Com. v. Wilkerson, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAQUAN WILKERSON :
:
Appellant : No. 883 EDA 2020
Appeal from the Judgment of Sentence Entered October 11, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005120-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 26, 2021
A jury convicted Jaquan Wilkerson of one count of involuntary
manslaughter and three counts of recklessly endangering another person
arising from the shooting death of Robert Colter, III. In the early stages of the
investigation, police interrogated Wilkerson, who was 17 years old at the time,
and ultimately let him leave with his father. The trial court suppressed the
first seven minutes, 45 seconds of the interrogation, finding that the police
had failed to properly advise Wilkerson of his rights. On appeal, Wilkerson
argues the court erred, however, in refusing to suppress his later identification
of his phone number and consent to search the contents of his mobile phone.
Wilkerson also challenges the discretionary aspects of his sentence. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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In the early evening of February 16, 2016, Robert Colter, III was gunned
down while standing outside of his home in Bristol Borough, Pennsylvania.
Witnesses described two masked shooters who fired a total of at least six shots
at Colter. One of these shots hit Colter in the head, ultimately leading to his
death. Witnesses noted that a red car was seen driving quickly away shortly
after the shooting.
Less than a month later, Bristol Borough police received a complaint
from Colter’s family. Three young men were repeatedly driving by their home
and holding their hands to resemble guns. The Colters gave a description of
the vehicle involved, which led police to a vehicle being driven by Wilkerson
on March 9, 2016.
Detective William Davis pulled behind Wilkerson’s vehicle and activated
his blue warning lights. He parked his police vehicle at an angle that would
have prevented Wilkerson from leaving by reversing his vehicle, but did not
otherwise block Wilkerson’s path.
As he approached the vehicle, Detective Davis drew his firearm, but kept
it at his side and not pointed at Wilkerson’s vehicle or its occupants. Detective
Davis directed the occupants to show their hands to him. After the occupants
complied, Detective Davis re-holstered his weapon.
A crowd gathered around Wilkerson’s car, and Detective Davis became
concerned about safety. He suggested that Wilkerson accompany him to the
police station to discuss the Colters’ complaint. Wilkerson was driven by police
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to the station, where his mobile phone was taken from him and placed in a
bin at the station. Wilkerson was then placed in an interrogation room. He was
left there for at least five hours until Detective David Hanks, who oversaw the
investigation of Colter’s death, arrived.
Wilkerson’s father, Darius Wilkerson, was informed that his son was
being questioned and subsequently arrived at the station. However, he was
not permitted to speak with his son until the interview began.
The interview began at 9:47 p.m. After seven minutes, 45 seconds,
Detective Davis informed Wilkerson that he was not under arrest and that he
was free to leave if he so desired. Darius Wilkerson replied that he wished to
clear his son’s name and the interview continued. At approximately 10:28
p.m., Detective Hanks suggested a break in the interview.
The interview resumed at 10:42, with police asking Wilkerson for a DNA
sample. Darius Wilkerson refused the sample, explaining that he wished to
speak to an attorney before agreeing to doing so. Also, during the interview,
Wilkerson provided police with number to his mobile phone. See Trial Court
Opinion, 11/6/2020, at 18; see also N.T., 4/22/2019 (A.M.), at 20. The
interview concluded at 10:59, and as Wilkerson and his father were leaving
the room, the police asked if Wilkerson would consent to a search of his mobile
phone. Darius Wilkerson voiced no objection, and Wilkerson signed a consent
to the search of his phone.
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Eventually, Detective Hanks’s investigation led to Rodney Beaty, who
told the detective an inculpatory story of the night of the shooting. 1 Beaty
admitted that he and his cousin, Dwayne Lynch, had been involved with the
shooting. Dwayne lived with his mother in Winder Village.
