Com. v. Snowden, W.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WAYNE JEFFREY SNOWDEN, : No. 706 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 22, 2015,
in the Court of Common Pleas of Chester County
Criminal Division at No. CP-15-CR-0001620-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT AND JENKINS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 29, 2016
Wayne Jeffrey Snowden appeals from the judgment of sentence
entered on January 22, 2015, after a jury convicted him of one count of
simple assault with a deadly weapon, one count of simple assault, and one
count of recklessly endangering another person. We affirm.
The trial court set forth the following factual and procedural history:
1. At approximately 4:50 p.m. on May 9, 2014, in
Pottstown, North Coventry Township, Chester
County, an eight year old boy (“A.J.”), was
riding his bicycle near Defendant’s home.
2. At that same time, Defendant walked out onto
his porch and discharged his firearm in A.J.’s
direction. A loud bang was heard.
3. A.J. felt a pinch in his thigh as the bullet went
“through and through.” He began to run up
the street but was stopped by an adult who
was dropping off his daughter at a dance
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studio. Someone in the dance studio called
911.
4. Paramedics and Detective Tim Prouty, along
with other Police Officers with the North
Coventry Township Police Department,
responded to the 911 call. Upon arriving, the
paramedics began treating A.J. and the police
began an investigation into the suspected
shooting.
5. It was determined that A.J.’s injuries may be
life threatening and he was transported via
helicopter to the nearest trauma center at
Children’s Hospital of Philadelphia (“CHOP”).
6. A.J. was stabilized at the hospital, underwent
surgery, and has made a full recovery. After
the shooting, A.J. had nightmares and was
limited in his activities. At the time of trial,
A.J. was fully recovered.
7. Defendant was interviewed by police and
seemed cooperative with the investigation.
Initially, Defendant stated that he had not
discharged his firearm and that he had no idea
who had shot A.J. He then voluntarily
surrendered his licensed firearm for testing.
8. The forensic testing of the firearm revealed
that it had been discharged recently. Upon
further questioning by the police, Defendant
admitted he had discharged his firearm though
he indicated it was an accident.
Rule 1925(a) opinion, 7/10/15 at 4-5.
On May 9, 2014, [appellant] was arrested and
charged with two counts of Aggravated Assault
(18 Pa.C.S.[A]. §2702(a)(1) and 18 Pa.C.S.[A.]
§2702(a)(9)), one count of Simple Assault With a
Deadly Weapon (18 Pa.C.S.[A.] §2701(a)(2)), one
count of Simple Assault (18 Pa.C.S.[A.]
§2701(a)(1)), and one count of Recklessly
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Endangering Another Person (“REAP”)
(18 Pa.C.S.[A.] §2705). The Commonwealth alleged
that, on May 9, 2014, [appellant] discharged a
firearm while standing on the front porch of his home
resulting in the bullet striking an eight year old boy
(“A.J.”) in the thigh.
A jury trial began on December 1, 2014 and
continued until the return of the verdict on
December 4, 2014. [Appellant] was found guilty of
one count of Simple Assault With A Deadly Weapon
(18 Pa.C.S.[A.] §2701(a)(2)), one count of Simple
Assault (18 Pa.C.S.[A.] §2701(a)(1)), and one count
of REAP (18 Pa.C.S.[A.] §2705). A sentencing
hearing was held on January 22, 2015. At that time,
[appellant] was sentenced to 9-18 months of
incarceration on the Simple Assault With A Deadly
Weapon conviction, and a consecutive 9 to
18 months of incarceration on the REAP
conviction.[Footnote 2] The aggregate sentence
imposed was 18 to 36 months of state incarceration.
[Footnote 2] The second count of Simple
Assault, pursuant to 18 Pa.C.S.[A.]
§2701(a)(1), merged with the Simple
Assault With A Deadly Weapon
(18 Pa.C.S.[A.] §2701(a)(2)) count.
