Com. v. Tyler, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KALEEM TYLER
Appellant No. 169 EDA 2014
Appeal from the Judgment of Sentence August 27, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012079-2012,
CP-51-CR-0014542-2011
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 02, 2014
Kaleem Tyler appeals from his judgment of sentence imposed in the
Court of Common Pleas of Philadelphia County after he entered open pleas
of guilty to aggravated assault, attempted murder and two counts of
possession of instruments of crime (PIC).1 Upon review, we affirm.
These charges stem from two incidents in which Tyler shot two
different individuals. At Tyler’s guilty plea hearing before the Honorable
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*
Retired Senior Judge assigned to the Superior Court.
1
Tyler was charged at two separate docket numbers. The pleas to
aggravated assault and one count of PIC were entered at docket number CP-
51-CR-0014542-2011, and the pleas to attempted murder and PIC related to
docket CP-51-CR-0012079-2012.
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Paula Patrick, counsel for the Commonwealth recited the facts of the cases
as follows:
Your Honor, on [docket number] 12079-2012, this occurred on
August 28th, 2011 approximately 4:40 p.m. in the area of the
400 block of 64th Street here in the city and county of
Philadelphia.
Your Honor, at that date, time, and location, the complainant in
this case who was later identified as Justin Brown was sitting on
his steps when [Tyler] approached him walking up 64th and
Callowhill. As [Tyler] approached [Brown], [Tyler] pulled out a
dark colored gun from his – concealed on [Tyler’s] person and
began shooting at [Brown].
While [Tyler] fired multiple shots at [Brown], several of these
shots struck [Brown]. He was struck in the back of both legs,
and he was also struck in the thigh and suffered serious bodily
injury that required him to be rushed to the hospital and receive
treatment for those gunshot wounds. [Brown] described [Tyler]
as firing five to eight shots in his direction.
...
On [docket number] 14542-2011, this happened on October
18th, 2011 at approximately 11:40 p.m. A[t] that time the
complainant was in the area outside of a bar called Pleasures
Lounge at 58th and Master Streets here in the city and county of
Philadelphia.
The complainant identified as [Marlon Pennicott] as well as a
friend . . . later identified as Jamal Palmer were involved in a
verbal altercation with [Tyler] outside of that bar. After the
altercation broke up, [Pennicott and Palmer] began walking away
from [Tyler]. They were headed towards their parked car.
[Tyler] followed them. He was carrying a dark black colored
handgun on his person.
[Tyler] as he approached [Pennicott] began firing that weapon
[at Pennicott]. One of those shots struck [Pennicott] in his left
buttock region of his body. As [Pennicott] fell to the ground,
[Tyler] stood over him and was racking the handgun that was in
his possession numerous times pointing it at [Pennicott] and
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eventually [Pennicott] was able to get away from [Tyler]. This
incident was witnessed by a security guard who was working at
the bar, witnessed this and was able to also describe to police
what he observed that day.
N.T. Guilty Plea, 6/27/13, at 15-18.
Tyler was arrested separately and charged with numerous offenses
stemming from each incident. On June 27, 2013, he entered open guilty
pleas to the above offenses; the Commonwealth nolle prossed the remaining
charges. The trial court ordered a pre-sentence investigation and, on August
27, 2013, Tyler appeared for sentencing. At docket number CP-51-CR-
0014542-2011, the trial court imposed a sentence of 7 ½ to 15 years on the
aggravated assault conviction and 2½ to 5 years for PIC, to run
concurrently. At docket number CP-51-CR-0012079-2012, Tyler was
sentenced to 15 to 30 years for attempted murder and 2½ to 5 years for
PIC, to run concurrently to each other and the charges imposed at the other
docket.2
Tyler filed a post-sentence motion for reconsideration of his sentence
on September 6, 2013. The motion was denied by operation of law on
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2
Tyler was also resentenced for a violation of probation at the same
hearing. On that case, docketed at CP-51-CR-0016179-2009, Tyler was
sentenced to serve the balance of his prior sentence, which was 11½ to 23
months’ incarceration, to run concurrently to the newly imposed sentences.
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January 7, 2014. Tyler filed a timely notice of appeal 3 on January 8, 2014,
followed by a court-ordered Rule 1925(b) statement of errors complained of
on appeal.
