Commonwealth v. Brentley

1

COMMONWEALTH OF PENNSYLVANIA v. DAEJON BRENTLEY Appellant

No. 787 WDA 2022

No. J-S14022-23

Superior Court of Pennsylvania

July 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered May 9, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003619-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J. ^[*]

MEMORANDUM

BENDER, P.J.E.

Appellant Daejon Brentley, appeals from the trial court's May 9 2022 judgment of sentence of 6-12 years' imprisonment, imposed after he pled guilty to voluntary manslaughter, 18 Pa.C.S. § 2503(b), and firearms not to be carried without a license, 18 Pa.C.S. § 6106(a)(1). We affirm.

The trial court summarized the background of this matter as follows:

On May 11, 2020[,] at approximately 6:27 p.m., City of Pittsburgh Bureau of Police [O]fficers were called to the scene of a shooting on McKinley Street in the Knoxville section of the City of Pittsburgh. The victim, Garrett King, was found at the scene in critical condition. He was transported to the hospital and was eventually pronounced dead. The cause of his death was multiple gunshot[] wounds to the torso and extremities. Surveillance video disclosed that a gold sedan stopped in the middle of McKinley Street. Three occupants of the sedan exited the vehicle and one of the occupants, [Appellant], began firing shots into the driver's compartment of a nearly black sports utility vehicle. The three occupants got back in the sedan and fled the area. The victim was observed crawling out of the SUV and collapsing on the sidewalk. At the time of the shooting, [Appellant] was 19 years old and therefore not legally permitted to obtain a license to carry a firearm in a vehicle or concealed on his person. However, the record before this [c]ourt indicates that the victim had made threats of violence against [Appellant's] family and [Appellant] perceived a direct threat from the victim at the time he shot him. As the guilty plea indicates, however, [Appellant] was not justified in shooting the victim.

Trial Court Opinion ("TCO"), 12/2/22, at 1-2.

Following Appellant's guilty plea, the trial court sentenced him to the above-stated term of incarceration. Thereafter, Appellant filed a timely post-sentence motion, which the trial court denied. Appellant subsequently filed a timely notice of appeal, and timely complied with the trial court's instruction to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court then issued a Rule 1925(a) opinion.

On appeal, Appellant raises one issue for our review:

Whether the [t]rial [c]ourt abused its discretion in sentencing [Appellant]?

Appellant's Brief at 3.

Appellant argues that the trial court failed to properly consider all the statutory factors set forth in 42 Pa.C.S. § 9721(b) and 42 Pa.C.S. § 9781(d). Appellant's Brief at 14.^[1] In particular, he claims that the trial court "imposed its sentence on [Appellant] due solely to the nature of the crime and that the … [c]ourt failed to refer to any other statutory considerations when fashioning the sentence." Id.

Appellant's issue implicates 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. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether [the] 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 [the] appellant's brief has a fatal defect, 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, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.] 2003).

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra, supra at 912-13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, the record reflects that Appellant filed a timely notice of appeal and included a Rule 2119(f) statement in his appellate brief in compliance with our Rules of Appellate Procedure. Additionally, he filed a timely post-sentence motion, wherein he asked the trial court to reconsider the sentence imposed due to the substantial mitigating evidence presented, claimed that no facts of record support imposing an aggravated-range sentence for his firearm offense, and argued that imposing the sentences consecutively serves no legitimate penological purpose. Troublingly, though, Appellant did not raise the specific claim that the trial court solely sentenced based on the seriousness of the crime and did not consider all relevant statutory factors. Our review of the sentencing transcript also does not indicate that Appellant raised this claim at sentencing. As such, his argument on appeal is waived. See Griffin, 65 A.3d at 936 ("[I]ssues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings. Absent such efforts, an objection to a discretionary aspect of a sentence is waived.") (citations and emphasis omitted).

Nevertheless, even if not waived, we would deem Appellant's claim meritless. We acknowledge that:

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.[] § 9721(b). The trial court has discretion within legal limits when sentencing a defendant, and absent an abuse of that discretion, we will not disturb its sentence. Commonwealth v. Perry, … 32 A.3d 232, 236 ([Pa.] 2011). An abuse of discretion occurs where "the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. (quoting Commonwealth v. Walls, 926 A.2d 957, 961 ([Pa.] 2007)). The sentencing judge does not have to give a "lengthy discourse" explaining its reasons for imposing a sentence. Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). However, "the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender." Id.

Commonwealth v. Rominger, 199 A.3d 964, 970 (Pa. Super. 2018).

After acknowledging that it received and reviewed Appellant's pre-sentence investigation ("PSI") report in its entirety, see N.T., 5/9/22, at 3, the trial court explained its reasoning for the sentence it imposed on Appellant, as follows:

Guns, guns, and more guns, that's what we have in Allegheny County. We can't seem to get up and watch the news or listen to the news in this community without hearing about some shooting. Guns. Solve the problem with guns.

[Appellant], I complimented you before about your demeanor and the way you are handling this, and I mean it. You are not doing the usual tap dance that we see so many times. But your decision to go get a gun was a cold calculated one. And the ultimate reason for not allowing people to carry guns without a license is so they don't shoot somebody, let alone shoot them and kill them, which is what you did. You couldn't be here on a mistaken, unreasonable self-defense argument if you didn't go get the gun while you were cool, calm, and collected. You may be sitting there thinking, "Well, Judge, I wasn't really cool, calm, collected. I was worried about my family." I understand that. Being worried doesn't change your ability to think. How do we know that? You went and got a … weapon to protect you and your family. You were thinking very clearly. Rational thought. Bad judgment but rational thought. People confuse those two, conflate[] them. [Defense counsel] likes that word. Conflate. You could have very good rational thinking but use poor judgment, which is what you did. The ultimate violation of carrying a gun without a license is shooting and killing somebody with it. Aggravated range on that charge is 36 months. And I am sentencing you on the gun charge to 36 to 72 months[' incarceration] because it's an aggravated[-]range sentence and what you did with that gun. That's all the gun charge. We haven't gotten to the homicide yet.

On the homicide itself, there were some substantial[,] aggravating factors prompting your bad decision[- ]making. And that doesn't mean that you had the permission to take somebody's life because that person was harassing or threatening your family. It was

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