Beaty eventually revealed that earlier in the day of the shooting, he and
Dwayne Lynch were driving around in Lynch’s mother’s red Chevrolet Sonic,
drinking, smoking marijuana, and dealing heroin and cocaine. At some point,
Wilkerson contacted Beaty through Facebook Messenger, asking to be picked
up at a 7-11 in Croydon, Pennsylvania.
After Beaty and Lynch picked up Wilkerson, Wilkerson indicated that he
wanted to rob Derron Thompson, another local drug dealer. When they passed
Thompson on the street, Beaty parked the car nearby and waited while Lynch
and Wilkerson armed themselves with firearms. Lynch and Wilkerson covered
their faces and walked towards where they believed Thompson to be. Beaty
heard multiple gunshots, and then Lynch and Wilkerson returned to the car in
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1 Beaty’s story is derived from his testimony at trial. See N.T., 4/25/2019
(A.M.), at 118-196; N.T., 4/26/2019 (A.M.), at 6-164, N.T., 4/26/2019 (P.M.),
at 13-167. This testimony is technically irrelevant to the suppression court’s
ruling, as it was not part of the record before the suppression court. See In
the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013) (holding an appellate
court may only consider the evidence presented at the suppression hearing
and may not review trial evidence in assessing a suppression court ruling).
We recite it here, however, to provide context as to why Wilkerson sought to
suppress his mobile phone number and evidence derived from the search of
his phone.
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a panic, yelling at Beaty to leave quickly. As they drove away, Wilkerson said,
“I think we dropped one.” N.T., 4/25/2019 (A.M.), at 28.
Detective Hanks checked Beaty’s story against the historical cell site
location data provided by the mobile phone carrier. The location data for
Wilkerson’s and Lynch’s phones on the night of the shooting corresponded
closely to the story told by Beaty.2
As noted previously, the trial court suppressed the first seven minutes
and forty-five seconds of Wilkerson’s interrogation. However, it found that
Wilkerson’s statement acknowledging his phone number, as well as his
consent to search his mobile phone, were admissible.
On appeal, Wilkerson contends this was error. Our Court’s standard of
review for a suppression issue is deferential to the suppression court’s findings
of fact, but not its conclusions of law:
[We are] limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, the appellate
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2 On March 22, 2016, the police had obtained a court order (“the March 22nd
order”) authorizing the disclosure of cell site tower information related to
Wilkerson’s cellular telephone number, 267-912-2582, for the period of
February 16, 2016, to February 17, 2016, pursuant to the Pennsylvania
Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5743(c).
Subsequently, they sought and obtained a search warrant on July 11, 2018
(“the July 11th search warrant”) for Wilkerson’s cellphone for that same period.
See N.T., 4/3/2019, at 179.
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court is bound by those findings and may reverse only if the
court's legal conclusions are erroneous. Where ... the appeal of
the determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to plenary
review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (internal
citations omitted).
Here, Wilkerson identifies two separate suppression issues in his
“Statement of Questions Presented.” See Appellant’s Brief, at 8. However, in
his argument section, Wilkerson states both claims “can be combined into a
single argument as the resulting search of [Wilkerson]’s phone and cell data
naturally flows from the initial [Wilkerson] statement and consent from March
9, 2016.” Id., at 19. Accordingly, our analysis will reflect this merged
argument.
Wilkerson contends that the court erred in failing to suppress the search
of his phone because it was the product of an unlawful seizure. See Appellant’s
Brief, at 21. Initially, it merits mentioning that Wilkerson repeatedly highlights
the fact that the trial court suppressed the first seven minutes and forty-five
seconds of his March 9, 2016 statement to police. See id., at 19, 22. This is
an underlying tone of his argument – the court suppressed part of his
statement and consequently, the search should be invalidated. He specifically
takes issue with four findings made by the trial court to support its conclusion:
(1) Wilkerson’s detention; (2) the validity of his consent; (3) inevitable
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discovery; and (4) the March 22nd order and the July 11th search warrant.
Based on the nature of claims, we address the first two findings together.
