Com. v. Mitchell, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JUSTIN MITCHELL :
:
Appellant : No. 1583 EDA 2022
Appeal from the Judgment of Sentence Entered March 11, 2022,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No(s): CP-46-CR-0004744-2019.
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 11, 2023
After a jury convicted him of felony murder, criminal conspiracy, and
related offenses,1 Justin Mitchell appeals from the judgment of sentence of
incarceration for life without the possibility of parole. We affirm.
Around 9:10 p.m. on January 23, 2019, Mitchell, Henry Diaz-Ayala, and
Russel Montalvo-Fernandez broke into the home of David Pass and his father,
Ralph Williams. Carrying guns, the men planned “to rob [Mr.] Pass of money
he owed [Mitchell,] who in turn owed it to Diaz[-Ayala] and Montalvo[-
Fernandez].” Trial Court Opinion, 7/20/22, at 5.
While Montalvo-Fernandez and Mr. Pass were on the third floor, Diaz-
Ayala was with Mr. Williams in his second-floor bedroom. Mr. Williams resisted
and stabbed Diaz-Ayala, who screamed. Upon hearing Diaz-Ayala’s scream,
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1See 18 Pa.C.S.A. §§ 903(a)(1), 907(a), 2505(b), 2702(a)(1), 3701(a)(1)(i),
3701(a)(ii), and 3701(a)(1)(iv); see also 75 Pa.C.S.A. § 3733(a).
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Montalvo-Fernandez shot Mr. Pass in the leg and buttocks. Montalvo-
Fernandez ran downstairs, where he repeatedly shot and killed Mr. Williams.
The three home invaders fled the scene. Diaz-Ayala left a trail of blood
from Mr. Williams’ bedroom, down the stairs, through the kitchen, out the
back door, and into the street. Montalvo-Fenandez drove Mitchell home and
then took Diaz-Ayala to a hospital.
Two days later, a traffic-patrol officer attempted to stop Mitchell for
illegally tinted car windows. Mitchell began to slowdown but then sped away.
Instead of pursuing the car, the patrol officer obtained a warrant for Mitchell’s
arrest.
Several months passed, and police eventually apprehended Mitchell and
Diaz-Ayala. Meanwhile, Montalvo-Fernandez escaped to Mexico with the help
of his close friend, Elijah Moody.
The Commonwealth filed two cases against Mitchell. One case was for
eluding apprehension by the patrol officer. The other case was for the crimes
committed during the home invasion. The Commonwealth joined Mitchell’s
two cases under Pennsylvania Rule of Criminal Procedure 582.
Mitchell moved to separate them. The trial court denied his request. It
explained his eluding-apprehension charge “arguably is evidence of flight,”
due to an inferable consciousness of guilt arising from Mitchell’s involvement
in the home invasion. N.T., 7/15/21, at 23.
Also, the Commonwealth filed a motion in limine to admit the testimony
of Elijah Moody regarding statements Montalvo-Fernandez made to him in the
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days after the homicide. The trial court granted the Commonwealth’s motion
and explained its ruling from the bench as follows:
It’s important to note that Moody and Montalvo[-
Fernandez] were friends prior to the homicide. It’s also
important to note that, at the time these statements were
made, [none] of the defendants had been arrested for
homicide. The case law does say that the conspiracy ends
upon arrest. We don’t have that in this particular situation.
We know that Mr. Moody testified before the Investigating
Grand Jury on two occasions, that being September 3, 2019
and . . . July 24, 2019.
On August 7, 2019, he and his attorney met with
Detective Mitchell, and I’ll quote, “to clarify false information
that he previously testified to before the Investigating Grand
Jury.” There was no question-and-answer statement taken
at the time, and it is not clear from the record why no formal
statement was taken. It’s also not clear what generated this
meeting on August 7th. Was Mr. Moody being threatened
with contempt of court for lying to the grand jury? It’s just
not clear. But a police report was generated, and it says
various things that Montalvo[-Fernandez] is reported to
have said to Moody.
At some point, . . . Mr. Moody came to Detective
Mitchell, and he did give a Q-and-A statement. I believe it
was two pages and basically adopted a police report. That
was March 12, 2020.
So, what we have here is knowing the facts of this
case, we know that the three people came together. After
the homicide, they left in a car together. Two of them were
wearing masks during the crime. We know that there was
cell phone contact between them, after the time and prior
to their arrest. I think it can be readily inferred that there
was an agreement, as part of the original plan, to get away
with the crime, to cover up, to evade capture, and I think
that can be readily inferred as part of the plan. So, I find
that the conspiracy did not end. The statements were made
in furtherance of the conspiracy, and they are admissible.
N.T., 7/15/21, at 18-19.
