Opinion
2119 EDA 2023 J-S21032-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. GREGORY A. SMITH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered June 9, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008322-2021
BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.
MEMORANDUM
MURRAY, J.
Gregory A. Smith (Appellant) appeals from the judgment of sentence imposed following his conviction by a jury of one count each of third-degree murder, attempted murder, and possession of an instrument of crime (PIC). Appellant challenges the discretionary aspects of his sentence, as well as the trial court's denial of his request for a jury instruction on the defense of justification. Upon careful consideration, we affirm.
The trial court adeptly detailed the trial evidence in its opinion:
On March 29, 2021, at approximately 5:00 p.m., in the crowded food court at the Philadelphia Mills Mall [(the mall)], … [Appellant] shot … Dominic Billa [(the decedent)], twice in the chest, killing him. [Appellant] then turned toward the decedent's cousin, John [] Bailey ("Bailey"), who was rushing over to help the decedent, and fired three more shots, which missed Bailey as [Bailey] ran away. The shooting and the events surrounding the shooting were all captured on surveillance video.
[Shortly before the shooting], the decedent was at the food court in the mall with … his cousins, Bailey and Khalil Billa. [Appellant] and his codefendant[, Joseph] Dorsey [(Dorsey),] entered the mall … with a friend, Shaniece Hastings ("Hastings"), at 4:15 p.m. [Appellant] and Hastings split from Dorsey, who was on crutches following a leg injury, to shop …, while Dorsey went to [a separate store in the mall]. Eventually, Dorsey made his way to the food court and ordered food and a drink…. N.T., 3/28/23, at 262-65.
While Dorsey waited for his order, the decedent walked past him. After seeing the decedent, at 4:58 p.m., Dorsey [used his cell phone to] call[] [Appellant], who was waiting in the checkout line with Hastings at Kids Foot Locker. After speaking with Dorsey on the phone, [Appellant] appeared to be in a rush [on surveillance video], and quickly helped the store clerk put Hastings' shoe box in a bag. [Appellant] and Hastings then hurried to the food court. N.T., 3/28/23, at 154-56, 266-67, 269. [Appellant] arrived at the food court before Hastings, but instead of going up to Dorsey, [Appellant] hid behind a pillar for about ten seconds. Shortly before Hastings approached, Dorsey waved to [Appellant], [Appellant] took a few steps towards [Dorsey], and they spoke for a minute at the [food court] counter. While they were talking, Hastings came up to Dorsey and took his food and drink from the counter. Dorsey then began walking directly toward the decedent, who was walking towards the group while looking down at his phone. Once Dorsey and the decedent were within a few feet of each other, they suddenly began fighting. From the video, it appeared that the decedent may have thrown the first punch. Immediately after the fight began, [Appellant] pulled out a gun, aimed it at the decedent, and pulled the trigger twice, hitting him twice in the torso, killing him. Bailey attempted to run over to [aid] the decedent when the fight started, but ran away when [Appellant] began shooting. After shooting the decedent, [Appellant] aimed his gun at Bailey and shot three times, but the shots missed and Bailey was able to escape. N.T., 3/28/23, at 154, 157-58, 167-69, 174; N.T., 3/29/23, at 146-60.
As the shooting started, everyone in the area fled, with [Appellant], Dorsey, Hastings, and many other mall patrons leaving … out an emergency exit. … At 5:04 p.m., [Appellant] and Dorsey boarded a bus that took them to … Bensalem. At 5:06 p.m., Dorsey called his girlfriend …, Monica Perez [(Perez)], and asked her to order him an Uber [rideshare], but she refused. He then called Hastings, who picked [Dorsey and Appellant] up and [subsequently] dropped them off in another part of the city. N.T., 3/27/23, at 234-35; N.T., 3/28/23, at 174-77, 189; N.T., 3/29/23, at 48, 90-91.Trial Court Opinion, 8/25/23, at 2-3 (footnote and emphasis added; citations modified).
The trial court continued:
The decedent was pronounced dead at the scene at 5:18 p.m. by Fire Rescue. The Associate Medical Examiner recovered two … .38 caliber projectiles from the decedent's heart and the soft tissue of his torso. The projectiles recovered from the decedent's body were fired from the same weapon, which was never recovered.FN1] N.T., 3/28/23, at 124, 126-27.
[FN1] A Glock 22 handgun belonging to the decedent was recovered from his vehicle, a black Audi, outside the mall, but there was no evidence the decedent was armed with a gun [while inside the mall].
