Opinion
J-A18003-16 No. 1060 MDA 2015
10-24-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT STEPHONE GILMORE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered June 9, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001212-2014 BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Robert Stephone Gilmore, appeals from the judgment of sentence of an aggregate term of 12½ to 25 years' imprisonment, imposed after a jury convicted him of attempted murder, aggravated assault - attempted serious bodily injury, aggravated assault - causing bodily injury with a deadly weapon, firearms not to be possessed without a license, and recklessly endangering another person. Herein, Appellant challenges the sufficiency of the evidence to sustain his convictions and alleges the verdict is against the weight of the evidence. He also raises challenges to the admission of evidence, the application of the merger doctrine, jury instructions, and the length of his sentence. After careful review, we affirm.
The above-stated charges arose from an incident which took place on February 13, 2014, where Appellant and an unidentified co-conspirator attempted to kill Stephen Robinson ("Mr. Robinson") by firing multiple shots at him in the middle of the afternoon on a public street in downtown Carlisle, Pennsylvania. Mr. Robinson escaped unharmed. Unfortunately, two innocent bystanders, Jayonna Pope ("Ms. Pope") and Ashley Brown ("Ms. Brown") were not so lucky. Ms. Pope was struck in the head by a stray bullet, and Ms. Brown was grazed by another bullet. Appellant and his co-conspirator fled on foot, laughing, to a waiting car and then drove away. Trial Court Opinion ("TCO"), 11/2/15, at 2-3. Based on eye-witness testimony and the identification of Appellant from a photo array, a warrant was issued and Appellant was apprehended by the United States Marshall Service Fugitive Task Force in Brooklyn, New York. Id. at 5.
Following a jury trial, Appellant was sentenced to the above-stated term on June 9, 2015. Appellant filed a timely post-sentence motion, which was denied by order of court dated June 16, 2015. Subsequently, Appellant timely filed a notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Appellant was originally sentenced on March 10, 2015, to an aggregate term of 17½ to 45 years' imprisonment, which included a sentence of 15 to 40 years' imprisonment on count 1 - attempted murder. Appellant filed a post-sentence motion requesting modification of his sentence based on allegations that the sentence was unreasonable and excessive. The trial court admitted that it "erroneously applied an illegally lengthy sentence which was the result of a calculation error arising from the Commonwealth's failure to present the issue of serious bodily injury to the jury as to Count I, Criminal Attempt - Criminal Homicide." TCO at 16. The Commonwealth subsequently filed a memorandum conceding that the maximum sentence for Appellant's attempted murder conviction is 20 years' imprisonment. On June 9, 2015, a re-sentencing hearing was held and the court re-sentenced Appellant to an aggregate sentence of 12½ to 25 years' imprisonment, which reflected consecutive sentences for attempted murder (10 to 20 years), aggravated assault (1 to 2 years), firearms not to be possessed without a license (1 to 2 years), and recklessly endangering another person (6 to 12 months). Id.
Herein, Appellant raises the following issues for our review:
I. Whether the evidence presented at trial was sufficient to convict Appellant of attempted murder, aggravated assault (attempted serious injury), aggravated assault (causing bodily injury with a deadly weapon), recklessly endangering another person ([Mr.] Robinson), and recklessly endangering another person ([Ms.] Pope)[?]
II. Whether the jury's finding of guilt as it relates to the charges of attempted murder, aggravated assault (attempted serious injury), aggravated assault (causing bodily injury with a deadly weapon), recklessly endangering another person ([Mr.] Robinson), and
recklessly endangering another person ([Ms.] Pope) was against the weight of the evidence presented at trial[?]Appellant's Brief at 7.
III. Whether the trial court erred in allowing the admission of text messages allegedly composed by [Mr.] Robinson[?]
IV. Whether the trial court erred when it instructed the jury on transferred intent[?]
V. Whether the trial court erred when it failed to merge aggravated assault (causing bodily injury with a deadly weapon)([Ms.] Pope) with attempted murder[?]
VI. Whether the trial court abused its discretion and committed reversible error when it sentenced Appellant to an aggregate sentence of 12 and one half to 25 years[?]
