Com. v. Rice, C.

J-S57019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES RICE
Appellant No. 1287 EDA 2014
Appeal from the Judgment of Sentence May 24, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013974-2011
CP-51-CR-0013976-2011
CP-51-CR-0013978-2011
CP-51-CR-0013980-2011
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 20, 2016
Charles Rice appeals from the judgment of sentence imposed on May
24, 2013, in the Court of Common Pleas of Philadelphia County, which was
made final by the denial of post-sentence motions on October 2, 2013. On
February 8, 2013, a jury convicted Rice of four counts of attempted
homicide, three counts of aggravated assault, three counts of conspiracy to
commit homicide, four counts of conspiracy to commit aggravated assault,
one count of firearms not to be carried without a license, one count of
carrying firearms in public in Philadelphia, and one count of possession of a
J-S57019-15
firearm by a minor.1 The court sentenced Rice to an aggregate term of 30 to
60 years’ incarceration. On appeal, Rice raises numerous issues, challenging
the sufficiency of the evidence, the weight of the evidence, the trial court’s
jury instructions, and the discretionary aspects of the sentencing. 2 After a
thorough review of the submissions by the parties, the certified record, and
relevant law, we affirm.
The trial court set forth the factual history as follows:
On September 25, 2011, at approximately 9:30 p.m. on
the 1600 block of 18th Street in South Philadelphia, Ms. Latice
Johnson was attempting to gather her seven children to go home
for the evening while she waited for her food delivery to arrive.
At that time, Ms. Johnson was outside with: her sons Khalief
Ladson, age seventeen (17), and Kyier Ladson, age seven (7);
her daughters Latoya Lane, age twenty-three (23); Kira Ladson,
age nine (9), and Kaya Ladson, age five (5); her niece, Denean
Thomas, age six (6); and her nephews, Kyree Ladson, Lasar
Johnson, and Tyrie Johnson, each of whom are about age
thirteen (13). Ms. Lane and her youngest sister, Kaya, were
standing across the street from the house, near Ms. Johnson’s
nephews, who were playing basketball. Aside from Khalief, who
on that day went fishing with his grandfather, Ms. Johnson’s
family had spent the day visiting her children’s father at the
hospital because he was battling brain cancer.
That evening was a warm and clear night and, while she
was waiting for her delivery to arrive, Ms. Johnson was sitting on
the front steps of her mother’s house, facing Fernon Street. Ms.
Johnson watched as the defendant, Charles Rice, and his
accomplice, walked side-by-side to the curb about twenty feet
____________________________________________
1
18 Pa.C.S. §§ 901(a), 2702(a), 903 (c), 903(c), 6106, 6108, and 6110.1,
respectively.
2
We have reorganized Rice’s issues in our analysis based on the nature of
the claims.
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away from her and started shooting at her and her family.
[Rice] was wearing black Nike sweatpants and the hood on his
sweater was up and tied. When he started shooting, Ms.
Johnson stared at [Rice]’s face, in shock, and noticed the
defendant’s braided hair sticking out of the right side of the
hood. Ms. Johnson testified that [Rice]’s whole face was visible
and recognizable since [Rice] was standing near streetlights
when he was shooting at her and her family. Though she did not
see [Rice]’s gun, Ms. Johnson observed sparks coming from the
defendant’s hands.
Ms. Johnson testified that she recognized [Rice] because, a
few years before the shooting, she had seen [Rice] numerous
times since he was friends with her son Khalief. On one
occasion, Ms. Johnson picked up her son from [Rice]’s house as
the two were doing a school project together. Ms. Johnson was
also [Rice]’s “friend” on Facebook, meaning that she would see
when [Rice] updated his status or post to his account. On the
day of the shooting, however, [Rice] and Khalief were no longer
friends. Rather, Khalief was a “person of interest” in a prior
shooting of [Rice] on September 3, 2011, three weeks prior to
the shooting by the defendant in the instant case.
At some point while [Rice] and his accomplice continued to
shoot at her and her family, Ms. Johnson flipped over, fell on the
ground, and covered two of her children, Kira and Kyier. Seven
year old Kyier tried to open the door to his grandmother’s house,
but was prevented from doing so because bullets were,
according to Ms. Johnson, “flying off the walls.” Meanwhile, Ms.
Lane, who was standing across the street, looked up from her
phone when she heard the shots and saw that [Rice]’s
accomplice was standing at the corner of Fernon Street. Upon
hearing approximately five shots, Ms. Lane began to run across
the street toward her grandmother’s house and saw [Rice]’s
accomplice point a gun towards her and her family.12
12
Ms. Lane identified the co-defendant in this case, Tyler
Linder, as the other shooter on Fernon Street. The jury
found that Mr. Linder was not guilty of all the charges
levied against him pertaining to this shooting.
Eventually, once the shooting stopped, Ms. Johnson looked
up and saw [Rice] flee up Fernon Street. After the shooting, Ms.
Johnson and her family ran into Ms. Johnson’s mother’s house.
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As Ms. Johnson entered the house, the children were screaming
“Denean is gonna die,” and Ms. Johnson saw a pile of blood right
by Denean. Ms. Johnson then held Denean in her arms until
Officer Charles Forrest of the Philadelphia Police Department
arrived. Though an ambulance had been called, Officer Forrest
believed the ambulance was taking too long to arrive. As a
result, Officer Forrest drove Denean, Ms. Johnson, Ms.
Thompson (Denean’s mother), and Denean’s aunt to the
emergency room at the Children’s Hospital of Pennsylvania
[(“CHOP”)].13 Ms. Johnson was later treated that evening at the
Hospital of the University of Pennsylvania (“HUP”).