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The matter proceeded to trial. The jury convicted both men, and the
trial court sentenced Mitchell as described above. This timely appeal followed.
The trial court ordered Mitchell to file a Rule of Appellate Procedure
1925(b) Statement of Matters Complained of on Appeal. However, there is
no 1925(b) Statement in the certified record, and Mitchell did not attach his
1925(b) Statement to his appellate brief.
In its 1925(a) Opinion, the trial court indicated that Mitchell served the
trial judge with “a Statement of 13 errors claimed on appeal.” Trial Court
Opinion, 7/20/22, at 2. “Seven of those claims (numbered III-IX) pertain to
the disposition of pretrial motions by the Hon. William R. Carpenter,” who
neither presided over the trial nor authored the 1925(a) Opinion. Id. The
opinion incorporated Judge Carpenter’s pretrial rulings by reference, but it did
not identify which pretrial issues Mitchell raised in his 1925(b) Statement.
Hence, Mitchel’sl failure to file to his 1925(b) Statement left the record devoid
of which pretrial issues he raised in his 1925(b) Statement.
The Commonwealth therefore asserts that Mitchell has waived his issues
on appeal. See Commonwealth’s Brief at 18. In its appellate brief, the
Commonwealth stated that it did not object to Mitchell supplementing his brief
to include the statement of errors that he submitted to the trial court.
However, the Commonwealth contended that any arguments not preserved in
that Statement are now waived. See id. (citing Commonwealth v. Hill, 16
A.3d 484, 492 (Pa. 2011).
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Despite the concession from the Commonwealth, Mitchell did not file a
reply brief or supplement his initial brief to provide us with his 1925(b)
Statement. Thus, before reaching the merits of Mitchell’s appellate issues, we
must determine whether his failure to include his 1925(b) Statement in the
certified record and his brief results in waiver of his appellate issues.
Waiver presents “a question of law, over which our standard of review
is de novo, and our scope of review is plenary.” Commonwealth v. Barbour,
189 A.3d 944, 954 (Pa. 2018).
Rule 1925(b) is very clear and very strict. Where, as here, the trial
court has ordered an appellant to file a 1925(b) Statement, he “shall file of
record the Statement and concurrently shall serve [it upon] the judge.”
Pa.R.A.P. 1925(b)(1). Moreover, “[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.” Pa.R.A.P. 1925(b)(4)(vii).
Accordingly, the Supreme Court of Pennsylvania has said, “In order to
preserve their claims for appellate review, appellants must comply whenever
the trial court orders them to file a Statement of Matters Complained of on
Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b)
statement will be deemed waived.” Hill, 16 A.3d at 491 (emphasis in
original).
Here, Mitchell served his 1925(b) Statement on the trial judge, but he
failed to file it of record. Thus, he violated Pa.R.A.P. 1925(b)(1). This violation
inhibits our appellate review, because the trial judge who received the 1925(b)
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Statement was not the same judicial officer who ruled on the pretrial matters.
Mitchell raised seven pretrial issues in his 1925(b) Statement, but, due to his
failure to file the 1925(b) Statement or attach it to his brief, we have no way
of knowing which pretrial issues he raised (and thereby preserved) in that
Statement.
Given that we do not know which pretrial issues Mitchell preserved in
his 1925(b) Statement, we hold that he has preserved none of them. We
dismiss all of Mitchell’s pretrial appellate issues as waived.
Regarding trial and post-trial issues, the trial court authored a 1925(a)
Opinion listing Mitchell’s issues from his 1925(b) Statement as follows:
1. The evidence was insufficient to support the guilty
verdict;
2. The verdict was contrary to the weight of the
evidence;
3. The trial court erred by admitting the testimony of a
forensic pathologist, despite his failure to state his
opinions to a reasonable degree of medical certainty;
4. The trail court erred by admitting a timeline exhibit
produced by the Commonwealth, marked and
received into evidence as C-163;
5. The trial court erred by allowing the Commonwealth
to amend the bills of information after the close of the
evidence; and
6. The trial court abused its discretion by sentencing
[Mitchell] to an aggregate sentence of ten to 20 years’
imprisonment consecutive to his life sentence for
murder.
Trial Court Opinion, 7/20/22, at 2-3.
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Unlike the pretrial issues, because the trial court has identified and
addressed the merits of the above issues in its opinion, Mitchell’s failure to file
his 1925(b) Statement does not inhibit our review of whether he raised them
in his 1925(b) Statement. Therefore, Mitchell’s failure to file his 1925(b)
Statement with the clerk of courts does not result in waiver of those issues.
Clearly, Mitchell served his 1925(b) Statement on the trial judge, who
placed his trial and post-trial appellate issues in the record through its 1925(a)
Opinion. Hence, we hold that those six trial and post-trial issues are preserved
for appellate review.