As to the detention, Wilkerson asserts that based on the totality of the
circumstances, any reasonable person in his position at the time of his
detention would have believed that his freedom was restricted. 3 Wilkerson
avers that Detective Davis did not possess probable cause or reasonable
suspicion when he seized and detained Wilkerson and the detective’s actions
were “solely” based on a hunch that Wilkerson was involved in the shooting.
Id., at 22. Wilkerson further maintains that if the encounter was reasonable,
he would not have been patted down with the officer’s gun drawn and placed
in a police vehicle. Instead, he would have been permitted to drive himself to
the police station, and his phone would not have been immediately seized and
detained by the police. See id.
As for his consent, Wilkerson argues that his permission to search the
phone was not valid where he was detained for over five hours until the police
questioned him about the murder. Further, he claims his “phone was never
going to be returned until he consented to its search.” Id., at 23. Wilkerson
also complains that the evidence produced from his consent of the phone
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3 The issue of whether police possessed probable cause or reasonable
suspicion to detain or seize Wilkerson was not raised until the day before trial
was to begin. See N.T., 4/22/2019, at 27. The trial court requested defense
counsel state the basis of his oral motion on the record and then heard
testimony from Detective Davis regarding the matter.
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flowed from the purportedly improper detention, stating that he “lost all of his
freedom when Detective Davis parked behind him and activated his warning
lights[.]” Id. He maintains that his “consent was obtained as a direct result of
the continuing unlawful arrest and detention[.]” Id.
Detective Davis’s interaction with Wilkerson on the street implicated
Wilkerson’s liberty and privacy interests as guaranteed by the Fourth
Amendment to the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution. See Commonwealth v. Smith, 172 A.3d 26, 31
(Pa. Super. 2017). Fourth Amendment jurisprudence recognizes three levels
of interactions between police officers and citizens: (1) a mere encounter; (2)
an investigative detention; and (3) a custodial detention. See id., at 32. A
mere encounter need not be supported by any level of suspicion because it
carries no official compulsion for a citizen to stop or respond. See
Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018), appeal
denied, 187 A.3d 913 (Pa. 2018). An investigative detention must be
supported by reasonable suspicion because it subjects a suspect to a stop and
a period of detention but does not constitute an arrest. See Commonwealth
v. Baldwin, 147 A.3d 1200, 1202 (Pa. Super. 2016). Finally, a custodial
detention or an arrest must be supported by probable cause. See
Commonwealth v. Collins, 950 A.2d 1041, 1046 (Pa. Super. 2008).
Wilkerson essentially argues that his encounter with police rose to the
level of a custodial detention that included a coercive interrogation. “A law
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enforcement officer must administer Miranda warnings prior to custodial
interrogation.” Commonwealth v. Baker, 24 A.3d 1006, 1019 (Pa. Super.
2011) (citation omitted). “Custodial interrogation has been defined as
questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his [or her] freedom of action in
any significant way.” Id. (citation and quotation marks omitted).
Here, while the record is not entirely clear on the specific details, it is
clear the suppression court found that Detective Davis’s interaction with
Wilkerson was not a mere encounter. Given that the court suppressed the
portion of the interrogation that preceded the Miranda warning, it clearly
agreed with Wilkerson’s characterization of the initial interaction. However,
this does not necessarily entail that Wilkerson was entitled to suppression of
the whole interview.
Instead, our state and federal constitutions provide that police can cure
a Miranda violation and continue questioning the suspect under certain
circumstances:
Because Miranda warnings may inhibit persons from giving
information, ... they need be administered only after the person
is taken into “custody” or his freedom has otherwise been
significantly restrained. Unfortunately, the task of defining
“custody” is a slippery one, and policemen investigating serious
crimes [cannot realistically be expected to] make no errors
whatsoever. If errors are made by law enforcement officers in
administering the prophylactic Miranda procedures, they should
not breed the same irremediable consequences as police
infringement of the Fifth Amendment itself. It is an unwarranted
extension of Miranda to hold that a simple failure to administer
the warnings, unaccompanied by any actual coercion or other
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circumstances calculated to undermine the suspect’s ability to
exercise his free will, so taints the investigatory process that a
subsequent voluntary and informed waiver is ineffective for some
indeterminate period. Though Miranda requires that the
unwarned admission must be suppressed, the admissibility of any
subsequent statement should turn in these circumstances solely
on whether it is knowingly and voluntarily made.