Ms. Lane and her brother Khalief were driven to Methodist
[H]ospital by their grandfather. Ms. Lane was later transferred
to HUP. As a result of this shooting, four separate victims
incurred numerous gunshot wounds: (1) six year old Denean
Thomas;14 (2) Ms. Latrice Johnson;15 (3) Ms. Latoya Lane;16 and
Mr. Khalief Ladson.17
Denean Thomas suffered two gunshot wounds to her leg.
One gunshot was a grazed wound to Denean’s left leg and the
bullet from the second gunshot entered Denean’s leg. The bullet
which entered Denean’s leg also had to be surgically removed.18
Ms. Johnson suffered wounds to both of her legs, including
superficial gunshot wounds to her right knee, right thigh, left
knee, left upper calf, and left lower calf.
13
Denean’s mother and aunt were not at the scene during
the shooting.
14
Denean is the victim pertaining to all charges in CP-51-
CR-0013974-2011.
15
Ms. Johnson is the victim pertaining to all charges in
CP-51-CR-0013976-2011.
16
Ms. Lane is the victim pertaining to all charges in CP-
51-CR-0013978-2011.
17
Mr. Ladson is the victim pertaining to all charges in CP-
51-CR-0013980-2011.
18
Denean was unavailable to testify at trial because, [o]n
February 3, 2012, nearly a year before the trial, Denean
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passed away as a result of her pre-existing brain cancer:
intrinsic pontine glioma.
Ms. Lane suffered a single gunshot to her left leg. As a
result of that gunshot, Ms. Lane was hospitalized for a week,
suffered two broken bones in her left leg, a fracture to her third
and fourth metatarsals in her foot, and underwent surgery to her
leg. To recover from the shooting, Ms. Lane’s leg was placed in
a cast, and she was required to use crutches and a walker. Ms.
Lane testified that, as of the date of the trial, whenever she
showers, she feels pain in her foot from the exit wound and feels
as if the wound will reopen in the shower. Her foot also hurts
whenever it rains. Finally, Khalief Ladson suffered a single
gunshot wound to the large toe on his left foot, which fractured
that toe.
…
At about 9:37 p.m. on the night of the shooting, Officer
For[r]est, a uniformed officer driving a marked police vehicle,
responded to the scene. Other officers were already present at
the scene when Officer For[r]est arrived. A few minutes after he
arrived, Officer Forrest drove Denean, Ms. Johnson, Ms.
Thompson (Denean’s mother), and Denean’s aunt to the
emergency room [at CHOP]. Once he arrived at the hospital,
Officer Charles gathered family information for Denean and then
interviewed Ms. Johnson at HUP. Ms. Johnson indicated that the
shooters were “[o]ne black male wearing a gray hoodie and …
[one] with a black hoodie and they both had black sweatpants.”
Ms. Johnson then gave Officer Charles a physical description of
the two (2) shooters, but did not identify by name either of the
shooters involved.
Meanwhile, at about 9:35 p.m., Officer Lynne Zirilli of the
Philadelphia Police Department traveled to Methodist Hospital in
response to a radio call concerning the shooting. Officer Zirilli
interviewed Khalief Ladson for about three minutes and Latoya
Lane for approximately five to six minutes, each in separate
rooms at the hospital. Mr. Ladson told Officer Zirilli that he was
sitting on the steps with other family members when unknown
males started shooting at his family from the other side of the
street. Mr. Ladson further described the perpetrators as two (2)
to three (3) black males, in dark hoodies.
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Ms. Lane told Officer Zirilli that she was standing outside
her grandmother’s house when she heard gunshots and that she
believed the shooting was by two (2) to three (3) black males.
Officer Zirilli further noted that it was difficult to get information
from Ms. Lane because she was in a lot of pain. According to
Officer Zirilli, Ms. Lane seemed more worried about her foot and
her pain than talking to the officer.
Just before midnight that evening, Detective Robert
Spadaccini of the Philadelphia Police Department responded to
the crime scene. Detective Spadaccini recovered twelve (12)
.380 caliber fired cartridge casings (“FCCs”), most of which were
recovered from near the corner of 18th and Fernon Street. The
detective also noticed blood and a shoe on the front porch of Ms.
Johnson’s mother’s house. At a later date, Officer Jesus Cruz of
the Firearms Identification Unit of the Philadelphia Police
Department concluded, to a reasonable degree of scientific
certainty, that five of the recovered FCC’s were fired from the
same firearm, most likely from a semi-automatic pistol. Officer
Cruz also concluded that all of the recovered FCC’s were from
previously fired bullets.
The day after the shooting, September 26, 2011, Sergeant
Detective John Craig of the Philadelphia Police Department
interviewed Ms. Lane and Ms. Johnson at HUP. During his
interview of Ms. Johnson, Sergeant Craig presented a photo
array of eight individuals, one of which included the defendant’s
picture. Without hesitation, Ms. Johnson identified [Rice] as one
of the shooters. Ms. Johnson also signed her name next to the
picture of [Rice].
Sergeant Craig also obtained a bullet fragment from a
security officer at the hospital. The bullet fragment was
recovered from Denean’s leg after it was surgically removed
from that leg. Thereafter, Sergeant Craig applied for and
received a warrant for [Rice]’s arrest.
On September 27, 2011, pursuant to the arrest warrant,
[Rice] turned himself in at the First District police station at 2301
South 24th Street. [Rice] was accompanied by his mother, Ms.
Crystal Cooper, and a third, unidentified woman.19 [Rice]
indicated to the arresting officer that he had staples in his
abdomen and that he was taking Oxycodone for his pain. At the
time of his arrest, [Rice] was not using crutches or a walker, and
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his hair was braided in the style of cornrows. Ms. Duncan,
[Rice]’s godmother, also testified that on the day of the
shooting, [Rice]’s hair was braided.
