Com. v. Kenney, S.

J-A21016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SILEEN KENNEY :
:
Appellant : No. 2193 EDA 2018
Appeal from the Judgment of Sentence Entered March 13, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010010-2009,
CP-51-CR-0010011-2009, CP-51-CR-0010012-2009
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 11, 2020
Appellant, Sileen Kenney appeals from the judgment of sentence
entered on March 13, 2018. Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On February 16, 2009, Appellant and an accomplice forced their way
into a neighbor’s home, stole cash, shot and wounded two victims therein,
and fled. On March 12, 2009, the Commonwealth filed three criminal
informations against Appellant, one for each of the victims, docketed at
numbers CP-51-CR-0010010-2009, CP-51-CR-0010011-2009, CP-51-CR-
0010012-2009, as captioned above. On March 24, 2010, following a bench
trial, the court found Appellant guilty of three counts of attempted murder,
three counts of aggravated assault, and one count each of robbery, criminal
conspiracy, theft-receiving stolen property, carrying a firearm without a
J-A21016-19
license, carrying a firearm in public in Philadelphia, terroristic threats, simple
assault, recklessly endangering another person, possession of an instrument
of crime, and unlawful restraint. On May 25, 2010, the trial court sentenced
Appellant to serve an aggregate term of 20 to 40 years of incarceration, plus
10 years of reporting probation. We affirmed Appellant’s judgment of
sentence in an unpublished memorandum filed on June 26, 2012. See
Commonwealth v. Kenney, 53 A.3d 939 (Pa. Super. 2012) (unpublished
memorandum). In that decision, we determined that Appellant waived his
sufficiency argument regarding all 16 of his criminal convictions for lack of
specificity and for failing to develop an argument regarding eyewitness
identification. Id. at *12 (“[Kinney] did not denote the specific unproven
elements; he merely concluded the evidence as a whole was insufficient to
support the guilty verdict on all counts [and] also failed to advance his claim
regarding the identification evidence.”).
Thereafter, Appellant filed a timely petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Relevant herein,
Appellant claimed that counsel was “ineffective for failing to raise, with
adequate specificity, a sufficiency claim regarding the mens rea element of
the offense of attempted murder.” See Commonwealth v. Kenney, 159
2016 WL 7340309 at *2 (Pa. Super. 2016) (unpublished memorandum). The
PCRA court denied relief by opinion dated January 28, 2016. A prior panel of
this Court affirmed the PCRA court’s denial of substantive relief in an
unpublished memorandum on December 19, 2016. Relying upon the trial
-2-
J-A21016-19
court’s “meticulous” sufficiency analysis and the PCRA court’s “painstaking
review of the sufficiency of the evidence [] for each of the charges against
Kenney[,]” the prior panel of this Court determined that Appellant’s
“ineffectiveness claim lacked merit because the evidence was sufficient to
support his convictions.” Id. at *3.
Appellant, however, also argued, “the sentence imposed on the
attempted murder conviction, of 20 to 40 years in prison, followed by 10 years
of probation for the conspiracy to commit murder conviction, was illegal
because the offenses of attempted murder and criminal conspiracy merge for
sentencing purposes.” Id. at *3-4. The prior panel agreed that Appellant
was entitled to relief, vacated Appellant’s judgment of sentence, and
remanded the case to the trial court for resentencing pursuant to 18 Pa.C.S.A.
§ 906.1 Id. at *5.
The trial court held a resentencing hearing on March 13, 2018. It
sentenced Appellant to 20 to 40 years of imprisonment for attempted murder,
and vacated the 10-year probationary period for conspiracy.2 Appellant filed
____________________________________________
1 “A person may not be convicted of more than one of the inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the same crime.” 18
Pa.C.S.A. § 906.
2 See Commonwealth v. Maguire, 452 A.2d 1047, 1050 (Pa. Super. 1982)
(“[W]here the trial court has erroneously convicted and sentenced an
appellant for two inchoate crimes, [one] remedy [is] to remand for
resentencing for either one or the other.”)
-3-
J-A21016-19
a motion for reconsideration on March 16, 2018. The motion for
reconsideration was deemed denied by operation of law on July 17, 2018. On
July 20, 2018, Appellant filed a timely notice of appeal listing all three docket
numbers CP-51-CR-0010010-2009, CP-51-CR-0010011-2009, and CP-51-CR-
0010012-2009.3 On August 8, 2018, the trial court ordered Appellant to file
a concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
____________________________________________
3 On August 3, 2018, this Court issued a rule to show cause why the appeal
should not be quashed based upon our Supreme Court’s decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that “where
a single order resolves issues arising on more than one docket, separate
notices of appeal must be filed for each of those cases” pursuant to Pa.R.A.P.