Oregon v. Elstad, 470 U.S. 298, 309 (1985) (internal citations and some
quotation marks omitted). See also Commonwealth v. DeJesus, 787 A.2d
394, 405 (Pa. 2001), cert. denied, 537 U.S. 1028, abrogated on other
grounds, Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007).
Elstad stands for the rule that where an unwarned statement is
not the product of police coercion, a careful and thorough
administration of a defendant’s Miranda rights will render any
subsequent statement voluntary and knowing, and therefore,
admissible. Thus, a prior Miranda violation does not necessarily
disable a suspect from waiving Miranda rights in the future, after
receiving the requisite warnings.
In the Interest of N.M., 222 A.3d 759, 772 (Pa. Super. 2019) (citations and
quotation marks omitted), appeal denied, 229 A.3d 562 (Pa. 2020).
Therefore, even if the first seven minutes, 45 seconds of the
interrogation is considered improper due to the lack of Miranda warnings, we
must still determine, under all the circumstances, whether Wilkerson’s
subsequent statements were made in a voluntary and knowing manner.
Importantly, “the presence of an interested adult is also no longer a per se
requirement during a police interview of a juvenile. The presence of an
interested adult, however, is a factor in determining the voluntariness of a
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juvenile’s waiver of Miranda rights.” Id., at 772 (Pa. Super. 2019) (citations
omitted).
We can find no fault in the suppression court’s determination that
Detective Davis’s initial interaction with Wilkerson at some point evolved into
an investigative detention, as the detective unholstered his gun and asked the
occupants of the car to show their hands. See Baldwin. This was not a
situation in which a reasonable person would believe “that he was at liberty
to ignore the police presence and go about his business.” Commonwealth v.
Witherspoon, 756 A.2d 677, 680 (Pa. Super. 2000). However, the
detective’s request was supported by reasonable suspicion as his purpose for
the interaction was to question them about the report made by the victim’s
family concerning the drive-by gun signs.
In assailing the trial court’s ruling as to his argument that the police
possessed no level of suspicion, Wilkerson ignores the important fact that the
Colters had complained about harassment. The complaint was made shortly
before Detective Davis observed Wilkerson. The victim’s mother had
specifically identified Wilkerson as one of the individuals and she described a
small, gray car that matched the vehicle Wilkerson was driving on the day in
question. Nevertheless, it also merits highlighting that once the detective
observed their hands, he put his gun back in his holster.
Wilkerson’s freedom of action became more restricted when the
detective asked Wilkerson and his friends to go to the police station to discuss
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the complaint based on the hostile crowd that was forming and they agreed.
Although Wilkerson may have agreed to go, no reasonable person in his
position would feel free to exit the police car they were placed in after
Detective Davis’s initial show of authority.
Nevertheless, while Wilkerson was in the interview room for several
hours, he was not handcuffed or restrained. He also was not locked in that
room and was free to get up and walk around the police station. See N.T.,
4/22/2019, at 33. As found by the trial court, there was no evidence that he
was threatened or subject to any intimidating actions designed to affect his
ability to make a voluntary waiver of his rights. Likewise, the trial court noted
the detectives were non-confrontational, and the tone of the interview was
conversational. See N.T., 4/10/2019, at 11.
