Com. v. Parker, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALTON M. PARKER
Appellant No. 2552 EDA 2013
Appeal from the Judgment of Sentence August 20, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008355-2011
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 09, 2015
Appellant, Alton M. Parker, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions for aggravated assault, simple assault, possessing
instruments of crime (“PIC”), recklessly endangering another person
(“REAP”), criminal mischief, aggravated assault by vehicle while driving
under the influence (“aggravated assault—DUI”), accidents involving death
or personal injury, and DUI—controlled substances.1 We affirm.
The trial court opinion set forth the relevant facts of this case as
follows:
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1
18 Pa.C.S.A. §§ 2702, 2701, 907, 2705, 3304(a)(1); 75 Pa.C.S.A. §§
3735.1, 3742, 3802(d)(1).
_________________________
*Retired Senior Judge assigned to the Superior Court.
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On May 7, 2011, at approximately 4:00 p.m.[,] the 2500
and 2600 blocks of Myrtlewood Street were blocked off for
two neighborhood block parties. Moonbounces had been
set up in the 2600 block, along with tables filled with food
and cake. The streets were blocked off with a parked car
and rope, and were packed with adults and at least fifty
(50) children, many of whom were toddlers.
Appellant, who was driving a dark-colored car which he did
not own and did not have permission to use, turned off
Huntingdon Street and proceeded up Myrtlewood in the
wrong direction. Although the street was blocked off with
a vehicle barrier, Appellant drove through the barrier
blocking the 2500 block, hitting tables and chairs as he
drove by. Neighbors screamed, “You’re going the wrong
way, you’re going the wrong way.”
Appellant, driving at a rate of between twenty (20) and
forty-five (45) mph, ignored them and threw a can of beer
out of his car window, as he held a hatchet in his left hand.
Neighbors attempted to herd the children out of the way,
but it was too late. Appellant revved his car engine,
speeding up and slammed into one of the moonbounces
while two-year-old Carmel White was still inside. The force
of the impact tore the moonbounce out of its plug, with
wires flying.
As Appellant turned the corner, still dragging the
moonbounce with Carmel White inside behind him, he hit
the other moonbounce as well as hitting two children:
Jahlil Clark and Andre Clark. As neighbors desperately
searched for the children, they could not at first find
Carmel. They had to cut the moonbounces open to free
the children tangled within. Appellant was traveling at
such a rate of speed that a cob of corn had wedged in his
driver’s side mirror, a plastic fork in the windshield, and
food splattered all over the headlights, hood, and front
bumper. He also dragged the tables the length of about
ten houses as he sped by.
Although neighbors screamed at him that he had hit a
child, Appellant did not slow down as he turned onto
Oakdale Street, however he did slow down around the
2900 block of Lehigh Street and neighbors, including
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Jerome Conquest…chased after him and eventually caught
up with his car. Some of them attempted to pull open the
driver’s side door. Other people attempted to reach in
through the window. Appellant, who had been attempting
to fight the neighbors off, pulled the door shut and locked
it. He then sped off and hit a blue car parked at the
corner.
Valerie Walls called 911 while other neighbors ran to help
Andre Clark, who lay bleeding in the street, his head
swelling. He and the other children who had been hit by
Appellant were taken by ambulance to St. Christopher’s
Hospital.
Off-duty Police Officer Jonathan Ross was driving on 29th
Street near Huntingdon Street when he heard a crash and
observed a crowd of people running to Myrtlewood Street.
Officer Ross drove up a block and saw a dark colored car
traveling eastbound with the crowd chasing it. [Mr.]
Conquest ran toward Officer Ross’[] truck and told him,
“Hey, listen, chase that car. He just ran over some kids.”
[Mr.] Conquest jumped into the back of Officer Ross’ truck
and they chased Appellant, now driving down Oakdale
Street, for five or six blocks. They followed him to 26 th
Street and Sergeant Streets, where he stopped behind a
white BMW vehicle. Officer Ross pulled alongside
Appellant’s car and tried to get him to stop, but Appellant
hit the passenger side of Officer Ross’ truck, clipped the
BMW, and crashed into a wall at a speed of at least 30
mph.
[Mr.] Conquest jumped from the back of [Officer] Ross’
truck, punched Appellant twice in the face, and tried to
reach in to take the keys from the ignition, but Appellant
continued to struggle and try to push [Mr.] Conquest’s
hands away. When [Mr.] Conquest would not be deterred,
Appellant swung a hatchet at him, the blade sinking into
the car door.
