Opinion
J-S26011-14 No. 1191 EDA 2013
07-21-2014
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DOMINIC CALDWELL, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered November 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):CP-51-CR-0007114-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and FITZGERALD, J. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court.
Appellant, Dominic Caldwell, appeals from the judgment of sentence of 31 to 62 years' incarceration, imposed after he was convicted of aggravated assault, robbery, theft by unlawful taking, possessing an instrument of crime (PIC), recklessly endangering another person (REAP), and various violations of the Uniform Firearms Act, 18 Pa.C.S. §§ 6101-6127. After careful review, we vacate and remand for resentencing.
The trial court set forth the facts of this case, in pertinent part, as follows:
On July 16, 2010 complainant Sean Williams ("Williams") was at home at 2442 N. 20th Street with his wife and children. Appellant, who lived across the street at 3453 N. 20th Street, came to Williams' house with his friend[,] Reese[,] andTrial Court Opinion (TCO), 9/11/13, at 3-4.
requested a ride. When Williams told Appellant and Reese that he could not take them because he did not have enough gas and had children to watch, they entered his apartment anyway. Williams left the room and went to check on one of his children and when he returned, he saw Appellant with a weapon in his hand. Appellant and Reese grabbed money from the couch, where it had been hidden, and ran out the door. They fled southbound on foot towards Howard Street. Williams pursued them, yelling, and Appellant then fired two shots back towards him before running down 20th Street towards Cumberland. Williams could not see where Appellant ran after that. At the time, there were many adults and children on the sidewalk.
Police responded to the scene of the shooting and interviewed Williams. Williams provided a written statement naming Appellant as the shooter and giving police Appellant's physical description and address. Williams also chose Appellant from a photographic array. However, at trial, Williams "partially recanted on the stand, stating that Appellant and 'Reese' had been in his house, and that the money had gone missing, but repeatedly denying that Appellant had been the one to take it or fire the gunshots." Id. at 7 (citing N.T. Trial, 2/28/12, at 5; 17-19; 24; 30; 34; 121).
The trial court notes that at several points during his testimony, Williams "looked as though he were about to begin crying." TCO at 7. When asked at one point why he was crying, Williams stated, "I came here to make amends[,]" and that he "fe[lt] bad for [Appellant]." N.T. Trial, 8/28/12, at 125. The trial court interpreted Williams' conduct as evincing that he "was intimidated and terrified before, during, and after his testimony." TCO at 8.
The Commonwealth also introduced evidence that approximately $2,000 was stolen from Williams' home, and that Appellant's fingerprints were discovered on a money wrapper left behind by the robbers. Additionally, two fired cartridge casings, ejected from the same 9-millimeter semi-automatic pistol, were recovered from the scene. Finally, Gail Floyd, a pedestrian at the scene during the shooting, sustained minor injuries when the bullets fired by Appellant struck a building and sent debris flying towards Ms. Floyd, striking her in the neck and arms. Ms. Floyd declined to go to the hospital to receive treatment for her injuries.
Approximately nine months after the shooting, Appellant was arrested and charged with aggravated assault (of victim Sean Williams), robbery, theft by unlawful taking, PIC, REAP, conspiracy, simple assault (of victim Gail Floyd), carrying a firearm without a license, carrying a firearm on public property in Philadelphia, and persons not to possess a firearm. He proceeded to a jury trial in August of 2012. At the close thereof, Appellant was acquitted of conspiracy and simple assault, but was convicted of the remaining offenses.
On the charge of persons not to possess a firearm, Appellant waived his right to a jury trial and was found guilty of that crime by the trial court.
On November 14, 2012, the trial court imposed the following sentence: 9½ to 19 years' imprisonment for aggravated assault; 9½ to 19 years' imprisonment for robbery; 2½ to 5 years' imprisonment for PIC; 1 to 2 years' imprisonment for REAP; 3½ to 7 years' imprisonment for carrying a firearm without a license; and 5 to 10 years' imprisonment for persons not to possess a firearm. The court imposed each of these sentences to run consecutively, totaling an aggregate term of 31 to 62 years' incarceration.
Appellant's conviction of theft by unlawful taking merged with robbery for sentencing purposes, and the court imposed no further penalty for his conviction of carrying a firearm on public property in Philadelphia.
Appellant filed a timely notice of appeal, as well as a timely concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises two issues for our review:
[(1)] Did the court err in sentencing Appellant to an excessive sentence of 31 to 62 years['] incarceration where [the] court failed to consider rehavbilitative [sic] needs of Appellant?Appellant's Brief at 3 (unnecessary capitalization omitted).
[(2)] Did the trial court err in failing to grant a mistrial where [the] prosecutor used and [sic] analogy of [Appellant's] pointing a gun at the jurors?
