Commonwealth v. Grandinetti

1

COMMONWEALTH OF PENNSYLVANIA v. MIZZON UNIQUE GRANDINETTI Appellant

No. 512 WDA 2023

No. J-S10009-24

Superior Court of Pennsylvania

June 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered August 9, 2022 In the Court of Common Pleas of Cambria County Criminal Division at No(s): CP-11-CR-0000135-2021

BEFORE: OLSON, J., KING, J., and LANE, J.

MEMORANDUM

OLSON J.

Appellant Mizzon Unique Grandinetti, appeals from the judgment of sentence entered August 9, 2022, as made final by the denial of his post-sentence motion on March 23, 2023. We affirm.

"This case arises out of the homicide of Barron Grumbling that occurred in Johnstown[,] Pennsylvania on or about May 1 2017." Trial Court Opinion, 3/29/23, at 1. On February 24, 2021, Appellant was charged in relation to Grumbling's death. "A jury trial [proceeded from January 25, 2022 until January 29, 2022]" but resulted in a mistrial. Id. "Following certain pre-trial conferences, a second jury trial was held on June 8, 2022 [through] June 10, 2022." Id. On June 10, 2022, the jury found Appellant guilty of first-degree murder.^[1] On August 9, 2023, the trial court sentenced Appellant to life imprisonment without the possibility of parole.^[2] This timely appeal followed.^[3] Appellant raises the following issues on appeal:^[4]

1. [Whether the] trial court erred in denying Appellant's motion for reconsideration of sentence [when] the court failed to adequately consider the mitigating factors when imposing the sentence of life imprisonment in this matter and improperly relied on evidence related to other potential homicides?

2. [Whether the] trial court erred in denying Appellant's motion for judgment of acquittal as Appellant is innocent and the evidence in this matter was insufficient to sustain Appellant's conviction for [criminal homicide?]

3. [Whether the] trial court erred in denying Appellant's motion for a new trial as the verdict was against the weight of the evidence[?]

4. [Whether the] trial court erred in permitting multiple "affiant" law enforcement officers to remain in the [courtroom] in violation of the sequestration order, thereby tainting their testimony in violation of [] Appellant's constitutional rights, thus warranting [a new trial?]

5. [Whether the] trial court erred in not granting the jury's request during deliberations to review the [tape-recorded] interview of witness [Daekwon] Coleman, which had been entered into evidence, thus warranting the grant of a new trial[?]

6. [Whether the] trial court erred in permitting Detective [Mark] Britton to testify at trial regarding the conclusions of the forensic evidence when he was not qualified as an expert in the field of forensics, and such error warrants the grant of a new trial[?]

7. [Whether the] trial court erred in permitting Detective Britton to testify at trial regarding [Daekwon] Coleman's credibility when [the court] failed to give a limiting instruction to the jury after [the detective's] credibility statement was entered on the record before the jury, and such error warrants the grant of a new trial[?]

8. [Whether the] trial court erred in failing to give a No Adverse Inference Jury Instruction during its final instructions to the jury in violation of Appellant's constitutional rights thus warranting the grant of a new trial[?]

9. [Whether the] trial court erred in failing to conduct a colloquy with [Appellant] regarding his decision to testify and call character witnesses, thus warranting the grant of a new trial[?]

Appellant's Brief at 7-8 (unnecessary capitalization omitted) (cleaned-up).

In his first issue, Appellant raises a challenge to the discretionary aspects of his sentence.

This Court previously explained:

It is well-settled that "the right to appeal a discretionary aspect of sentence is not absolute." Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, we should regard his[, or her,] appeal as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

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

We conduct a four-part analysis to determine: (1) whether appellant [] 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, 42 Pa.C.S.A. § 9781(b).

[Moury, 992 A.2d] at 170 [(citation omitted)]. Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original brackets omitted).

Herein, Appellant filed a timely notice of appeal, preserved his sentencing challenge in his post-sentence motion, and included a Rule 2119(f) concise statement in his appellate brief. See Appellant's Brief at 28-30. Thus, we turn to whether Appellant raised a substantial question. A substantial question exists when an appellant presents a colorable argument that the sentence imposed is either (1) "inconsistent with a specific provision of the [s]entencing [c]ode" or (2) is "contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010) (citation omitted), appeal denied, 14 A.3d 825 (Pa. 2011). This Court will not look beyond the statement of questions involved and the prefatory Rule 2119(f) statement to determine whether a substantial question exists. Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (citation omitted). Moreover, for purposes of determining what constitutes a substantial question, "we do not accept bald assertions of sentencing errors," but rather require an appellant to "articulat[e] the way in which the court's actions violated [sentencing norms or] the sentencing code." Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. 2006).

In Appellant's 2119(f) statement, he contends that the trial court abused its discretion by imposing a sentence of life without the possibility of parole. In particular, Appellant claims that, in so doing, the trial court overly relied upon improper factors and failed to consider important mitigating factors.

Both of Appellant's claims raise a substantial question, warranting review. See Commonwealth v. Schroat, 272 A.3d 523, 527 (Pa. Super. 2022) (juvenile homicide defendant raised substantial question in alleging that trial court failed to consider relevant mitigating factors when imposing life without possibility of parole); see also Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super. 2014) (holding that the appellant's claim that the "trial court improperly relied on factors derived from a prior decertification hearing" raised a substantial question). Because Appellant raises a substantial question, we shall proceed to the merits of his discretionary sentencing challenge.

Appellant argues that the trial court, in fashioning his sentence, improperly relied upon unsubstantiated and uncharged offenses, as well as hearsay statements pertaining to other homicides that were never subjected to cross-examination. See Appellant's Brief at 33-34. In addition, Appellant claims that the trial court failed to consider other mitigating factors such as his good behavior while incarcerated, the fact that he "was a child born in prison," spent "most of his childhood in and out of the [Office of Children, Youth and Families] system," and was a "victim of neglect with no father and a mother routinely incarcerated." Id. at 36-37.

With respect to our standard of review, we have held that "sentencing is a matter vested in the sound discretion of the sentencing judge, whose judgment will not be disturbed absent an abuse of discretion." Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super. 2001). This Court has held:

[A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court [has explained]: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it.

Moury, 992 A.2d at 169-170 (internal citation and brackets omitted).

In fashioning a sentencing scheme for a juvenile homicide offender, our Supreme Court instructed trial courts to consider the sentencing requirements codified in 18 Pa.C.S.A. § 1102.1. Subsection 1102.1 provides, in relevant part, as follows.

(a) First degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:

(1) A person who at the time of the commission of the offense was 15 years of age or older shall be

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