Officer Ross positioned his car behind Appellant’s car,
trapping him, and called 911. As Appellant attempted to
put his car in reverse, Officer Ross jumped from the truck
with his badge and gun drawn, and informed the crowd he
was a police officer. Appellant, glassy-eyed and startled,
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began swinging the hatchet through the open car window
at Officer Ross. Officer Ross backed out of range of the
weapon. Backup officers arrived and together, they
attempted to get the attention of Appellant, who was still
swinging the hatchet.
One of the responding officers, Michael O’Brien, noted a
strong odor of PCP—a pungent, harsh, chemical scent as
he opened Appellant’s car door. Officer O’Brien attempted
to take Appellant out of the driver’s side door, but
Appellant reached for the hatchet. After Officer O’Brien
drew his gun, Appellant was distracted long enough that
another officer was able to snatch the blade away. Once
the weapon was secured, officers placed Appellant under
arrest. Appellant was unable to walk under his own power
and was completely incoherent. His eyes were bloodshot
and his appearance generally was disheveled; his boots
were mismatched. He smelled strongly of PCP.
Appellant was taken to St. Joseph’s Hospital. At the
hospital, Police Officer Karen Cotton read Appellant his
O’Connell[2] warnings, informing him of the consequences
of refusing a blood test, and observed Appellant’s blood
draw at 5:25 p.m. At the time, Appellant was aggressive
and struggling while handcuffed to his bed. Appellant told
Officer Cotton that he was in the area of Lehigh Street to
drop off a TV to a customer when he blacked out.
After the accident Carmel White, a twenty-one (21) month
old toddler, was admitted to St. Christopher’s Hospital with
difficulty walking. She had left leg pain, an abrasion to her
right wrist, and blood in her diaper. Jahlil Clark, nine (9)
years old, had a possible small fracture to his right patella,
knee swelling, knee and leg sprain, and was admitted to
St. Christopher’s Hospital. Alexus Jardine, seventeen (17)
years old, was admitted to St. Christopher’s with wrist and
hand sprains, and abrasions. She had been dragged by
the moonbounce for a distance of four (4) houses.
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2
Com., Dept. of Transp., Bureau of Traffic Safety v. O’Connell, 521 Pa.
242, 555 A.2d 873 (1989).
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Andre Clark[,] nine (9) years old at the time of the
accident, was admitted to the hospital with a right epidural
hematoma, a liver laceration, a right shoulder fracture,
broken fingers, fractured pelvis, a spine injury, and
multiple broken ribs. He was referred for plastic surgery
on his scalp, face, and knee. He could not bear weight on
his legs initially and spent ten days in a rehab center. He
was in St. Christopher’s Hospital for a month before being
moved to a rehabilitation center and wore a neck brace for
three months. He underwent an extensive rehabilitation
period: he could not walk for a month and remained in a
wheelchair, then required crutches, and finally a walking
stick. After his release, he limped for six months. Even
today, [Mr.] Clark cannot run as fast as he used to.
Toxicology tests on the blood drawn from Appellant at the
hospital showed that his blood contained forty-two (42)
nanograms per millimeter of phencyclidine (“PCP”), a
Schedule II controlled substance. Any amount of PCP in
the blood causes effects; the minimal reportable levels for
this drug are between one (1) and five (5) nanograms.
PCP is a hallucinogen which causes a distortion of person,
place, and time; judgment is affected and rapid muscle
movement and belligerent behavior also result. The
amount of PCP in Appellant’s blood was consistent with
recent, active use in a dosage consistent with and capable
of producing adverse psychoactive effects.
(Trial Court Opinion, filed December 3, 2014, at 4-8) (footnotes and internal
citations to the record omitted).
Following a bench trial, the court convicted Appellant of two (2) counts
each of aggravated assault, simple assault, aggravated assault—DUI, and
PIC; three (3) counts of accidents involving death or personal injury; one (1)
count each of REAP and DUI—controlled substances; and four (4) counts of
criminal mischief. On August 20, 2013, the court sentenced Appellant to
consecutive terms of eleven (11) to twenty-two (22) years’ incarceration for
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aggravated assault; four (4) to eight (8) years’ incarceration for aggravated
assault—DUI; three (3) to six (6) years’ incarceration for accidents involving
death or personal injury; and one (1) to two (2) years’ incarceration for one
of the simple assault convictions. The court imposed concurrent terms of
seventy-two (72) hours’ to six (6) months’ incarceration for DUI; thirty-two
(32) to sixty-four (64) months’ incarceration for PIC; fourteen (14) to
twenty-eight (28) months’ incarceration for REAP; four (4) to eight (8)
months’ incarceration for criminal mischief; and one (1) to two (2) years’
incarceration for the remaining simple assault conviction. Thus, the court
sentenced Appellant to an aggregate term of nineteen (19) to thirty-eight
(38) years’ imprisonment.3
Appellant filed a timely pro se notice of appeal on August 27, 2013.
