Commonwealth v. McCain

J-A19036-17
2017 Pa. Super. 378
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
LEROY McCAIN : No. 3000 EDA 2016
Appeal from the Judgment of Sentence May 11, 2016
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0007290-2013
BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.
OPINION BY MUSMANNO, J.: FILED DECEMBER 04, 2017
The Commonwealth of Pennsylvania appeals from the judgment of
sentence imposed following Leroy McCain’s (“McCain”) convictions of
aggravated assault, conspiracy, simple assault, persons not to possess
firearms, firearms not to be carried without a license, carrying a firearm on
public streets in Philadelphia, and recklessly endangering another person. 1
We vacate McCain’s judgment of sentence, and remand for resentencing.
In its Opinion, the trial court set forth the relevant facts underlying
this appeal as follows:
On May 4, 2013, Anthony Rodriguez [(“Anthony”)] was
selling cell phones at a vending stand near 5th [Street] and
Lehigh Avenue in Philadelphia. Wilfredo Rodriguez
[(“Wilfredo”)], who owned the stand, was also working there at
that time. Anthony was selling a certain phone on commission
for an associate named Mikey. That day, an unnamed buyer
drove up to the stand and bought the cell phone from Anthony.
Later that day, the buyer returned and complained that the
1 See 18 Pa.C.S.A. §§ 2702, 903, 2701, 6105(a)(1), 6106(a)(1), 6108,
2705.
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phone he had bought was fake. Anthony replied that he no
longer had the buyer’s purchase money. [Anthony] asked the
buyer to give him a day to get his money back, and the buyer
replied that he would be back.
At some point afterward, the buyer returned to the stand
and began fighting with Anthony. The buyer had a companion
with him, a tall, thin young man. Wilfredo engaged the
companion in a fight while the buyer fought with Anthony.
During the altercation, the companion called over to [McCain],
who was on the other side of Lehigh Avenue. [McCain] came
over, and the companion urged him to pull out his firearm.
Anthony and Wilfredo saw [McCain] pull a gun out of his jacket
or waistband and began yelling, “Don’t do it, don’t do it.”
[McCain] pointed his gun at Anthony, seemed to hesitate, and
then fired three times at the ground near Anthony. The bullet
ricocheted off the cement and struck Wilfredo in the foot.
On May 7, 2013, Detective [Samuel] Gonzalez [(“Detective
Gonzalez”)] took a statement from Anthony in which Anthony
identified [McCain] as the shooter from a photo array. At trial,
Detective Gonzalez entered into evidence images from a
surveillance video from the pawn shop across the street. The
image shows “an older male with a – type of dark colored
baseball cap, appears he’s wearing glasses … dark colored
checkered shirt … either black or blue, dark blue, blue and white
… with dark color possibly, dark color pants.” This matched the
description provided by Anthony, which was a “black male, about
five-ten … stocky build … looked older, maybe around 50 years
old … wearing glasses and a blue baseball cap … wearing [a]
black jacket, blue jeans, and he had [] black and white
sneakers.”
Counsel[] stipulated that, had Detective Dusak been
called, he would have testified to blood discovered at the gas
station near that location and two .45 caliber FCCs (fire cartridge
casings) in the area near the pumps towards Lehigh Avenue.
Officer [Gregory] Welsh would testify that the FCC 1 and FCC 2
were fired from the same firearm. The detectives executed a
search warrant at [McCain’s] residence and recovered a baseball
cap. Counsel[] further stipulated that [McCain] was 55 at the
time of arrest and did not have a valid license to carry a firearm.
[McCain] was ineligible to possess a firearm due to a prior
conviction.
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Trial Court Opinion, 12/6/16, at 2-3 (citations to record omitted).
Following a bench trial, McCain was convicted of the above-mentioned
crimes. The trial court deferred sentencing and ordered a pre-sentence
investigation report (“PSI”). On May 11, 2016, the trial court sentenced
McCain to an aggregate term of 11½ to 23 months in prison, with immediate
parole to house arrest, followed by 7 years of reporting probation and 50
hours of community service. The trial court did not grant McCain credit for
time served.
On May 18, 2016, the Commonwealth filed a Motion for
Reconsideration of Sentence, which was denied by operation of law on
September 16, 2016. The Commonwealth subsequently filed a timely Notice
of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of errors complained
of on appeal.
The Commonwealth raises the following issue for our review: “Did the
[trial] court abuse its discretion where it failed to protect the public from a
violent, unrepentant, career felon and offered flawed reasons for its extreme
deviation from the sentencing guidelines in imposing a lenient sentence of
house arrest for shooting a victim with an illegal firearm?” Commonwealth’s
Brief at 4.