We have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have reviewed the thorough and well-crafted opinion of the Honorable Albert H. Masland of the Court of Common Pleas of Cumberland County. We conclude that Judge Masland's extensive, well-reasoned opinion accurately disposes of issues I through IV presented by Appellant. See TCO at 1-16. Accordingly, with regard to these issues, we adopt Judge Masland's opinion as our own and affirm on that basis. We also affirm the trial court's decisions with respect to issues V and VI; however, we add the following discussion regarding these claims.
In issue V, Appellant asserts that the trial court erred when it failed to merge the aggravated assault - causing bodily injury with a deadly weapon charge with the attempted murder charge. It is well-settled that:
A claim that the trial court imposed an illegal sentence by failing to merge sentences is a question of law. Accordingly, our standard of review is plenary.
In Commonwealth v. Gatling , 570 Pa. 34, 807 A.2d 890 (2002) (plurality), our Supreme Court clarified the appropriate analysis for determining when convictions should merge for the purposes of sentencing:
The preliminary consideration is whether the facts on which both offenses are charged constitute one solitary criminal act. If the offenses stem from two different criminal acts, merger analysis is not required. If, however, the event constitutes a single criminal act, a court must then determine whether or not the two convictions should merge. In order for two convictions to merge: (1) the crimes must be greater and lesser-included offenses; and (2) the crimes charged must be based on the same facts. If the crimes are greater and lesser-included offenses and are based on the same facts, the court should merge the convictions for sentencing; if either prong is not met, however, merger is inappropriate.
Commonwealth v. Johnson , 874 A.2d 66, 70-71 (Pa. 2005) (emphasis added).
Id. at 899.
To determine whether offenses are greater and lesser-included offenses, we compare the elements of the offenses. If the elements of the lesser offense are all included within the elements of the greater offense and the greater offense has at least one additional element, which is different, then the sentences merge. If both crimes require proof of at least one element that the other does not, then the sentences do not merge.
"Attempted murder is defined by reading the attempt statute, 18 Pa.C.S.A. § 901(a), in conjunction with the murder statute, 18 Pa.C.S.A. § 2502(a) (murder of the first degree). Accordingly, the elements of attempted murder are (1) the taking of a substantial step, (2) towards an intentional killing. See 18 Pa.C.S.A. §§ 901(1), 2502(a)." Johnson , 874 A.2d at 71. "A person is guilty of aggravated assault if he attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon." 18 Pa.C.S. § 2702(a)(4) (emphasis added). It is clear that not all of the required elements of aggravated assault - causing bodily injury with a deadly weapon, are included in the statutory elements of attempted murder. Specifically, Section 2702(a)(4) requires the use of a deadly weapon, whereas the elements of attempted murder do not. See 18 Pa.C.S. §§ 901(a), 2502(a). Thus, the crime of aggravated assault - causing bodily injury with a deadly weapon, is not a lesser-included offense of attempted murder, and the trial court was correct in not merging these two charges.
Moreover, we note that it would not be proper to merge the two charges in the present case, as the charges involved crimes against different victims. Appellant fired multiple shots at the intended victim, Mr. Robinson, in the presence of innocent bystanders, thereby exposing multiple people to the risk of serious bodily injury or death. As the trial court explained in its Rule 1925(a) opinion, Appellant was convicted of the attempted murder of Mr. Robinson (not Ms. Pope), and his corresponding aggravated assault conviction relating to Mr. Robinson was properly merged for sentencing purposes. TCO at 17. The remaining aggravated assault charge for which Appellant has been sentenced, and which is at issue here, is related to Ms. Pope. There was no greater charge into which the conviction for aggravated assault against Ms. Pope could merge. Thus, we agree with the trial court's conclusion that Appellant's claim of error for failure to merge these two charges "is simply factually erroneous." Id.
Moreover, we add that Appellant may not escape responsibility for the separate crimes he committed against the intended victim and bystanders. As stated by our Supreme Court in Commonwealth v. Yates , 562 A.2d 908 (Pa. 1989), except for where the legislature unequivocally expresses a contrary intent: "[I]t remains the law of this Commonwealth that the life and safety of each citizen is to be protected individually. There is no 'two for one discount' in the Pennsylvania Crimes Code, and we will not permit criminals to imply one through distortion of the common law merger doctrine." Id. at 911 (footnote omitted).