The ambiguity in Wilkerson’s status is reflected in the trial court’s finding
that the Commonwealth “failed to meet its burden under the law to clearly
establish [Wilkerson]’s status until seven minute and 45 seconds into the
interview when Detective Hanks says, you’re not under arrest for anything,
we’re just talking to you. If you want to leave and stop talking, you can stop
talking at any time you want.” N.T., 4/10/2019, at 14. The court recognized
that while his father may have been informed of the circumstances, Wilkerson
was not fully advised of his rights until Detective Hanks made those
statements. As such, the court properly suppressed any statements up until
that point in the interview and any evidence that subsequently flowed from
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those statements in recognition that Wilkerson was not fully apprised of his
rights until that seven minute and 45 second mark.
The remainder of the interview occurred after Detective Davis informed
Wilkerson he was free to leave. We therefore must determine whether the
suppression court erred in concluding that Wilkerson’s subsequent statements
were made voluntarily and knowingly. First, we note the conditions concerning
the interview were noncoercive: (1) Wilkerson was not restrained in any
manner; (2) the police did not try to speak with him until his father was
present; and (3) the conversation was nonconfrontational. Neither Wilkerson
nor his father raised an objection to the subsequent questioning once
Detective Hanks told them Wilkerson was not under arrest and could stop
talking and leave the station.
Second, the suppression court was entitled to rely on Wilkerson’s refusal
supply a DNA sample as evidence that Detective Davis’s warning sufficiently
cured the prior presumptively coercive atmosphere. When the police asked
Wilkerson for a DNA sample, Wilkerson’s father objected and invoked his son’s
right to counsel for that request. See Trial Court Opinion, 11/6/2020, at 15;
see also N.T., 4/3/2019, at 90 The police did not attempt any more requests
regarding Wilkerson’s DNA. The father’s objection demonstrated an
understanding that Wilkerson was free to object to any requests made by the
police.
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Third, Wilkerson left with his father and was not arrested until over two
years later. While not conclusive proof of the absence of coercion, this
circumstance certainly bolsters the court’s conclusion that Wilkerson was not
being treated as being under arrest. Based on these facts, we conclude that
the record supports the trial court’s factual findings and that its legal
conclusion that Wilkerson made an independent, voluntary statement with the
“requisite level of comprehension[.]” In the Interest of N.M., 222 A.3d at
775-776.
As for Wilkerson’s challenge to his consent for the police to search his
cell phone, we note “[a] search warrant is not required where a person with
the proper authority unequivocally and specifically consents to the search.”
Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003)
(citations and internal quotation marks omitted). “To establish a valid
consensual search, the Commonwealth must first prove that the consent was
given during a legal police interaction.” Commonwealth v. Bell, 871 A.2d
267, 273 (Pa. Super. 2005) (citation omitted). Based on our previous
determination that Detective Davis’s initial restraint of Wilkerson’s freedom
was based upon reasonable suspicion, our focus turns to the voluntariness of
Wilkerson’s consent.4
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4 We note that Wilkerson does not challenge the breadth of the search.
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“To establish a voluntary consensual search, the Commonwealth must
prove that a consent is the product of an essentially free and unconstrained
choice - not the result of duress or coercion, express or implied, or a will
overborne - under the totality of the circumstances.” Commonwealth v.
Randolph, 151 A.3d 170, 179 (Pa. Super. 2016) (citation and internal
quotation marks omitted).
Here, the detectives asked Wilkerson and his father if they could search
Wilkerson’s phone. Wilkerson consented to the search and both he and his
father signed the consent form. The parties stipulated that the detective read
the entire form to Wilkerson in the presence of his father and Wilkerson signed
the form after the interview concluded. The trial court found the consent was
voluntary. See N.T., 4/10/2019, at 17-18. We agree with the trial court’s
conclusion and find Wilkerson’s sparse argument does not persuade us
otherwise. It merits highlighting that Wilkerson and his father were aware of
their rights when they did not consent to the detective’s request for a DNA
test. Accordingly, Wilkerson fails to demonstrate that his consent was not
voluntarily given.5
Lastly, Wilkerson asserts that even though the court did not consider
the suppressed statements in its review of the March 22 nd order and the July
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5 Because we concluded that Wilkerson’s arguments concerning his detention
and consent are unavailing, we need not address the portion of his argument
which addressed the court’s alternate theory of inevitable discovery. See Trial
Court Opinion, 11/6/2020, at 21-22.