[Appellant] filed a Post Sentence Motion on
February 2, 2015 and a Motion to Modify Sentence
Nunc Pro Tunc. We granted [appellant’s] request to
file his Motion to Modify Nunc Pro Tunc.
Subsequently, on February 12, 2015, [appellant]
filed a Motion to Modify Sentence and a Motion for
Bail Pending Appeal. [Appellant’s] Motion to Modify
Sentence was denied without hearing. Pa.R.Crim.P.
720(B)(2)(b). A hearing on [appellant’s] Motion for
Bail Pending Appeal took place on March 3, 2015.
On March 24, 2015, we denied [appellant’s] Motion
for Bail Pending Appeal.
On March 10, 2015, [appellant] appealed our
judgment of sentence and our denials of all [of] his
post sentence motions. Our Rule 1925(b) Order was
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docketed on March 16, 2015 and we granted
[appellant’s] request for an extension of time to file
his Concise Statement.[Footnote 3] [Appellant] filed
his Concise Statement on May 29, 2015.
[Footnote 3] The Commonwealth had no
objection to [appellant’s] request for an
extension of time to file the Concise
Statement.
Rule 1925(a) opinion, 7/10/15 at 1-5.
Appellant raises the following issues for our review:
I. Did the trial court abuse its discretion imposing
an aggregate sentence of eighteen months to
thirty-six months for the two misdemeanors of
Simple Assault and Recklessly Endangering
Another Person?
II. Did the trial court err in not granting a mistrial
when [the] Commonwealth stated numerous
times during its opening statement that
Appellant was “drunk”?
III. Did the trial court err in not granting a mistrial
when [the] Commonwealth improperly shifted
the burden of proof to the defense?
Appellant’s brief at 5.
Appellant first challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court's
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
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reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (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,
42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, in his Pa.R.A.P. 2119(f) statement and also in the argument
section of his brief, appellant asserts that the trial court failed to articulate
sufficient reasons, on the record, for its upward departure from the
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guidelines. He, therefore, raises a substantial question for our review. See,
e.g., Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),
citing Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super. 2001) (“[T]he
sentencing judge must state of record the factual basis and specific reasons
which compelled him or her to deviate from the guideline ranges. When
evaluating a claim of this type, it is necessary to remember that the
sentencing guidelines are advisory only.”); Commonwealth v. Rodda, 723
A.2d 212, 214 (Pa.Super. 1999) (en banc), quoting Commonwealth v.
Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (“Where the appellant
asserts that the trial court failed to state sufficiently its reasons for imposing
sentence outside the sentencing guidelines, we will conclude that the
appellant has stated a substantial question for our review.”).
When the sentence imposed is outside the
sentencing guidelines, moreover, the court must
provide a contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines. This requirement is satisfied when the
judge states his reasons for the sentence on the
record and in the defendant’s presence.
Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),
reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and
quotation marks omitted).
Here, the record belies appellant’s claim that the trial court failed to
articulate sufficient reasons, on the record, for its upward departure from
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the guidelines. During the sentencing hearing, the trial court stated the
following reasons for its upward departure:
THE COURT: All right. I went back and reviewed my
notes from the trial. There were two things that I
looked at. I looked at, reviewed my notes from the
character witnesses, four character witnesses who
testified. I reviewed the testimony of Mr. Donte
Singleton whose testimony I thought made the most
sense as an explanation as to what happened.
This is a difficult case. This is a difficult case
because I truly believe, Mr. Snowden, that you had
no intentions of hurting A.J. I do. I believe that. I
think everybody does. Even his family has indicated
that. However, I did not find you to be credible
when you testified to the fact that you were fumbling
with the gun in the pocket, keys got stuck.
Mr. Singleton’s testimony made a lot more sense
looking at all those circumstances. And while I
believe you’re remorseful that A.J. got hurt, I did not
believe that it was an accident in that respect.
I think the Jury found properly when they
found that you were reckless when you went out,
pulled the trigger while the gun was pointed in a
neighborhood full of children.
