Com. v. Bailey, M.

J-A06023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MONTAY LEE BAILEY :
:
Appellant : No. 111 WDA 2022
Appeal from the Judgment of Sentence Entered September 16, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007711-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MONTAY BAILEY :
:
Appellant : No. 112 WDA 2022
Appeal from the Judgment of Sentence Entered September 16, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0001763-2019
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED: June 7, 2023
Appellant Montay Lee Bailey appeals from the judgments of sentence
imposed following his convictions for third-degree murder and persons not to
possess firearms. On appeal, Appellant challenges the sufficiency and weight
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* Retired Senior Judge assigned to the Superior Court.
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of the evidence, and raises an issue concerning the discretionary aspects of
his sentence. We affirm.
The trial court summarized the underlying facts in this matter as follows:
The [] evidence presented at trial established that on April 13,
2018, Shawn Dillard [(the victim)] was found dead laying near
1845 Cliff Street in the Hill District section of the City of Pittsburgh.
The cause of death was multiple gunshot wounds to the head and
trunk and the manner of death was homicide. Police were
dispatched to that area after gunshots were heard in that area
around 10:00 p.m. During the course of the investigation,
detectives learned of two witnesses who came forward to provide
information about the shooting. Makail Pendleton, who had known
[Appellant] for approximately 11 years, encountered [Appellant]
when they were both incarcerated at the Allegheny County Jail
and they became cellmates. [Appellant] told Pendleton that he
shot [the victim] because [the victim] was the brother of Willie
Miller. [Appellant] told Pendleton that Willie Miller killed
[Appellant’s] close friend, Tyrone Noak. Pendleton testified that
[Appellant] told Pendleton that [Appellant] shot and killed [the
victim] to avenge Noak’s murder because [Appellant] could not
find [Miller]. [Delfonte Ellis] brought [the victim] to Cliff Street so
[Appellant] could find him and shoot him.
Jasmin Goodnight testified that she had a child with [the victim].
. . . Goodnight testified that on April 13, 2018, she dropped [the
victim] off with [Ellis]. [The victim] entered [Ellis’s] Jaguar and
drove off. She learned that [the victim] had been murdered later.
Keirra Walker testified at trial that she was in a rocky relationship
with [Appellant]. She testified that [Appellant] would stay with
her at times. Just after the shooting, she reached out to
detectives and told them that [Appellant] admitted to her that he
killed [the victim] with a “head shot.” She told detectives about
[Appellant’s] actions on the date of the shooting and she told them
that [Ellis] drove [the victim] to Cliff [Street] where he was shot.
Keirra Walker also testified to these facts before the grand jury.
At trial, Kierra Walker testified she lied to detectives and before
the grand jury because she was angry with [Appellant] at that
time.
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The Commonwealth presented testimony from FBI [Special] Agent
John Orlando who conducted a forensic review of [Appellant’s] cell
phone records and [Ellis’s] cell phone records from the date of the
shooting. Cell phone location data established that [Appellant’s]
cell phone was in the general area of the shooting at the time of
the shooting. Cell phone location data also corroborated the fact
that [Ellis] and [Appellant] had been communicating prior to the
shooting and [Ellis’s] phone was in the general area of the
shooting at the time of the shooting. The cell site data also
confirmed that [Appellant’s] location on the day of the shooting
was consistent with the information supplied by Kierra Walker
during her interviews with law enforcement.
Trial Ct. Op., 6/28/22, at 1-3 (footnote omitted).
Following a bench trial, the trial court convicted Appellant for third-
degree murder and persons not to possess firearms.1 On September 16,
2021, the trial court sentenced Appellant to twenty to forty years’
incarceration for third-degree murder and six to twenty years’ incarceration
for persons not to possess firearms, to be served consecutively. 2 Appellant
subsequently filed post-sentence motions, which the trial court denied.
Appellant filed timely separate notices of appeal pursuant to
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and a court-ordered
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1 18 Pa.C.S. §§ 2502(c) and 6105(a)(1), respectively. The trial court
acquitted Appellant of first-degree murder and conspiracy. 18 Pa.C.S. §§
2502(a) and 903(a), respectively.
2 At the time of sentencing, Appellant’s prior record score (PRS) was five. N.T.
Sentencing Hr’g, 9/16/21, at 13. The standard minimum guideline range for
third-degree murder was 192 to 240 months’ incarceration, with a mitigated
range of 180 months (240 months is the statutory maximum); the standard
minimum guideline range for persons not to possess firearms was 72 to 90
months, plus or minus 12 months for aggravating or mitigating factors. Id.
at 14-15. The trial court’s judgment of sentence for both offenses was within
the standard guideline range.