Inside the mall food court, five … .38 caliber fired cartridge casings ("FCCs") were recovered, which were all fired from the same weapon, and matched the caliber of the projectiles recovered from the decedent's body. Investigators found four ricochet strike marks on benches in the seating area [of the mall], consistent with where [Appellant] shot [at] Bailey. [Appellant's] DNA was found on a package of cigars he dropped while committing the shooting. Also recovered in that location were a live cartridge, a projectile, a lead fragment, additional fragments, and [Appellant's] shopping bag. N.T., 3/28/23, at 20, 30-32, 39, 44-48, 67, 74-77, 237, 340; N.T., 3/29/23, at 129-32, 163-64.
Two days [after the shooting], on the morning of March 31, 2021, Dorsey again called Perez, and told her that "G," the nickname he used to refer to [Appellant], had committed the shooting and that they were on the run. Perez heard [Appellant] in the background of the phone call, saying, "don't say my name." That evening, [Appellant] and Dorsey fled to a Super 8 Motel [(the motel)] in Mount Laurel, New Jersey. [Appellant] checked in, dropped his bags off in the room, then let two other men, including Dorsey, in through the side door. [Cell-phone-generated location data] records confirmed that both [Appellant and Dorsey] were using their cell phones in Mount Laurel at that time. N.T., 3/27/23, at 241, 246-48; N.T., 3/28/23, at 279-80; N.T., 3/29/23, at 94.
In the early morning hours of April 1, 2021, Dorsey called Perez multiple times, finally reaching her just before 6 a.m. After that call, [Perez] sent an Uber to drop Dorsey and [Appellant] off at 1525 Jefferson Street[, in Philadelphia]. [Dorsey and Appellant] later returned to the motel in Mount Laurel. N.T., 3/27/23, at 259, 271, 290-92; N.T., 3/29/23, at 50-51, 95.
On April 14, 2021, Homicide detectives first questioned [Appellant]. At the time of his interrogation, [Appellant] was still wearing the same black pants[,] with what appears to be a Chicago Bulls logo on the upper right leg[,] that he was [seen] wearing at the motel on August 1st. [Appellant was also wearing] the same [distinctive cigarette] lighter that snaps onto his belt as he was wearing on the day of the [shooting,] and at the motel. On April 28, 2021, [Appellant] was arrested at home. N.T., 3/29/23, at 210-16.Trial Court Opinion, 8/25/23, at 3-5 (footnote in original; citations modified; emphasis added).
Neither the decedent nor Bailey were armed.
Following Appellant's arrest, the Commonwealth charged him with murder, attempted murder, PIC, as well as conspiracy to commit murder. The matter proceeded to a jury trial in March 2023, where Appellant was jointly tried with Dorsey.
The Commonwealth also charged Dorsey with murder and conspiracy to commit murder.
Prior to closing arguments, Appellant's counsel requested the trial court to issue a jury instruction on justification (defense of others). See N.T., 3/30/23, at 16-20; see also 18 Pa.C.S.A. § 506 (governing defense of others). According to trial counsel, the evidence supported the issuance of an instruction on defense of others. See id. at 16-17 (arguing Dorsey "was helpless because he was on crutches and was injured" during the "scuffle" between Dorsey and the decedent immediately prior to the shooting). Trial counsel claimed surveillance video of the incident showed Dorsey had
Nino Tinari, Esquire (trial counsel), represented Appellant at trial. At sentencing and in post-trial proceedings, Eugene Tinari, Esquire (Attorney Tinari), represented Appellant.
no ability to be able to ward off the entire vicious attack that was occurring[,] and so [Appellant] reacted under those circumstances. I think there's more than sufficient evidence to justify a justification charge, as well as the fact that there's a voluntary manslaughter charge.Id. at 17. Trial counsel argued, "the case law says even [the] slightest evidence is sufficient under the circumstances to justify the [trial c]ourt to give a charge on justification…." Id. at 20.
The prosecutor countered no justification instruction was appropriate, where
there's been no evidence presented to this jury on this record that [Appellant] had justification to use deadly force, that he thought he had justification to use deadly force, and I would suggest that [] charge is inappropriate.Id. at 18-19.
The trial court ruled:
I'm going to deny the request for [an instruction on] justification, but I will give [the jury a] voluntary manslaughter [instruction]. I think your argument could be there but just no evidence of justification.Id. at 20; see also id. at 139-41 (trial court's jury instruction on voluntary manslaughter).