Nevertheless, in his appellate brief, Mitchell raises many issues that are
different from the issues that the trial court identified in its 1925(a) Opinion.
Specifically, he now claims the following five grounds of error:
1. Did the trial court err in not granting the motion to
sever the codefendant’s cases, violating [Mitchell’s]
constitutional rights?
2. Did the trial court err in joining the fleeing and eluding
charges?
3. Did the trial court err in admitting crimen falsi
evidence that was too remote in time without doing
the proper analysis of the probative value versus
prejudicial impact?
4. Did the trial court err, violating [Mitchell’s] rights
under the Confrontation Clause, the Fourteenth
Amendment and Article I sec. 9, when it permitted
admission of the statement of Montalvo-Fernandez, a
non-testifying coconspirator which he made to Elijah
Moody?
5. Did the sentencing court abused its discretion in
sentencing [Mitchell] to an aggregate sentence of ten
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to 20 years of state incarceration consecutive to his
life sentence violating state law and the Eighth
Amendment?
Mitchell’s Brief at 2.
Of the above issues, the first four deal with pretrial matters that the trial
court did not identify or address in its 1925(a) Opinion. Hence, in accordance
with our above analysis, Mitchell has not properly preserved them for appeal.
He waived his first four appellate issue. See Pa.R.A.P. 1925(b) and Hill,
supra.
The only issue that Mitchell preserved for appellate review challenges
the trial court’s discretionary aspects of his sentence. He disagrees with the
ten to 20 years’ incarceration that the trial court imposed consecutively to his
life sentence.
Such issues “are not appealable as of right.” Commonwealth v.
Miller, 275 A.3d 530, 534 (Pa. Super. 2022). Instead:
[a]n appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely
notice of appeal; (2) properly preserving the issue at
sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which
requires a separate section of the brief setting forth a
concise statement of the reasons relied upon for allowance
of appeal with respect to the discretionary aspects of a
sentence; and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b), or sentencing
norms.
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Id. Mitchell has satisfied the first three pongs. However, the Commonwealth
objects to our assertion of appellate jurisdiction over this issue based on the
fourth prong, i.e., presentation of a substantial question.
Regarding the substantial-question prong, Mitchell offers no analysis in
his Pa.R.A.P. 2119(f) Statement. He merely states, “there is a substantial
question that the sentence appealed from is not appropriate under the
Sentencing Code.” Mitchell’s Brief at 34. But Mitchell does not explain why
or how that is so.
By contrast, the Commonwealth argues that:
a guideline sentence is presumptively reasonable. See
Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa. Super.
2006) (“the standard range . . . is presumptively where a
defendant should be sentenced”). Moreover, “the general
rule in Pennsylvania is that in imposing a sentence the court
has discretion to determine whether to make it concurrent
with or consecutive to other sentences then being imposed
or other sentences previously imposed.” Commonwealth
v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (citation
omitted) (“We see no reason why Hoag should be afforded
a ‘volume discount’ for his crimes by having all sentences
run concurrently”).
Accordingly:
A court’s exercise of discretion in imposing a
sentence concurrently or consecutively does not
ordinarily raise a substantial question . . .
Rather, the imposition of consecutive rather
than concurrent sentences will present a
substantial question in only the most extreme
circumstances, such as where the aggregate
sentence is unduly harsh, considering the
nature of the crimes and the length of
imprisonment.
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Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.
Super. 2015) (internal citations and quotation marks
omitted).
In this case, [Mitchell] fails to raise a substantial
question, because his sentence is not unduly harsh under
the circumstances. He led two armed and dangerous
individuals to break the victims’ door down and enter their
home to take what they believed to be drug money by force.
After invading the home, the men shot their target as well
as his father. The father died, thus mandating defendant’s
life sentence. He has no right to bypass a prison term for
his remaining crimes, which include the aggravated assault
on the son who survived.
[Mitchell] does not contend that the court sentenced
him outside the guidelines, and there is nothing harsh or
excessive about an aggregate sentence of ten-to-20 years
in prison for shooting a man during a home invasion
robbery. His claim that he was not the shooter is unavailing,
as he is responsible for all of the natural and foreseeable
consequences of his decision to participate in an armed,
person-present, home invasion robbery. Under these
circumstances, gun-violence was not only foreseeable, but
probable. Thus, this case does not present the “most
extreme” of circumstances that would make the question at
hand a substantial one.
Commonwealth’s Brief at 29-31.
We agree with the Commonwealth. Mitchell’s sentence does not raise a
substantial question concerning the discretionary aspects of sentencing. We
therefore decline to exercise jurisdiction over his fifth and final issue.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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