Com. v. Garner, K. ( 2021 )

J-S13009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH GARNER :
:
Appellant : No. 1743 EDA 2020
Appeal from the Judgment of Sentence Entered August 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003958-2019,
CP-51-CR-0003959-2019, CP-51-CR-0003960-2019,
CP-51-CR-0003961-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH GARNER :
:
Appellant : No. 1744 EDA 2020
Appeal from the Judgment of Sentence Entered August 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003958-2019,
CP-51-CR-0003959-2019, CP-51-CR-0003960-2019,
CP-51-CR-0003961-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH GARNER :
:
Appellant : No. 1745 EDA 2020
Appeal from the Judgment of Sentence Entered August 14, 2020
J-S13009-21
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003958-2019,
CP-51-CR-0003959-2019, CP-51-CR-0003960-2019,
CP-51-CR-0003961-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH GARNER :
:
Appellant : No. 1746 EDA 2020
Appeal from the Judgment of Sentence Entered August 14, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003958-2019,
CP-51-CR-0003959-2019, CP-51-CR-0003960-2019,
CP-51-CR-0003961-2019
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 20, 2021
Appellant, Keith Garner, appeals from the judgment of sentence entered
on August 14, 2020, as made final by the denial of Appellant’s post-sentence
motions on August 27, 2020. We affirm.
In 2018, the Commonwealth charged Appellant with multiple crimes,
including four counts of murder. On February 14, 2020, Appellant entered an
open guilty plea to four counts of third-degree murder, two counts of robbery,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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and one count each of conspiracy and possessing a firearm by a prohibited
person.1 During the plea colloquy, Appellant stipulated to the following facts:
[O]n Monday, November 19, 2018, at approximately 12:03
p.m.[,] Philadelphia Police responded to [a particular address
on Malcolm Street] where they located four deceased
individuals lying on the basement floor. [Tiyaniah Hopkins],
a 20-year-old female was found with a gunshot wound to the
head. [Yaleah Hall], a 17-year-old female was also found
with a gunshot to the head. [Akeen Mattox], a 28-year-old
male also found with a gunshot wound to the head. And
Maurice Taylor-Williams . . . , a 31-year-old man was found
partially clothed with a gunshot wound to his right ear, right
neck and anterior chest.
All four bodies were taken into the office of the medical
examiner for postmortem examinations conducted by Dr.
Albert Chu. He determined that the cause of death for Ms.
Hopkins, Ms. Hall and Mr. Mattox were gunshot wounds to
the head and the manner of death was homicide. For
Taylor-Williams, the cause of death was multiple gunshot
wounds, also [the] manner of death being a homicide.
. . . [Steven Baxley] would testify that[,] on the previous day,
. . . he was at [the Malcolm Street residence] with the four
deceased individuals. Mr. Baxley had been called there by
his friend Akeen Mattox, because Mr. Mattox and the
decedent Taylor-Williams had set up a drug transaction with
a person who was known to them, later identified as
co-defendant Jalil Porter. Mr. Porter was at [the Malcolm
Street residence] for a period of time with Mr. Baxley and the
other individuals. He received a call that his buyer had car
trouble and couldn't make it. This would later turn out to be
a ruse. Mr. Porter then left and was expected to return.
Mr. Baxley waited with decedents Mattox, Taylor-Williams,
and the female victims until around 10:00 p.m. but left prior
to Mr. Porter returning. Shortly after Baxley left, he received
____________________________________________
1 18 Pa.C.S.A. §§ 2502(c), 3701(a)(1)(i), 903, and 6105(a)(1), respectively.
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a phone call from Akeen Mattox stating the buyer had arrived.
Mr. Baxley never heard from Mr. Mattox again. Search
warrants into the cell phone records and physical cell phones
of co-defendants Porter [and] Long revealed that they
traveled to the area of [] Malcolm Street together, the first
time Porter went to [the Malcolm Street residence].
Jalaya Murphy . . . would be called to testify at trial. She
would have testified [that] at the time of the incident she was
[Appellant’s] girlfriend. On the night of the murders, she
received a text from [Appellant] stating that they were going
to handle Will, which is victim Maurice Taylor-William's
nickname. [Appellant] texted her a picture of the revolver.