The jury found Appellant guilty of third-degree murder, attempted murder and PIC, and not guilty of conspiracy. The trial court deferred sentencing and ordered the preparation of a pre-sentence investigation report (PSI), as well as a mental health report.
The jury found Dorsey not guilty on all counts.
On June 6, 2023, Appellant filed a motion for extraordinary relief (MER), pursuant to Pa.R.Crim.P. 704(B). The MER raised a single claim: The trial court "erred when it denied the defense request to [issue] a justification instruction jury charge." MER, 6/6/23, ¶ 3.
The matter proceeded to sentencing on June 9, 2023. Before sentencing Appellant, the trial court considered the parties' respective arguments on the MER. See N.T., 6/9/23, at 10-13. Appellant's counsel, Attorney Tinari, argued, inter alia:
It is our contention, respectfully, that [a justification] instruction should have been given to the jury based on the facts [] how they were adduced at the trial[,] and that there was no reason not … to give said instruction.Id. at 10. The prosecutor countered:
Your Honor had the benefit of having this crime occur on videotape and Your Honor saw what occurred. There's been no subjective evidence by the defense [to establish Appellant] thought that he had to act in justification to save his friend, Mr. Dorsey. There was nothing in the videotape that the jury saw that would allow the jury to preclude [sic] that [Appellant] had to use deadly force at that time to break up a fistfight.Id. at 13. The trial court denied the MER. Id.; see also Order, 6/14/23 (denying MER). The court proceeded to sentence Appellant.
For third-degree murder, the trial court sentenced Appellant to 20-40 years in prison (the statutory maximum). Id. at 67. For attempted murder, the court imposed a consecutive sentence of 6 to 12 years in prison. Id. at 67-68. The court imposed no further penalty for Appellant's PIC conviction. Id. at 68. Thus, Appellant received an aggregate sentence of 26 to 52 years in prison.
On June 14, 2023, Appellant filed a motion for reconsideration of sentence. Appellant "urged that the sentence in this matter be reconsidered in order to permit [Appellant] to be sentenced at the mitigated range of the [sentencing] guideline recommendations." Motion for Reconsideration, 6/14/23, ¶ 3; see also id. ¶ 5 ("The instant offense was a single isolated event in what was otherwise a non-violent past."). The trial court denied the motion for reconsideration on July 31, 2023. This timely appeal followed.Appellant and the trial court complied with Pa.R.A.P. 1925.
Dorsey is not a party to this appeal.
Appellant presents two issues for review:
I. Did the trial court commit an error of law when it denied Appellant's request to instruct the jury on the defense of justification (defense of another)[,] when the evidence clearly supported the issuance of such an instruction?
II. Did the trial court abuse its discretion in sentencing Appellant to a manifestly excessive sentence of 26 to 52 years of imprisonment[,] where the court based its sentence solely on the severity of the offense and failed to weigh all relevant sentencing factors, including Appellant's difficult childhood, lack of criminal history, expression of remorse and amenability to rehabilitation?Appellant's Brief at 4 (capitalization modified).
Appellant first argues the trial court erred in denying his request for a jury instruction on justification (defense of others), where "the evidence clearly supported the issuance of such an instruction." Id. at 12 (capitalization modified). According to Appellant, the trial testimony established that he
Appellant fails to direct us to the place in the record where trial counsel requested a justification instruction. See Pa.R.A.P. 2119(c) (stating that "[i]f reference is made to … any [] matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears[.]" (emphasis added)). We could deem Appellant's claim waived on this basis. See Commonwealth v. Cannavo, 199 A.3d 1282, 1289 (Pa. Super. 2018) ("We shall not develop an argument for an appellant, nor shall we scour the record to find evidence to support an argument; instead, we will deem [the] issue to be waived." (citation omitted));see also Pa.R.A.P. 2119(c). Also, neither the Commonwealth nor the trial court have directed our attention to the relevant portion of the trial transcript. Nevertheless, we decline to find waiver and consider the merits of Appellant's claim.
shot at [the decedent] in defense of another after [the decedent] brutally punched and kicked [Appellant's] friend, [] Dorsey, who was on crutches and unable to defend himself during the attack.Id.