19
During the trial, the defense maintained that this third
female was [Rice]’s godmother, Ms. Deania Duncan, who
was allegedly with [Rice] to serve as his alibi. None of the
testifying officers, however, remembered that Ms. Duncan
was with [Rice] prior to his arrest. (See N.T. 02/01/13 at
25, 28 (testimony of Sergeant Francis Kelly, the arresting
officer, who could not recall whether anyone accompanied
[Rice] and his mother; N.T. 02/04/13 at 127, 132
(testimony of Detective Spadaccini, who indicated that
when he met [Rice] and his mother outside of the police
station prior to his arrest, that there was “another female
– I don’t know her name,” but that he did not see Ms.
Duncan that day).
At trial, the Commonwealth entered into evidence a
“certificate of non-licensure for the defendant Charles Rice,”
which stated that, at the time of the shooting, [Rice] did not
have a license to carry a firearm in the city and county of
Philadelphia.
…
On September 3, 2013, a little over three weeks prior to
this shooting in this case, [Rice] was shot twice, once in his thigh
and once in his abdomen. [Rice] was treated at Jefferson
Hospital from September 3, 2013 to September 11, 2013. As a
result of that shooting, [Rice] underwent surgery of his
abdomen, from which the hospital recovered a bullet. The bullet
wound did not cause any damage to [Rice]’s small or large
intestine. Thereafter, [Rice]’s abdomen was sewed and stapled
together, and [Rice] was prescribed Percocet, which contains
Oxycodone, for his pain.
According to his hospital discharge papers, one week after
his surgery, [Rice] had “complete independence” in transfer
mobility (getting up and down from the bed), and locomotion
(walking). The discharge papers also indicated that [Rice] could
return to school by September 25th (the day of the shooting),
and did not order [Rice] to undergo bed rest. [Rice]’s
pediatrician, Dr. Theodore Tapper, examined [Rice] on
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September 20, 2011 and testified that, in his opinion[,] it was
“extremely unlikely” that the defendant could run down the
street on September 25th because of the amount of pain [Rice]
was in at that doctor’s appointment. Dr. Tapper readily
admitted, however, that he did not know how much pain
medication – or, more specifically, how many Percocets – that
[Rice] had taken to alleviate his pain on September 25th.
On the day [Rice] was shot, [Rice]’s mother, Crystal
Cooper, spoke with Detective Spadaccini over the phone and told
the detective that the defendant was unavailable to talk. Ms.
Cooper and Detective Spadaccini were colleagues at the
Philadelphia District Attorney’s Office when her son was shot. At
the time of her son’s shooting, Ms. Cooper had worked at the
District Attorney’s Office for sixteen (16) years and had sat in
the cubicle across from Detective Spadaccini for two (2) years.
Detective Spadaccini asked Ms. Cooper to contact him when she
believed that [Rice] was able to talk about his own shooting. On
September 16, 2011, Ms. Cooper called [D]etective Spadaccini
and informed him that her son would come into the First District
station to talk. When Detective Spadaccini interviewed [Rice] on
that day, [Rice] was uncooperative, refused to fill out a
statement or look at photos, and said to the detective that “[the
defendant didn’t know who shot him; and if he did, he wouldn’t
tell [Detective Spadacci] anyway.”
During his trial, [Rice] presented two witnesses who
purported to be [Rice]’s alibi for the shooting in this case: Ms.
Duncan, the defendant’s godmother, and Ms. Duncan’s sixteen
(16) year old son, Quadifi Malone. Ms. Duncan testified that
[Rice] stayed at her house at 5438 Locust Street in [W]est
Philadelphia from September 11, 2013 to the date of [Rice]’s
arrest, September 27, 2013, and that, on the date of the
shooting, that she was with [Rice] from 7:00 a.m. to 7:00 p.m.
Ms. Duncan further testified that [Rice] had left the house on
September 16th (for the police interview), and September 20th
(for a doctor’s appointment) but that he had not left her house
during his stay except for those appointments.
Ms. Duncan also stated that, on the day of the shooting for
this case, seven people were home with [Rice] and that she was
personally in the room with [Rice] and her son, Mr. Quadifi
Malone, throughout that day. Ms. Duncan admitted, however,
that on February 11, 2011, she had been convicted of two retail
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thefts and also that she could not be [Rice]’s alibi because she
was not home at the time of the shooting. Nevertheless, Ms.
Duncan maintained that, on the date [Rice] was arrested, she
accompanied [Rice] to the police station and told a detective that
she knew where [Rice] was on the night of the shooting.
According to Ms. Duncan, the detective replied in response that
the police “did not need” her and that she should “just leave.”
Mr. Malone testified that, at the time of the shooting, he
had known [Rice] for four (4) to five (5) years and that [Rice]
was like a brother to him. Additionally, Mr. Malone testified that,
aside from his thirty minute nap at 3:00 p.m., he was with
[Rice] watching movies in the defendant’s room on September
25, 2011. In contrast to his mother, Mr. Malone testified that
the only people who were home and with [Rice] were [Rice],
him, and his grandfather. Likewise, Mr. Malone testified that
aside from his mother, [Rice]’s mother, and [Rice]’s defense
attorney, he had never told anyone that he was with the
defendant on the night of the shooting, and that he was never
asked by the police or the district attorney’s office to give a
statement.
On rebuttal, Officer Donna Simmons of the Philadelphia
Police Department testified that she came into contact with
[Rice] on September 19, 2011 on the 2400 block of Sheridan
Street in [S]outh Philadelphia. At the time, [Rice] was standing
in front of a vacant property with one other male and one black
female. [Rice] further told Officer Simmons that his home
address was 1613 [S]outh Orkney Street in Philadelphia, rather
than the [W]est Philadelphia address of his godmother.
Detective Spadaccini then testified that neither Ms. Duncan nor
his former colleague, Ms. Cooper ([Rice]’s mother) ever
indicated to him that [Rice] had an alibi for the night of the
shooting. Detective Spadaccini also testified that, though the
case was not assigned to him, he had interviewed codefendant
Linder’s alibi in the case, and that he would have given any alibi
information about [Rice] to the assigned detective.