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Pa.R.A.P. 1925(b) statement.3 The trial court issued a Rule 1925(a) opinion
addressing Appellant’s claims.
Appellant raises the following issues for our review:
1. Is the evidence of record insufficient as a matter of law to
support [Appellant’s] convictions for third-degree murder and
persons not to possess firearms where the Commonwealth
failed to prove beyond a reasonable doubt the essential
element of identity; that is, that [Appellant] was the person
who possessed a firearm and used it to shoot and kill the
decedent?
2. Did the trial court abuse its discretion by denying [Appellant’s]
motion for a new trial on the grounds that the verdicts were
against the weight of the evidence despite the fact that
[Appellant’s] convictions rested upon the inherently incredible
and unreliable testimony of a jailhouse snitch, the recanted
out-of-court statements of [Appellant’s] spurned ex-girlfriend,
and call detail records which were of extremely limited
probative value given that no evidence supported the
proposition that [Appellant] possessed the phone on the night
in question?
3. Did the trial court abuse its discretion by relying on improper
facts and/or factors to support [Appellant’s] aggregate
sentence of 2[6] to 60 years of incarceration?
Appellant’s Brief at 7.
Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his convictions for third-degree murder and persons not to possess
firearms. Id. at 30. Specifically, Appellant argues that the Commonwealth
failed to present evidence establishing his identity as the perpetrator. Id. at
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3 This Court subsequently consolidated Appellant’s appeals sua sponte.
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35-36. In support, Appellant argues that the Commonwealth’s case centered
on “three pillars,” including: (1) testimony from jailhouse informant Mikail
Pendleton, who stated that Appellant confessed to killing the victim; (2) “out-
of-court statements [from] Kierra Walker, which she recanted under oath at
[] trial;” and (3) Special Agent John Orlando’s analysis of the call detail records
for the phone numbers associated with Appellant, Appellant’s co-conspirator,
and the victim. Id. at 36.
Appellant first contends that Mikail Pendleton provided testimony that
was “so inherently incredible and unreliable as to constitute an illegitimate
basis upon which to deprive a citizen of his liberty, in whole or in part.” Id.
at 37. In his brief, Appellant labels Pendleton as the “quintessential jailhouse
snitch” whose testimony was “self-serving” and “so inherently unreliable that
a verdict based upon it could amount to no more than surmise or conjecture.”
Id. at 37-41.
Second, Appellant alleges that Kierra Walker recanted her previous
statements regarding Appellant’s confession to killing the victim. Id. at 46.
Appellant further argues that Walker was motivated to lie to the police and
during her grand jury testimony because she was angry at Appellant and
wanted to “punish him for his actual or perceived infidelities, which she
referenced numerous times during her interviews to detectives.” Id. at 47.
Appellant next contends that, “[i]n the absence of testimony that
[Appellant] was in possession of the Sprint phone at the time of the shooting,
or independent evidence that placed [Appellant] at or near the scene of the
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shooting, [Special Agent] Orlando’s testimony is of extremely minimal
probative value.” Id. at 52. Appellant further argues that no reasonable
inference may be drawn about Appellant’s whereabouts at the time the victim
was killed; therefore, “[a]ny conclusion that [Appellant] was present at the
crime scene is pure speculation.” Id.
Finally, Appellant argues that Leonard Goggins testified credibly that
Appellant was not present in the Hill District at the time the victim was killed.
Id. The trial court does not address Goggins’ testimony in its sufficiency of
the evidence analysis in its Rule 1925(a) opinion, instead concluding that
Walker’s testimony, as corroborated by Pendleton, provided sufficient
evidence to establish that Appellant killed the victim. See Trial Ct. Op. at 5.
Our standard of review when presented with a sufficiency-of-the-
evidence claim is as follows:
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 proof 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 the evidence actually
received must be considered. Finally, the trier of fact while
passing on the credibility of witnesses and the weight of the
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evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Bragg, 133 A.3d 328, 330-31 (Pa. Super. 2016) (citation
omitted). Because a sufficiency of the evidence challenge raises a question of
law, our standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Mikitiuk, 213 A.3d 290, 300 (Pa. Super. 2019).