Appellant contends, because "Hastings testified that [the decedent] violently and without warning attacked [] Dorsey by punching and kicking him while he was defenseless, [Appellant] was clearly entitled to the requested instruction." Id. at 16 (footnote added). Appellant argues that although the trial court "instructed the jury on unreasonable belief voluntary manslaughter, this instruction was inadequate in that it failed to apprise the jury that it could determine that [A]ppellant had a defense to the charged crimes." Id. at 17.
Appellant does not cite to the place in the trial transcript containing Hastings's testimony. See Pa.R.A.P. 2119(c); Cannavo, supra. Briefly, our review discloses Hastings testified as a Commonwealth witness. See N.T., 3/28/23, at 142-91. On cross-examination, Hastings confirmed she saw the decedent punch and kick Dorsey seconds before the shooting. Id. at 196-97; see also id. at 197 (Hastings confirming she was concerned for Dorsey's safety).
The Commonwealth counters the trial court did not err in declining a justification instruction, as the evidence was not sufficient to warrant issuing such instruction. See Commonwealth Brief at 12-17. According to the Commonwealth, the
evidence failed to establish that [Appellant] could reasonably have believed that Dorsey, the person he claims he was justified in defending, was in imminent fear of death or serious bodily injury.Id. at 12; see also id. at 15 (asserting the evidence was "insufficient as a matter of law for the issue [of justification] to go to the jury."). The Commonwealth emphasizes neither the decedent nor Bailey were armed. Id. at 15. The Commonwealth further claims Appellant's "calling the scuffle a violent assault on his injured friend[,]" Dorsey, is a "mischaracterization." Id. at 16; see also id. ("Although it is true that Dorsey was on crutches, the video and still photos of Dorsey before and right after the shooting reflect that Dorsey was hardly limited by his injury."). We agree.
"We review a trial court's refusal to give a specific jury instruction for an abuse of discretion or error of law." Commonwealth v. Brown, 200 A.3d 986, 992 (Pa. Super. 2018) (citation omitted); see also Commonwealth v. Hornberger, 74 A.3d 279, 282 (Pa. Super. 2013) ("We review with deference decisions regarding instructions submitted to a jury; we may reverse the trial court only where we find that it abused its discretion or committed an error of law."). A trial court "has broad discretion in its phrasing of jury instructions so long as the issue is adequately, accurately, and clearly presented to the jury for its consideration." Brown, 200 A.3d at 992 (citation and quotation marks omitted).
Our Crimes Code addresses defense of others at Section 506: § 506. Use of force for the protection of other persons.
(a) General rule.-The use of force upon or toward the person of another is justifiable to protect a third person when:
(1) the actor would be justified under section 505 (relating to use of force in self-protection) in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
(2) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and
(3) the actor believes that his intervention is necessary for the protection of such other person.
(b) Exception.-Notwithstanding subsection (a), the actor is not obliged to retreat to any greater extent than the person whom he seeks to protect.18 Pa.C.S.A. § 506.
Section 506(a)(1) references Section 505 for whether an individual's actions would be justified. Section 505 provides in relevant part:
(a) Use of force justifiable for protection of the person.- The use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the
purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(b) Limitations on justifying necessity for use of force.-
* * *
(2) The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:
* * *
(ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating, except the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor….Id. § 505(a), (b)(2)(ii) (emphasis added); see also id. § 501 (defining "unlawful force" and "deadly force").
"While there is no burden on a defendant to prove [a] claim [of self-defense or defense of others], before the defense is properly at issue at trial, there must be some evidence, from whatever source, to justify a finding of self-defense" or defense of others. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001). "[I]t is the Commonwealth's burden to disprove justification beyond a reasonable doubt where the defendant validly asserts … defense of others." Hornberger, 74 A.3d at 283 (citation omitted).
In Hornberger, this Court explained:
Before the issue of self-defense or defense of others may be submitted to a jury for consideration, a valid claim of self-defense or defense of others must be made out as a matter of law, and
this determination must be made by the trial judge. Such claim may consist of evidence from whatever source. Such evidence may be adduced by the defendant as part of his case, or conceivably, may be found in the Commonwealth's own case in chief or be elicited through cross-examination. However, such evidence from whatever source must speak to three specific elements for a claim of self-defense [or defense of others] to be placed in issue for a jury's consideration.
Thus, as provided by statute and as interpreted through our case law, to establish the defense of self-defense or defense of others it must be shown that: a) the slayer or the other he seeks to protect was free from fault in provoking or continuing the difficulty which resulted in the slaying; b) that the slayer must have reasonably believed that he or the other he seeks to protect was in imminent danger of death or great bodily harm, and that there was a necessity to use such force in order to save himself or the other therefrom; and c) the slayer or the other he seeks to protect did not violate any duty to retreat or to avoid the danger.