I was considering the fact that you don’t have
a prior record score. You just have one DUI from so
long ago. However that is taken into account in the
guidelines, the ranges. Prior record score is taken
into account when guidelines are set out.
....
All right. Mr. Snowden, I have given this a lot
of thought. I’ve gone around and around about this,
but I find that to give you a lesser sentence would
diminish the seriousness of the crime and would not
give due consideration to what A.J. and his family
suffered because of your recklessness. So on count
three, simple assault, you’re sentenced to nine to
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eighteen months. You’ll have credit for time served
from May 9th, 2014 until October 23, 2014.
....
On count five charging recklessly endangering
another person you’re sentenced to nine to eighteen
months, which will run consecutively to count
three. . . .
Notes of testimony, 1/22/15 at 34-37.
Contrary to appellant’s assertion, then, the record clearly
demonstrates that the trial court did state its reasons, in open court and
with appellant present, justifying an upward deviation from the sentencing
guidelines. Therefore, this claim lacks merit.
Appellant next complains that the trial court erred in not granting a
mistrial when the Commonwealth stated numerous times during its opening
statement that appellant was drunk at the time he fired the gun.
With regard to the denial of mistrials, the following
standards govern our review:
In criminal trials, the declaration of a
mistrial serves to eliminate the negative
effect wrought upon a defendant when
prejudicial elements are injected into the
case or otherwise discovered at trial. By
nullifying the tainted process of the
former trial and allowing a new trial to
convene, declaration of a mistrial serves
not only the defendant’s interests but,
equally important, the public’s interest in
fair trials designed to end in just
judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial
whenever the alleged prejudicial event
may reasonably be said to deprive the
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defendant of a fair and impartial trial. In
making its determination, the court must
discern whether misconduct or
prejudicial error actually occurred, and if
so, . . . assess the degree of any
resulting prejudice. Our review of the
resulting order is constrained to
determining whether the court abused its
discretion.
Commonwealth v. Hogentogler, 53 A.3d 866, 877-878 (Pa.Super. 2012),
appeal denied, 69 A.3d 600 (Pa. 2013) (citations omitted). “The remedy
of a mistrial is an extreme remedy required ‘only when an incident is of such
a nature that its unavoidable effect is to deprive the appellant of a fair and
impartial tribunal.’” Id. at 878 (citations omitted).
“When an event prejudicial to the defendant occurs during trial only
the defendant may move for a mistrial; the motion shall be made when the
event is disclosed.” Pa.R.Crim.P. 605(B); see also Commonwealth v.
McAndrews, 430 A.2d 1165, 1167 (Pa. 1981) (failure to make a timely
request for mistrial waives the issue) (citation omitted); Commonwealth v.
Stafford, 749 A.2d 489, 496 n.5 (Pa.Super. 2000) (holding that a claim of
prosecutorial misconduct in closing statement was waived for failure to
object at time the Commonwealth made the remark); Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
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Here, a review of the prosecution’s opening statement reveals that
appellant placed no objections on the record.1 Therefore, because appellant
failed to object to the Commonwealth’s remarks at the time the prosecutor
made them, appellant waives this claim.
Appellant finally complains that the trial court erred in not granting a
mistrial when, as appellant claims, the Commonwealth improperly shifted
the burden of proof to the defense in its closing statement.
It is well settled that a prosecutor has considerable
latitude during closing arguments and his arguments
are fair if they are supported by the evidence or use
inferences that can reasonably be derived from the
evidence. Further, prosecutorial misconduct does
not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by
forming in their minds a fixed bias and hostility
toward the defendant, thus impeding their ability to
weigh the evidence objectively and render a true
verdict. Prosecutorial misconduct is evaluated under
a harmless error standard.