As noted by our Supreme Court:
We have, however, made exception to the general rule that the
[factfinder] is the sole arbiter of the facts where the testimony is
so inherently unreliable that a verdict based upon it could amount
to no more than surmise or conjecture.
Traditionally under our system of jurisprudence, issues of
credibility are left to the trier of fact for resolution.
This concept, however, must be distinguished from an equally
fundamental principle that a verdict of guilt may not be based
upon surmise or conjecture. Following this principle, courts of this
jurisdiction have recognized that where evidence offered to
support a verdict of guilt is so unreliable and/or contradictory as
to make any verdict based thereon pure conjecture, a jury may
not be permitted to return such a finding.
Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993) (citations
omitted and formatting altered).
With respect to identification evidence, this Court has explained:
Evidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
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Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
We note that a challenge to the weight of the evidence is distinct
from a challenge to the sufficiency of the evidence in that the
former concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, but questions which
evidence is to be believed.
Commonwealth v. M. Edwards, 229 A.3d 298, 306 (Pa. Super. 2020)
(citations omitted and formatting altered), aff’d on other grounds, 256 A.3d
1130 (Pa. 2021).
Here, the trial court addressed Appellant’s claim as follows:
While no witness actually observed [Appellant] shoot [the victim],
two trial witnesses testified that [Appellant] admitted to killing
him. The statements provided by [] Walker to police during her
interview were corroborated by her testimony before the grand
jury. She solicited the detectives and provided details of the
murder without being pressured by anyone. Her demeanor during
her recorded statement was calm and she appeared comfortable.
The information she supplied concerning [Appellant’s] commission
of murder [was] corroborated by [] Pendleton. [Appellant] told
two different, unrelated people about his motive to avenge Noak’s
murder.
Trial Ct. Op. at 5.
Based on our review of the record, and in viewing the evidence in the
light most favorable to the Commonwealth as verdict winner, we agree with
the trial court that there was sufficient evidence to establish Appellant’s
identity as the perpetrator. See M. Edwards, 229 A.3d at 306. As noted by
the trial court, two witnesses stated that Appellant confessed to killing the
victim to avenge Noak’s murder. Specifically, Pendleton testified that
Appellant told Pendleton about the victim’s murder while Pendleton and
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Appellant were incarcerated at the Allegheny County Jail. See N.T. Trial,
6/1/21, at 72.4 Additionally, Walker admitted during her trial testimony that
she told the police that Appellant told her that he shot the victim. N.T. Trial,
6/2/21, at 35. During Walker’s trial testimony, the Commonwealth played a
video of her interview with the police. The trial court admitted the video into
evidence. Id. at 51. Walker further testified that she reached out to the
police on her own initiative, indicating to the police that she had information,
and an interview was subsequently scheduled. Id. at 52.
As noted above, the determination of whether a witness has testified
credibly is a matter reserved solely for the factfinder. See Bragg, 133 A.3d
at 331; see also M. Edwards, 229 A.3d at 306. The trial court had the
opportunity to hear all the evidence presented by the Commonwealth and
defense over the course of the trial and was free to weigh the credibility of
each of the witnesses accordingly and believe all or part or none of their
testimony. It is not for this Court to substitute its judgment for the factfinder
and re-weigh the evidence. See Bragg, 133 A.3d at 330. Accordingly,
Appellant is not entitled to relief.
Weight of the Evidence
In his second issue, Appellant challenges the weight of the evidence.
Specifically, Appellant argues that “the sum and substance of the
Commonwealth’s evidence as to [Appellant’s] identity as the person who
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4Pendleton used nicknames in his testimony. “Tizzy” refers to Appellant and
“Dough” refers to the victim. Id. at 71-72.
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possessed a firearm and used it to shoot and kill [the victim] was so inherently
unreliable, conjectural and inconclusive that, upon meaningful and honest
reflection, the verdicts rendered by the trial court should have shocked its own
conscience.” Appellant’s Brief at 54.
When reviewing a weight of the evidence challenge, we are governed
by the following standard:
When reviewing a challenge to the weight of the evidence, we
review the trial court’s exercise of discretion. A reversal of a
verdict is not necessary unless it is so contrary to the evidence as
to shock one’s sense of justice. The weight of the evidence is
exclusively for the finder of fact, who is free to believe all, none[,]
or some of the evidence and to determine the credibility of the
witnesses. The fact-finder also has the responsibility of resolving
contradictory testimony and questions of credibility. We give
great deference to the trial court’s decision regarding a weight of
the evidence claim because it had the opportunity to hear and see
the evidence presented.
