleaded guilty to numerous charges. Neither co-defendant is a party to
this appeal.
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5 The [sentencing] court ordered costs of prosecution and
restitution, but did not impose a further penalty with the
remaining convictions. Appellant was also given credit for
time served.
Commonwealth v. McCorkle, No. 3790 EDA 2017, 200 A.3d 588 (Pa. Super.
filed Oct. 19, 2018) (unpublished memorandum at 5–6). Thereafter,
Appellant filed a timely notice of appeal to this Court, which affirmed his
judgment of sentence on October 14, 2018. Id. (unpublished memorandum
at 10). Appellant did not seek allowance of appeal from our Supreme Court.
On February 4, 2019, Appellant filed a timely pro se petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546, seeking,
inter alia, reinstatement of his right to file a petition for allowance of appeal
(PAA) nunc pro tunc with our Supreme Court. The PCRA court appointed
counsel and upon agreement of the parties, the PCRA court granted the
petition on April 12, 2019, insofar as Appellant was permitted to file a PAA
nunc pro tunc. However, Appellant did not file a PAA nunc pro tunc and thus,
his judgment of sentence became final on May 13, 2019.2
Thereafter, counsel filed a timely PCRA petition on May 5, 2020, claiming
that the sentencing guidelines used at Appellant’s September 26, 2017
sentencing hearing contained an incorrect prior record score (PRS) for
Appellant. The Commonwealth agreed and after a hearing, the PCRA court
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2 The 30th day was Sunday, May 12, 2019. Therefore, Appellant had until
Monday, May 13, 2019, to file a timely PAA. 1 Pa.C.S. § 1908.
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granted said petition on August 25, 2020. Accordingly, the PCRA court
ordered a new sentencing hearing based on recalculated sentencing
guidelines, which was held on October 14, 2020.
At the resentencing hearing, the court vacated Appellant’s judgment of
sentence and resentenced Appellant to an aggregate term of 21 to 42 years’
incarceration.3 Appellant filed a motion for reconsideration of his sentence
nunc pro tunc4 on October 30, 2020, which the sentencing court denied.
Appellant then filed a timely appeal of the judgment of sentence.5
In his sole issue on appeal, which he subdivides into numerous parts,
Appellant challenges the discretionary aspects of his sentence:
Did the [sentencing] court err in denying Appellant’s request for
reconsideration of sentence, and the court abused its discretion at
sentencing, in that the court failed to consider:
A. Running the charges/sentences consecutively solely focuses on
the crime and not the fact that Appellant’s record is not
extensive;
B. At the time of the crime Appellant was young, made a mistake,
and was an adolescent at the time of the incident;
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3 Specifically, the sentencing court resentenced Appellant as follows: 90 to
180 months’ incarceration for aggravated assault; 102 to 204 months’
incarceration for robbery; 60 to 120 months’ incarceration for burglary.
Sentencing Order, 10/14/20. All sentences were set to run consecutively. Id.
4 The court granted Appellant’s motion to file his post-sentence motion nunc
pro tunc.
5 Appellant filed his statement of errors complained of on appeal on January
11, 2021, and the sentencing court entered its opinion on April 5, 2020.
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C. At the time of the crime Appellant was 19 years old and his
brain was not fully developed as an adult, even though he was
over 18 years of age;
D. The sentence rendered by the court will result in Appellant
serving more time in prison than the number of years he was
alive at the time of the crime;
E. Appellant’s female co-defendant received a sentence of 11 ½
to 23 years even though she set everything up;
F. The sentence imposed is excessive given that Appellant was
not convicted of criminal attempt-murder;
G. Appellant pled guilty and did not go to trial;
H. Appellant believes that a sentence identical to his female co-
defendant, or slightly longer, is appropriate under the
circumstances;
I. Appellant believes a sentence of more than twenty (20) years
based on a mistake, is excessive;
J. Appellant has three young children who are in the custody of
his mother, who has numerous health problems; and,
K. The sentence is excessive because Appellant will not be paroled
until after he is forty (40) years old and at that point in time
he will not be able to start a meaningful life or be a productive
member of society.