Due to our disposition of Appellant's issues, we will begin by addressing his second claim alleging prosecutorial misconduct. Appellant complains about a portion of the prosecutor's closing argument in which she explained the elements of robbery. Specifically, Appellant takes issue with the emphasized language below, which we preface with more of the prosecutor's closing argument for purposes of context:
[The Commonwealth]: As I explained to you in my opening, robbery is when a defendant threatens another with serious bodily injury during the course of committing a theft. ... During the course of committing a theft means that you can find the defendant guilty if you find beyond a reasonable doubt that he did these things either while actually committing a theft,N.T. Trial, 8/30/12, at 145-148.
attempting to commit a theft or while fleeing after either committing a theft or attempting to commit a theft. Now, as I told you before in the example, basically like it says here, before, during or after. I'm going to change it from the example I gave in my opening. This time I'm going to use a bank robbery. A defendant comes into a bank, he comes up to juror number three, points a gun at the juror, says open the vault, juror number three opens the vault, now the defendant goes into the vault by himself and takes all the money. Meanwhile, he puts the gun away as he's stealing the money, the gun is no longer being displayed and juror number three is now in a different location. That's a threat of serious bodily injury before or in an attempt to commit a theft, during. [ sic ] Bank Robbery. [ sic ] Defendant comes into the bank, goes up to juror number five, points a gun at him, says open the vault, holds the gun on juror number five, walks with him together into the vault, juror number five is now in the vault with the defendant, the gun is still pointed at juror number five, the defendant grabs the money with the other hand. Robbery, threats during the theft. Example number three, ... [d]efendant comes into the bank, only juror number ten is present inside the bank, somehow the defendant gets into the vault, stealing the money in the vault, walks out with his bag as he's walking out of the bank juror number ten realizes that the defendant just stole the money out of the vault, goes after the defendant and says, yo, stop, give me the money back, and the defendant at that point pulls out the gun, points to juror number ten, and if we're talking about this case, would actually shoot him.
At this point, Appellant's counsel objected with no further explanation. Id . at 148. The trial court overruled defense counsel's general objection and the prosecutor continued. Id . At the close of the prosecutor's argument, defense counsel made another objection, stating: "[W]hat the Commonwealth did was suggest an example that my client shot juror number ten or shot at juror number ten. That's completely impermissible, my motion is for a mistrial." Id . at 153. The prosecutor responded, arguing that she "never stated the defendant was shooting at anybody[;]" rather, she was referring to an unnamed "bank robber" in her analogy. Id . at 15354. Ultimately, the court denied Appellant's motion for a mistrial, but suggested providing the jury with a curative instruction "that they're not allowed to picture themselves as the victim in the case because it may interfere with their ability to be fair and impartial." Id . at 156. Appellant's counsel stated that he was "okay with that language," the court provided the curative instruction to the jury, and Appellant's counsel made no further objection. Id . at 160.
Appellant now argues that a mistrial was warranted because the prosecutor's analogies "discussed defendant/appellant pointing a gun at three different jurors and actually shooting one of the jurors." Appellant's Brief at 14. Appellant expounds that "[t]he scenario . [the] prosecutor created through her analogy of placing jurors as victims and [Appellant] as the criminal prejudiced the jurors and formed in their minds a fixed bias and hostility towards [A]ppellant so that they could not weigh the evidence objectively and render a true verdict." Id. at 15. He adds that, "the curative instruction could not have remedied the damage that was already done" and, therefore, the court should have granted his motion for a mistrial. Id .
In response, the Commonwealth avers that Appellant has waived this issue. We agree. As the Commonwealth points out, Appellant only specifically objected to the prosecutor's analogy involving juror number ten, thus waiving his current challenges to the analogies involving jurors three and five. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Moreover, because defense counsel stated that he "was okay" with the curative instruction suggested, and then provided, by the trial court, Appellant cannot now contend that that instruction was insufficient. Id .; see also Pa.R.Crim.P. 647(B) ("No portions of the charge nor omissions from the charge may be assigned error, unless specific objections are made thereto before the jury retires to deliberate.").
Nevertheless, we note that even had Appellant not waived this claim, we would conclude that the prosecutor's closing argument did not warrant a mistrial.
The remedy of a mistrial is an extreme remedy required 'only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial tribunal.'
With specific reference to a claim of prosecutorial misconduct in a closing statement, it is well settled that [i]n reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made. Our review of prosecutorial remarks and an allegation of prosecutorial misconduct requires us to evaluate whether a defendant received a fair trial, not a perfect trial.