Commonwealth v. Roane, 204 A.3d 998, 1001 (Pa. Super. 2019) (citations
omitted and formatting altered).
Here, the trial court addressed Appellant’s claim as follows:
[Appellant’s] weight claims essentially challenge [the trial court’s]
assessment of [the] credibility of Mikail Pendleton and the
interview/grand jury testimony of Kierra Walker. [Appellant] also
takes issue with the fact that [the trial court] did not credit the
testimony of Brandon Williams, Dominique McLaughlin and
Leonard Goggins. It is clear that [Appellant’s] argument is that
[the trial court] should not have rendered a guilty verdict because
it should have believed the testimony of his witnesses rather than
the evidence presented by the Commonwealth. Inasmuch as
[Appellant’s] weight claim concedes that the evidence was
sufficient to convict in this case and the weight of the evidence
claim cannot be based solely on a challenge to the [trial court’s]
credibility determinations, [Appellant’s] weight claim fails. The
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trial evidence presented by the Commonwealth has been
recounted herein and was credible, competent and reliable and
established every element of the offenses of conviction. [The trial
court] has reviewed the trial record and believes that the verdict
does not shock any rational sense of justice and, therefore, the
verdict was not against the weight of the evidence.
Trial Ct. Op. at 7.
Based on our review of the record, we discern no abuse of discretion by
the trial court in rejecting Appellant’s weight claim. See Roane, 204 A.3d at
1001. Appellant’s entire weight claim rests on his earlier assertion that the
Commonwealth’s witnesses were not credible. We will not reweigh or disturb
the trial court’s credibility determinations on appeal in that Appellant has not
shown that the verdict shocks any rational sense of justice. See id.Accordingly, Appellant is not entitled to relief on this claim.
Discretionary Aspects of Sentence
In his final issue, Appellant raises a challenge to the discretionary
aspects of his sentence. Appellant’s Brief at 61. On appeal, Appellant argues
that the trial court “relied on improper factors when imposing [its] sentence,
and reliance on these improper factors led to its imposition of a manifestly
excessive aggregate sentence of 26 to 60 years of incarceration.” Id. at 62.
Appellant specifically contends that the trial court improperly considered
elements of first-degree murder when it imposed Appellant’s sentence, even
though the trial court acquitted Appellant of first-degree murder. Id. at 65.
Appellant further argues that “the trial court’s reliance upon this impermissible
factor, in whole or in part, resulted in the imposition of a sentence explicitly
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designed to keep [Appellant] incarcerated or on supervision until his death—
a sentence [Appellant] maintains is manifestly excessive.” Id. at 65-66.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
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exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, the record reflects that Appellant preserved his sentencing claim
in a post-sentence motion, filed timely notices of appeal, and included the
issue in his Rule 1925(b) statement. Appellant has also included a Rule
2119(f) statement in his brief. Further, we conclude that Appellant has raised
a substantial question for review. See Commonwealth v. Q. Edwards, 194
A.3d 625, 637 (Pa. Super. 2018) (finding a substantial question for review
where the defendant claimed that the trial court relied on an improper factor
when imposing its sentence).
Our well-settled standard of review is as follows:
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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c)
and (d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
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(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super. 2014) (some
citations omitted and some formatting altered).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
Additionally, the trial court “must consider the sentencing guidelines.” Id. at
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848 (citation omitted). Where a PSI report exists, this Court will “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) (citation omitted).
Here, Appellant argues that the trial court relied on improper factors
which resulted in a manifestly excessive sentence. Specifically, Appellant
emphasizes that the trial court labeled the murder as a “cold, calculated” act
that was both “vengeful” and “targeted.” Appellant’s Brief at 64. Appellant
argues that the trial court’s choice of words at sentencing represented the trial
court’s “belief that [the murder] was carried out in a premeditated,
deliberate and retaliatory fashion.” Id. at 63-54 (emphasis added). Further,
Appellant contends that the trial court’s reliance on these factors was improper
because they were consistent with a conviction for first-degree murder, an
offense for which Appellant was acquitted. Id.
As we review the merits of Appellant’s claim, we must first look to the
murder statute for guidance. Indeed, the Crimes Code defines first-degree
murder as an “intentional killing.” 18 Pa.C.S. § 2502(a). The Crimes Code
further defines “intentional killing” as “willful, deliberate and premeditated.”