Additionally, Angelique Linder, the mother of the
codefendant in this case, testified that she drove by [Rice] at
approximately 1:00 p.m. in south Philadelphia on September 24,
2011 (the day before the shooting). Ms. Linder stated that she
saw [Rice] twice that day near Snyder Avenue around 6th Street
in south Philadelphia. When Ms. Linder first saw [Rice], [Rice]
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was walking with a number of other boys, as if they were going
to the store. Later, Ms. Linder also saw [Rice] sitting on the
steps across the street from the park.
Finally, Assistant District Attorney Richard Boyd, the initial
assigned assistant district attorney to the case, testified that he
had personally interviewed the alibi witnesses for the
codefendant, but that neither he nor any of his detectives were
able to interview Ms. Duncan or Mr. Malone before the trial. In
addition, Mr. Boyd testified that he was first given the list of
[Rice]’s alibi witnesses on April 26, 2012 (approximately seven
months after [Rice] was arrested), and that he requested
detectives to interview those witnesses on two separate
occasions. According to Mr. Boyd, on both of those occasions
the detectives were unsuccessful. Finally, Mr. Boyd testified that
[Rice]’s mother, Ms. Cooper, worked with him in the Major Trials
Unit of the District Attorney’s Office and that Ms. Cooper never
once reached out to him to give him any information about an
alibi.
Trial Court Opinion, 12/23/2014, at 3-13 (record citations and some
footnotes omitted).
The matter proceeded to a jury trial, which took place between
January 30, 2013 and February 8, 2013. As indicated above, the jury
convicted Rice of four counts of attempted homicide, three counts of
aggravated assault, three counts of conspiracy to commit homicide, four
counts of conspiracy to commit aggravated assault, one count of firearms
not to be carried without a license, one count of carrying firearms in public in
Philadelphia, and one count of possession of a firearm by a minor. On May
24, 2013, the court sentenced Rice to the following:
For CP-51-CR-0013974-2011, th[e] Court sentenced [Rice] to
concurrent terms of seven (7) to fourteen (14) years for
Attempted Homicide, and seven (7) to fourteen (14) years for
Conspiracy to Commit Homicide. Th[e] Court also sentenced
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[Rice] to a consecutive term of two (2) to four (4) years
incarceration for Firearms Not to Be Carried Without a License.
For CP-51-CR-0013976-2011, CP-51-CR-0013978-2011, and CP-
51-CR-0013980-2011, th[e] Court sentenced [Rice] to seven (7)
to fourteen (14) years for each count of Attempted Homicide.
Th[e] Court ordered each of these sentences to run
consecutively with the above sentencing. [Rice]’s Aggravated
Assault convictions merged with the above sentencing for
Attempted Murder. Th[e] Court imposed no further penalty on
the remaining charges.
Id. at 2 n. 8.
Rice filed a post-sentence motion on June 3, 2013, which was denied
by operation of law on October 2, 2013. This timely appeal followed.3
In Rice’s first issue, he contends there was insufficient evidence to
convict him of all counts
where the verdicts were based on an identification made by a
witness who had a limited opportunity to observe the
perpetrator; where the charges of Attempted Murder were based
on injuries to the lower extremities; where police found no
evidence of strike marks or damage to the front of property as
described by Latrice Johnson; and where Khalief Ladson refused
to appear in court[.]
Rice’s Brief at 14. Rice mainly argues, “[T]he evidence presented at trial
was insufficient to sustain a conviction for all charges because Latrice
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3
On October 29, 2013, the trial court ordered Rice to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On November 18, 2013, Rice filed a concise statement, and a request for
extension of time, as the relevant notes of testimony had not been made
available. One year later, once the notes of testimony were completed, the
court issues an amended Rule 1925(b) order, directing Rice to file a
supplemental concise statement within 14 days. Rice complied with the
court’s request on December 2, 2014. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on December 23, 2014.
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Johnson’s identification was fabricated and not based on what she observed
the night of the incident.” Rice’s Brief at 15. He states Johnson had not
seen him in four to five years to properly identify him. Id. at 16-17.
Moreover, Rice alleges:
The incident occurred quickly, [Johnson] did not look at the
shooter the entire incident, the corner of Fernon and Locust
[Streets] was poorly lit on the night of the incident, and the
shooter’s head was covered by a hoodie tied under the chin, and
the braids she demonstrated stuck out of the sides of the hoodie.
Most importantly[,] she never mentioned that the shooter was
“CJ” [Rice’s nickname] during the radio call to police, she did not
identify him as the shooter to police [e]n route to the CHOP
hospital, and did not identify the shooter as “CJ” when she was
interviewed at HUP while receiving treatment.
Id. at 15-16 (record citations omitted). Rice further emphasizes:
[Johnson’s] failure to provide this identification evidence when
asked by police on multiple occasions strongly suggests that she
did not identify “CJ” because she did not see the shooter and did
not know the shooter. [Johnson] testified that the shooter had
braids that hung out of the side of the hoodie and [Exhibit] C29
clearly shows that [Rice]’s hair was braided flat to his head and
ran to the back of his head.
Id. (record citations omitted).
Rice also contends:
While the act of firing multiple rounds at multiple people
may be construed as attempted murder, such a conclusion was
improper where the gunfire in this instance was aimed at the
feet, legs and ground areas of the victims. [Johnson] testified
that the shots hit the walls above the porch and below the
window but the officers found no evidence of gunfire in those
areas. Neither projectiles nor fragments were found in the walls,
on the porch o[r] on the ground around the porch. The shooters
did not strike either victim in a vital section of their bodies.