If there is any evidence from whatever source that will support these three elements[,] then the decision as to whether the claim is a valid one is left to the jury and the jury must be charged properly thereon by the trial court.Id. at 284-85 (brackets and emphasis omitted) (quoting Commonwealth v. Hansley, 24 A.3d 410, 420-21 (Pa. Super. 2011)).
Instantly, the trial court concluded, in its Pa.R.A.P. 1925(a) opinion, that Appellant "was not entitled to a justification jury instruction for defense of others." Trial Court Opinion, 8/25/23, at 5. The court competently reasoned,
[t]here was absolutely no evidence that [Appellant] could have reasonably believed that deadly force was necessary to prevent Dorsey from suffering serious bodily injury or death. While [Appellant] argues that his use of force was necessary because Dorsey was using crutches and helpless to protect himself, [Appellant] had no reason to believe the decedent was armed. See Commonwealth v. Williams, 176 A.3d 298, 312 (Pa. Super. 2017) (defendant not justified in using deadly force when confronting a punch in the face, even though victim had
lethal weapon in his pocket). Within seconds of the fight starting, and leaving no time to gauge the threat, [Appellant] chose to shoot multiple times while aiming at vital parts of the decedent's body. Bringing a gun to a fistfight cannot be called reasonable when [Appellant] could have used non-deadly force to stop the altercation. [Appellant] did not even attempt any alternative options before pulling out his gun and shooting the decedent.
After [Appellant] shot the decedent, Bailey, who was unarmed, ran towards his dying cousin. At that point, neither [Appellant] nor Dorsey were under threat. As mall patrons charged out of the food court, running for their lives, [Appellant] continued to shoot at Bailey, who abandoned any effort that he might have made to help his cousin and was forced to flee for his own safety.
A trial court's instructions to the jury must be accurate regarding the legal principles involved, but are otherwise within the court's discretion. Commonwealth v. Wilson, 273 A.3d 13, 22 (Pa. Super. 2022) (quoting Commonwealth v. Kim, 888 A.2d 847, 852 (Pa. Super. 2005)). A trial court should not instruct a jury on legal principles which bear no relationship to the evidence presented at trial. See Commonwealth v. Arrington, 86 A.3d 831, 850 (Pa. 2014) (citing Commonwealth v. Solano, 906 A.2d 1180, 1190 (Pa. 2006)); see also … Hansley, 24 A.3d [at] 421 … ([holding trial] court did not err in denying defendant's request for justification instruction when evidence did not support it). A justification jury charge bears no legal relationship with [Appellant's] choice to shoot[,] when no evidence suggested either the decedent or Bailey was armed.Trial Court Opinion, 8/25/23, at 5-6 (emphasis added); see also id. at 2 (noting that immediately before the shooting, (1) Dorsey called Appellant on his cell phone, after Dorsey saw the decedent walk past him in the food court; (2) Appellant answered Dorsey's call and immediately rushed to the food court; and (3) when Appellant reached the food court, he hid behind a pillar and spoke with Dorsey, seconds before shooting the decedent).
Our review discloses the trial court's sound reasoning is supported by the record and the law. See id. at 2, 5-6. The record further confirms the Commonwealth's assertion that the "photographic and video evidence, combined with the trial testimony, make clear that [Appellant] could not possibly have believed he was justified in using deadly force against the unarmed victim[s]." Commonwealth Brief at 17. As the Commonwealth correctly observed,
the evidence reveals that [Appellant] had his gun out before, or at the same time as, the start of scuffle between [the decedent] and Dorsey. The still photos taken from the [mall surveillance] video show that, within one second of Dorsey falling, [Appellant] was pointing his gun at the [decedent]. See … [Commonwealth Exh.] 19 (video [depicting Appellant brandishing a gun at the time when the decedent struck Dorsey, and Appellant pointing it at the decedent immediately thereafter]). Given the speed with which [Appellant] began shooting, there was simply no way he could have formed a reasonable belief that Dorsey was in imminent fear of death or serious bodily injury.Id. at 15 (emphasis added). Our review of the video and record confirms the foregoing.