The Commonwealth argues that the trial court abused its discretion by
imposing a sentence below the mitigated range of the sentencing
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guidelines.2 Id. at 14. The Commonwealth points to McCain’s substantial
record (which includes convictions for, inter alia, robbery, rape, aggravated
assault and possession of a firearm by a convicted felon), as well as his
classification as a repeat felony offender. Id. The Commonwealth claims
that the trial court’s sentence fails to protect the public from a violent
criminal. Id. at 16. Additionally, the Commonwealth challenges the trial
court’s classification of the shooting as an “accidental injury,” and argues
that McCain’s conviction of aggravated assault precludes a determination
that the resulting injury was accidental. Id. at 17. The Commonwealth
claims that the trial court trivialized Wilfredo’s injury by characterizing it as a
wound to his foot. Id. at 18; see also id. (wherein the Commonwealth
states that the bullet shattered Wilfredo’s shin bone; the injury required
surgical repair and the implantation of a metal rod and several screws; and,
as a result of the injury, Wilfredo suffers from chronic pain and numbness,
walks with a limp, and trips over himself). Further, the Commonwealth
argues that the instant offense is a violent escalation from McCain’s 2000
conviction of possession of a firearm by a convicted felon. Id. at 19, 24.
2 The parties agreed that for persons not to possess firearms, the offense
gravity score was 10 (which makes it a “Level 5” offense under the
Sentencing Guidelines), and for aggravated assault, the offense gravity
score was 8. Additionally, McCain was designated as a repeat felony
offender. The trial court calculated the standard range sentence based on
the persons not to possess firearms offense, for which the Sentencing
Guidelines recommends a minimum sentence of 72 to 84 months in prison,
plus or minus 12 months for the aggravated/mitigated range. See 204 Pa.
Code § 303.16(a).
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The Commonwealth additionally notes that McCain tested positive for PCP
approximately two months after sentencing, and has failed to provide
evidence that he is working, as required under the terms of his parole. Id.
at 9 n.1, 20.
The Commonwealth challenges the discretionary aspects of the
sentence imposed by the trial court. “It is well-settled that, with regard to
the discretionary aspects of sentencing, there is no automatic right to
appeal.” Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super.
2010).
An appellant challenging the discretionary aspects of [a]
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
We conduct a four-part analysis to determine: (1) whether the
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 the 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).
***
The determination of what constitutes substantial question must
be evaluated on a case-by-case basis. 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.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks, brackets and some citations omitted).
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Here, the Commonwealth filed a timely Notice of Appeal and preserved
its issue in its Motion for Reconsideration of Sentence. The Commonwealth
also included a Rule 2119(f) Statement in its brief, wherein it argues that
McCain’s sentence fails to protect the public, and is an extreme and
unreasonable departure from the mitigated range of the sentencing
guidelines. Commonwealth’s Brief at 11-12. The Commonwealth’s
argument raises a substantial question. See Commonwealth v. Kenner,
784 A.2d 808, 811 (Pa. Super. 2001) (holding that the Commonwealth
raised a substantial question where it alleged that defendant’s sentence was
excessively lenient, and provided specific reasons why the sentence violated
sentencing norms). We will therefore consider the merits of the
Commonwealth’s claim.
We review the trial court’s sentencing determination for an abuse of
discretion. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). “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.” Id. (citation omitted).
The Sentencing Code provides that
the [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.
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42 Pa.C.S.A. § 9721(b). The trial court must also consider the sentencing
guidelines. See id. Additionally, when a court imposes a sentence, it must
provide a contemporaneous statement of the reasons supporting its
sentence. See id.; see also Commonwealth v. Feucht, 955 A.2d 377,
383 (Pa. Super. 2008) (stating that “whether or not there is a departure
from the guidelines, a court imposing sentence for a felony or misdemeanor
shall make part of the record, and disclose in open court during sentencing,
a statement of the reasons for the sentence.”). Section 9781(d) provides
that, when reviewing a sentence, we must consider the following:
(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.
42 Pa.C.S.A. § 9781(d). This Court may conclude that a sentence is
unreasonable based upon a review of the factors set forth in Section
9781(d), or based upon a finding that the trial court did not give proper
consideration to the general sentencing standards stated in Section 9721(b).
Walls, 926 A.2d at 964; see also 42 Pa.C.S.A. § 9781(c)(3) (directing this
Court to vacate a sentence and remand for resentencing where “the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.”).
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Here, the trial court stated its intention to impose a sentence
drastically below the recommended guidelines:
I listened to the attorneys today. I also listened to you as well.
I reviewed all the reports that were generated for this hearing.
I’ve also had an opportunity now to review the letters that your
attorney passed up to me today. I do feel that you were turning
your life around and you had been doing positive things, and
that’s been indicated from the pastor as well as your employer.