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Id. at 19 (record citations omitted). Based on this evidence, Rice argues the
Commonwealth did not demonstrate the shooters acted with malice or that
they possessed the specific intent to kill. Id. at 19-20. Rice also points out
that he presented alibi testimony to show that as a result of a recent
gunshot injury, he could not have run from the scene of the incident as
Johnson described the perpetrators doing. Id. at 20.
Our review of such claims is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
Here, the trial court initially found this issue was waived due to lack of
compliance with Pennsylvania Rule of Appellate Procedure 1925. See Trial
Court Opinion, 12/23/2014, at 14-15. See Commonwealth v. Garang, 9
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A.3d 237, 244 (Pa. Super. 2010) (“[T]his Court reiterated that when
challenging the sufficiency of the evidence on appeal, the [a]ppellant’s
[Rule] 1925 statement must ‘specify the element or elements upon which
the evidence was insufficient’ in order to preserve the issue for appeal. Such
specificity is of particular importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt.”) (internal
citations omitted).
Specifically, the court opined Rice failed to specify the elements of his
multiple convictions, which he considered were insufficiently established by
the evidence. Indeed, Rice’s concise statement with regard to this issue
merely states: “Whether the evidence presented at trial was sufficient to
convict [Rice] of [] all charges where the verdicts were based on an
identification made by a witness who had a limited opportunity to observe
the perpetrator?” Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 1925(b), 11/18/2013, at 1. We agree with the trial court’s finding.
Accordingly, with regard to Rice’s argument that the Commonwealth did not
establish the shooters acted with malice or a specific intent to kill because
the victims were not shot in a vital part of the body, we conclude this
contention is waived.
Likewise, we note, “[I]n evaluating the sufficiency of the evidence, we
do not review a diminished record. Rather, the law is clear that we are
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required to consider all evidence that was actually received, without
consideration as to the admissibility of that evidence or whether the trial
court’s evidentiary rulings are correct.” Commonwealth v. Gray, 867 A.2d
560, 567 (Pa. Super. 2005), appeal denied, 879 A.2d 781 (Pa. 2005). The
Commonwealth’s evidence, if believed, was sufficient to demonstrate all of
the crimes, particularly that Rice shot at the victims and the circumstances
surrounding the incident demonstrated malice and specific intent.4
Moreover, even if the issue was not waived, to the extent that Rice
attacks Johnson’s identification as insufficient, we find that Rice’s argument
goes to the weight of the evidence, not sufficiency, as “any indefiniteness
and uncertainty in the identification testimony goes to its weight.”
Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014)
(citation omitted). Furthermore, the jury, sitting as the fact finder, was free
to believe all, part or none of Johnson’s testimony. Melvin, 103 A.3d at 40.
As the trial court properly noted:
Ms. Johnson, one of [Rice]’s victims and an eyewitness to the
shooting, unequivocally identified [Rice] at trial as one of the
shooters in this case. Despite extensive cross-examination, Ms.
Johnson never wavered. Ms. Johnson testified that she watched
[Rice] walk up, close to her (twenty feet away), that [Rice]’s
face was fully visible because he was standing near streetlights,
that she stared at [Rice]’s fully visible face when he started
shooting, and that she noticed that [Rice] had braided hair.
____________________________________________
4
One could infer that it was pure luck that Rice and his cohort did not hit a
conventional vital part of the victims’ bodies as they were standing only 20
feet away and firing multiple rounds directly at the victims.
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Additionally, according to Ms. Johnson and Sergeant Craig, the
day after the shooting, Ms. Johnson, without hesitation,
unequivocally identified [Rice] as the shooter in a photo array of
eight individuals.
Ms. Johnson’s identification was further corroborated by
the fact that numerous witnesses testified that [Rice] had
braided hair at, or near, the time of the shooting, and that all of
the other interviewed victims in the shooting indicated that the
shooters were dark males.
While [Rice] did call two alibi witnesses and a doctor in his
defense, and challenged the fact that Ms. Johnson did not
identify [Rice] on the day of the shooting, any contention that
the jury should have believed [Rice]’s alibi defense over that of
the Commonwealth’s witnesses is improper in a sufficiency of the
evidence claim. Commonwealth v. Gibbs, 981 A.2d 274, 282
(Pa. Super. 2009) (“An argument that the finder of fact should
have credited one witness’ testimony over that of another
witness goes to the weight of the evidence, not the sufficiency of
the evidence.”). Therefore, the Commonwealth presented more
than sufficient evidence that [Rice] was one of the shooters in
this case.
Trial Court Opinion, 12/23/2014, at 15-16 (record citations omitted).
Accordingly, we conclude that Rice’s first argument fails.
In Rice’s second argument, he contends the verdict was against the
weight of the evidence.5 Rice’s Brief at 21-22. Specifically, he recites most
of his sufficiency argument again, stating:
[Johnson] could not and did not see the shooter sufficiently
to identify him. Her description of braids hanging out of the
hoodies of the shooter makes it impossible for [Rice] to be the
shooter. [Rice]’s hair style was depicted in his arrest photo.
[Rice]’s hair was braided to the back of his head and would not
____________________________________________
5
Rice properly preserved his challenge to the weight of the evidence by
raising it in a post-sentence motion. See Pa.R.Crim.P. 607(A).
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hang outside a hoodie covering his head and ears, whether tied
or untied.
The facts presented by the Commonwealth were
insufficient to demonstrate that [Rice] was guilty of the charges.
Further, the evidence by the Detectives was that they found no
evidence that shots were fired into [or onto] the porch, house, or
ground surrounding the house. Absen[t] physical evidence when
reviewed with the nature of injuries, the shooters were not
attempting to kill the victims. Where the evidence failed to
establish each and every element beyond a reasonable doubt
that [Rice] committed the offenses, the jury verdicts must not
stand.
Id. at 22.
