Com. v. Long, D.

J-A26021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARNELL LONG :
:
Appellant : No. 757 EDA 2019
Appeal from the Judgment of Sentence Entered February 1, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000631-2018,
CP-51-CR-0000632-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARNELL LONG :
:
Appellant : No. 758 EDA 2019
Appeal from the Judgment of Sentence Entered February 1, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000631-2018,
CP-51-CR-0000632-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: Filed: December 3, 2020
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* Former Justice specially assigned to the Superior Court.
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Darnell Long appeals1 from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after a jury convicted him of
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1 Long was convicted at two separate docket numbers and filed two separate
notices of appeal, each listing both docket numbers. On October 28, 2019,
our Court issued rules to show cause why Long’s appeals “should not be
quashed in light of [Commonwealth v. ]Walker[, 185 A.3d 969 (Pa.
2018)].” Per Curiam Order, 4/29/19. See Walker, supra at 977 (requiring
filing of “separate appeals from an order that resolves issues arising on more
than one docket.”). On October 31, 2019, counsel filed responses to the rules
to show cause, stating:
[a]lthough each notice reflects the related information
consolidated in the lower court for a single jury trial, the actual
notices are separate, and separate EDA numbers have been
assigned. . . . Here, where separate appeals have been filed
arising from a single trial and final sentence, the quashal of those
appeals cannot rationally be related to the decision of the High
Court in Walker.
Response to Order to Show Cause, 10/31/19, at ¶¶ 9-10. On November 4,
2019, our Court referred the Walker issue to the panel assigned to decide the
merits of the appeal. Per Curiam Order, 11/4/19.
In Walker, our Supreme Court found that Pa.R.A.P. 341 and its Official
Comment, which states that “[w]here . . . one or more orders resolves issues
arising on more than one docket or relating to more than one judgment,
separate notices of appeal must be filed,” constituted “a bright-line mandatory
instruction to practitioners to file separate notices of appeal.” Walker, 185
A.3d at 976-77. The failure to do so requires the appellate court to quash the
appeal. Id. at 977.
Recently, our full Court revisited Walker in Commonwealth v. Johnson,
236 A.3d 1141 (Pa. Super. 2020) (en banc). There, our Court concluded that
“in so far as [Commonwealth v. ]Creese[ 216 A.3d 1142 (Pa. Super. 2019)],
stated ‘a notice of appeal may contain only one docket number[,]’ . . . that
pronouncement is overruled.” See Johnson, supra at 1148 (emphasis in
original). On November 18, 2020, the Pennsylvania Supreme Court denied
Johnson’s petitions for allowance of appeal in Nos. 269, 270, 271 & 272 EAL
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possessing instruments of crime (“PIC”)2 and the trial court, sitting without a
jury in a stipulated trial, convicted him of possessing a firearm prohibited.3
Upon careful review, we affirm.
The trial court set forth the factual history of this matter as follows:
On November 5, 2017, Philadelphia Police Officer Robert Haberle
was on duty when he received a radio call directing him to go to
436 West Wyoming Avenue in Philadelphia to investigate reports
of a shooting inside the [] residence committed by a black male
with a beard that had gray or white in it. [Officer Haberle]
immediately traveled to that location and[,] when he entered the
residence, the front door of which was open, he went to the
second floor and encountered [] Lynnelle Gaffney, who was
standing at the door of [the] second floor bedroom where she
slept. The officer went to the second floor and observed that []
Gaffney had been shot and that a second person named Stefvon
Wilburn was sitting on the floor of the bedroom suffering from [a]
gunshot wound to his leg. The officer asked what happened and
[] Gaffney told him that she and Wi[l]burn were using drugs when
she heard a gunshot. She added that Darnell Long shot Wilburn
and then fired twice at her and that a bullet hit her in the chest.
Both shooting victims were transported to Albert Einstein Hospital
by rescue personnel and treated for their wounds. Gaffney
suffered gunshots to her left chest and [Wilburn suffered] wounds
to his legs. While in the care of rescue personnel, Gaffney stated
that [Long] shot her.
Also present at the residence was a woman named Penelope
Cabezas, who owned the residence and lived in it, and was in a
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2020. See Order, 11/18/20 at 2. Accordingly, pursuant to Johnson, Long is
in compliance with the dictates of Walker and we may consider the merits of
his appeal.
2 18 Pa.C.S.A. § 907.
3 18 Pa.C.S.A. § 6105(a)(1) (F1).
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back bedroom when the shooting happened. Officer Haberle
transported [] Cabezas to a nearby police station.