We are further mindful of the following:
In determining whether the prosecutor
engaged in misconduct, we must keep in
mind that comments made by a
prosecutor must be examined within the
context of defense counsel’s conduct. It
is well settled that the prosecutor may
fairly respond to points made in the
defense closing. Moreover, prosecutorial
misconduct will not be found where
comments were based on the evidence
1
We note that defense counsel commented on his own failure to object to
the Commonwealth’s references that appellant was drunk at the time of the
shooting when he stated, “I didn’t object when [the Commonwealth] ten
times called my client drunk . . . .” (Notes of testimony, 12/4/14 at 19.)
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or proper inferences therefrom or were
only oratorical flair.
Hogentogler, 53 A.2d at 878 (quotations, quotation marks, and citations
omitted).
Appellant contends that the prosecution improperly placed the burden
of proof on appellant when it made the following statements in its closing
argument:
[THE COMMONWEALTH]: As you start to examine
defense’s argument it can be summarized by, well,
this could have happened, maybe this happened.
Folks, maybe aliens came down, pulled the trigger
for the defendant. I don’t know. I wasn’t there. Is
it technically possible? Yeah, I guess. But just
because something in some bazaar [sic] universe
could have happen[ed] or something could have
possibly happened, that’s not reasonable doubt.
Reasonable doubt is something that’s real. It’s not
something imagined. Entire time in defense’s
argument and on cross-examination, we heard [a]
lot of questions well, isn’t this possible, couldn’t this
have happened. Sure. We never heard any
evidence that these wild other theories actually did
happen.
Notes of testimony, 12/4/14 at 48-49. The colloquy continued as follows:
[DEFENSE COUNSEL]: Objection, Your Honor.
Defense has no burden to present evidence in this
case.
THE COURT: Sustained.
[THE COMMONWEALTH]: I will make it very clear,
folks, defense has no burden at all. Defendant did
not have to testify. Defendant does not have to
speak to the police at any time during an
investigation. I want to be very clear.
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Id. at 49.
Appellant focuses on that portion of the prosecutor’s closing argument
in the first excerpt quoted above and contends that the prosecutor
attempted to shift the burden of proof to the defense by suggesting that the
defense was required to produce evidence and that it failed to do so.
(Appellant’s brief at 37-39.) In response, the Commonwealth argues that it
was entitled to respond to the defense’s closing argument concerning
appellant’s various defense theories advanced at trial and summarized in its
closing. (Commonwealth’s brief at 27-28.) In denying appellant’s motion
for mistrial at sidebar, the trial court stated that it sustained defense
counsel’s objection to the prosecutor’s statement to the extent that the
Commonwealth said that the defense had any burden of proof. (Notes of
testimony, 12/4/14 at 58.) The court further stated that it wanted the jury
to be clear that defendant had no burden of proof and that it concluded that
the prosecutor cured that when he immediately stated, among other things,
that the “defense has no burden at all.” (Id.; see also trial court opinion,
7/9/15 at 7-8.) The trial court also concluded that the prosecutor’s remarks
had not prejudiced the jury. (Trial court opinion, 7/9/15 at 7.)
Our review of the record, particularly the context of the challenged
remark, demonstrates that the trial court did not abuse its discretion. It is
well established that the prosecution is permitted to respond to arguments
made by the defense. See, e.g., Commonwealth v. Thomas, 54 A.3d
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332, 340 (Pa. 2012); Commonwealth v. Hutchinson, 25 A.3d 277, 307
(Pa. 2011); Commonwealth v. Tedford, 960 A.2d 1, 33 (Pa. 2008);
Commonwealth v. Carson, 913 A.2d 220, 237, 239-240 (Pa. 2006);
Commonwealth v. Brown, 414 A.2d 70, 78 n.6 (Pa. 1980) (“It is clear
that the prosecution may, in its closing address, attempt to meet the pleas
and arguments made by defense counsel in his summation.”). Here, the
prosecutor properly responded to the defense’s various theories as to why
appellant did not act recklessly when he shot the victim, and, as such, the
prosecutor’s conduct fell well within the bounds of proper advocacy.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2016
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