Opinion
254 EDA 2024
08-29-2024
COMMONWEALTH OF PENNSYLVANIA v. TYRONE WISE Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered September 8, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008607-2022
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., McLAUGHLIN, J., and BECK, J.
MEMORANDUM
BOWES, J.
Tyrone Wise appeals from the aggregate judgment of sentence of five to ten years of imprisonment imposed on his convictions for aggravated assault, conspiracy, and other crimes. We affirm.
The history of this case is as follows. Appellant and his wife, Amber Palmer ("Co-defendant"), resided in a row house next door to Maureen Osbourne and her adult son, Matthew Owens. On September 7, 2022, an unidentified man who came to visit Appellant exchanged hostilities with Ms. Osbourne on his way into Appellant's home. Co-defendant thereafter knocked on Ms. Osbourne's porch door and cursed at her. Mr. Owens came outside when he heard his mother arguing with Co-defendant. Thereafter, Co-defendant proceeded to hurl homophobic slurs at Mr. Owens, including making references to his "fake and synthetic" hair and threatening that "she will get [his] hair pulled out," to which he responded by mocking her headscarf and hijab. See N.T. Trial, 7/3/23, at 58, 75. Co-defendant informed Mr. Owens that "she don't fight fagots [sic]" but she "had somebody to beat [his] fagot [sic] ass up." Id. at 59-60. Co-defendant then "went calling for [Appellant and the visitor] in the house." Id. at 60. Appellant, Co-defendant, and the visitor came outside and, while Co-defendant watched, the men proceeded to assault Mr. Owens, punching him in the face and head, dragging him to and along the ground by his hair, and kicking him in the head and torso. Id. Ms. Osbourne attempted to shield her son from the attack, but the men persisted for a while until they stopped and went back into Appellant's house. Mr. Owens was taken by ambulance to the hospital, where he was diagnosed with a fractured rib and lung injury. Id. at 64.
Co-defendant was asked at trial to identify the visitor, but she would not.
Appellant was arrested and charged with aggravated assault, conspiracy to commit aggravated assault, an additional conspiracy count, and two counts each of recklessly endangering another person ("REAP") and simple assault.He proceeded to a joint bench trial with Co-defendant at which he was convicted of one count each of aggravated assault, conspiracy to commit aggravated assault, and of REAP and simple assault, with the rest of the counts either being nolle prossed or resulting in acquittals. Following a pre-sentence investigation ("PSI") and mental health evaluation, the trial court sentenced Appellant on September 8, 2023, to an aggregate term of five to ten years.
A charge of terroristic threats was disposed of before trial.
Co-defendant was convicted of terroristic threats and conspiracy to commit aggravated assault. She did not appeal from her judgment of sentence.
Appellant filed timely post-sentence motions asserting, inter alia, that his sentence was unduly excessive and improperly based in part on Co-defendant's hate speech uttered outside Appellant's presence. The motions were denied by operation of law by order of January 8, 2024, and Appellant timely appealed. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and he complied, after which the court authored a Rule 1925(a) opinion.
Appellant presents one claim on appeal: "Did the lower court abuse its discretion and violate the Sentencing Code by sentencing [A]ppellant to a manifestly excessive aggregate sentence of [five to ten] years?" Appellant's brief at 4-5. This is a challenge is to the discretionary aspects of his sentence. Thus, the following legal principles govern our initial consideration of his claim:
An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect [pursuant to] 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.Commonwealth v. Lucky, 229 A.3d 657, 663-64 (Pa.Super. 2020) (cleaned up).
Appellant filed a timely notice of appeal, preserved his issues in a timely post-sentence motion, and included a Rule 2119(f) statement in his brief. Therein, he asserts that the trial court imposed a manifestly excessive sentence that was improperly premised upon "hate speech uttered outside of Appellant's presence where Appellant never exhibited any bias towards the victim, but was instead responding to the victim hurling insults at Appellant's wife, the basis of said insults being her religious attire." Appellant's brief at 6-7. We conclude that Appellant has raised a substantial question that triggers our review of the substance of his claim. See Commonwealth v. Downing, 990 A.2d 788, 792 (Pa.Super. 2010) (holding claim that the trial court relied on an improper factor presented a substantial question).
The following law pertains to the merits of Appellant's challenge:
Appellant must demonstrate that the sentencing court abused its discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, 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.Solomon, 247 A.3d 1163, 1168 (Pa.Super. 2021) (cleaned up). Furthermore, where, as here, the trial court has the benefit of a PSI report, "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. Torres, 303 A.3d 1058, 1065 (Pa.Super. 2023) (cleaned up). "We cannot re-weigh the sentencing factors and impose our judgment in the place of the sentencing court." Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
While it is broad, "the trial court's discretion is not unfettered." Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011). 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. § 9721(b). "When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant's prior criminal record, age, personal characteristics and potential for rehabilitation." Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa.Super. 2022) (cleaned up). Finally, "[t]he general rule in Pennsylvania is that in imposing a sentence, the court has discretion whether to make it concurrent with or consecutive to other sentences then being imposed or other sentences previously imposed." Commonwealth v. Morrobel, 311 A.3d 1153, 1157 (Pa.Super. 2024) (cleaned up).