On the day the incident occurred, [] Gaffney, her boyfriend, []
Wilburn, and [Long] were watching television and playing cards
while drinking alcohol and smoking marijuana, activities they had
been engaging in for about two days. At some point, Wilburn left
to buy beer and marijuana and[,] when he returned[,] Gaffney
began searching for something in her bed that she used to roll up
marijuana while sitting with Wilburn and [Long] in her bedroom.
While doing so, she heard something that drew her attention to
[Long,] who was holding a gun wrapped in a hooded sweatshirt.
She immediately asked him what [he was] doing and[,] as she
stood up, she heard a [gunshot] and then [heard] Wilburn say
“Ah” and then begin screaming as if he had been shot. Gaffney
turned toward [Long,] who began walking toward her. As [Long]
did so[,] he fired three or four shots at Gaffney, one of which
struck her in the ribs on her left side[. Gaffney] repeatedly asked
[Long] what he was doing. [Long], who said nothing before or
after shooting Gaffney and Wilburn, then walked out of the
bedroom.
After [Long] left, Gaffney used a blanket to [stanch] the flow of
blood and took a phone from Wilburn[,] who was calling the police.
Gaffney then ran downstairs and out of the back door of the
residence before going around to the front door[,] where she was
tended to by Paris Berry, a next[-]door neighbor. According to
Gaffney, she, Wilburn[,] and [Long] were long[-]time friends and
nothing occurred that night to prompt [Long] to shoot her and
Wilburn. She added that she did not have a weapon and did not
know Wilburn to carry a firearm.
Gaffney received treatment for her injuries at Einstein Hospital.
She did not have to undergo surgery and was released
[approximately] twelve hours [] after arriving at the hospital.
Penelope Cabezas was sleeping in a bedroom near Gaffney’s room
when the shootings occurred. She [was] awakened by the sound
of Wilburn yelling her name and went into the hallway[,] where
she saw Wilburn lying on the floor[,] appearing as if “someone
twisted him and threw him on the floor.” She thereafter
encountered Gaffney, who also had been shot[;] neighbors and
the police arrived soon thereafter. Cabezas, who had seen [Long]
before the shooting, did not hear the shots or see [Long] after the
shooting occurred.
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Philadelphia Police Officer Richard Green also went to the scene
following the shooting. According to Officer Green, both Gaffney
and Wilburn identified [Long] as the person who shot both of them
when asked [by medical personnel] to name the shooter[,] but
once they arrived at the hospital, they said that they could not
identify the shooter.
Police examined the bedroom where the shooting occurred and
recovered a bullet from inside a wall[, as well as] other evidence.
They also observed a small amount of blood on the floor and a
bullet hole in a wall. Based on the evidence collected by police
and the information received from Gaffney and Wilburn, police
secured a [] warrant for [Long’s] arrest. Police arrested [Long]
pursuant to the warrant on November 16, 2017.
Trial Court Opinion, 9/6/19, at 2-4 (citations to record omitted).
On September 25, 2018, Long was convicted of the above offenses. The
jury acquitted him of three counts of aggravated assault.4 On February 1,
2019, the trial court sentenced Long to 10 to 20 years’ incarceration for
possessing a firearm prohibited.5 No further penalty was imposed for PIC.
Long filed post-sentence motions, which were denied on February 13, 2019.
This timely appeal follows. Both Long and the trial court have complied with
Pa.R.A.P. 1925.
Long raises one issue for our review: “In imposing the statutory
maximum sentence, did not the trial court err and abuse its discretion by
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4 18 Pa.C.S.A. § 2702.
5 Long had a prior record score of 5 and an offense gravity score of 10,
resulting in a standard guideline sentence of 5 to 6 years’ incarceration, +/-
12. Thus, Long’s sentence of 10 to 20 fell three years beyond the top of the
aggravated range of the sentencing guidelines and constituted a statutory
maximum sentence. See 18 Pa.C.S.A. § 1103 (fixing sentencing term for
felony of first degree at not more than 20 years).
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considering an impermissible sentencing factor, namely, crimes for which
[Long] was acquitted by a jury?” Brief of Appellant, at 4.
Long’s claim raises a challenge to the discretionary aspects of his
sentence. Such a claim does not entitle an appellant to review as a matter of
right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).
Rather, before this Court can address such a discretionary challenge, an
appellant must invoke this Court’s jurisdiction by: (1) filing a timely notice
of appeal, see Pa.R.A.P. 902 and 903; (2) properly preserving the issue at
sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) including in his brief a concise statement of reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Id.Here, Long filed a post-sentence motion for reconsideration of sentence,
followed by a timely notice of appeal to this Court. He has also included in his
brief a concise statement of reasons relied upon for allowance of appeal with
respect to the discretionary aspects of his sentence pursuant to Rule 2119(f).
Accordingly, we must now determine whether Long has raised a substantial
question that his sentence is not appropriate under the Sentencing Code.