18 Pa.C.S. § 2502(d). Our Supreme Court has held that in order to convict a
defendant of first-degree murder, the Commonwealth must prove, inter alia,
that “the defendant acted with malice and the specific intent to kill.”
Commonwealth v. Parrish, 77 A.3d 557, 561 (Pa. 2013) (citations omitted).
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Second-degree murder addresses criminal homicide committed during
the perpetration of a felony, while the Crimes Code defines third-degree
murder as “[a]ll other kinds of murder . . . .” 18 Pa.C.S. § 2502(b)-(c). This
Court has held that in order to convict a defendant of third-degree murder,
the Commonwealth must establish that the defendant “killed an individual with
legal malice[.]” Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super.
2011) (formatting altered). The Devine Court defined legal malice as
“wickedness of disposition, hardness of heart, wantonness, cruelty,
recklessness of consequences, or a mind lacking regard for social duty.” Id.(citations omitted).
Here, at sentencing, the trial court stated:
This was a cold, calculated act in my view. And there are elements
of revenge, in this case, there are elements of payback; well, if I
can’t get one I’ll get the other. Certainly, there’s an element in
this case that we have our own rules on the street. We deal with
wrongs to each other on the street. And the way we deal with it
is to kill, that’s a homicide count.
N.T. Sentencing, 9/16/21, at 16-17.
At the post-sentence motions hearing, the trial court further explained:
The plan, however, in my view as the fact finder didn’t -- the
evidence didn’t indicate that the absolute object of the plan was
the killing of [the victim] in this case. I agree that the evidence
strongly suggests of a plan to get the victim to a certain place, but
what to do with him at that point was still not a solid – there was
no solid evidence. It means there could have been a plan to
confront. There could have been a plan to do a lot of things.
Once [the victim] was shot, he was shot multiple times, including
in the head. That in my view shows a cold, calculating killing. I
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did not use the word “premeditated” on purpose. Calculated is
different than premeditated.
You shoot a guy once. You don’t need to put two more in. You
really shouldn’t – of course, you don’t need to put any in him. I
don’t mean to minimize that.
If you do the wrongful act of shooting somebody, and you continue
to shoot in my view demonstrates cold calculation at that point.
That’s why I used the words I did. Absolutely did not use the word
“premeditated,” and that’s the reason the Commonwealth didn’t
get a murder in the first degree conviction in this case.
N.T. Post-Sentence Motion Hr’g, 12/17/21, at 27-28.
In its Rule 1925(a) opinion, the trial court further explained its sentence
as follows:
The record in this case supports the sentence imposed by [the trial
court]. The sentences imposed on each count were within the
standard range of the sentencing guidelines. Additionally, [the
trial court] considered the [PSI] report as noted at the beginning
of the sentencing proceeding. Based on the totality of the
circumstances, [the trial court] believed [Appellant] was a danger
to the community. [Appellant] used a firearm in the instant
offense when he clearly knew he was not permitted to possess a
gun. As noted in the [PSI r]eport, [Appellant] was charged with
possessing a synthetic narcotic in the Allegheny County Jail.
[Appellant] refuses to honor the law. [The trial court] viewed the
murder in this case as a cold, calculated and vengeful act. It was
a targeted act against an innocent victim. [Appellant] committed
an abhorrent act of “street justice.” [The trial court] considered
[Appellant’s] rehabilitative needs, protection of the public from
committing such crimes, retribution and the impact on the victim.
Though the sentences were imposed to run consecutively, the
minimum sentences imposed in this case were within the standard
range of the sentencing guidelines and were not unduly harsh and
properly reflected [Appellant’s] culpability in this case.
Trial Ct. Op. at 14.
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Based upon our review of the record, we discern no abuse of discretion
by the trial court. See Raven, 97 A.3d at 1253-54. The record reflects that
the trial court stated its consideration of the factors from Section 9721
including the protection of the public, the gravity of offense, and Appellant’s
rehabilitative needs. See Fullin, 892 A.2d at 847; 42 Pa.C.S. § 9721(b).
Additionally, the trial court had the benefit of a PSI report, and we may
presume it was aware of relevant information regarding Appellant’s character
and weighed those considerations along with mitigating statutory factors. See
Watson, 228 A.3d at 936. Moreover, the record reflects that the trial court
did not consider the victim’s killing to be premeditated. Instead, the trial court
described the murder as cold, calculated, vengeful, and targeted, which is
consistent with this Court’s jurisprudence defining the elements of third-
degree murder. See Devine, 26 A.3d at 1146. Accordingly, Appellant is not
entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
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