Earlier in the day, [Appellant] told Ms. Murphy he was going
out with co-defendant Jalil Porter.
Around 11:00 p.m., [Appellant] and co-defendant[s] Long
and Porter returned to the area of [] Malcolm Street together.
All three went inside the [residence] and ordered Hopkins,
Hall, Mattox, [and] Taylor-Williams to the basement at
gunpoint. Decedent Taylor-Williams was ordered to take off
his clothing, then all four were shot by [Appellant] and Porter.
[Specifically, Appellant] shot Mr. Taylor-Williams, and Mr.
Porter shot Maurice Taylor-Williams and the other three
victims.
[Following the murders, Appellant, Long, and Porter] went .
. . to [Appellant’s] home where they split the drugs that were
the subject of the robbery. And those drugs were a mixture
of heroin and what turned out to be a cutting agent. . . .
Keith Moore would also be called to testify. He would testify
that [Appellant] gave him a revolver which was later
recovered by police, and this revolver that Mr. Moore had
when [Appellant] gave it to him, he told Mr. Moore to get rid
of it. But Mr. Moore did not. The firearm was inconclusive
when compared to the body bullet inside of decedent Taylor's
chest, but it was capable of shooting the same type of
ammunition.
After the murders, co-defendant Porter introduced
[Appellant] to [Nasir Moss-Robertson. Appellant] gave Mr.
Moss-Robertson some of the drugs that were taken during
this incident and asked him to sell them.
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N.T. Guilty Plea Hearing, 2/14/20, at 46-50 (some capitalization omitted).
The trial court accepted Appellant’s open guilty plea and, on August 14,
2020, the trial court sentenced Appellant to serve an aggregate term of 40 to
80 years in prison for his convictions. In particular, the trial court sentenced
Appellant to serve a term of ten to 20 years in prison for murdering Mr.
Taylor-Williams, a consecutive term of ten to 20 years in prison for murdering
Ms. Hopkins, a consecutive term of ten to 20 years in prison for murdering
Mr. Mattox, and a consecutive term of ten to 20 years in prison for murdering
Ms. Hall.2 N.T. Sentencing Hearing, 8/14/20, at 176-177.
Appellant filed timely post-sentence motions at the four docket numbers
and claimed that the trial court abused its discretion at sentencing because
the trial court: 1) provided insufficient reasons for Appellant’s sentence; 2)
“failed to give careful consideration to all relevant factors;” 3) “weighed too
heavily the text messages between [Appellant] and a co-defendant;” 4) “failed
to give enough consideration and weight to the remorse and shame expressed
by” Appellant; 5) “failed to give enough consideration and weight to the
honesty and forthrightness of [Appellant’s] allocution;” and, 6) “gave too
much weight to the nature of the offense.” Appellant’s Post-Sentence Motion,
8/20/20, at 3-4 (some capitalization omitted). Appellant also observed that
he was 35 years old at the time of his February 14, 2020 sentencing. He
____________________________________________
2 The trial court imposed concurrent terms of imprisonment or no further
penalty on Appellant’s remaining convictions.
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noted that, since he was arrested on December 18, 2018, he would not be
eligible for parole until he reaches the age of 74 – which, Appellant claims,
exceeds his adjusted life expectancy of 72.2 years. Id. at 5. According to
Appellant, given these facts, his sentence is manifestly excessive, as his
“minimum sentence is past the date of his life expectancy and he has no real
possibility of being released prior to his death.” Id.
The trial court denied Appellant’s post-sentence motions and Appellant
filed timely notices of appeal at all four docket numbers. Appellant raises one
claim in this consolidated appeal:3
Did the trial court commit an abuse of discretion in the
sentence it imposed?
Appellant’s Brief at 4 (some capitalization omitted).
Appellant’s claim on appeal challenges the discretionary aspects of his
sentence. “[S]entencing is a matter vested in the sound discretion of the
sentencing judge, whose judgment will not be disturbed absent an abuse of
discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.