341 and its note). On August 9, 2018, Appellant filed a response. Appellant
claimed that despite filing a single notice of appeal listing all three docket
numbers, unlike the factual scenario presented in Walker wherein the
Commonwealth appealed “from four cases that involved four different
defendants,” in this matter “there was only one alleged criminal episode that
occurred on [February 16, 2009] which the three [docketed] cases covered”
and that “[t]his case involves only one defendant and all the issues are
identical.” Response to Rule to Show Cause, 8/9/2018, at ¶¶ 2 and 4.
Moreover, the Commonwealth, in its brief on appeal to this Court, “took no
position” on the application of Walker or whether this appeal should be
quashed. Commonwealth’s Brief, at 6. On November 26, 2019, this Court
entered a per curiam order staying this matter pending the en banc resolution
of Commonwealth v. Johnson, 1620, 2045, 2046, 2047 EDA 2018,
concerning the proper application of Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018) in light of Commonwealth v. Creese, 216 A.3d 1142 (Pa.
Super. 2019) (reading Walker as a mandate to quash appeal unless notice of
appeal contains only one trial court docket number). On July 9, 2020, an en
banc panel of this Court decided Commonwealth v. Johnson, 2020 WL
3869723 (Pa. Super. 2020) (en banc) which explicitly overruled Creese,
supra and held that as long as the appellant files a separate notice of appeal
at each trial court docket, “[t]he fact that the notices [of appeal] contained
[more than one trial court docket number] is of no consequence.” Johnson,
at *11. Accordingly, we decline to quash the instant appeal.
-4-
J-A21016-19
1925(b). Appellant complied timely on August 20, 2018. On December 11,
2018, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following issues for our review:
I. The evidence was not sufficient to establish beyond a
reasonable doubt that [Appellant] committed the offenses
of attempted murder because the evidence did not establish
beyond a reasonable doubt the alleged shooters of the
complainants acted with specific intent to kill because the
evidence established that the complainants were shot
during the course of a robbery and then the perpetrators
fled the scene. The evidence in this case established beyond
a reasonable doubt an intent to rob but not an intent to kill.
The judgment of sentence for the offenses of attempted
murder should be vacated.[4]
II. The sentence imposed at the resentencing hearing of 20 to
40 years in prison was unreasonable because the record
showed that [Appellant] had [the] support of his family and
could reintegrate into civil society and [Appellant] showed
that while serving in prison he had a rehabilitative potential.
Appellant’s Brief at 7.
In his second issue presented, Appellant claims the trial court, at
resentencing, abused its discretion by imposing an excessive punishment
____________________________________________
4 We will not address Appellant’s first issue presented. As previously
mentioned, we remanded this matter only for resentencing and, thus, we will
not address Appellant’s current sufficiency challenge. See Commonwealth
v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001) (In an appeal following a
limited remand, an appellant may not raise new issues wholly unrelated to the
issues on remand.). Moreover, the prior panel already determined that
Appellant’s ineffective assistance of counsel claim “lacked merit because the
evidence was sufficient to support his convictions.” See Commonwealth v.
Kenney, 2016 WL 7340309 at *3 (Pa. Super. 2016) (unpublished
memorandum). “[A] court involved in the later phases of a litigated matter
should not reopen questions decided by another judge of that same court or
by a higher court in the earlier phases of the matter.” Commonwealth v.
Starr, 664 A.2d 1326, 1331 (Pa. 1995).
-5-
J-A21016-19
without considering his positive prison record and potential for rehabilitation.
Id. at 10-11. In sum, Appellant asserts:
The aggregate sentence imposed of 20 to 40 years in prison was
unjust and [an] unreasonable sentence. The record shows that
[Appellant] was a 31 year old man at the time of his resentencing
with a prior record score of "0" and had the support of his family
and he expressed remorse for the incident. The record shows that
during the 9 years in prison he attempted to rehabilitate himself
with the help of the Department of Corrections and was
participating in prison programs. At a resentencing the trial court
must take into account the defendant's good conduct while in
prison.
