Com. v. Massie, K.

J-S32037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KLAYTON MASSIE :
:
Appellant : No. 479 WDA 2021
Appeal from the Judgment of Sentence Entered October 31, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000742-2018,
CP-02-CR-0011697-2018
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: December 7, 2021
Klayton Massie (“Massie”) appeals from his judgments of sentence
entered following his convictions of one count each of third-degree murder
and criminal mischief1 at CP-02-CR-0000742-2018 (“No. 742”), and one count
each of unlawful restraint–serious bodily injury and possession of an
instrument of crime2 at CP-02-CR-0011697-2018 (“No. 11697”). We affirm.
The trial court summarized the factual history underlying these cases as
follows:
[T]he victim, Francis Sam Zbony [(“Zbony”)], was beaten to death
in his bedroom by [Massie], who was his roommate at the time.
[] Zbony and [Massie] lived with Moses Edwards [(“Edwards”)]
and [Mariuanna] Watts[, (“Watts”)], [Massie]’s girlfriend and co-
____________________________________________
1 18 Pa.C.S.A. §§ 2502, 3304(a)(5).
2 18 Pa.C.S.A. §§ 2902(a)(1), 907.
J-S32037-21
defendant…. The events immediately leading up to the fatal
beating involved [Zbony] getting into a physical altercation with
[] Watts. [] Edwards ultimately intervened to break up the fight,
and he kicked [] Watts out of the house because she was
constantly fighting with people within the residence. [Zbony] then
went upstairs to his second-floor bedroom.
Shortly thereafter, [] Watts returned to the home with
[Massie]. They immediately got into another physical
confrontation with [Zbony], who at that time, was sitting on the
steps near the second floor. During this confrontation, [Massie]
and [] Watts threatened to kill [] Zbony. [] Zbony retreated to
his bedroom to escape the altercation. [Massie] responded by
arming himself with a pickaxe and breaking down [] Zbony’s door
to gain entry into his room. [Massie] then subjected [] Zbony to
such a brutal assault that he never regained consciousness.
When officers responded to the scene, they found [] Zbony
laying on his bedroom floor, unresponsive, with labored[]
breathing. [] Zbony arrived at the hospital in critical condition and
was placed on a ventilator. There were abrasions on his neck, left
shoulder near his collarbone, and dried blood emanating out of
both nostrils. [] Zbony suffered a severe traumatic brain injury
and ultimately succumbed to his severe injuries seven [] months
later.
[Additionally, the autopsy report detailed that Zbony also
suffered a nasal bone fracture, scalp contusion, laceration of the
right thigh, and a fracture of L-1 and L-2 transverse process. In
particular, the transverse process injury was not a fatal injury, but
indicated that Zbony had been stomped on.]
Trial Court Opinion, 7/16/21, at 7-9 (footnotes, quotations, and citations
omitted).
On August 5, 2019, Massie pled guilty to the above-mentioned crimes,
and the trial court deferred sentencing for the preparation of a pre-sentence
investigation report (“PSI”). On October 31, 2019, the trial court conducted
a sentencing hearing. At No. 11697, the trial court sentenced Massie to a
-2-
J-S32037-21
period of 20 to 40 years in prison for his conviction of third-degree murder,
and imposed no further penalty for his conviction of criminal mischief. The
trial court also ordered 430 days of credit for time served. At No. 742, the
trial court sentenced Massie to concurrent terms of 5 years of probation for
each of his convictions. The trial court directed Massie’s probation terms to
run consecutive to Massie’s third-degree murder conviction.
On July 19, 2020, Massie filed a Petition pursuant to the Post Conviction
Relief Act (“PCRA”).3 The PCRA court appointed counsel, who, on January 4,
2021, filed an Amended PCRA Petition seeking the reinstatement of Massie’s
direct appeal rights, nunc pro tunc. On February 4, 2021, the trial court
granted Massie’s PCRA Petition and reinstated his direct appeal rights and his
post sentence motion rights, nunc pro tunc. Subsequently, Massie filed a post
sentence Motion, in which he challenged the discretionary aspects of his
sentence. The trial court denied Massie’s post sentence Motion on March 12,
2021. Massie filed a nunc pro tunc Notice of Appeal from the October 31,
____________________________________________
3 42 Pa.C.S.A. §§ 9541-9546.
-3-
J-S32037-21
2019, judgments of sentence4 and a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
Massie now raises the following claim for our review:
Did the trial court abuse its discretion in imposing the statutory
maximum sentence that was unreasonable, manifestly excessive,
contrary to the dictates of the sentencing codes, and an abuse of
discretion in that: 1) the [trial] court failed to consider an apply
all of the required sentencing factors under 42 Pa.C.S.[A.] §[
]9721(b) and 42 Pa.C.S.[A.] §[ ]9725; and 2) the [trial] court
focused exclusively on the seriousness of the crime, including the
same factors which constituted the elements of the crimes?