Accordingly, the Commonwealth refuted Appellant's defense of others claim. Appellant could have "avoid[ed] the necessity of using [deadly] force with complete safety by retreating" from the fracas in the mall food court. 18 Pa.C.S.A. § 505(b)(2)(ii); see also id. § 506(a)(1), (2) (providing that, to establish defense of others, the "actor [must] be justified under section 505"; and "under the circumstances as the actor believes them to be, the person whom he seeks to protect [must] be justified in using such protective force."). No witness (Hastings included) provided evidence for the jury to find otherwise. Thus, the trial court properly denied Appellant's request for an instruction on defense of others. Appellant's first issue merits no relief.
In his second issue, Appellant argues the trial court abused its discretion in imposing a manifestly excessive sentence, which ignored relevant sentencing factors and mitigating evidence. See Appellant's Brief at 19-26. Appellant claims the trial court "impermissibly relied solely on the seriousness of [Appellant's crime[,] while ignoring substantial evidence that would have supported the imposition of a mitigated sentence." Id. at 19; see also id. at 20 (asserting the sentencing court's "focus on the nature of [Appellant's] actions to the exclusion of every other relevant sentencing factor establishes the sentencing court's manifest unreasonableness.").
Appellant's claim challenges the discretionary aspects of his sentence, from which there is no absolute right to appeal. Commonwealth v. Rivera, 238 A.3d 482, 498-99 (Pa. Super. 2020). Rather, where, as here, Appellant preserved his sentencing challenge in a timely post-sentence motion, he must (1) include in his appellate brief a Pa.R.A.P. 2119(f) concise statement of the reasons relied upon for allowance of appeal; and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Commonwealth v. Summers, 245 A.3d 686, 691 (Pa. Super. 2021).
We are unpersuaded by the Commonwealth's claim that Appellant's motion for reconsideration of sentence did not preserve his instant challenge to the sentence. See Commonwealth Brief at 17-18 (citing Rivera, 238 A.3d at 499 ("[W]e conclude that [a]ppellant failed to raise his specific appellate claims in his post-sentence motion, and therefore has failed to preserve his discretionary sentencing claims.")). The arguments Appellant presents on appeal are sufficiently similar to those raised in his motion for reconsideration of sentence.
Appellant's brief includes the requisite Rule 2119(f) statement. Appellant's Brief at 18. Further, he presents a substantial question. See Commonwealth v. Knox, 165 A.3d 925, 929-30 (Pa. Super. 2017) ("A claim that the trial court focused exclusively on the seriousness of the crime while ignoring other, mitigating circumstances … raises a substantial question."); see also Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (a claim that the sentencing court failed to consider the defendant's individualized circumstances raises a substantial question); Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (stating a properly developed claim of "an excessive sentence []-in conjunction with an assertion that the [trial] court failed to consider mitigating factors-raises a substantial question."). Accordingly, we review the merits of Appellant's sentencing issue.
We are mindful that 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." Commonwealth v. Barnes, 167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
[A]n 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. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (citation omitted). "When imposing sentence, the trial court is granted broad discretion, as it is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it." Id. (citation and brackets omitted).
The Pennsylvania Supreme Court has explained:
The reason for this broad discretion and deferential standard of appellate review is that the sentencing court is in the best position to measure various factors and determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed.Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014) (citations and quotation marks omitted).
The Sentencing Code provides that "the sentence imposed should call for confinement that is consistent with 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.A. § 9721(b). "A sentencing court has broad discretion in choosing the range of permissible confinements that best suits a particular defendant and the circumstances surrounding his crime." Commonwealth v. Celestin, 825 A.2d 670, 676 (Pa. Super. 2003) (citation omitted).
Finally, 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) (citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (concluding where the sentencing court considered all relevant factors and was "fully informed by the [PSI], the sentencing court's discretion should not be disturbed.")).
Appellant claims the sentencing court abused its discretion in imposing an unreasonable aggregate prison sentence, and focusing solely on the seriousness of Appellant's crimes, while ignoring mitigating evidence. See Appellant's Brief at 19-26. Appellant relies on this Court's decision in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). Id. at 24-26; see also Coulverson, 34 A.3d at 146 (concluding the sentencing court abused its discretion in imposing a "clearly unreasonable" aggregate sentence, where it (1) "offer[ed] no suggestion that it considered anything other than the seriousness of Coulverson's offenses"; and (2) issued "a regrettably scant explanation for imposition of sentence on any of Coulverson's convictions.").