The trial court ordered Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied. On April 29, 2014, this Court dismissed the appeal for
failure to file a brief. On May 29, 2014, Appellant filed an application to
reinstate the appeal. This Court reinstated the appeal on July 9, 2014, and
substitute counsel was appointed. This Court subsequently granted
Appellant’s application for remand to file a supplemental Rule 1925(b)
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3
The court subsequently amended the sentence by merging the convictions
for DUI and aggravated assault—DUI. Because the court had originally
imposed the merged DUI sentence concurrently, the amendment made no
change to Appellant’s aggregate term of imprisonment.
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statement. After the trial court granted Appellant an extension of time,
Appellant filed a timely supplemental Rule 1925(b) statement.4
Appellant raises a single issue for our review:
DID THE SENTENCING COURT ERR AS A MATTER OF LAW,
ABUSE ITS DISCRETION, AND VIOLATE GENERAL
SENTENCING PRINCIPLES WHEN IT SENTENCED
[APPELLANT] TO 19-38 YEARS’ INCARCERATION; WHERE
THIS SENTENCE WAS MANIFESTLY EXCESSIVE AND
UNREASONABLE; FAR SURPASSED WHAT WAS REQUIRED
TO PROTECT THE PUBLIC, THE COMPLAINANTS, AND THE
COMMUNITY; WENT WELL BEYOND WHAT IS NECESSARY
TO FOSTER [APPELLANT’S] REHABILITATION; AND WAS
GROSSLY DISPROPORTIONATE TO THE CRIMES?
(Appellant’s Brief at 1).
In his sole issue, Appellant argues he is fifty-six years old and in poor
health. Appellant contends the trial court effectively imposed a “life
sentence” by making many of Appellant’s sentences run consecutively.
Appellant concedes the individual sentences fall within the standard range of
the Sentencing Guidelines. Nevertheless, Appellant asserts his aggregate
sentence is disproportionate to his crimes, considering that the victims all
survived and made nearly complete recoveries from their injuries. Appellant
concludes his sentence is manifestly excessive, and this Court should
remand for resentencing. Appellant’s challenge is to the discretionary
aspects of his sentence. See Commonwealth v. Gonzalez-Dejusus, 994
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4
On July 15, 2015, the Commonwealth filed its brief late, along with an
unopposed motion to accept the brief as timely filed. We grant the open
motion and accept the Commonwealth’s brief as timely filed.
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A.2d 595 (Pa.Super. 2010) (explaining challenge to imposition of
consecutive sentences implicates discretionary aspects of sentencing);
Commonwealth v. Lee, 876 A.2d 408 (Pa.Super. 2005) (stating claim that
sentence is manifestly excessive challenges discretionary aspects of
sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[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).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or raised in a motion to modify
the sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
When appealing the discretionary aspects of a sentence, an appellant
must also invoke the appellate court’s jurisdiction by including in his brief a
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separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal ‘furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.’” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S. Ct. 2450,
174 L. Ed. 2d 240 (2009) (quoting Commonwealth v. Williams, 562 A.2d
1385, 1387 (Pa.Super. 1989) (en banc) (emphasis in original)). “The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis.” Commonwealth v. Anderson, 830 A.2d 1013,
1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting Commonwealth v.
Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc), appeal denied, 567
Pa. 755, 790 A.2d 1013 (2001)).
“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
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imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995) (stating defendant is not entitled to “volume discount” for
his crimes by having all sentences run concurrently). But see
Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal
denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard
range sentences on thirty-seven counts of petty theft offenses for
aggregate sentence of 58½ to 124 years’ imprisonment constituted virtual
life sentence and was so manifestly excessive as to raise substantial
question). “Thus, in our view, the key to resolving the preliminary
substantial question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face
to be, an excessive level in light of the criminal conduct at issue in the case.”
Prisk, supra at 533. But see Commonwealth v. Austin, 66 A.3d 798
(Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (holding that
challenge to imposition of consecutive sentences, which yields extensive
aggregate sentence, does not necessarily present substantial question as to
discretionary aspects of sentencing, unless court’s exercise of discretion led
to sentence grossly incongruent with criminal conduct at issue and patently
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unreasonable).