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11th search warrant, the court did consider his subsequent statement in which
he provided his phone number to police. See Appellant’s Brief, at 24-25.
Wilkerson contends that if we conclude his consent was invalid, then his
identification of the cell number as his own should be deemed invalid as well.
See id., at 25. Wilkerson baldly asserts that the remaining facts “do not rise
to the level of reasonable suspicion or probable cause to justify the court order
and search warrant[.]” Id.
Wilkerson’s argument fails for several reasons. First, we previously
determined that the court did not err in finding that Wilkerson gave voluntary
consent for the search of his phone, which included his phone number.
Second, he does not reference any supporting case law to suggest the
remaining portions of the order and search warrant should be deemed invalid
and, therefore, is underdeveloped. Commonwealth v. Gould, 912 A.2d 869,
873 (Pa. Super. 2006). (“An appellate brief must provide citations to the
record and to any relevant supporting authority. The court will not become
the counsel for an appellant and will not, therefore, consider issues … which
are not fully developed[.]”). Therefore, this argument warrants no relief. In
light of all of the above, Wilkerson’s arguments against the suppression court’s
ruling merit no relief.
Wilkerson’s second claim is a challenge to the discretionary aspects of
his sentence. Challenges to the discretionary aspects of sentencing do not
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guarantee a petitioner’s right to our review. See Commonwealth v. Allen,
24 A.3d 1058, 1064 (Pa. Super. 2011).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
(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, 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.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation
omitted).
Here, Wilkerson filed a timely notice of appeal, and his brief included a
statement of reasons relied upon for allowance of appeal, as is required by
Pa.R.A.P. 2119(f). See Appellant’s Brief, at 9. He also preserved the issue in
a post-sentence motion. See Post Trial Motions, 10/18/2019, at ¶¶ 3-7.
Therefore, we must determine whether Wilkerson has raised a substantial
question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526,
533 (Pa. Super. 2011). “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.” Id. (internal citations omitted). “[A]n allegation that the sentencing
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court failed to consider mitigating factors generally does not raise a substantial
question for our review.” Commonwealth v. Rhoades, 8 A.3d 912, 918-919
(Pa. Super. 2010) (citation omitted). Nevertheless, a claim that the trial court
failed to consider mitigating evidence when imposing consecutive statutory
maximum sentences, raises a substantial question. See Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc). Moreover, an
allegation that the sentence was unreasonable because it was outside the
sentencing guidelines raises a substantial question. See Commonwealth v.
Lawrence, 960 A.2d 473, 478 (Pa. Super. 2008).
As presented, Wilkerson identifies several reasons why he believes he
has raised a substantial question: (1) the court failed to consider that his prior
record score was zero; (2) the court failed to consider that he was a juvenile
at the time of the offense; (3) the court based his sentences on the
seriousness of the crime charged as opposed to the jury’s determination of
the crimes committed; (4) the court failed to differentiate Wilkerson’s conduct
from similarly situated defendants convicted of similar offenses; (5) the court
failed to differentiate him from the most culpable of misconduct, co-defendant
Lynch, who received the exact same sentence; (6) the court failed to consider
the sentencing guidelines for standard and aggravated ranges of where
Wilkerson received consecutive, statutory maximum sentences for each
conviction; and (7) the court failed to give meaningful consideration to certain
mitigating evidence. See Appellant’s Brief, at 26-27. Taken as a whole, we
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conclude Wilkerson has raised a substantial question, and we proceed to
examine the merits of his sentencing challenge.