2001). Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court explained:
____________________________________________
3 On December 2, 2020, this Court sua sponte consolidated Appellant’s four
appeals. See Order, 12/2/20, at 1; see also Pa.R.A.P. 513.
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[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, 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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Generally, to raise a substantial question, an appellant must “advance
a colorable argument that the trial judge's actions were: (1) inconsistent with
a specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. McKiel,
629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748
A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.
2000). Additionally, in determining whether an appellant has raised a
substantial question, we must limit our review to Appellant's Rule 2119(f)
statement. Goggins, 748 A.2d at 726. This limitation ensures that our
inquiry remains “focus[ed] on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary only to decide
the appeal on the merits.” Id. at 727 (emphasis omitted).
Appellant recognizes that each of his individual sentences fall far below
the standard sentencing range.4 See Appellant’s Brief at 19 n.3.
____________________________________________
4 As the trial court explained to Appellant during the sentencing hearing:
(Footnote Continued Next Page)
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Nevertheless, Appellant claims that his aggregate sentence of 40 to 80 years
is manifestly excessive, as the sentence “essentially guarantees [Appellant]
will spend most of the rest of his life in prison.” Appellant’s Brief at 25.
Further, Appellant claims that the trial court abused its discretion at
sentencing because the trial court: “focus[ed] solely on the seriousness of the
offense [] in crafting [the] sentence;” failed to consider mitigating factors and
Appellant’s prospects for rehabilitation; and, fashioned a sentence that
“reflects a fixed purpose of keeping [Appellant] in [prison] for the majority of
his life.” Id. at 26 and 32-35.
First, Appellant claims that his aggregate sentence is manifestly
excessive, as he was 35 years old at the time of sentencing and will not be
eligible for parole until he reaches the age of 74. He claims that, since his age
at parole exceeds his adjusted life expectancy of 72.2 years, his sentence is
manifestly excessive, as it constitutes a de facto life sentence. We may not
reach the merits of Appellant’s claim, as it does not raise a substantial
question under the Sentencing Code.
First, nothing prohibits a trial court from imposing a de facto life
sentence on an adult offender. But see Commonwealth v. Clary, 226 A.3d
____________________________________________Third-degree murder carries an offense gravity score of 14
with a prior record score of [five]. The sentencing range with
a deadly weapon enhancement used starts at 210 months to
the statutory limit. For your edification, 210 months breaks
down to, roughly, [17 ½] years.
N.T. Sentencing Hearing, 8/14/20, at 90.
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571, 581 (Pa. Super. 2020) (“[a] trial court may not impose a term-of-years
sentence on a juvenile convicted of homicide that equates to a de facto [life
without parole] sentence unless it finds, beyond a reasonable doubt, that the
juvenile is incapable of rehabilitation”) (emphasis added). As such,
Appellant’s bald claim of excessiveness does not raise a substantial question.
Further, to the extent Appellant challenges the imposition of consecutive
sentences in his case, we note that this type of challenge does not usually
raise a substantial question. Indeed, this Court previously explained:
Under 42 Pa.C.S.A. § 9721, the court has discretion to
impose sentences consecutively or concurrently and,
ordinarily, a challenge to this exercise of discretion does not
raise a substantial question. Commonwealth v. Pass, 914
A.2d 442, 446–447 (Pa. Super. 2006). The imposition of
consecutive, rather than concurrent sentences may raise a
substantial question in only the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
imprisonment. Id. (holding challenge to court's imposition of
sentence of six [] to [23] months['] imprisonment and
sentence of one [] year probation running consecutive, did
not present substantial question). Compare
[Commonwealth v. Dodge, 957 A.2d 1198 (Pa. Super.
2008), appeal denied, 980 A.2d 605 (Pa. 2009)] (holding
imposition of consecutive sentences totaling 58 ½ to 124
years['] imprisonment for [37] counts of theft-related
offenses presented a substantial question because total
sentence was essentially life sentence for [a 42-year-old]
defendant who committed non-violent offenses with limited
financial impact).
Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010)
We determine, on a case-by-case basis, whether a challenge to the
imposition of a consecutive sentence raises a substantial question. See
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Commonwealth v. Marts, 889 A.2d 609, 612 (Pa. Super. 2005). We have
held that “the key to resolving the preliminary substantial question inquiry is
whether the decision to sentence consecutively raises the aggregate sentence
to, what appears on its face to be, an excessive level in light of the criminal
conduct at issue in the case.” Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010).
Based upon our review, Appellant's sentence is not facially excessive in
light of his criminal conduct. To be sure, Appellant and his co-conspirators
robbed and murdered four people in a basement – in killings that the trial
court accurately characterized as executions. See N.T. Sentencing Hearing,
8/14/20, at 34-35 (the trial court noted that “it is very, very rare that this
court sees a case that cannot be described as anything other than an
execution”) (some capitalization omitted). Considering Appellant’s horrific,
brutal, and heinous actions, the trial court’s decision to sentence Appellant to
serve four consecutive terms of ten to 20 years in prison – one term for each
of the four people he murdered – does not “raise[] the aggregate sentence to
. . . an excessive level in light of the criminal conduct at issue in the case.”
See Mastromarino, 2 A.3d at 587. As such, we may not reach the merits of
Appellant’s claim.
We will consider Appellant’s remaining claims together. According to
Appellant, the trial court abused its discretion at sentencing because the trial
court: “focus[ed] solely on the seriousness of the offense [] in crafting [the]
sentence;” failed to consider mitigating factors and Appellant’s prospects for
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rehabilitation; and, fashioned a sentence that “reflects a fixed purpose of
keeping [Appellant] in [prison] for the majority of his life.” Appellant’s Brief
at 26 and 32-35.
Appellant’s claims are reviewable on appeal. In this case, Appellant filed
a timely appeal, preserved his issues in a post-sentence motion, and included
in his brief a concise statement of the reasons relied upon for allowance of
appeal pursuant to Pa.R.A.P. 2119. Further, under our precedent, Appellant’s
claims raise a substantial question. See Commonwealth v. Serrano, 150
A.3d 470, 473 (Pa. Super. 2016) (finding a substantial question where the
appellant claimed the trial court failed to consider his individualized needs);
Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) (finding
a substantial question where the appellant argued the trial court focused on
the seriousness of offense, did not consider his rehabilitative needs, and
evinced a “fixed purpose of keeping [the appellant] in jail for his life”);
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (finding a substantial question where the appellant challenged
consecutive sentences as excessive and the court's alleged failure to consider
his rehabilitative needs).
We will therefore address Appellant's sentencing claims, pursuant to the
following standard of review:
The Sentencing Code provides 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. The trial court
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has discretion within legal limits when sentencing a
defendant, and absent an abuse of that discretion, we will not
disturb its sentence. An abuse of discretion occurs where the
record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill-will. The sentencing judge does not have to give a lengthy
discourse explaining its reasons for imposing a sentence.
However, the record as a whole must reflect the sentencing
court's consideration of the facts of the crime and character
of the offender.
Commonwealth v. Rominger, 199 A.3d 964, 970 (citations and quotation
marks omitted).
The trial court thoroughly explained the reason for its sentence:
[At sentencing, the trial] court considered [Appellant’s]
actions before and after the crime, his disturbing text
conversations with [] co-defendant [Porter], his initial
aggression against Taylor-Williams, and the serious nature of
the crimes he committed. [Appellant] pled guilty to
murdering the four individuals in the home and admitted that
he had knowledge of the plan to kill all four individuals,
including the two young women he encountered that night.
At his sentencing hearing, [Appellant] claimed that this was
a robbery gone wrong and there was not a plan to murder
anyone. This claim is rebuffed by the record, which includes
[Appellant’s] texts both prior to and after his crimes, his firing
of the first shot at Taylor-Williams, and his guilty plea.
[Appellant’s] text, "We are going to handle Will," with the
picture of his weapon, shows his intention to harm
Taylor-Williams, at a minimum. Even if, as [Appellant]
maintains, that the text message did not mean he intended
to kill Taylor-Williams, he still fired the first shot. [Appellant]
had already obtained the drugs he intended to rob and
despite this chose to threaten and shoot decedent
Taylor-Williams, before searching the home for additional
drugs.