On appeal, this Court will not disturb the judgment of the sentencing
court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d
843 (Pa.Super. 2006).
[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 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.
Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007)
(internal quotation marks and citations omitted). “Where the sentencing
court imposes a sentence within the guideline range, we must review to
determine whether the trial court’s sentence is ‘clearly unreasonable.’”
Dodge, supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).
Instantly, Appellant failed to object to his sentence at imposition or to
file a post-sentence motion. Therefore, Appellant waived his challenge to
the discretionary aspects of his sentence. See Mann, supra. Moreover,
assuming without deciding Appellant’s claim even raises a substantial
question, the trial court explained its sentencing decision as follows:
The evidence introduced at trial established that Appellant
drove his car through a crowd of children, injuring several
of them severely. Despite warning cries from assembled
neighbors, Appellant drove through a blocked-off street
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and into the crowd. When stopped by concerned citizens
and an off-duty police officer, [Appellant] threatened them
with a hatchet until physically restrained. The evidence
further showed that Appellant had forty-two (42)
nanograms of PCP in his bloodstream….
At trial, Appellant did not admit responsibility for his
actions and instead testified that he had suffered mini-
strokes in 2011 and heart attacks in 2009 and 2010 as a
result of pulmonary artery narrowing, and that, on the day
of the incident, he suffered another mini-stroke while
driving. He testified he did not remember anything from
the time he began driving until the time he woke up in the
hospital. He testified that although he had taken PCP
three (3) days prior to the incident, he had not taken PCP
on the day of the incident. Appellant testified that
although he had a drug problem “for years…no one tried to
help [him].” However, the only evidence of his strokes in
the medical records provided to the [c]ourt were self-
reported by Appellant himself.
At sentencing, this [c]ourt heard evidence that Appellant
had had a difficult childhood and suffered from years of
drug addiction. Appellant had a prior record score of four
(4) and two convictions for selling drugs, as well as arrests
for violations of Protection from Abuse (“PFA”) orders and
for aggravated assault. He was first arrested at age fifteen
(15) and at the time of trial, was fifty-six (56) years old.
Appellant suffered from uncontrolled blood pressure,
coronary and peripheral artery disease, chest pain, heart
palpitations, hernias and foot ulcers. Appellant argued
that his actions on that day were an aberration brought on
by stroke symptoms, despite the fact that he had also
ingested PCP and admitted to ingesting PCP.
However, this [c]ourt also heard testimony from Andre
Clark’s family regarding the effects the accident had on his
life. He no longer enjoys going out and playing, and is
mocked because he is slower physically than other children
and “in other ways.” The family noted that Appellant had
not shown any remorse throughout the entire court case.
This [c]ourt also heard Appellant’s allocution, in which he
stated that he was sorry, but also that he did not
understand what PCP and pulmonary artery disease had
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been doing to his body. However, despite his apologies,
he still insisted that he had not used PCP on the day of the
incident and that he had suffered a stroke while driving.
In fashioning Appellant’s sentence, this [c]ourt considered
all of the testimony and evidence offered, including the
pre-sentence investigation report and mental health
evaluation, and took note that neighbors yelled at
Appellant to slow and stop, and he ignored these
warnings; the injuries and lasting effects suffered by the
four (4) child victims who had been hospitalized; Appellant
swinging a hatchet at a police officer; and that the only
reason Appellant stopped was because his car was forcibly
rammed by Officer Ross. This [c]ourt found that
Appellant’s drug abuse had spiraled out of control to such
a point that the community was not safe from him;
Appellant’s lengthy criminal record was concerning; and
that Appellant[] needed rehabilitation, but such
rehabilitation could not be effectuated outside of a prison.
Thus, Appellant’s sentence of nineteen (19) to thirty-eight
(38) [years’ incarceration] was appropriate considering the
gravity of his offense, his history of addiction and need for
rehabilitation, and the need to protect the community, and
this [c]ourt did not abuse its discretion.
(Trial Court Opinion, filed December 3, 2014, at 11-12). The record shows
the court appropriately considered the relevant sentencing factors and
thoroughly detailed its reasons for the sentence imposed, including the
violent nature of the crimes against multiple victims and Appellant’s history
of criminal activity and drug abuse. Thus, even if Appellant had properly
preserved his sentencing challenge and raised a substantial question, we
would see no grounds to disturb Appellant’s standard range sentences. See
Walls, supra; Dodge, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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