Appellant’s Brief at vi (unnecessary capitalization omitted).
Our standard of review for a challenge to the discretionary aspects of
sentencing is as follows:
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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. Lekka, 210 A.3d 343, 350 (Pa. Super. 2019) (citation
omitted). “A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citations and quotation marks omitted). Where an appellant
challenges the discretionary aspect of a sentence, we must engage in a four-
part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence pursuant to Rule
of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f); and (4)
whether the concise statement raises a substantial question that
the sentence is not appropriate under the Sentencing Code.
Lekka, 210 A.3d at 349 (citation and brackets omitted).
Appellant filed a timely notice of appeal, preserved his appellate issue
in a post-sentence motion, and included in his brief the concise statement
required by Rule 2119(f). Appellant’s Brief at 8–11. Therefore, we will
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address the issue of whether Appellant has raised a substantial question that
his sentence is not appropriate under the Sentencing Code.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. 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.
Lekka, 210 A.3d at 349 (citation and quotation marks omitted).
In his Rule 2119(f) statement, Appellant argues that the sentencing
court abused its discretion by imposing “consecutive sentences on all counts,
at the top of the standard range.” Appellant’s Brief at 9. Appellant contends
that this presents a substantial question because “the imposition of
consecutive sentences in this instance, i.e., based on the criminal conduct at
issue, results in a manifestly excessive sentence.” Id. Such a claim fails to
raise a substantial question for our review. Commonwealth v. Radecki, 180
A.3d 441, 468 (Pa. Super. 2018) (“We consistently have recognized that
excessiveness claims premised on imposition of consecutive sentences do not
raise a substantial question for our review.”) (citations omitted).
Appellant also claims that his sentence is excessive because the court
failed to explain how its assessment of the statutory factors, and specifically
the mitigating factors enumerated in Appellant’s statement of questions
involved, provided reason to sentence Appellant to an aggregate term of 21
to 42 years’ incarceration. Appellant’s Brief at 10. In other words, Appellant
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argues that the court’s sentence and lack of a statement on the record
explaining the reasons for the sentence imposed indicates that the sentencing
court failed to consider adequately those enumerated mitigating factors. Id.Such a claim likewise does not raise a substantial question for our review.
Radecki, 180 A.3d at 469 (“This court has held on numerous occasions that
a claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.”) (quoting Commonwealth v. Eline, 940
A.2d 421, 435 (Pa. Super. 2007)); Radecki, 180 A.3d at 469 (concluding that
Radecki “failed to raise a substantial question with respect to his
excessiveness claim premised on the imposition of consecutive sentences and
inadequate consideration of mitigating factors.”).
Nonetheless, while neither of the reasons Appellant relies upon for
allowance of appeal with respect to the discretionary aspects of his sentence
presents a substantial question on its own, this Court has held that an
excessive sentence claim “pair[ed] … with an assertion that the court failed to
consider mitigating evidence” constitutes a substantial question.
Commonwealth v. Wallace, 244 A.3d 1261, 1278 (Pa. Super. 2021); see
also Commonwealth v. Akhmedov, 216 A.3d 307, 328 (Pa. Super. 2019)
(en banc); Commonwealth v. White, 193 A.3d 977, 983 (Pa. Super. 2018)
(citations and some quotation marks omitted) (“[P]rior decisions from this
Court involving whether a substantial question has been raised by claims that
the sentencing court ‘failed to consider’ or ‘failed to adequately consider’
sentencing factors [have] been less than a model of clarity and consistency.”).
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Therefore, insofar as Appellant is arguing, in conjunction with his claim of an
excessive sentence, that the court failed to consider altogether the
enumerated mitigating factors, we will review the merits of Appellant’s claim.
Appellant asserts that the trial court failed to give adequate weight to
mitigating factors of his youth, his remorse and guilty plea, his three young
children, and his age of 40 at the time he would be eligible for parole.