Appellate review of a weight of the evidence claim is well-established:
A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in
favor of acquittal that a guilty verdict shocks one’s sense of
justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20,
744 A.2d 745, 751–52 (2000); Commonwealth v. Champney,
574 Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review,
an appellate court does not substitute its judgment for the finder
of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination. Widmer, 560 Pa. at 321–22, 744
A.2d at 753; Champney, 574 Pa. at 444, 832 A.2d at 408.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S.Ct. 1792 (U.S. 2014).
Here, the trial court found the following:
[Rice]’s weight of the evidence claim is groundless.
…
In the instant case, the jury clearly found Ms. Johnson’s
testimony that [Rice] was the shooter was more credible than
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[Rice]’s purported alibi witnesses. This is not surprising. As
discussed above, Ms. Johnson never wavered in identifying
[Rice], whom she recognized because her son was friends with
[Rice]. She had a clear, lit view of [Rice] as he and his
accomplice walked towards her, and she stared at his face in
disbelief as [Rice] began shooting at her and her family. In
doing so, she noticed that he had braided hair, a fact which was
corroborated by the fact that [Rice] had braided hair on the date
of his arrest (2 days after the shooting), and by [Rice]’s own
godmother, who stated that [Rice]’s hair was braided on the day
of the shooting.
Ms. Johnson’s testimony was only controverted by [Rice]’s
two alibi witnesses and a doctor: [Rice]’s godmother, Ms.
Duncan, her son, Mr. Malone, and Dr. Theodore Tapper ([Rice]’s
pediatrician[]). However, the testimony of all three of these
witnesses was riddled with inconsistencies and faulty
conclusions. Dr. Tapper, who met with [Rice] as a result of
[Rice]’s prior gunshot wound, testified as an expert that it was
“highly unlikely” that [Rice] would be able to run on the day of
the shooting because [Rice] was in pain. In making this
analysis, however, Dr. Tapper had no insight into whether [Rice]
had taken his pain medication – Percocet – to alleviate any
discomfort he may have had in fleeing from the scene. Likewise,
Dr. Tapper’s assessment was contrary to the hospital records for
[Rice] (dated nine days earlier than [Rice]’s visit to the Doctor).
Those records indicated that [Rice], just one week after he was
shot, had “complete independence” in locomotion (walking) and
transfer mobility (getting up and down), and that [Rice] could
return to school with his classmates by the day of the shooting,
September 25, 2011.
Similarly, Ms. Duncan readily testified that [Rice] stayed in
her home in Philadelphia and that, aside from [Rice]’s police
interview on September 16th and doctor’s visit on September
20th, he had not and could not physically (due to his injuries)
have left her home from September 11, 2011 to September 27,
2011. Likewise, Ms. Duncan testified that, on the date of the
shooting, she was with [Rice] from 7:00 a.m. to 7:00 p.m. and
that she, her four children, and her mother and father were all
home throughout that day. In contrast, Mr. Malone testified that
he and [Rice] spent … nearly the entire day leading up to the
shooting watching a movie, and that the only people who were
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home that day were Mr. Malone, [Rice], and Ms. Duncan’s
father.
Furthermore, Mr. Malone testified that, the day before the
shooting, on September 24th, he and [Rice] had also spent the
entire day together watching movies. Such testimony of both
witnesses was easily rebutted by two Commonwealth witnesses,
Ms. Linder (the codefendant’s mother) and Officer Simmons,
both of whom testified that they personally saw the defendant
either standing or walking around South Philadelphia on
September 19th and September 24th. Given these
inconsistencies (among others), and the fact that there was no
record that either Ms. Duncan, [Rice]’s godmother, or Mr.
Malone, the defendant[’]s “brother,” had ever told anyone other
than defense counsel or [Rice]’s mother that they were [Rice]’s
alibi, the verdict could hardly be said to shock one’s sense of
justice and was fully consistent with the totality and weight of
the evidence presented at trial.
Trial Court Opinion, 12/23/2014, at 17-19 (record citations omitted).
We agree with the court’s well-reasoned analysis. Rice fails to explain
in what manner the trial court abused its discretion in denying his weight
claim. Rather, his argument consists largely of attacks on the credibility of
Johnson and the nature of the injuries. As such, he asks this Court to
reweigh the evidence; however, we decline to do so. As our Supreme Court
has made clear, we may not reweigh the evidence and substitute our
judgment for the trial court’s decision. See Lyons, supra. Therefore,
Rice’s weight claim fails.
In Rice’s third issue, he argues the trial court gave in an improper jury
instruction to the jury. He points to the instructional jury statement: “You
should not regard as true any evidence which you find to be incredible, even
if it is uncontradicted.” N.T., 2/5/2013, at 39. Rice complains:
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This instruction told the jury that it was improper for them to
determine that evidence they may perceive as true to be true if
the evidence was not credible or believable. Essentially the
jurors were told that they could not decide a fact was true, even
if they believed it to be true, if the evidence was untrue and un-
contradicted. Such a charge prohibited the jury from drawing its
own determination from the fact presented during the trial.
…
The court’s instruction usurped the jury’s fact-finding role and
prejudiced [Rice] where they are told that they cannot regard a
fact it believed to be true as true.
Rice’s Brief at 28 (citations omitted).
Our standard of review in assessing a trial court’s jury
instructions is as follows:
[W]hen evaluating the propriety of jury instructions, this
Court will look to the instructions as a whole, and not
simply isolated portions, to determine if the instructions
were improper. We further note that, it is an
unquestionable maxim of law in this Commonwealth that a
trial court has broad discretion in phrasing its instructions,
and may choose its own wording so long as the law is
clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of
discretion or an inaccurate statement of the law is there
reversible error.
Commonwealth v. Trippett, 2007 PA Super 260, 932 A.2d
188, 200 (Pa. Super. 2007) (quoting Commonwealth v.