Also, the trial court ran two sentences consecutively. The trial
court does not have unfettered discretion in this regard [and] it is
not free to impose any sentence up to the lawful maximum and
impose those sentences consecutively, if that sentence is
unreasonable.
Id. at 10 (case citations omitted).
Appellant challenges the trial court’s discretionary authority to impose a
sentence. We have stated:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue, we 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).
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court's jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code. The requirement that
-6-
J-A21016-19
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. Andrews, 213 A.3d 1004, 1016 (Pa. Super. 2019)
(citation and brackets omitted).
In this case, Appellant has complied with the first three requirements as
set forth above. Next, we examine whether Appellant raises a substantial
question meriting our discretionary review. We have previously determined
that a claim challenging a trial court’s failure “to consider relevant sentencing
criteria, including the protection of the public, the gravity of the underlying
offense, and the rehabilitative needs of [an a]ppellant, as 42 Pa.C.S.A.
§ 9721(b) requires,” raises a substantial question. Commonwealth v.
Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). We conclude that Appellant
raises a substantial question.
In reviewing a discretionary sentencing claim, we adhere to the
following standards:
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.
***
When imposing [a] sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
-7-
J-A21016-19
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
Upon appellate review, this Court considers 42 Pa.C.S.A. § 9781, which
provides, in pertinent part:
(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(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.
18 Pa.C.S.A. § 9781(c) and (d).
Here, the trial court determined:
-8-
J-A21016-19
[The trial court] considered [Appellant’s] history and all related
mitigating circumstances. At resentencing, [the trial c]ourt heard
argument from defense counsel that [Appellant’s] family was
present and supportive. [The trial c]ourt also heard testimony
from [Appellant] stating that he had taken classes while
incarcerated, stayed out of trouble, and that he had created
business plans and strategies for a successful life once out of
prison. [However, the trial c]ourt was not convinced that
[Appellant] was sincere in his remorse. Although it was admirable
that [Appellant] was seeking to better himself, [Appellant] was
ordered to complete job training, take anger management and
stay out of trouble as conditions of his original sentence. (N.T.
5/25/2010, [at] 36). Thus, his actions were simply in compliance
with [the trial c]ourt’s previous sentence. Because [Appellant’s]
crimes were particularly heinous and put children at risk, his good
behavior in prison did not entitle him to a shorter sentence than
what was originally deemed proper by [the trial c]ourt. Although
not entitled to it, [the trial c]ourt did completely vacate his
probationary term, rather than reconfigure his sentence to include
a probationary tail on a different offense. Thus, [the trial c]ourt
did give [Appellant] a lesser sentence than originally imposed. As
a result, [the trial court concluded it] did not err [in imposing
Appellant’s sentence].
Trial Court Opinion, 12/11/2018, at 10 (emphasis in original).
Upon review, we discern no abuse of discretion in sentencing Appellant.
Initially, we note that upon remand for resentencing, Appellant actually
received a lesser sentence than initially imposed. Moreover, the trial court
considered evidence of Appellant’s purported rehabilitation and rejected it.
Essentially, Appellant believes that he is entitled to an even shorter sentence
because he was rehabilitated in prison. More specifically, at sentencing,
Appellant claimed he regretted his actions and credited a prison sponsored
victim awareness class for helping him to understand the pain and suffering
he caused. He vowed to never harm another individual. N.T., 3/13/2018, at
-9-
J-A21016-19
18-21. However, after sentencing, Appellant stated on the record that he did
not shoot the victims and claimed that the Commonwealth did not prove his
crimes beyond a reasonable doubt. Id. at 28-29. Accordingly, Appellant’s
claim that he is now remorseful for his conduct is clearly belied by the record.
Furthermore, the trial court stated that it imposed the particular sentence
because one of the victims was shot twice, endured 24 days of treatment and
recovery in the hospital, testified that she still suffers constant pain, and
believed it would take three full years to recover. Id. at 24-25. Thus, the
trial court considered the impact of the crimes on the public and the gravity
of the offenses when it imposed Appellant’s sentence. Appellant does not
challenge those considerations. Moreover, upon review of the certified record
and in consideration of 42 Pa.C.S.A. § 9781, we discern no error. As such,
based upon all of the foregoing, we conclude that the trial court did not abuse
its discretion when fashioning Appellant’s sentence. Hence, Appellant’s
second claim is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
- 10 -
J-A21016-19
- 11 -