Next, we address Appellant's claim VI regarding the length of his sentence. As discussed supra, Appellant was re-sentenced on June 9, 2015, to an aggregate sentence of 12½ to 25 years' imprisonment. That sentence reflected consecutive sentences for attempted murder (10 to 20 years), aggravated assault (1 to 2 years), firearms not to be possessed without a license (1 to 2 years), and recklessly endangering another person (6 to 12 months). TCO at 16. Appellant contends that his sentence is unreasonable and outside of the sentencing guidelines. He further alleges that the court failed to consider the appropriate sentencing factors set forth in 42 Pa.C.S. § 9721(b).
We note that Appellant's allegations regarding sentencing relate to the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (citations and internal quotations omitted).
Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed.
Here, the record clearly reflects that Appellant filed a timely notice of appeal, properly preserved his claim in his post-sentence motion, and included a separate, concise Rule 2119(f) statement in his appellate brief in compliance with the Pennsylvania Rules of Appellate Procedure. In his Rule 2119(f) statement, Appellant presents a detailed summary of his arguments in support of his allegations that his sentence is excessive and unreasonable. Upon review of that statement, we will consider the issues raised by Appellant to constitute substantial questions to meet the fourth requirement of the four-part test outlined above.
However, we deem the underlying claims to be meritless.
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. To constitute an abuse of discretion, the sentence imposed must either exceed the statutory limits or be manifestly excessive. 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. Perry , 883 A.2d 599, 602-603 (Pa. Super. 2005) (citations omitted).
***
In determining whether a sentence is manifestly excessive, the appellate court must give great weight to the sentencing court's discretion, as he or she is in the best position to measure factors such as the nature of the crime, the defendant's character, and the defendant's display of remorse, defiance, or indifference.
We further note that:
When imposing a sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation. Where the sentencing court had the benefit of a presentence investigation report ("PSI"), we can assume the sentencing court was aware of the relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.Commonwealth v. Griffin , 65 A.3d 932, 937 (Pa. Super. 2013) (citations and internal quotation marks omitted).
Here, Appellant was clearly sentenced within the maximum range of the guidelines. Additionally, we note that not only did the trial court have the benefit of a PSI, it expressly stated that it considered all of the appropriate relevant factors, as explained in the following portion of its Rule 1925(a) opinion:
[Appellant's] crime was shocking. He opened fire with a deadly weapon during daylight hours on a populated downtown street in an attempt to kill Stephen Robinson. He wounded two innocent bystanders, one of whom he shot in the head. Per eyewitness testimony, he laughed as he fled the scene of his crime. His three victims each deserved to have their rights vindicated by the imposition of consecutive sentences and nothing less than the lengthy sentence the court imposed would do justice to the gravity of [Appellant's] crimes. The court was in receipt of letters of support from [Appellant's] family, but nothing therein can mitigate the gravity of [Appellant's] actions. His sentence is appropriate.TCO at 16-17.
The trial court also made the following statements regarding Appellant's sentence at the re-sentencing hearing:
[T]he nature of this offense, senseless, reckless, horrific all come to mind as I recall the testimony of the victims in this case, lead me to believe that a lengthy sentence is necessary not only from the perspective of public safety or from the perspective of the nature of this crime and not wanting to depreciate the seriousness of the crime, frankly, it may also be necessary, [Appellant], for you.N.T. Re-Sentencing, 6/9/15, at 6-7.
...You are 20. Perhaps in your mid[-]thirties you will be out of your, what I would call based on this offense, violent lifestyle. Perhaps you will grow out of that, and that alone may protect society a little bit more. When people get into their thirties and forties, they generally don't commit the violent crimes such as the one that you committed here you were found by a jury to commit.
I hear the evidence too, and so when I say it was horrifying and senseless and reckless and all of those things, I heard that evidence and that's the way I feel, and I'm going to sentence accordingly. Because anything less than a maximum sentence in this case, which will give you an aggregate of 12 and a half years to 25 years, anything less than that overall maximum would not be appropriate.
After careful review of the record, we are satisfied that the trial court gave appropriate consideration to the relevant factors before issuing Appellant's sentence. Thus, we ascertain no abuse of discretion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/24/2016
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