Kerrigan, 2007 PA Super 63, 920 A.2d 190, 198 (Pa. Super.
2007)).
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014).
Here, the trial court found this issue was waived for failing to properly
preserve an objection. Specifically, the court stated:
In the instant case, neither [Rice], nor his counsel, took
exception (in the form of a general or specific objection) to any
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of the language in the Court’s charge, including the alleged
improper language above, before the jury deliberated. See (N.T.
02/05/13 at 73 (“[THE COURT]: I saw now confer with counsel
and ask for any suggestions they may have with respect to my
charge. Does counsel have any suggestion? MS. WEAVER
[attorney for [Rice]]: No, Your Honor.”) (emphasis added).
Therefore, [Rice] has waived this issue on appeal.
Trial Court Opinion, 12/23/2014, at 33.6
After reviewing the jury instructions, we agree with the court’s finding
that Rice has waived this issue. See Pa.R.A.P. 302(b) (“[a] general
exception to the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission complained
of”); see also Pa.R.Crim.P. 647 (“[n]o portions of the charge nor omissions
therefrom may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate”); Commonwealth v. Dorm,
971 A.2d 1284, 1288 (Pa. Super. 2009) (“failure to lodge an objection to
jury instructions before the jury deliberates waives the objection”);
____________________________________________
6
The court also noted the statement was not made in a vacuum and that
the court also stated during the charge:
(1) “As judges of the facts you are the sole judges of credibility
of the witnesses and their testimony. This means that you must
judge the truthfulness and accuracy of each witnesses’ [sic]
testimony. And you must decide whether you believe all, part or
none of their testimony[” (N.T. 02/05/13 at 43)] (emphasis
added); and (2) “As sole judges of the credibility and facts, you
the jurors are responsible to give the testimony of every witness
and all other evidence whatever credibility and weight that you
think it deserves.” (Id. at 45-46) (emphasis added).
Trial Court Opinion, 12/23/2014, at 33 n.1 (italics in original).
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Commonwealth v. Edmondson, 718 A.2d 751, 753 (Pa. 1998) (“Requiring
a timely, specific objection to be lodged in the trial court ensures that the
trial judge has a chance to correct alleged trial errors and eliminates the
possibility that the appellate court will be required to expend time and
energy reviewing points on which no trial ruling has been made.”).7
Accordingly, we need not address this claim further.
Lastly, Rice challenges the discretionary aspects of his sentence.
Specifically, he states his sentence is in excess of the sentencing guideline
recommendations, and the court failed to consider the following
circumstances when imposing the sentence:
1) [Rice] had a prior record score of zero; 2) he obtained his
high school diploma ahead of his anticipated date of graduation
and received it 6-7 months prior [to] his scheduled date for
graduation; 3) [Rice] had numerous people who appeared in
court in support of him; 4) [Rice] had a higher potential for
rehabilitation; 5) [Rice] was viewed as bright and intelligent with
great potential; 6) his age reduced his risk to society due to his
high probability of reform; that he was scheduled to take his SAT
before his arrest; that he had already made arrangements to
enter the Army upon graduation[;] and 7) [Rice] allegedly acted
in response, albeit inappropriately, to allegedly being shot by the
Complainant, Ladson.
____________________________________________
7
We also note that even if this issue was not waived, Rice misinterprets and
conflates the charge in his argument. As explained above, the charge
actually instructs the jury that they do not have to believe something just
because it is uncontradicted. Therefore, his argument would be meritless.
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Rice’s Brief at 24. Rice also points out that he demonstrated remorse for the
victims and “has developed a totally different outlook on life.” Id. (record
citation omitted).
Rice also asserts the court failed to consider certain statutory factors
under 42 Pa.C.S. § 9712. Id. at 26. He states the court did not show it
used a balance approach in determining an appropriate sentence, and the
victims did not appear at court and did not provide an impact statement.
Id. Rice argues that as a result, the court “focused on the nature of the
offense and who the victims were.” Id. Additionally, Rice states the court
failed to consider that “the shooters aimed at the feet and legs of the victims
rather than vital [body] parts such as the chest, head or abdomen areas.”
Id. Rice concludes he “received a manifestly excessive aggregate sentence,
and such a sentence constituted an abuse of discretion.” Id.
The standard of review for a claim challenging a discretionary aspect
of sentencing is well-established:
Sentencing is a matter vested in the sound discretion of
the judge, and will not be disturbed on appeal absent a manifest
abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
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“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citations and quotation marks omitted). To reach the merits
of a discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Rice filed a notice of appeal, preserved the issue in a post-
sentence motion, and included the requisite statement pursuant to Pa.R.A.P.
2119(f) in his appellate brief. Therefore, we may proceed to determine
whether Rice has presented a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013).8
____________________________________________
8
With respect to whether an issue presents a substantial question, we are
guided by the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. See
Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825(Footnote Continued Next Page)
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To the extent Rice puts forth the assertion that his sentence was
excessive because the trial court failed to properly consider mitigating
factors, such an allegation does not raise a substantial question. See
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
To the extent Rice argues his sentence was “manifestly excessive,”
such a claim does raise a substantial question. “[A] defendant may raise a
substantial question where he receives consecutive sentences within the
guideline ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an excessive
sentence; however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.” Commonwealth
v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d
161 (Pa. 2014) (emphasis in original); see also Commonwealth v. Kelly,
33 A.3d 638, 640 (Pa. Super. 2011) (“A claim that a sentence is manifestly
_______________________
(Footnote Continued)
(Pa. Super. 2007). “A substantial question exits 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. Griffin, 2013 PA Super 70, 65 A.3d 932,
2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted).
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excessive such that it constitutes too severe a punishment raises a
substantial question.”).