In his Rule 2119(f) statement, Long asserts that the trial court imposed
“an unreasonable and manifestly excessive sentence” that was “well beyond
the aggravated range of the [S]entencing [G]uidelines” and was based, “in
whole or in part, . . . on an impermissible factor, namely, conduct for which
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the jury had acquitted [] Long.” Brief of Appellant, at 11-12. This Court has
repeatedly held that a claim that a sentence is excessive because the trial
court relied on impermissible factors raises a substantial question.
Commonwealth v. Bryant, 237 A.3d 470 (Pa. Super. 2020) (claim that trial
court imposed excessive sentence and considered impermissible factor in
doing so raises substantial question); Commonwealth v. Allen, 24 A.3d
1058, 1064-65 (Pa. Super. 2011) (“[A] claim that a sentence is excessive
because the trial court relied on an impermissible factor raises a substantial
question.”). Accordingly, we grant Long’s petition for allowance of appeal and
address the merits of his claim.
We begin by noting our standard of review in sentencing matters:
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
Deference is accorded to the trial court’s pronouncement of sentence because
the trial court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it. Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990).
“When imposing a sentence, the sentencing court must consider the factors
set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the public, gravity
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of offense in relation to impact on victim and community, and rehabilitative
needs of the defendant[.]” Commonwealth v. Fullin, 892 A.2d 843, 847
(Pa. Super. 2006). Furthermore, “[a] trial court judge has wide discretion in
sentencing and can, on the appropriate record and for the appropriate
reasons, consider any legal factor in imposing a sentence[.]”
Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa. Super. 2005) (citation
omitted). The sentencing court must, however, consider the Sentencing
Guidelines. See Fullin, 892 A.2d at 847. Finally, where the court is in
possession of a presentence report (“PSI”), we “presume 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. Watson, 228 A.3d 928, 936 (Pa. Super. 2020), quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Long argues that the trial court impermissibly considered the
aggravated assault charges for which he was acquitted in fashioning its
statutory-maximum sentence for his conviction for persons not to possess a
firearm. In support of his claim, Long cites the following statement made by
the judge at sentencing:
In this particular case[,] this [c]ourt is well aware of the
inconsistency of the [c]ourt’s jury verdict. But the [c]ourt is also
aware of the fact that two people came in here with gunshot
wounds testifying that you shot them; one in the chest and one in
the leg.
So under those circumstances, sir, having considered all the facts
and circumstances in this case, on the charge of felony, first-
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degree, [s]ection 6105, your sentence is 10 to 20 years in a state
correctional institution.
N.T. Sentencing, 2/1/19, at 13.
Long asserts that his claim is controlled by this Court’s decision in
Commonwealth v. Smart, 564 A.2d 512 (Pa. Super. 1989). In that case,
Appellant participated in the burglary of a home used as a shelter
for abused women. Two women testified that they were raped
during the commission of the crime and that appellant participated
in the rapes. The appellant, however, testified that he had been
drinking when approached by two individuals to commit a burglary
and/or robbery. According to his testimony[,] appellant led the
individuals to the home but then indicated an unwillingness to
participate further and left. At the conclusion of a jury trial,
appellant was convicted of burglary but acquitted of the remaining
charges.
Id. at 513. Although the guideline sentences for burglary were 12 to 29
months in the standard range and 29 to 36 months in the aggravated range,
appellant was sentenced to 8 to 20 years’ imprisonment, representing a
minimum sentence of more than 2½ times the upper end of the aggravated
range. The trial court imposed this sentence despite a recommendation in the
PSI report of a sentence in the 2½ to 5 years range. The PSI also mentioned
that it was the practice of the local court to impose a long county or short
state prison sentence for such convictions of burglary.
In holding that the trial court had abused its discretion in sentencing the
appellant outside the aggravated range of the guidelines, this Court noted that
the court had improperly relied upon juvenile conduct as an aggravating factor
and failed to consider mitigating evidence, including the defendant’s
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withdrawal from the criminal venture prior to the commission of the most
egregious offenses, as well as his intoxication. The Court stated:
Although these factors cannot be considered excuses for
committing a crime[,] they could be considered factors
depreciating the voluntariness of the enterprise or depicting a
reconsideration of the criminal endeavor. In either case they
would seem to be factors tending to mitigate the gravity of the
offense.
Id. at 514. The Court also observed that
[t]he circumstances of the present case, in our opinion, invite a
tremendous amount of suspicion that the trial court was simply
disregarding the jury’s verdict of not guilty of the various charges
other than burglary and imposing sentence as if appellant had
been convicted of those charges. This is a situation which can
erode the confidence in the jury trial system and violates the
convicted individual’s fundamental right to be judged by a jury of
his peers.