I think you worked there for twenty[-]plus years, I think the
letter indicated. Yeah, for over twenty years, you know. So that
does mean something that you were able to be a productive
citizen. However, a crime was committed where unfortunately
someone was shot as a result of what you did, so I have to
consider that as well. I am going to depart from the guidelines
and what I’m going to do on the aggravated assault [charge] is
that I am going to give you a sentence of [11½ to 23 months,]
followed by five years of reporting probation. That’s to be
served on house arrest. You will not get any time credit. And
I’m going to give you a concurrent sentence on the [persons not
to possess firearms charge] of [11½ to 23 months,] followed by
five years [of probation]. And then on the [carrying a firearm on
public streets in Philadelphia charge,] I’ll just give you a
consecutive two years of reporting probation. And the reason
why I deviated as such is because I took into consideration that
you had already been in custody for eighteen months and I’m
not giving you time credit for that eighteen months you served,
and I also looked at the eighteen months that you had been on
house arrest and continued to work. … And a condition also is
that you maintain employment, because I know that this is a
financially difficult situation for your family and they depend on
you so that your mother’s house is not lost. … I am also going to
order that you perform fifty hours of community service to give
back to this community in which[,] unfortunately[,] you took
something when you did the shooting, so let’s do something
positive in the community as a result[,] and it looks like you’re
already doing that. … I will waive your probationary fee so that
you can dedicate it to rebuilding your life, but I want to be very
clear to you that if there is any kind of violation[,] this sentence
will go away and you will be upstate for what the District
Attorney has asked. Okay? So this is your last shot and I trust
that you will go out there and be productive.
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N.T. (Sentencing), 5/11/16, at 19-22 (paragraph breaks omitted); see also
Trial Court Opinion, 12/6/16, at 8 (noting that McCain’s “most severe
charges are second-degree felonies”). Upon review, we conclude that the
sentence is unreasonable, in light of the factors outlined in Section 9781(d).
While the buyer and the companion fought with Anthony and Wilfredo,
McCain positioned himself across the street. At the urging of the
companion, McCain shot his firearm, which he possessed illegally, toward
Anthony and Wilfredo. As a result, Wilfredo suffered serious injuries, which
required surgery and physical therapy, and which have caused him long-
term pain. See N.T., 2/16/16, at 84-87.
We observe that a PSI was prepared and reviewed by the trial court
prior to sentencing.3 The PSI reveals that McCain’s juvenile record includes
3 arrests and one adjudication of delinquency. Additionally, McCain’s adult
criminal history includes 20 arrests, which resulted in 7 convictions,
including, inter alia, robbery, rape, simple assault, and a federal firearms
offense, and 10 total commitments. McCain also incurred 9 parole/probation
3 Generally, the existence of a PSI creates a presumption that “the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988). However, the presumption is rebuttable. Commonwealth v.
Moore, 617 A.2d 8, 13 (Pa. Super. 1992) (concluding that sentencing court
misapplied the guidelines and remanding for resentencing despite the
existence of a PSI, where the court “failed to properly analyze the four
factors delineated in [Section 9781(d)] and did not correctly consider and
weigh all relevant factors[.]” (citation omitted)).
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violations, 6 of which resulted in revocation. The PSI recommends specific
prison programs, and provides additional conditions that should be imposed
if McCain is placed on probation or parole.
The Sentencing Guidelines recommend a standard term of 72-84
months in state prison for a repeat felony offender with an offense gravity
score of 10. The trial court imposed a sentence of 11½ to 23 months, with
immediate parole to house arrest, and 7 years of probation. This sentence is
drastically below even the mitigated guidelines range, and ignores the
Sentencing Guidelines recommendation that Level 5 offenses correspond to
state prison terms, rather than other forms of restrictive intermediate
punishment.
Based upon the circumstances of this case and McCain’s significant
criminal history, which includes violent crimes and a federal firearms
offense, and displays his inability to abide by the terms of less restrictive
punishments, we conclude that McCain’s sentence is unreasonably lenient,
and an abuse of the trial court’s discretion. See Commonwealth v.
Wilson, 946 A.2d 767, 770 (Pa. Super. 2008) (concluding that sentence of
11½ to 23 months in prison, followed by 7 years of probation for robbery
was unreasonably low, based on the nature of the crimes, the defendant’s
past aggressive conduct and continuing threat to the public, and the injuries
suffered by the victims); see also Commonwealth v. Daniel, 30 A.3d 494,
497, 499 (Pa. Super. 2011) (concluding that a sentence of 11½ to 23
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months in prison, with immediate parole eligibility, and 5 years of
probation—which was only 25% of the lowest standard range—imposed
following defendant’s conviction of aggravated assault and possession of an
instrument of crime was excessively lenient in light of the factors outlined in
Section 9781(d)); Kenner, 784 A.2d at 811-12 (concluding that a prison
term of 11½ to 23½ months, plus 8 years of probation, following
defendant’s guilty plea to aggravated assault was excessively lenient, where
victim suffered severe injuries, and the trial court did not sufficiently justify
its “radical departure from our sentencing guidelines”). Further, the trial
court’s stated reasons for deviating from the Sentencing Guidelines (i.e.,
McCain’s work history, his time served in custody and on house arrest, and
the court’s belief that McCain is “turning his life around”) fall short of
justifying a less-than-mitigated sentence under the circumstances of this
case. See Commonwealth v. Robertson, 874 A.2d 1200, 1213 (Pa.
Super. 2005) (stating that “[i]f the sentencing court imposes a sentence that
deviates significantly from the guideline recommendations, it must
demonstrate that the case under consideration is compellingly different from
the ‘typical’ case of the same offense or point to other sentencing factors
that are germane to the case before the court.”); see also Kenner, 784
A.2d at 812. Accordingly, we vacate McCain’s judgment of sentence, and
remand for resentencing.
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Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2017
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