We have a deferential standard of review for discretionary aspects of
the sentence claims:
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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Wilkerson first claims his sentence was unreasonable and excessive
because the jury’s verdict found that he acted with a reckless mens rea and
that he did not act intentionally or knowingly with respect to the victim’s
death, therefore, he complains that “[i]t is difficult to justify the maximum
possible sentence on the basis of reckless conduct[.]” Appellant’s Brief, at 31.
He also complains that his sentence is exactly the same as Lynch’s sentence,
who was ten years older and had a significant prior criminal history. See id.Additionally, Wilkerson asserts the court disregarded certain mitigating factors
present at the time of sentencing. See id., at 32. He points out that he was a
minor at the time of the shooting and had no prior criminal history. Wilkerson
states the court ignored character witness letters submitted by his family and
friends. See id. He alleges he presented sufficient mitigation evidence to
justify some amount of reduction in time. See id. Wilkerson concludes that
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the trial court provided a number of factors to support the sentence “but little
to no explanation as to how or why those factors justified a maximum
sentence.” Id., at 32-33.
While the court is required to consider the ranges set forth in the
sentencing guidelines, it is not bound by them. See Commonwealth v.
Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). The court may depart from the
“guidelines, if necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the impact on the life of the
victim and the community[.]” Commonwealth v. Eby, 784 A.2d 204, 206
(Pa. Super. 2001) (citation omitted); see also 42 Pa.C.S.A. § 9721(b).
If the court imposes a sentence outside the guideline ranges, it must
place adequate reasons for the deviation in the record. See Commonwealth
v. P.L.S., 894 A.2d 120, 129-130 (Pa. Super. 2006). Nevertheless, we only
vacate an outside-the-guidelines sentence if the “sentence is unreasonable[.]”
42 Pa.C.S.A. § 9781(c)(3).
In making this “unreasonableness” inquiry, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
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42 Pa.C.S.A. § 9781(d).
Here, the court had the benefit of a presentence investigation report
(“PSI”). See N.T., 10/11/2019, at 63. The court heard impact statements from
the victim’s father, mother, and youngest brother as well as Darius Wilkerson
at sentencing. See N.T., 10/11/2019, at 66-80, 87-89. Wilkerson’s sentencing
memorandum was made part of the record, including eight character letters
and a psychological report by Dr. John Markley. See id., at 86. Additionally,
the sentencing memorandum indicated Wilkerson was currently serving a
three-and-a-half to seven-year sentence for an unrelated robbery offense that
occurred after the date of the offense at issue. See Sentencing Memorandum,
10/4/2019, at unnumbered 2. Wilkerson declined his right to allocution, and
he was colloquied as to that decision. See id., at 89-91.
The statutory maximum for the involuntary manslaughter offense is five
years. See 18 Pa.C.S.A. § 2504(b); 18 Pa.C.S.A. § 1104(1). Wilkerson had a
prior record score of zero. The offense gravity score for the manslaughter
offense was a six. The Pennsylvania Sentencing Guidelines provide a standard
sentencing range of three to twelve months, with an aggravated range of an
additional six months for the conviction. See N.T., 10/11/2019, at 82.
Likewise, the statutory maximum for REAP is two years. See 18 Pa.C.S.A. §
2702; 18 Pa.C.S.A. § 1104. The offense gravity score is a three. The
Sentencing Guidelines provide a standard range of restorative sanctions to
one month, with an aggravated range of an additional three months. See N.T.,
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10/11/2019, at 82. As noted above, the court imposed a sentence of two and
a half to five years’ incarceration for the involuntary manslaughter conviction,
followed by two consecutive terms of one to two years for two of the REAP
offenses. See id., at 103-104. Accordingly, the court imposed a sentence that
exceeded the aggravated range, but not beyond the maximum sentence
permitted by law.
At the hearing, the court explained its rationale for imposing such a
sentence, acknowledging that Wilkerson’s young age at the time of the offense
was “a powerful factor which must be considered” as well as his history and
“the difficulties he [has] faced in life.” Id., at 101. The court further stated:
But I also consider the fact that every effort has been made
in the juvenile system to rehabilitate him. I consider that the
record from the trial, from the presentence investigation, all
confirm this strong identification with criminal activity and the
diagnosis of him having an antisocial personality, as well as other
diagnoses. And Dr. Marky opines, and it [is] known to anyone in
the justice system, that [Wilkerson]’s need for a long-term
rehabilitation is clear.