Tyler raises one issue for our review:
Was [Tyler’s] sentence of fifteen to thirty years of incarceration
manifestly excessive and an abuse of discretion, where the
sentencing guidelines overstated the seriousness of the offenses,
and where the sentencing court failed to properly consider
[Tyler’s] background, acceptance of responsibility, and other
mitigating circumstances?
Brief of Appellant, at 3.
Tyler’s claim implicates the discretionary aspects of his sentence,
which are not appealable as of right. Rather, an appellant challenging the
sentencing court’s discretion must invoke this Court’s jurisdiction by
satisfying a four-part test. Commonwealth v. Prisk, 13 A.3d 526 (Pa.
Super 2011).
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
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3
In her Pa.R.A.P. 1925(a) opinion, Judge Patrick asserts that Tyler’s notice
of appeal was untimely filed and should be quashed. Citing Pa.R.A.P.
903(a), the court states that Tyler was required to file his notice of appeal
within thirty days of the date his judgment of sentence was entered. In
recommending quashal, however, Judge Patrick ignores the provisions of
Pa.R.Crim.P. 702, governing the time for filing appeals in criminal cases
where post-sentence motions are filed. Here, Tyler filed post-sentence
motions which were not acted upon by Judge Patrick and, as a result, were
denied by operation of law pursuant to Rule 720(B)(3)(a) on January 7,
2014. Tyler filed his notice of appeal on January 8, 2014, well within the
time period imposed under Rule 720(A)(2)(b). Accordingly, Tyler’s appeal is
timely and we may address its merits.
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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, 42 Pa.C.S.A. § 9781(b).
Id. at 532 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). An appellate court will find a “substantial question” and
review the decision of the trial court only where an aggrieved party can
articulate clear reasons why the sentence imposed by the trial court
compromises the sentencing scheme as a whole. Commonwealth v.
Tuladziecki, 522 A.2d 17 (Pa. 1987).
Here, Tyler has included a Rule 2119(f) statement in his brief, in which
he claims that, “under the particular circumstances of [his] case, [Tyler’s
sentence] overstated the seriousness of the offenses to which [he] pled
guilty.” Brief of Appellant, at 11. Tyler further alleges that “the trial court
failed to take into account relevant provisions of the Sentencing Code, gave
excessive weight to [Tyler’s] prior record by ‘double counting’ offenses that
were already included in [his] prior record score, and failed to consider the
mitigating circumstances presented as well as [Tyler’s] rehabilitative needs.”
Id.We find Tyler’s claim to be somewhat curious, given that the trial court
actually sentenced him in the standard and mitigated ranges of the
Sentencing Guidelines. Tyler would have us find that the “circumstances of
[his] case” are such that the mitigated range sentence “substantially
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overstated the seriousness” of the attempted murder conviction under
docket number CP-51-CR-0012079-2012. Tyler and his counsel presumably
present this argument in all earnestness, despite the fact that, while on
probation for a firearms violation, he approached an individual who was
sitting on his own steps and, unprovoked, fired five to eight shots at him,
striking his victim in the back of both legs and the thigh, and caused him to
suffer “serious bodily injury that required him to be rushed to the hospital
and receive treatment[.]” N.T. Guilty Plea, 6/27/13, at 16. For this
unprovoked attack with a deadly weapon, Tyler received a mitigated range
sentence. Yet he finds even this sentence excessive, cavalierly downplaying
its seriousness by arguing that “the complainant was shot in a non-vital part
of the body, in a manner that was not calculated or likely to be fatal; [and
Tyler] declined further opportunity to inflict death or additional
injury.” Brief of Appellant, at 17 (emphasis added).
We decline to find that his claim presents a substantial question for
our review. Moreover, we find that the court did not impermissibly “double
count” Tyler’s prior record in imposing sentence. While the court did note
Tyler’s “extensive criminal history,” N.T. Sentencing, 8/27/13, at 29, the
court also noted Tyler’s propensity to commit further crimes, the impact of
his life choices on society and his bad character. The court was also in
possession of, and reviewed, Tyler’s presentence report. Where a pre-
sentence report exists, we presume that the sentencing judge was aware of
the relevant information regarding the defendant’s character and weighed
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those considerations along with mitigating statutory factors.
Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).
For all the above reasons, Tyler is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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