Brief for Appellant at 4.
____________________________________________
4 In his single Notice of Appeal, Massie listed both docket Nos. 742 and 11697.
On May 19, 2021, this Court issued a Rule to Show Cause as to why Massie’s
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018) (stating that where one order resolves issues on multiple
lower court dockets “separate notices of appeal must be filed”). See Rule to
Show Cause, 5/19/21, at 1. On May 24, 2012, Massie filed a Response, in
which he conceded that his Notice of Appeal did not comply with Walker.
Massie requested permission to file an amended notice of appeal, and
indicated that he only intended to appeal the judgment of sentence at No.
11697. See Response, 5/24/21, at 1. On June 9, 2021, this Court denied
Massie’s request to file an amended notice of appeal, and advised Massie that
he could renew his request with the merits panel. See Order, 6/9/21, at 1.
Our review of the record reveals that on March 12, 2021, the trial court denied
Massie’s nunc pro tunc post sentence Motion, but did not advise him of his
appellate rights. See Order 3/12/21; see also Commonwealth v.
Patterson, 940 A.2d 493, 498 (Pa. super. 2007) (compiling cases in which “a
court breakdown occurred in instances where the trial court, … either failed to
advise [a]ppellant of his post-sentence and appellate rights[,] or misadvised
him.”); Commonwealth v. Larkin, 235 A.3d 350, 353 (Pa. Super. 2020) (en
banc) (stating that this Court has “declined to quash an appeal when the
defect resulted from an appellant’s acting in accordance with misinformation
relayed to him by the trial court.”). Accordingly, we shall address the claims
raised in Massie’s appeal.
-4-
J-S32037-21
Massie challenges the discretionary aspects of his sentence, from which
there is no automatic right to appeal. See Commonwealth v. Austin, 66
A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant challenges
the discretionary aspects of his sentence, we must consider his brief on this
issue as a petition for permission to appeal. Commonwealth v. Yanoff, 690
A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of a
discretionary sentencing issue,
[this Court conducts] 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Massie filed a timely Notice of Appeal, raised his discretionary
aspects of sentencing claim in his nunc pro tunc post sentence Motion, and
properly included a 2119(f) Statement in his brief. Additionally, Massie’s claim
that the trial court ignored the sentencing factors pursuant to 42 Pa.C.S.A. §
9721(b), and improperly focused on the seriousness of his offense, raises a
substantial question. Brief for Appellant at 11-16; see Commonwealth v.
Serrano, 150 A.3d 470, 473 (Pa. Super. 2016) (finding a substantial question
where the appellant claimed the trial court failed to consider his individualized
needs); Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)
-5-
J-S32037-21
(finding a substantial question where the appellant argued the trial court
focused on the seriousness of the offense, did not consider his rehabilitative
needs, and evinced a “fixed purpose of keeping [the appellant] in jail for his
life”). Accordingly, we will review the merits of Massie’s discretionary
sentencing claim.
We adhere to the following standard of review:
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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (citation
omitted).
“In every case in which the court imposes a sentence for a felony[,] …
the court shall make as part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the sentence
imposed.” Commonwealth v. Mouzon, 812 A.2d 617, 620-21 (Pa. 2002)
(plurality) (quoting 42 Pa.C.S.A. § 9721(b)). “[T]he [trial] court shall follow
the general principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of the offense
as it relates to the impact on the life of the victim, and on the community, and
the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b); see also
Commonwealth v. McClendon, 589 A.2d 706, 713 (Pa. Super. 1991)
-6-
J-S32037-21
(stating that “the court should refer to the defendant’s prior criminal record,
age, personal characteristics and potential for rehabilitation.”). Further, the
trial court must consider the Sentencing Guidelines. Commonwealth v.
Sheller, 961 A.2d 167, 190 (Pa. Super. 2008).
At the sentencing hearing, the trial court stated as follows:
Certainly [Watts] had a hand to play and she must deal with
that…. But [Massie is] the primary cause here. First of all, you
weren’t even present, you didn’t need to come to that house. And
when you came to that house[,] you came to that house with an
agenda. You came to that house with the idea that you were going
to make sure that you took out on [Zbony] the fear and the
harm[,] if any[,] that he caused to [Watts].
So you blocked his way. You caused problems, you broke
down a door, you broke down a door with a pick axe. At the point
that [Zbony] remove[d] himself and lock[ed] himself in that room
everything should stop…. But [it] didn’t. You didn’t walk away,
you escalated it beyond belief. Breaking down a door with a pick
axe and going into that room and just [] beating the man to death.
That[’s] what you did. You may say he didn’t die then[,] but he
certainly died of the injuries that you inflicted on him. Incredibly
serious injuries. At your own hands.
