Opinion
J-S70034-16 No. 238 EDA 2016
10-19-2016
COMMONWEALTH OF PENNSYLVANIA v. GARY DAVIS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 18, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0002634-2013 BEFORE: OLSON, OTT and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Gary Davis ("Davis") appeals the judgment of sentence imposed following his conviction of murder of the third degree and possessing an instrument of crime. We affirm.
See 18 Pa.C.S.A. §§ 2502(c), 907(a). Although Davis was convicted of additional related offenses, he does not challenge those convictions in this appeal.
In its Opinion, the trial court set forth in detail the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 3/4/16, at 2-21.
On appeal, Davis raises the following issues for our review:
I. Did the lower court err in permitting the Commonwealth to introduce evidence that members of [Davis's] and [Irving Vaughn's ("Vaughn")] families were involved in an ongoing dispute arising out of alleged drug dealing activities[,] where this evidence failed to satisfy the admissibility requirements of Pa.R.E. 403 and 404?
II. Was the evidence sufficient to support [Davis's] convictions for third-degree murder and possessing an instrument of crime[,] where the Commonwealth failed to prove beyond a reasonable doubt that [Davis] did not justifiably act in self-defense at the time of the shooting?Brief for Appellant at 5 (capitalization omitted).
III. Did the lower court abuse its discretion in sentencing [Davis] to a manifestly excessive aggregate sentence of 30 to 60 years imprisonment[,] where the court based its sentence solely on the seriousness of the offense and its impact on [Vaughn's] family[,] and failed to consider all relevant sentencing factors, including [Davis's] serious mental health issues, lack of a criminal record for violent offenses, and his expressions of remorse?
In his first issue, Davis contends that the trial court erred by ruling that the Commonwealth could elicit testimony at trial that Davis and Vaughn were members of rival drug dealing groups. Id. at 11. Davis points to the trial court's determination that the evidence was admissible because "[Davis's] motive to kill Vaughn grew out of the longstanding hostility and prior acts of violence resulting from drug dealing between the two families ... much as it would have been had [Davis] and Vaughn simply been in more formal gang organizations." Id. at 13 (citing Trial Court Opinion, 3/4/16, at 25). Davis asserts that none of the evidence introduced at trial supports this theory. Brief for Appellant at 13. Davis points to the testimony of LeShay Hague ("Hague"), a cousin of Davis and a friend of Vaughn, that she did not sense any tension between the two men and that they "[didn't] have no beef." Id. (citing N.T., 2/11/15, at 168). Davis also points to his own testimony that he was not involved in any dispute with Vaughn or Vaughn's family over drug-dealing territory. Brief for Appellant at 13. Based on this evidence, Davis argues, "there was no logical connection between [his] drug dealing activities and the shooting of [] Vaughn, and the contested evidence should have been deemed inadmissible." Id.
Davis contends that "the evidence was introduced solely to show his propensity for criminal activity and to invite the jury to speculate that[,] because he was involved in drug trafficking activity, he must be guilty of the charged crimes." Id. at 15. Davis asserts that such a basis for admissibility is prohibited by Pa.R.E. 404(b). Brief for Appellant at 15. Additionally, Davis claims that "the potential for unfair prejudice resulting from the admission of the evidence was high, as the trial court failed to instruct the jury on how to properly consider evidence of [Davis's] drug trafficking activity." Id. Davis argues that, rather than instructing the jury to consider the evidence as probative of the issue of motive, the trial court told the jury "only to consider the evidence as proof that [Davis] was selling drugs on the night of the shooting." Id. at 16.
The trial court set forth the relevant law, addressed Davis's first issue, and concluded that it lacks merit. See Trial Court Opinion, 3/4/16, at 22-26. We agree with the reasoning of the trial court and affirm on this basis as to Davis's first issue. See id.
In his second issue, Davis contends that his convictions for third-degree murder and possessing an instrument of crime cannot stand because the Commonwealth failed to establish beyond a reasonable doubt that he did not act in self-defense during the confrontation with Vaughn. See Brief for Appellant at 17, 19-21. Davis maintains that he shot Vaughn in self-defense after unsuccessfully attempting to leave the restroom, and after Vaughn had pinned him against a wall. Id. at 17. Davis asserts that, as Vaughn was reaching for his gun, Davis noticed that Vaughn had a second gun, which Davis then grabbed and used to shoot Vaughn. Id. at 21. Davis claims that his "account of the incident dovetailed with the statement of [] Hague, who told Detective [Gregory] Santamala that ...[w]hen the bathroom door flew open, [] Hague looked inside and saw [] Vaughn had [Davis] 'grabbed up by his collar in the corner of the bathroom, and he was reaching in his waistband for a gun.'" Id. at 21-22 (citing N.T., 2/12/15, at 23). Davis argues that the trial court erred by relying on the testimony of Albert Chu, M.D., an assistant medical examiner, that Vaughn would have been immediately paralyzed by the initial gunshot to the back of his neck, and that Davis's further use of deadly force against Vaughn was not necessary due to Vaughn's paralysis. Id. at 22. Davis contends that a claim of self-defense cannot be defeated "by showing that he delivered more blows than necessary as long as he was in the heat of conflict and reasonably believed he was fighting for his life." Id. (citing Commonwealth v. Fisher , 420 A.2d 427 (Pa. 1980)). According to Davis, Vaughn's provocation and the circumstances surrounding the altercation must also be considered when determining whether Davis's belief as to the amount of force used was justified. Brief for Appellant at 24; see also id. (wherein Davis emphasizes that he was unarmed, had unsuccessfully tried to leave the bathroom, was being held by the neck by Vaughn, Vaughn was reaching for his gun, and that Davis fired the gunshots in rapid succession after managing to get a hold of Vaughn's second gun).