According to Appellant, the sentencing court "failed to consider [his] lack of a criminal history, his difficult childhood, his expression of remorse and his rehabilitative needs…." Id. at 19-20; see also id. at 21 (pointing out Appellant had a prior record score (PRS) "of zero and had never previously been involved in any violent behavior."). Appellant emphasizes the sentencing court
not only imposed the statutory maximum sentence of 20 to 40 years [in prison] for [third-degree] murder, but also imposed a consecutive sentence of six to twelve years for [A]ppellant's attempted murder conviction, even though the victim ([Bailey]) was not injured in the shooting.Id. at 19.
The Commonwealth counters Appellant's claim is unavailing, as the sentencing court properly exercised its discretion in imposing a reasonable sentence under the circumstances. See Commonwealth Brief at 21-23; see also id. at 22 (stating the sentencing court "had to balance mitigating factors with the seriousness of the crime."). According to the Commonwealth, the sentencing court "conducted a thoughtful and thorough sentencing hearing[,] during which [the court] considered all relevant sentencing factors," including mitigating evidence. Id. at 21-22 (citation omitted).
Our review discloses that at sentencing, the trial court preliminarily stated:
[T]he first thing that everybody needs to know is that the law requires me to consider many factors in sentencing anyone. I have to consider the seriousness of the offense. I have to consider the need for society to be protected. I need to consider the impact that a defendant's crime has on the victim and[/]or the victim's family[,] as well as the community. But I also have to consider the sentencing guidelines. [] [S]entencing also involves balancing and I have to consider the particular
rehabilitative needs of [Appellant]. I have to look at what he's done with his life so far. I have to … consider whether this was a situational offense; for example, whether this is part of a pattern of bad behavior. I have to look at all of those [factors,] and then I have to make a decision.N.T., 6/9/23, at 15-16 (emphasis added). The trial court further stated that although Appellant's PRS was zero, he also had several other pending criminal cases. Id. at 17-18; see also id. at 52 (prosecutor explaining, "[Appellant] has nine arrests, one as a juvenile, 8 as an adult. Three of those involve[d] firearms….").
The trial court considered Appellant's PSI and mental health report. Id. at 16-17, 19-21, 22-24; see also id. at 9 (Appellant confirming that he "had enough time to review" with trial counsel the PSI and mental health report). As to the PSI, the trial court thoroughly discussed its content, stating, inter alia:
[Appellant] indicated that your father had been in and out of jail and he was not particularly active in your life. You believe you had a good childhood with ample material and emotional support. … You denied ever being the victim of any abuse or mistreatment and reported no issues of domestic violence or substance abuse within your family.
* * *
Your mother thought that she kept you sheltered throughout your life and that it was your desire to be respected and accepted by older men that caused many of your legal issues. And she believes that was likely the result of a lack of a father figure, but she said you are a good person and that you have never acted in a violent manner prior to anyone else.Id. at 19, 20-21 (formatting modified).
The trial court then explained it had considered the sentence the Commonwealth recommended, namely, a prison sentence of,
[t]wenty to 40 [years] for third[-]degree [murder], 10 to 20 [years] for attempted murder, and two and a half to five [years] for [PIC], which, in essence, becomes [an aggregate prison sentence of] 32 and a half to 65 years.Id. at 26; see also id. at 51 (prosecutor stating the "Commonwealth recommends the maximum sentence").
On the other hand, trial counsel requested a sentence in the lower range of the sentencing guidelines for third-degree murder, and a concurrent sentence for attempted murder (also at the low range of the guidelines). Id. at 56; see also id. at 53-57. Trial counsel emphasized Appellant's difficult childhood, lack of a father figure, young age, and PRS of zero. Id. at 54-56. Appellant presented several character witnesses who testified on his behalf, including his mother and Dorsey. Id. at 57-63. Finally, Appellant exercised his right to allocution and expressed remorse for his actions. Id. at 64.
The trial court also considered extensive victim impact testimony from several persons, including the decedent's mother, grandmother, and godmother. See id. at 26-50.
The trial court then imposed an aggregate sentence of 26 to 52 years in prison. Id. at 67-68. The court exhaustively detailed its reasons for the sentence, including (1) the devastating impact Appellant's crimes had on the community (including the families of Appellant and the decedent); (2) the protection of the public; and (3) Appellant's young age and rehabilitative needs. Id. at 66-68.
This sentence was shorter than that recommended by the Commonwealth. See N.T., 6/9/23, at 25-26, supra (prosecutor recommending an aggregate prison sentence of 32½ to 65 years).