That[,] to me[,] is not a mitigated sentence. There is no
reason for that to be a mitigated sentence. … Your choice was to
cause this man’s death.
N.T. (Sentencing Hearing), 10/31/19, at 34-36.
Additionally, in its Opinion, the trial court addressed Massie’s claim as
follows:
In addition to considering the … PS[I], this court also
considered the victim impact testimony presented at the
sentencing hearing, the arguments of counsel, and [Massie]’s
allocution. [N.T. (Sentencing Hearing), 10/31/19, at] 13-22, 30-
34. The victim’s sisters and stepmother testified passionately as
to the impact that the murder had on their family. [Id. at] 13-
-7-
J-S32037-21
22. [Massie] apologized to the victim’s family and did appear
sincerely remorseful for his crimes during his allocution. [Id. at]
30-31. Counsel for [Massie] rested mainly on the arguments
made in the sentencing memorandum, highlighted [Massie]’s
extreme remorse and his acceptance of responsibility, and
requested a mitigating sentence. [Id. at] 31.
***
Accordingly, while this court was clearly aware of [Massie]’s
mitigating factors, the court did not believe that his childhood
trauma or conditions of []ADHD, anxiety, and depression[] were
so dire or unique that they overshadowed the need for the
sentence to account for the heinous murder he committed. In any
event, while [Massie] argues that his “acts were motivated by
mental illness impacting his judgment and not an intent to kill,”
the fact remains that [Massie] admitted guilt and accepted
responsibility for committing an intentional, malicious killing, and
the circumstances surrounding the murder certainly establish that
it was exactly that.
Moreover, while [Massie] claims that he did not have a
propensity for violence, he certainly did not have a track record
for being an upstanding, law-abiding citizen either. [Massie] had
juvenile adjudications for serious crimes like robbery and
possessing a weapon, as well as a prior drug-trafficking conviction
for which he received a sentence of two [] to six [] years of
imprisonment. He was briefly paroled[,] but then was
recommitted and remain[ed] imprisoned until the expiration of his
maximum sentence “because of repeated disciplinary infractions.”
[Id. at] 33. As noted by the Commonwealth, despite the
substantial time he spent incarcerated, [Massie] was only at
liberty for a little more than two [] years before he decided to
commit a heinous murder. In this court’s estimation, the fact that
[Massie] killed his own friend, with his bare hands, so shortly after
being released from a serious prison sentence[,] only makes him
that much more of a danger to the public.
To be clear, this was not a freak accident where one punch
landed the wrong way and caused a fatal injury. [Massie]
essentially hunted down [Zbony] after [Zbony] had attempted to
flee to safety[,] and [Massie] quite literally beat him to death
despite having ample opportunity to walk away from the incident.
What’s more, [Massie] then left [Zbony] battered, bleeding, and
-8-
J-S32037-21
alone on the floor instead of seeking immediate medical attention
for him.
***
Accordingly, simply because mitigating factors were at play
did not mean that this court was required to assign them more
weight at the expense of other, more serious concerns that far
outweighed any mitigating evidence. … As is reflected by the
record, this court fulfilled its obligation to consider [Massie]’s
background, history, mental health conditions, acceptance of
responsibility and show of remorse. It simply found, however,
that those factors did not warrant a lesser sentence, because the
need for the sentence to reflect the brutally violent nature of the
offense, the need to protect the public, and the need to provide
adequate deterrence were factors that were far more compelling
in this case.
Trial Court Opinion, 7/16/21, at 11-16 (footnote omitted, some citations
omitted).
Our review confirms that the trial court considered all of the relevant
sentencing factors, and appropriately set forth its reasons for imposing the
statutory maximum sentence. See 42 Pa.C.S.A. § 9721(b); see also
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (stating
that “[t]he sentencing court merely chose not to give the mitigating factors as
much weight as [a]ppellant would have liked[.] We cannot re-weigh the
sentencing factors and impose our judgment in place of the sentencing
courts.”). Moreover, the trial court had the benefit of a PSI, which the trial
court expressly stated that it had considered. See N.T. (Sentencing Hearing),
10/31/19, at 12 (wherein the trial court states that it had reviewed Massie’s
PSI and Sentencing Memorandum); Trial Court Opinion, 7/16/21, at 11-12;
-9-
J-S32037-21
see also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (explaining
that where a sentencing judge considered the PSI, it is presumed that they
are “aware of relevant information regarding the defendant’s character and
weighed those considerations along with the mitigating statutory factors.”).
Therefore, we conclude that the trial court did not abuse its discretion in
imposing Massie’s sentence, and that Massie’s challenge to the discretionary
aspects of his sentence is without merit. See Macias, supra; see also
Robinson, supra.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2021
- 10 -