* * *
It is well settled that a prosecutor has considerable latitude during closing arguments and his arguments are fair if they are supported by the evidence or use inferences that can reasonably be derived from the evidence. Further, prosecutorial misconduct does not take place unless the unavoidable effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed bias and hostility toward the defendant, thus impeding their ability to weigh the evidence objectively and render a true verdict. Prosecutorial misconduct is evaluated under a harmless error standard.Commonwealth v . Hogentogler , 53 A.3d 866, 878 (Pa. Super. 2012) (quoting Commonwealth v. Judy , 978 A.2d 1015, 1019-1020 (Pa. Super. 2009) (citations and internal quotation marks omitted)). In addition,
the trial court is vested with discretion to grant a mistrial whenever the alleged prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial. In making its determination, the court must discern whether misconduct or prejudicial error actually occurred, and if so, ... assess the degree of any resulting prejudice. Our review of the resulting order is constrained to determining whether the court abused its discretion.Id . (citation omitted).
Here, the trial court concluded that a mistrial was not warranted because "[a]t no point during her closing did the prosecutor state that Appellant was the one pointing a gun at the jurors[,]" and because the court gave a curative instruction. TCO at 9. We ascertain no abuse of discretion in the court's decision. The prosecutor began her string of analogies by stating "[a] defendant comes into a bank[,]" indicating that she was referring to an anonymous defendant, rather than Appellant. N.T. Trial, 8/30/12, at 147 (emphasis added). Admittedly, the prosecutor later stated "defendant" or "the defendant" in her analogies, which could have been construed as referring to Appellant. However, the prosecutor utilized a factual scenario so distinct from the facts of Appellant's case that it was reasonable for the court to assume that the jury understood that the prosecutor was referring to an anonymous defendant. While the prosecutor's choice of wording was not ideal, we agree with the trial court that the prosecutor's comments were not so prejudicial as to form in the minds of the jurors "a fixed bias and hostility toward the defendant," especially in light of the court's curative instruction. Hogentogler , 53 A.3d at 878. Accordingly, had Appellant preserved this claim, we would conclude that the court did not err in denying his motion for a mistrial.
In his next issue, Appellant challenges the discretionary aspects of his sentence.
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute. When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before we will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, [that] the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant's [Pa.R.A.P.] 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, inCommonwealth v . Ahmad , 961 A.2d 884, 886-87 (Pa. Super. 2008) (citations, quotation marks and footnote omitted; emphasis in original).
contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.
In the present case, Appellant has included a Rule 2119(f) statement averring that his aggregate sentence of 31 to 62 years "was manifestly unreasonable" because "[t]he court failed to take into consideration that Appellant's prior record score was mostly attributed to his criminal conduct as a juvenile[,]" and "[t]he court's sentence failed to take into account the rehabilitative needs of Appellant in violation of 42 Pa.C.S. § 9721(b)...." Appellant's Brief at 8 (unnecessary capitalization omitted). Additionally, Appellant maintains that "[t]he court's sentence was manifestly unreasonable pursuant to 42 Pa.C.S.A. [§] 9781(d)(1) [and] (3) as the consecuti[v]e sentences violated the Sentencing Code and guidelines as being unfair and unduly harsh for [the] crimes that were committed." Id . (unnecessary capitalization omitted).
We conclude that Appellant's assertion that the court failed to consider his rehabilitative needs raises a substantial question for our review. See Commonwealth v . Fullin , 892 A.2d 843 (Pa. Super. 2006) (finding the appellant's claim that the trial court failed to consider the factors set forth in 42 Pa.C.S. § 9721(b) raised a substantial question). Additionally, in light of Appellant's lengthy term of imprisonment, we also conclude that he has presented a substantial question by arguing that the court's imposition of consecutive sentences raised his aggregate term of incarceration to an excessive level when considering the criminal conduct Appellant committed. See Commonwealth v . Gonzalez-Dejusus , 994 A.2d 595, 598-99 (Pa. Super. 2010) ("[I]n our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case."); see also Commonwealth v. Coulverson , 34 A.3d 135, 143 (Pa. Super. 2011) (finding a substantial question where the appellant claimed that his 90-year maximum sentence was manifestly excessive because it "took no account of his rehabilitative needs and is disproportionate to the circumstances when adjudged as a whole").
In assessing Appellant's sentencing challenge, we are mindful of the following:
Sentencing is a matter vested in the sound discretion of the trial court and the lower court's judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime.Commonwealth v. Clever , 576 A.2d 1108, 1110 (Pa. Super. 1990) (citations omitted).
