Commonwealth v. Caldwell

117 A.3d 763

2015 PA Super 128

COMMONWEALTH of Pennsylvania, Appellee

v.Dominic CALDWELL, Appellant.

No. 1191 EDA 2013

Superior Court of Pennsylvania.

Argued March 24, 2015.

Filed May 29, 2015.

Michael P. Marryshow, Philadelphia, for appellant.

Ashley N. Martin, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT, STABILE, and JENKINS, JJ.

Opinion

OPINION BY JENKINS, J.:

Dominic Caldwell (“Appellant”) appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following his convictions for aggravated assault, robbery, theft by unlawful taking, possession of an instrument of crime (“PIC”), recklessly endangering another person (“REAP”), firearms not to be carried without a license, carrying firearms on public streets, and persons not to possess firearms.¹ We affirm.

The relevant facts and procedural history of this appeal are as follows. On July 16, 2010, at approximately 4:15 in the afternoon, Appellant and his friend, Reese, came to Sean Williams' apartment requesting a ride in his car. N.T., 8/28/12, at 16, 17. Appellant's family lived across the street from Williams, and Williams had previously given Appellant one or two rides in his car. Id. at 20. Williams, who was home with his wife and three children at the time, went into a different room of the apartment to speak to his wife about whether he could give Appellant a ride. Id. at 19. When Williams returned to the room, Appellant and Reese fled the apartment with $2,000.00 from Williams' wife's purse.² N.T., 8/27/12, at 70. Williams chased Appellant and Reese onto the street that was full of adults and children when Appellant fired two shots toward Williams. N.T., 8/27/12, at 70. Neighbor Gail Floyd, who was standing outside conversing with her brother, heard the shots and felt debris hit her ear, neck, and arms. N.T., 8/29/12, at 8. After she realized she was bleeding, Floyd called the police. Id. at 8–9.

Police responded to the scene and obtained a statement from Williams that prompted them to search for Appellant. N.T., 8/27/12, at 45, 52, 72. On April 5, 2011, police apprehended Appellant when he was a passenger in a vehicle that they stopped for unrelated reasons. N.T., 8/29/12, at 29–38.

On September 4, 2012, a jury convicted Appellant of aggravated assault, robbery, theft by unlawful taking, PIC, REAP, firearms not to be carried without a license, and carrying firearms on a public street, and acquitted Appellant of conspiracy and simple assault. That same day, the court convicted Appellant of persons not to possess firearms. On November 14, 2012, after Appellant exercised his right to allocution, the court sentenced Appellant to 9 ½–18 years' incarceration for aggravated assault, 9 ½–18 years' incarceration for robbery, 3 ½–7 years' incarceration for carrying a firearm without a license, 2 ½–5 years' incarceration for PIC, 1–2 years' incarceration for REAP, and 5–10 years' incarceration for persons not to possess firearms.³ The court imposed the sentences consecutively, which resulted in an aggregate sentence of 31–62 years' incarceration.

Appellant timely filed post-sentence motions and supplemental post-sentence motions on November 20, and November 21, 2012, respectively. On March 21, 2013, all of Appellant's post-sentence motions were denied by operation of law pursuant to Pa.R.C.P. 720(b)(3). On April 17, 2013, Appellant timely filed a notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.⁴

Appellant raises the following issues for our review:

DID THE COURT ERR IN SENTENCING APPELLANT TO AN EXCESSIVE SENTENCE OF 31 TO 62 YEARS['] INCARCERATION WHERE THE COURT FAILED TO CONSIDER [THE REHABILITATIVE] NEEDS OF APPELLANT?

DID THE TRIAL COURT ERR IN FAILING TO GRANT A MISTRIAL

WHERE THE PROSECUTOR USED [AN] ANALOGY OF DEFENDANT [POINTING] A GUN AT THE JURORS?

Appellant's Brief at 3.

In his first issue, Appellant challenges the discretionary aspects of his sentence. Appellant argues the court failed to consider his rehabilitative needs upon fashioning his sentence and only considered the safety of the public. Further, Appellant contends that, although he did not kill anyone, the court sentenced him as if he did kill someone. Appellant concludes that the consecutive imposition of his sentences resulted in an excessive, unduly harsh aggregate sentence that was not appropriate for the crimes he committed. We disagree.

Challenges to the discretionary aspects of sentencing do not entitle a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011). Before this Court can address such a discretionary challenge, an appellant must comply with the following requirements:

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (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, 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.

Id.

Presently, Appellant filed a timely notice of appeal and preserved his issues in a post-sentence motion. Further, Appellant's brief includes a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f). See Appellant's Brief at 8. We now must determine whether Appellant presents a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.

“The determination of what constitutes a substantial question must be evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super.2011). Further:

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.

Id. (internal citations omitted).

“An appellant making an excessiveness claim raises a substantial question when he sufficiently articulates the manner in which 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.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super.2014), appeal denied, ––– Pa. ––––, 105 A.3d 736 (2014) (internal citations omitted).

“When imposing a sentence, the sentencing court must consider the factors set out in 42 [Pa.C.S.] § 9721(b), that is, the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of the defendant. And, of course, the court must consider the sentencing guidelines.” Commonwealth v. Fullin, 892 A.2d 843, 847–48 (Pa.Super.2006) (internal citations omitted).

A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010), appeal denied, 609 Pa. 685, 14 A.3d 825 (2011). Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only “the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super.2012), appeal denied, 621 Pa. 677, 75 A.3d 1281 (2013).

To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super.2013), reargument denied (Nov. 21, 2013), appeal denied, 625 Pa. 648, 91 A.3d 161 (2014) (emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to consider or accord proper weight to a specific sentencing factor does not raise a substantial question.” Commonwealth v. Berry, 785 A.2d 994, 996–97 (Pa.Super.2001) (internal citation omitted) (emphasis in original). Specifically,

[t]here is ample precedent to support a determination that [a claim that the trial court failed to consider an appellant's rehabilitative needs] fails to raise a substantial question.... See Commonwealth v. Cannon, 954 A.2d 1222, 1228–29 (Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d 893 (2009) (claim that the trial court failed to consider the defendant's rehabilitative needs, age, and educational background did not present a substantial question); Commonwealth v. Coolbaugh, 770 A.2d 788, 793 (Pa.Super.2001) (citing Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949, 952 (1990) ) (claim that sentence failed to take into consideration the defendant's rehabilitative needs and was manifestly excessive did not raise a substantial question where sentence was within statutory guidelines and within sentencing guidelines); Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super.1997) (when the sentence imposed falls within the statutory limits, an appellant's claim that a sentence is manifestly excessive fails to raise a substantial question); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super.1997) (a claim that a trial court failed to appropriately consider an appellant's rehabilitative needs does not present a substantial question); Commonwealth v. Lawson, 437 Pa.Super. 521, 650 A.2d 876, 881 (1994) (claim of error for failing to consider

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