Id. Long argues that, as in Smart, the trial court sentenced him more harshly
because it took into consideration the aggravated assault charges of which the
jury acquitted him.
This Court has previously stated:
A sentence is invalid if the record discloses that the sentencing
court may have relied in whole or in part upon an impermissible
consideration. This is so because the court violates the
defendant’s right to due process if, in deciding upon the sentence,
it considers unreliable information, or information affecting the
court’s impartiality, or information that it is otherwise unfair to
hold against the defendant.
Simply put, the evidence upon which a sentencing court relies
must be accurate, and there must be evidentiary proof of the
factor[] upon which the court relied.
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Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)
(quotations and citations omitted). Nevertheless, we have also held: “[a]
judge may consider unadjudicated arrests in sentencing a defendant, so long
as the arrests are not regarded as establishing criminal conduct, and even
arrests that result in acquittals, if the judge is aware of the acquittal.”
Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa. Super. 2011) (emphasis
added); see also Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super.
1982) (“[A] court, in imposing sentence[,] may consider prior arrests and
concurrent charges as long as the court realizes that the defendant had not
been convicted on those prior charges[.]”). As this Court has repeatedly
observed, “an acquittal cannot be interpreted as a specific finding in relation
to some of the evidence presented; an acquittal may represent the jury’s
exercise of its historic power of lenity[.]” Commonwealth v. Barger, 956
A.2d 458, 461 (Pa. Super. 2008). “When an acquittal on one count in an
indictment is inconsistent with a conviction on a second count, the court looks
upon [the] acquittal as no more than the jury’s assumption of a power which
they had no right to exercise, but to which they were disposed through lenity.”
Commonwealth v. Swann, 635 A.2d 1103, 1104 (Pa. Super. 1994).
Here, the trial court was clearly aware that Long had been acquitted of
the assault charges, having presided over his jury trial, and acknowledged
that fact on the record. See N.T. Sentencing, 2/1/19, at 13 (“[T]his [c]ourt
is well aware of the inconsistency of the [c]ourt’s jury verdict.”). Prior to
imposing sentence, the court listened to argument from defense counsel and
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was in possession of a PSI. Accordingly, we presume that the court was aware
of and considered all relevant sentencing factors and considerations. Devers,
supra.
However, as the trial court also noted, Long had a significant criminal
history, including “three juvenile arrests, including one for aggravated assault,
adjudications, 31 adult arrests, seven violations, 15 convictions, six
revocations, and 13 separate commitments[.]” N.T. Sentencing, 2/1/19, at
12-13. Considerations of a defendant’s extensive criminal history and failure
to rehabilitate, and the concomitant need to protect society and deter future
wrongdoing, have been held to be sufficient reasons to support deviations
from the guidelines. Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa.
Super. 2005) (affirming guidelines deviation based on defendant’s extensive
criminal history, failure to rehabilitate, and need to protect society). See also
Commonwealth v. Mouzon, 828 A.2d 1126, 1129 (Pa. Super. 2003)
(affirming deviation from guidelines where trial court fashioned sentence
primarily based on “how [the] record bore on Mouzon’s prospects for
rehabilitation, coupled with the court’s sense of duty to protect the public”).
Moreover, we find Long’s reliance on Smart misplaced. There, unlike
here, this Court concluded that the sentencing judge improperly relied upon a
single incident of juvenile misconduct6 as an aggravating factor and also failed
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6 Specifically, at 15 years of age or less, Smart knocked a five year old off of
a bicycle and stole it. This Court concluded that, “[a]lthough such behavior is
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to consider relevant mitigating factors in fashioning its sentence. Although,
based on the totality of the facts before it, the Court found that the trial court’s
sentence “create[d] a strong suggestion that appellant [wa]s being punished
for crimes of which he was acquitted,” Smart, 564 A.2d at 514, the Court did
not hold that a sentencing judge could not consider the totality of the
circumstances of a case, including conduct for which the defendant was
acquitted. In the matter sub judice, the sentencing court was within its
discretion to acknowledge and consider the fact that, as a result of Long’s
illegal possession of a firearm, two individuals were shot and injured, even
though the jury, in its wisdom, chose not to convict him of aggravated assault.
See Commonwealth v. Archer, 722 A.2d 203 (Pa. Super. 1998) (victim’s
death resulting from gunshot could be considered in calculating offense gravity
score, even though defendant was acquitted of murder).
In sum, while Long’s sentence is undeniably substantial, we are unable
to conclude that the trial court exercised its discretion in a manner that was
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Raven, supra.
Judgment of sentence affirmed.
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not to be condoned and is most definitely anti-social, . . . imprisonment for
such behavior could lead to the incarceration of many a neighborhood bully.”
Smart, 564 A.2d at 514.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/3/20
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