[Appellant’s] subsequent text messages with Porter indicated
that he wished to see their criminal actions covered in the
news, as if to seek a further thrill from watching authorities
and the media attempt to make sense of their crime. Before
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the news of their crime broke, [Appellant] texted Porter,
"Watching the news now. They ain't doing nothing but talking
about bullshit." When the news of their crime did break,
[Appellant] texted Porter, "Your morning news my nig, sit on
back n drink that coffee on ya way n, u know ya nig, on point,
holla at u n a few oldhead." [Appellant] continued, "They
standing there on Malcolm Street clueless. Hunh, CTFU
[(“cracking the fuck up”)]. And they really gone to say them
little bitches was 20 and 30 years old. They aren't. They gone
to say this nigga was naked and them little bitches was like
17, 18. The news fucks me up. I can't wait to hear what story
they come up with." Further, [Appellant] thanked Porter for
"Bringing me back, n bringing the [beast] back out of me."
Porter replied that "I kn it was in u jus nd to be released."
[Appellant] responded, "Ain't no fucking doubt." [Appellant]
responded, "It was under construction."
[The trial] court noted the anguish of the victims as they were
being forced at gunpoint into the basement to their deaths
and the impact this crime has had on the victims’ families.
From the moment the defendants decided to force the
decedents into the basement, the intention to murder all four
victims was obvious, and [the trial] court can only imagine
the terror the victims felt, knowing they were waiting their
turn to die. Their families are further traumatized by the
knowledge that their loved ones' final moments were filled
with such dread.
[The trial] court also considered the personal history of
[Appellant]. [The] court reviewed [Appellant’s] mental health
and pre-sentence investigations, which revealed [Appellant]
was previously incarcerated, violated the conditions of his
parole at least five times, suffered [] mental health issues,
and underwent drug treatment for use of marijuana and K2.
[The] court noted that while [Appellant] was in high school,
his friend died in his arms after being shot. [The trial] court
also found him to be sincere in his remorse and noted his
diminished role in the murders compared to his
co-defendants.
[The trial] court imposed individual penalties for third-degree
murder that constitute downward guideline departures from
the sentencing guidelines and imposed each sentence
consecutively. Any lesser sentence would diminish the
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severity of the offenses. [The] court's sentence falls well
below the statutory maximum sentence of [143 ½ to 287]
years. Given the gravity of the instant offenses, [the trial
court] could have very well imposed such a sentence.
...
[The trial] court balanced the possibility of [Appellant’s]
rehabilitation over the course of his incarceration with the
horrific nature of his crimes. The sheer heinousness of these
murders and [Appellant’s] actions afterward reflect a
callousness the likes of which [the trial] court rarely sees.
[Appellant] has earned a life sentence; however, [the trial]
court exercised great mercy to impose a sentence that
allowed him the possibility of parole. Ultimately, [the trial]
court’s sentence reflects [Appellant’s] role as a willing party
of these brutal murders.
Trial Court Opinion, 11/13/20, at 5-10 (citations and some capitalization
omitted).
On appeal, Appellant claims that the trial court “focus[ed] solely on the
seriousness of the offense [] in crafting [the] sentence,” failed to consider
mitigating factors and Appellant’s prospects for rehabilitation, and fashioned
a sentence that “reflects a fixed purpose of keeping [Appellant] in [prison] for
the majority of his life.” Appellant’s Brief at 26 and 32-35. However, the trial
court’s sentence – and its explanation for the sentence – demonstrate that
Appellant’s claims have no basis in fact. To be sure, this sentence shows that
the trial court ably and carefully fashioned individual and aggregate terms of
confinement that were consistent with the nature and circumstances of the
crimes, the history, character, and condition of Appellant, the protection of
the public, the gravity of the offenses as they relate to the impact on the lives
of the victims and on the community, the mitigating factors in the case, and
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the rehabilitative needs of Appellant. Appellant’s claim to the contrary is
belied by the record and, thus, fails.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2021
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