It’s clear from the decisions he made before this offense
happened and it [is] clear from the decisions he [has] made while
incarcerated. And putting aside the other conviction for which he
[is] serving a sentence, he [has] been separately punished for that
and held accountable for that.
I [am] required under the law to consider the protection of
the public and I do consider that in imposing [this] sentence. I
consider the gravity of the offense. Certainly … this is the most
egregious of manslaughter cases. A deadly weapon was used. This
is not an accident. This is not negligent. This is reckless conduct.
A firearm was used and it serves no purpose other than to
harm another human being or, in fact, kill another human being
or kill something. I clearly am supposed to consider the impact of
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this offense on the community and the victims. An offense could
have no greater impact than a shooting in a neighborhood when
other people are present, nor could it have greater impact on the
victim.
Finally, as I said, I consider the rehabilitative needs of
[Wilkerson] as evidence of his history and strong identification
with criminal activity. Those are the factors I’m required to
consider under the law, not the message it sends to the
community, but what I must do to protect the public, what I must
do to acknowledge the gravity of the offense with respect to the
community and the victim as well as the rehabilitative needs as to
[Wilkerson.]
Id., at 101-103.
Wilkerson’s argument fails for several reasons. We first observe that
there is no legal authority to support Wilkerson’s position that it was
impermissible for the court to impose the maximum sentence because the
jury found his actions represented the recklessness element of involuntary
manslaughter conviction and not the intent element of murder. Furthermore,
the court did not impose a statutory maximum for first degree or third degree
murder; rather, it imposed the corresponding statutory maximum sentence
for his involuntary manslaughter conviction. It also merits repeating that the
evidence established Wilkerson and Lynch shot their firearms multiple times
into a crowd of people and one of the bullets struck the victim’s head. As the
trial court pointed out, the victim’s death was not accident or the result of
negligent acts; a deadly weapon was used.
Next, Wilkerson also provides no authority for his argument that it was
improper for the court to sentence both him to the same sentence as Lynch
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given their different backgrounds. Our research does not reveal any provision
of the Pennsylvania Sentencing Code that requires the prior criminal history
and sentence of a co-defendant being a relevant factor at a defendant’s
sentencing. Sentencing is an individualized process. See Commonwealth v.
Baker, 72 A.3d 652 (Pa. Super. 2013). The court addressed both co-
defendants separately at the sentencing hearing and provided individualized
explanations for their sentences. See N.T., 10/11/2019, at 56-59 (Lynch),
101-103 (Wilkerson). Therefore, this assertion has no support in the
Sentencing Code or record.
Third, while Wilkerson complains that the court did not consider certain
mitigating factors, it is evident the court did consider those factors, especially
his age, but chose not to give those mitigating factors as much weight as
Wilkerson would have preferred. “We cannot re-weigh the sentencing factors
and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009). Moreover,
the court had the benefit of the PSI and we can reasonably infer the court
considered those factors. See Commonwealth v. Bullock, 170 A.3d 1109,
1126 (Pa. Super. 2017).
Lastly, to the extent Wilkerson alleges the court did not sufficiently
explain why the factors that it highlighted justified a maximum sentence, we
observe the court detailed the substantial reasons for the sentence in
satisfaction of Sections 9721(b) and 9781(d). Particularly, the record makes
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clear the court considered Wilkerson’s rehabilitative needs, the gravity of the
offense as it related to the victim and the community, and the protection of
the public. See N.T., 10/11/2019, at 101-103. Therefore, the trial court did
not abuse its discretion in imposing Wilkerson’s sentence, and that his
challenge to the discretionary aspects of his sentence is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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