Appellant’s Brief at 13–15. While conceding their heinous nature, he
characterizes his crimes as mistakes and chalks them up to adolescence and
immaturity. Id. at 13–14. He believes that as he serves time in prison, he
will mature, change, grow, learn, and “gain insight as to the effect his crimes
have on the victim and society.” Id. at 14. According to Appellant, because
he will spend more years in prison than the number of years he was alive at
the time of sentencing, the sentencing court abused its discretion. Id. He
also focuses on co-defendant Reaves’s lesser sentence and contends the court
abused its discretion in imposing different sentences “for participation in the
same crime.” Id.
Upon review, we conclude the sentencing court did not abuse its
discretion at resentencing. The record reflects that the court (1) was aware
of the facts of the case; (2) heard testimony from Appellant, who spoke about
his upbringing and removal from his mother’s care by social services,
education, juvenile record, mental health and drug history, and behavior in
prison; (3) heard Appellant’s allocution, where he took responsibility for his
crimes, apologized to the victims, their families, his family, the court, and the
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community, and explained how he was more mature at age 24 than he was
at age 19 when he was sentenced, had gained insight into his past and
“extremely poor” choices, had changed his “core beliefs” to pave the way to
become a better and productive member of society, has three children whose
mothers had either passed away or abandoned them, regrets the “huge
mistake” he made, and prays for forgiveness; and (4) incorporated the notes
of testimony from Appellant’s prior sentencing hearing into the resentencing
record, at which the same court had heard testimony from Appellant and his
mother, father, stepfather, and brother; and (5) considered the relevant
factors set forth in subsection 9721(b) of the Sentencing Code, 42 Pa.C.S.
§ 9721(b). N.T. Resentencing, 10/14/20, at 4–28; N.T. Sentencing 9/26/17.
At resentencing, the court acknowledged that Appellant showed “some
maturity” and an appreciation of the seriousness of his crimes that he had not
previously shown. N.T. Resentencing, 10/14/20, at 32–33. The court recalled
the testimony of his family and their support at the prior hearing. Id. at 33.
Nonetheless, the court noted that “this was one of the most violent incidents
[it had] ever seen, been involved in in any way, as an attorney, as a judge.
The depth of the violence, of the hatred, of the injuries, of the torture that
was imposed was remarkable” and that the court would “always remember
this case.” Id. at 33–34. The court stated:
I take into account all of those factors that I’ve previously taken
into account. I take into account the fact that [Appellant] has
shown some maturity, has shown some growth, indicates now a
plan to continue to grow and to eventually get out of jail and have
a life outside of prison.
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I still believe that any lesser sentence would depreciate the
seriousness of this crime. I believe that there’s -- that [Appellant]
is still in need of correctional treatment that can be provided most
effectively by his commitment to a State Correctional Institution.
N.T., 10/14/20, at 34.
Furthermore, in its opinion, the sentencing court referenced what it had
stated during Appellant’s prior discretionary-aspects-of-sentencing appeal,
again noting the gruesome facts of the case, the serious impact Appellant’s
conduct had on the community, and Appellant’s overall role in the incident.
The court also noted that Appellant had written to the district attorney’s office
while awaiting trial, wherein he impersonated co-defendant Davis and falsely
stated that Davis accepted full responsibility for the incident and denied that
Appellant gave Davis a sign to slit Grimes’s throat. Sentencing Court Opinion,
4/5/21, at 9–10. Finally, the court resentenced Appellant in the standard
range, compared to its prior imposition of aggravated range sentences.6 Thus,
we discern no abuse of discretion by the sentencing court.
For the foregoing reasons, we affirm.
Judgment of Sentence affirmed.
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6 We also point out that while this Court found Appellant’s discretionary-
aspects-of-sentencing issue waived in his prior appeal, we also stated that if
Appellant had preserved such issue, we would have concluded that his
aggregate sentence of 25 to 50 years’ incarceration was not excessive and the
sentencing court provided sufficient reasoning for the sentence imposed.
McCorkle, 3790 EDA 2017, 200 A.3d 588 (unpublished memorandum at 10
n.8).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2021
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