Appellant's aggregate sentence of five to ten years of imprisonment is composed of consecutive, standard-range sentences of four to eight years for aggravated assault and one to two years for conspiracy, with no further penalty for the other convictions. The trial court addressed Appellant's sentencing claim as follows:
Appellant's guidelines were comprised of a prior record score of [two] and an offense gravity score of [ten], producing a recommended minimum sentence of [thirty-six] to [forty-eight] months, plus or minus [twelve] months. The court issued an aggregate sentence of [five] to [ten] years [of] state incarceration for aggravated assault ([four to eight]) and conspiracy ([one to two]). The court's sentence was neither illegal nor manifestly excessive as it was strictly within the recommended guidelines for each of the counts of which Appellant was convicted.
Appellant's PSI detailed his adult record, which included [eight] arrests, [five] convictions, [one] violation, and no commitments. Additionally, Appellant had two open bills, one of which contains the following charges: unlawful restraint/serious bodily injury, simple assault, and [REAP]. The court expressed concerns because the case centered around hate speech. It was an act of violence directed against Mr. Owens based on his sexual orientation. The testimony of both witnesses revealed [Co-defendant] made multiple homophobic comments to Mr. Owens: "I got a real man for you," "I don't fight faggots," and "I got someone to beat your faggot ass up," prior to the attack. Appellant's conduct in assaulting Mr. Owens was in furtherance of this shared hostility.
Animosity aside, the court also weighed the nature of the attack and the emotional and physical impact on Mr. Owens and Ms. Osbourne. The court considered that Mr. Owens was unable to defend himself against two men. Mr. Owens sustained serious physical injuries including a lacerated lung and broken ribs, amongst other injuries. Additionally, Ms. Osbourne was
emotionally affected witnessing her son's physical assault to the point where she placed her own body at risk to protect him. Both Ms. Osbourne and Mr. Owens were forced to relocate from their lifetime family home out of fear from this incident.
In this matter, the court considered the sentencing recommendations of both parties and carefully followed the sentencing guidelines. The court offered sufficient, valid reasons for imposing its sentence. The court issued an aggravated [sic sentence within the guidelines with an order to complete anger management. Based upon careful consideration of all information provided, the court appropriately sentenced Appellant and the claim for relief is without merit.Trial Court Opinion, 4/19/24, at 10-12 (cleaned up).
While the trial court opinion twice references Appellant's "aggravated" sentence, it otherwise correctly indicates that the individual sentences were within the standard range of the guidelines. However, Appellant acknowledged in his post-sentence motion that the aggravated assault sentence was at "the top end" of the applicable guidelines of thirty-six to forty-eight months. See Post-Sentence Motion, 9/13/23, at ¶ 6. Furthermore, the sentence of twelve to twenty-four months for conspiracy was in the mitigated range. Id. at ¶ 5(b) (indicating the minimum standard range guideline sentence for conspiracy was twenty-four to thirty-six months, plus or minus twelve months). Hence, neither of Appellant's sentences was aggravated.
Appellant's argument that the trial court deviated from sentencing norms in imposing his sentence is as follows:
The trial court held during sentencing that "I do believe this incident was a hate crime and the motivations - those were the motivations underlying this incident." The problem with this determination is that it is directly contradicted by the evidence as it relates to Appellant. Appellant was inside his house during the time that [Co-defendant] was hurling homophobic slurs at Mr. Owens. Appellant only came outside after Mr. Owens yelled anti-Islamic derogatory insults back at [Co-defendant].
Although the sentencing court stated that it considered other factors, such as the extent of the victim's injuries, the fact cannot be ignored that the sentencing court focused much of its
time on the hate speech uttered by [Co-defendant]. And while this speech is obviously an appropriate consideration regarding [her] sentence, justice is denied where one person's hate speech uttered outside the presence of another is then used to justify a sentence of that other person. Thus, for all these reasons, the lower court's sentence of [five to ten] years is manifestly disproportionate, excessive, and unreasonable. This Court should vacate and remand the matter for a new sentencing hearing.Appellant's brief at 8-9 (citations omitted).
We disagree, concluding the trial court's inference that Appellant shared Co-defendant's bigoted motivation is supported by the evidence. As recounted above, Mr. Owens testified that, after disparaging him based upon his perceived sexuality, with particular reference to his hair, Co-defendant went into her house to retrieve Appellant and the unidentified visitor, who then immediately commenced the beating that Co-defendant promised, pulling Mr. Owens down by his hair and dragging him along the ground thereby. The trial court was free to credit that testimony, and to reasonably infer therefrom that Appellant's assault was premised upon, and undertaken in furtherance of, his co-conspirator Co-defendant's expressed homophobic animus.
Further, the decision of the trial court to impose a consecutive sentence for the conspiracy conviction was not an abuse of discretion. The crime of conspiracy is distinct from the underlying substantive crime of aggravated assault, and the harm that Appellant was able to cause was obviously enhanced by his joining with another co-conspirator to overwhelm his victim. See Commonwealth v. Jacquez, 113 A.3d 834, 838 (Pa.Super. 2015) ("The crime of conspiracy is separate and distinct from the underlying substantive crime." (cleaned up)). He is entitled to no volume discount on his separate crimes. See, e.g., Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011).
Accordingly, Appellant has not persuaded us that, in sentencing him, the trial 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." Solomon, 247 A.3d at 1168 (cleaned up). Thus, we have no basis to disturb that sentence.
Judgment of sentence affirmed.
Judgment Entered.