We note that when imposing a sentence, the sentencing court must
consider “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. § 9721(b). Moreover,
“[w]hen imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
2005) (stating if sentencing court has benefit of PSI, law expects
court was aware of relevant information regarding defendant’s
character and weighed those considerations along with any
mitigating factors). Further, where a sentence is within the
standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code. See
Commonwealth v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d
536 (1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
(stating combination of PSI and standard range sentence, absent
more, cannot be considered excessive or unreasonable).
Moury, 992 A.2d at 171.
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Here, the trial court had the benefit of a presentence investigation
report,9 and therefore, we will presume it was “aware of all appropriate
sentencing factors and considerations.” Commonwealth v. Downing, 990
A.2d 788, 794 (Pa. Super. 2010) (citation omitted). 10 Furthermore, as will
be discussed below, the trial court adhered to the standard range of the
sentencing guidelines. Appellate review with respect to a sentence within
the guidelines is whether the sentence is “clearly unreasonable.” 42 Pa.C.S.
9781(c)(2).
Here, the trial court found the following:
All of the sentences that this Court imposed were within the
prescribed statutory limits.20 Indeed, all of the sentences were
within the standard range provided in the Sentencing Guidelines
and it is of no consequence that this Court imposed four
consecutive, rather than concurrent, sentences of seven (7) to
fourteen (14) years for each conviction of Attempted Murder, as
well as a consecutive sentence of two (2) to four (4) years
incarceration for Firearms Not to Be Carried Without a License.21
20
The maximum sentence for a conviction of one count of
Attempted Homicide is forty (40) years where serious
bodily injury results. The maximum sentence for a
conviction of one count of Conspiracy to Commit Homicide
is forty (40) years where serious bodily injury results. The
maximum sentence for one count of Firearms Not to Be
Carried Without a License, a felony of the third degree, is
seven (7) years. Here, [Rice], who was sentenced to four
counts of Attempted Homicide, one count of Conspiracy to
____________________________________________
9
N.T., 5/24/2013, at 35.
10
Although the pre-sentence investigation report was not included in the
certified record, Rice has not challenged the accuracy of the information
contained in the document.
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Commit Homicide, and one count of Firearms Not to Be
Carried Without a License, was only given an aggregate
sentence of thirty (30) to (60) years of incarceration, far
below the maximum allowable sentence (based only on
those counts and not his remaining convictions) of two-
hundred and seven (207) years.
21
[Rice]’s prior record score in this case was zero. For a
conviction of either Attempted Homicide, where serious
bodily injury results, or Conspiracy to Commit Homicide,
where serious bodily injury results, the offense gravity
score is fourteen (14). 204 Pa.Code § 303.3(c)(4). When
such an offense is committed with a deadly weapon, as it
was here, the Sentencing Guidelines recommended a
sentence of ninety (90) months to the statutory limit,
which is forty (40) years, plus or minus twelve months.
For a conviction of Firearms Not to Be Carried Without a
License, where the firearm is loaded, the offense gravity
score is nine (9), and the Sentencing Guidelines
recommended a minimum sentence of twelve (12) to
twenty-four (24) months incarceration, plus or minus
twelve (12) months. Here, because the Court sentenced
[Rice] to, at a minimum, seven (7) years or eighty-four
(84) months of incarceration for each sentenced count of
Attempted Homicide and Conspiracy to Commit Homicide,
and to a consecutive sentence of a minimum of twenty-
four (24) months incarceration for Firearms Not to Be
Carried Without a License, each sentence is squarely within
the recommended range of the Guidelines.
Moreover, this Court took into account the particular
circumstances of the offenses and character of [Rice], and
weighed the gravity of the offenses, the rehabilitative needs of
[Rice], the need to protect the community, as well as the impact
of the offenses on [Rice]’s victims. (N.T. 05/24/13 at 35-42).
The impact on the victims in the case is undoubtedly serious and
tragic. As a result of [Rice]’s senseless and heinous actions,
each of [his] victims were hospitalized, two of the victims had to
undergo surgery, and two of the victims suffered broken bones
in their legs and feet. One victim, Ms. Lane, had her leg placed
in a cast, was required to use crutches and a walker, and
continued (up to her testimony at trial) to feel agonizing pain in
her feet, as if her wound would reopen anytime that she
showered. Additionally, one of the victims, six-year old Denean,
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already suffering from brain cancer, had to spend some of her
final months on earth recovering from the surgery that removed
a bullet out of her leg.
There can also be no doubt that [Rice] is a danger to the
community and a person who is in need of rehabilitation. Just
three weeks prior to the heinous shooting in this case, [Rice]
incurred two gunshot wounds, underwent surgery, and had to be
prescribed heavy pain killers. As he stated at his sentence, “I
[the defendant] know what it’s like to be shot, so I wouldn’t wish
that on nobody.” (N.T. 05/24/13 at 22). Nethertheless, despite
the fresh personal knowledge of the pain incurred from a
gunshot wound, [Rice] still decided to openly fire multiple rounds
of a semi-automatic handgun at a defenseless family in the
middle of the street. Given the circumstances, a sentence of a
minimum of only thirty years, allowing [Rice] to potentially
reenter society in his late forties is not “grossly excessive;” its
merciful. (N.T. 05/24/13 at 34-38).
Trial Court Opinion, 12/23/2014, at 22-24 (citation and some record
citations omitted).
Based on the testimony presented at the sentencing hearing, the court
articulated the gravity as well as the nature and circumstances of the
offenses in addition to its concern for the protection of the community. The
court indicated it had the benefit of the presentence investigation, had
reviewed the sentencing guidelines,11 and had listened to Rice’s own
statements.12 Accordingly, considering all the attendant circumstances, we
detect no abuse of discretion on the part of the trial court in imposing Rice’s
sentence. Therefore, his final argument also fails.
____________________________________________
11
N.T., 5/24/2013, at 35.
12
Id. at 21-23.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2016
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