Initially, we disagree with Appellant that the court failed to consider his rehabilitative needs in fashioning his sentence. As Appellant acknowledges, the Commonwealth informed the court that Appellant, who was 22 years' old at the time of the shooting, had been arrested nine times between the ages of 13 and 23 for offenses such as burglary, stealing cars, and selling controlled substances. N.T. Sentencing, 11/14/12, at 18. The Commonwealth also emphasized that Appellant had been committed to three different juvenile facilities, yet continued to commit crimes. Id . at 21. Appellant also had multiple disciplinary infractions while incarcerated pending the trial in this case. Id . at 14-18. Based on these circumstances, the Commonwealth argued that Appellant "clearly [] has had an opportunity to be rehabilitated and it has not worked." Id . at 21. The trial court agreed, stating that it did not think Appellant was amenable to rehabilitation, and that he did not "seem [to] . want to be rehabilitated." Id . at 45. Based on this record, we conclude that the court adequately considered Appellant's rehabilitative needs.
While Appellant claims in his Rule 2119(f) statement that the court gave too much weight to his prior convictions because many of them were committed when Appellant was a juvenile, he does not expound on this assertion in the argument portion of his brief.
--------
Appellant also argues that the court imposed a sentence that was unduly harsh in light of the crimes that he committed. He avers that the record indicates that "[a]lthough [A]ppellant did not kill someone[,] he was sentenced as though he did kill someone." Appellant's Brief at 12. In support of this assertion, Appellant emphasizes the following statements by the court prior to its imposing his sentence:
[The Court]: Thank you, [Appellant]. I appreciate your comments and actually your comments were insightful, introspective, intelligent. They were compelling, persuasive, charming at times. You're a fierce advocate. You have some positive qualities that came through in your statement. I don't think you're a monster. I really don't. I think you're misguided. And it sounds like you did have a difficult background and I understand that. But my concern and I agree with almost everything the Commonwealth said, almost all of her arguments. My concern is that you were basically completely unconcerned about the safety of people on the street, possible children in the area at 4:30 in the afternoon on a summer day, gun play, shooting a gun on the street. You could have killed someone. But for the grace of God that no one was killed. It's amazing that this is not in the homicide room. And what's so compelling for me is that I don't think you really understand that. What's shocking is that you really are an intelligent person. I believe that and you're so articulate and eloquent and compelling in many regards, but for you to do what you did is unthinkable without any regard for who you could have injured. Look at Ms. Floyd, if she had moved her head, if she had sneezed she could have been paralyzed, killed, anything could have happened to her. But for the grace of God that no one is dead and that we're here in this situation and I don't think you fully get that.N.T. Sentencing, 11/14/12, at 43-44 (emphasis added). According to Appellant, language such as that emphasized above indicates that the punishment he received did not fit the crimes he actually committed; instead, his sentence "fit the crime that could have been committed but for the grace of God." Appellant's Brief at 12 (emphasis added).
We are compelled to agree. While certainly Appellant's conduct could have resulted in death or serious bodily injury, the reality is that it did not. Nevertheless, the court imposed a sentence befitting a murderer. With Appellant's maximum term of imprisonment set at 62 years, it is possible that he will remain incarcerated until he is 84 years old, thus effectively amounting to a life sentence. In fashioning this term, the court stated that it "agree[d] with almost everything the Commonwealth said[,]" and wholly adopted the Commonwealth's recommendation that Appellant receive a sentence of 31 to 62 years' imprisonment. N.T. Sentencing Hearing, 11/14/12, at 43. The thrust of the Commonwealth's position in seeking such a lengthy term was that Appellant was not amenable to rehabilitation and, thus, "the main thing we have to look to is protecting the public from this defendant." Id . at 22. Curiously, however, prior to trial, the Commonwealth offered Appellant a plea deal encompassing a sentence of 3½ to 7 years' incarceration. The Commonwealth did not explain why prior to trial, it believed that a 3½ to 7 year sentence was adequate to protect the public, but after Appellant exercised his constitutional right to be tried by a jury of his peers, a sentence of 31 to 62 years' imprisonment was necessary for public safety.
In sum, a trial court's sentence must 'fit the crime' or, in other words, must be proportionate to the offenses that actually occurred, not to the possible outcomes that could have resulted. Here, Appellant's sentence is disproportionate to the criminal conduct he committed and, therefore, we are constrained to deem it clearly unreasonable. Consequently, we vacate Appellant's judgment of sentence and remand for resentencing. See Coulverson , 34 A.3d at 146 (stating that 42 Pa.C.S. § 9781(c) "defines three instances in which an appellate court should vacate a sentence and remand[,]" one of which is where "the sentence falls within the guidelines, but is 'clearly unreasonable' based on the circumstances of the case").
Judgment of sentence vacated. Case remanded for further proceedings. Jurisdiction relinquished.
Judge Shogan files a concurring and dissenting memorandum. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary