Com. v. MOURY

992 A.2d 162

COMMONWEALTH of Pennsylvania, Appellee v. Clinton Oliver MOURY, Appellant.

No. 158 EDA 2009.

Superior Court of Pennsylvania.

Argued January 13, 2010.

Filed March 24, 2010.

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Karen M. Oill Moury, Harrisburg, for appellant.

Megan K. Kampf, Asst. Dist. Atty., for Com., appellee.

BEFORE: BOWES, GANTMAN, and KELLY, JJ.

OPINION BY GANTMAN, J.:

¶ 1 Appellant, Clinton Oliver Moury, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for two (2) counts of discharge of a firearm into an occupied structure,¹ carrying a firearm without a license,² possession of an instrument of crime with intent ("PIC"),³ two (2) counts of driving under the influence ("DUI"),⁴ six (6) counts of recklessly endangering another person ("REAP"),⁵ accidental damage to unattended vehicle or property,⁶ and two (2) counts of criminal conspiracy.⁷ We affirm.

¶ 2 The court summarized the relevant facts and procedural history of this case as follows:

The instant matter arises out of a shooting spree wherein Appellant and an accomplice, Anthony Bressi, drunkenly drove the roads of Chester County on the night of November 2, 2007, discharging pistol shots into road signs and occupied residences. On that night, State Police, responding to reports of gunfire, were dispatched to Westminster Drive in West Bradford Township. In the course of investigating the incident, Pennsylvania State Trooper Robert Duffy initiated a traffic stop on the Jeep Wrangler owned and operated by Appellant. Owing to a strong odor of alcohol emanating from the passenger compartment, Trooper Duffy administered a breath sobriety test on Appellant that tested positive for alcohol. During the course of the traffic stop, two pistols were recovered from the jeep's rear seat: a .45 caliber Ruger semi-automatic and a .357 caliber Taurus revolver. Appellant was transported to Chester County Hospital where blood was drawn, later testing of which would reveal the presence of alcohol. Appellant later testified that he was the owner of the Ruger pistol. Neither Appellant nor Bressi held permits to carry a firearm. During the course of the investigation conducted by the State police, it became clear that two residences on the 1300 block of Westminster Drive in West Bradford Township had been struck by bullets on the night of November 2, 2007. Both houses were occupied at the time of the shootings, in the case of 1345 Westminster Drive, two persons, including a three-year old child were present, in the house at 1341 Westminster, four persons were present, including a six-year old child with autism. A single embedded bullet was recovered from the interior of the home at 1341 Westminster Drive.

On the night of the shootings, Bressi gave a voluntary statement to the investigating troopers wherein he admitted to firing the .357 revolver while a passenger in Appellant's car, and said that Appellant fired his own .45 semi-automatic from the driver's position. Bressi said that the pair intended to shoot at road signs, but could not identify what the pair fired at, other than to acknowledge that they fired at targets outside the car. Appellant testified at trial that Bressi fired both guns on the night in question—his own .357 at a stop sign whose location Appellant could not independently recall, and Appellant's .45 semi-automatic into the air.

(Trial Court Opinion, dated July 13, 2009, at 1-2). Mr. Bressi pled guilty and was sentenced pursuant to a negotiated plea agreement. Significantly, the Commonwealth offered the same plea deal to Appellant, which he rejected in favor of a jury trial.

¶ 3 From September 30 to October 3, 2008, the court held a jury trial. On October 3, 2008, the jury found Appellant guilty of discharging a firearm into an occupied structure, REAP, the DUI offenses, PIC, criminal conspiracy, and the firearm offense. On November 18, 2008, the court sentenced Appellant to two (2) to four (4) years incarceration for the first count of discharge of a firearm into an occupied structure, a consecutive sentence of one (1) to three (3) years incarceration for the second count of discharge of a firearm into an occupied structure; five (5) years probation on each PIC, firearms, and conspiracy charge, running concurrently to each other, but consecutive to the term of incarceration; and two (2) years probation for all of the six (6) counts of REAP, running concurrently to each other, but consecutively to the five (5) year probationary term. Appellant's aggregate sentence was three (3) to six (6) years of incarceration, followed by seven (7) years of probation.

¶ 4 On Monday, December 1, 2008, Appellant timely filed a post-sentence motion for modification of sentence. On December 2, 2008, the court denied Appellant's post-sentence motion. On December 31, 2008, Appellant filed a notice of appeal. On January 5, 2009, the court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b), which Appellant timely filed on January 28, 2009.

¶ 5 Appellant raises three issues for our review:

DID THE SENTENCING COURT COMMIT REVERSIBLE ERROR AND ABUSE ITS DISCRETION BY VIOLATING FUNDAMENTAL NORMS THAT UNDERLIE THE SENTENCING PROCESS WHEN IT SENTENCED APPELLANT TO AN EXCESSIVE SENTENCE OF 3 TO 6 YEARS, FOLLOWED BY 7 YEARS OF PROBATION, BASED ON A DESIRE TO PUNISH APPELLANT FOR EXERCISING HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL?

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO GRANT A MISTRIAL WHEN CORPORAL DAVID KENNEDY TESTIFIED BEFORE THE JURY THAT APPELLANT HAD EXERCISED HIS CONSTITUTIONAL RIGHTS TO REMAIN SILENT FOLLOWING HIS ARREST AND TO BE REPRESENTED BY COUNSEL PRIOR TO ULTIMATELY GIVING A STATEMENT TO THE POLICE?

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR DURING DELIVERY OF THE JURY INSTRUCTIONS BY PLACING UNDUE EMPHASIS ON ACCOMPLICE LIABILITY, DEPARTING FROM THE STANDARD INSTRUCTIONS AND PROVIDING AN INACCURATE AND MISLEADING SUMMARY OF THE EVIDENCE IN AN APPARENT ATTEMPT TO DIRECT A GUILTY VERDICT ON THE FELONY CHARGES?

(Appellant's Brief at 4).

¶ 6 In his first issue, Appellant argues the court was biased and expressed ill-will towards Appellant through the judgment of sentence, because Appellant had exercised his right to a jury trial. Appellant maintains he should have received a lighter sentence than his codefendant, where Appellant was the accomplice in their crimes, had no prior record, and expressed genuine remorse. Because Appellant chose to proceed to trial while his co-defendant accepted a plea deal, Appellant is convinced the court was angry and sentenced Appellant to a much greater period of incarceration and probation. Appellant concludes the sentencing court's decision to impose such a harsh sentence on Appellant was unrelated to Appellant's actual convictions and amounted to "judicial vindictiveness due to Appellant exercising his constitutional right to a jury trial," and therefore constituted a "manifest abuse of discretion." (Appellant's Brief at 14).

¶ 7 Appellant concedes his minimum sentence is within the standard range of the sentencing guidelines on each count of discharge of a firearm into an occupied structure. Appellant further concedes the Sentencing Commission assigned this offense an offense gravity score of ten (10). Nonetheless, he argues the Sentencing Commission intended this offense gravity score to apply only to cases where a defendant intentionally fires a gun at an occupied structure. Appellant contends the fundamental norms underlying the Sentencing Code and our Supreme Court's decision in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), obligate a court to weigh the individual circumstances of a criminal defendant and modify the sentence to reflect the defendant's degree of culpability. According to Appellant, logic and justice should have compelled the sentencing court to consider the guidelines applicable to offenses with an offense gravity score of five (5) when determining his sentence because Appellant was no more than reckless and not a violent offender. Therefore, the court abused its discretion in strictly applying the guidelines to Appellant under the particular circumstances of this case.

¶ 8 Next, Appellant argues the court's imposition of consecutive sentences for each count of discharge of a firearm into an occupied structure was consistent with the court's "desired result to `warehouse' him by imposing two sentences at the lower end of the guidelines range, to be run consecutively." (Appellant's Brief at 27). Appellant contends this Court's decisions in Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super.2004), appeal granted and order vacated, 594 Pa. 345, 935 A.2d 1290 (2007) ("Dodge I") and following remand for reconsideration in Commonwealth v. Dodge 957 A.2d 1198 (Pa.Super.2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) ("Dodge II"), stand for the proposition that it is an abuse of discretion for a court to impose consecutive sentences "for convictions arising from the same criminal activity" if the court makes only a "rather cursory explanation and other factors fail to justify the result." (Appellant's Brief at 28). Appellant asserts the court's explanation for imposing consecutive sentences was insufficient, given Appellant's lack of a prior criminal record, genuine remorse for his actions, payment of full restitution to the victims, and the lack of any bodily injury to the victims. Appellant also maintains his role in the criminal conduct is relevant to the length of the sentence and insists the court's imposition of consecutive sentences was improper because he was merely the accomplice. Appellant concludes this Court should vacate the judgment of sentence and remand the case for resentencing.⁸ Appellant's claims challenge the discretionary aspects of sentencing.

¶ 9 Our...