It is undisputed that the sentence imposed for each charge falls within the standard range of the sentencing guidelines. See Appellant's Brief at 19; Commonwealth Brief at 6, 22. Therefore, we may only vacate Appellant's sentence if "the case involves circumstances where the application of the guidelines would be clearly unreasonable." 42 Pa.C.S.A. § 9781(c)(2); see also Commonwealth v. Raven, 97 A.3d 1244, 1254 (Pa. Super. 2014) (citing Section 9781(c)(2)).
In its opinion, the trial court concluded it did not abuse its discretion in imposing Appellant's sentence, and appropriately accounted for all sentencing considerations and mitigating evidence:
After reviewing [Appellant's PSI] and mental reports[,] as well as a sentencing memorandum submitted by the Commonwealth, this court imposed a proper sentence in light of [Appellant's] reckless behavior when he shot five times in a crowded food court, killing the decedent and putting his companions and the rest of the mall patrons in danger.
This court imposed a sentence well within the standard [sentencing] guidelines. With [Appellant's PRS] of zero and an offense gravity score ("OGS") of fourteen, the standard range guideline sentence for third-degree murder[,] with [the] deadly weapon enhancement (used)[,] is ninety [months in prison] to the statutory limit +/- 12 months of incarceration. This court imposed a standard range sentence of twenty to forty years of incarceration. With an OGS of thirteen, the standard range guideline sentence for attempted murder[,] with deadly weapon enhancement (used)[,] is 78-96 +/- 12 months of incarceration. This court imposed a mitigated range sentence of six to twelve years of incarceration. With an OGS of three, the standard range guideline sentence for PIC is restorative sanctions to one month +/- three months of incarceration. This court imposed no further penalty [for Appellant's PIC conviction].
While this court certainly did consider the gravity of the impact on the community, as it is required to by statute, it was also aware of all the relevant mitigating factors and took them into account. This court considered [Appellant's] age, difficult childhood, nonviolent past, lack of a prior [criminal] record, family support, and drug abuse, in fashioning its sentence. This court also took into account [Appellant's] rehabilitative needs, choosing not to sentence him to the statutory maximum on each count because of his age and redeeming characteristics.Trial Court Opinion, 8/25/23, at 8-9 (emphasis added; some capitalization modified).
The trial court further explained:
The sentence reflected the need to protect the public, given [Appellant's] extremely callous and reckless choice to fire five times into a crowded mall food court during the day, without any regard for the lives of the many people present. As bullets ricocheted into the seating area, a stampede of people had to run for their lives. Once [Appellant] killed the decedent, he made a deliberate choice to continue shooting at Bailey, continuing to place everyone in the food court at risk.
[Appellant's] actions devastated the lives of the surviving victim and both victims' families. Bailey, whom [Appellant] attempted to kill, has experienced mental health issues so severe that he had to be involuntarily committed, and could not appear at sentencing. The decedent's mother has also experienced health challenges stemming from the trauma of losing her son. [The decedent's] godmother has experienced so much distress that she had to leave her work and start collecting disability benefits.Trial Court Opinion, 8/25/23, at 9 (some capitalization modified).
The trial court's reasoning is supported by the record and we agree with its legal conclusion. The thorough record developed at sentencing belies Appellant's claim of the trial court's insufficient consideration of mitigating evidence. See, e.g., Knox, 165 A.3d 931 (rejecting appellant's claim that sentencing court imposed an unreasonable sentence, where (1) the court considered defendant's PSI, as well as his allocution and character witness; and (2) "while it is clear that [defendant] had mental health issues and suffered an extremely difficult childhood, there is no indication that the trial court completely disregarded these circumstances when imposing sentence."). The sentencing court had the benefit of a PSI and thoroughly detailed its consideration of it prior to imposing sentence. See N.T., 6/9/23, at 16-17, 19-21, 22-24. Thus, it is presumed that the sentencing court was aware of and weighed all appropriate sentencing factors and considerations. Watson, 228 A.3d at 936.
Furthermore, Appellant's reliance on Coulverson, supra, is misplaced. Unlike Coulverson, the instant record reveals the sentencing court appropriately considered all relevant sentencing factors, rather than merely "the seriousness of [Appellant's] offenses." Coulverson 34 A.3d at 146.
Based on the foregoing, we conclude Appellant's sentence is not unreasonable, excessive, or based solely on the seriousness of his crimes. Appellant's final issue merits no relief. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.