The trial court set forth the relevant law, addressed Davis's second issue, and concluded that it lacks merit. See Trial Court Opinion, 3/4/16, at 28-32. We agree with the reasoning of the trial court and affirm on this basis as to Davis's second issue. See id.
In his third claim, Davis contends that the trial court abused its discretion by sentencing him to an aggregate sentence of 30 to 60 years in prison based "solely on the seriousness of the crime and the impact on [Vaughn's] family, while ignoring substantial evidence that would have supported the imposition of a mitigated sentence." Brief for Appellant at 27.
Davis challenges the discretionary aspects of his sentence. "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] 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, [ see ] 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, [ see ] 42 Pa.C.S.A. § 9781(b).Moury , 992 A.2d at 170 (citation omitted).
The determination of whether a particular issue constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Roden , 730 A.2d 995, 997 (Pa. Super. 1999). However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge's actions were (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Id.
In the instant case, Davis filed a timely Notice of Appeal. However, Davis preserved only a limited number of claims in his timely post-sentence Motion; namely, whether the trial court, in fashioning Davis's sentence, did not adequately consider (1) his history of mental illness; (2) that he acted under strong provocation; and (3) his lack of a criminal record for violent offenses. See Motion for Reconsideration of Sentence, 8/27/15, at 1-2. Although Davis included in his appellate brief a separate Rule 2119(f) statement, the only claims that were raised in that statement, which were also included in his post-trial Motion, were his claims that the trial court, in fashioning his sentence, failed to consider (1) his psychiatric history; and (2) lack of a history for violent crimes. See Brief for Appellant at 26. As such, Davis is in technical compliance with the requirements to challenge the discretionary aspects of a sentence with regard to these latter two claims. Commonwealth v. Rhoades , 8 A.3d 912, 916 (Pa. Super. 2010). Thus, we will proceed to determine whether these two claims present a substantial question for our review.
To the extent that Davis attempts to raise additional discretionary aspects claims for the first time on appeal, we decline to review them. See Commonwealth v. Kennedy , 868 A.2d 582, 593 (Pa. Super. 2005) (declining to address the merits of the appellant's challenges to the discretionary aspects of his sentence where such challenges were not specifically preserved in his motion to modify sentence).
Davis first argues that the trial court failed to adequately consider his mental health issues. See Brief for Appellant at 29 (noting his difficult childhood, psychological problems, anger management issues and manic depression). Notably, Davis does not allege that the trial court was unaware of his mental health issues. Indeed, Davis indicates that, at the sentencing hearing, his counsel "highlighted [Davis's] lengthy history of documented mental health issues, including childhood depression and manifestations of bipolar disorder." Id. at 28.
This Court has held on numerous occasions that a claim of inadequate consideration of mental health issues does not raise a substantial question for our review. See Commonwealth v. Haynes , 125 A.3d 800, 807 (Pa. Super. 2015); see also Commonwealth v. Diaz , 867 A.2d 1285, 1287 (Pa. Super. 2005) (noting that, although "[m]ental illness is clearly a factor that may be considered in sentencing ... it does not mandate a modification or reduction in any sentence that would or could be imposed.").
Moreover, the trial court had the benefit of a pre-sentence investigation report ("PSI"). See Trial Court Opinion, 3/4/16, at 35. Where a sentencing court is informed by a PSI, "it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (citing Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988)). Thus, we conclude that this claim fails to present a substantial question for review.
Davis also claims that the trial court failed to adequately consider that, prior to the incident in question, he had never been convicted of a crime of violence. Brief for Appellant at 29.
As noted above, a claim that a sentencing court failed to consider or did not adequately consider certain mitigating factors does not raise a substantial question that the standard-range sentence was inappropriate. See Commonwealth v. Lewis , 911 A.2d 558, 567 (Pa. Super. 2006); see also Ventura , supra. Thus, we conclude that this claim fails to present a substantial question for review. Accordingly, we cannot address Davis's sentencing claim.
Notably, with regard to his discretionary aspects of sentencing claim, Davis has not raised an issue that his sentence is "(1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Roden , 730 A.2d at 997.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/19/2016
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