Commonwealth v. Morgan

279 A.3d 1254 (Table)

COMMONWEALTH of Pennsylvania

v.Jyzah Michael MORGAN, Appellant

No. 477 MDA 2021

Superior Court of Pennsylvania.

Filed: May 16, 2022

MEMORANDUM BY NICHOLS, J.:

Appellant Jyzah Michael Morgan appeals from the judgment of sentence imposed following his jury trial and conviction for two counts each of aggravated assault and discharge of a firearm into an occupied structure, and single counts of tampering with evidence and conspiracy to commit aggravated assault.¹ On appeal, Appellant challenges the discretionary aspects of his sentence, specifically, the application of the deadly weapon enhancement (DWE). We affirm.

On February 18, 2019, Sheeneka Stokes was at her home on Lockhart Street in Wilkes-Barre with members of her family and Kristine Hagen, who was Stokes’ home health nurse. See N.T. Trial, 10/19/20, at 61, 65, 73. While in the living room in the front of the house, Stokes and Hagen heard multiple gunshots and saw the window break. Id. at 64, 67. The assailants fired at least six shots at the house. Id. at 77-80. Stokes yelled for everyone to get down before she went upstairs and called the police. Id. at 64-66. No one was injured in the shooting, and Stokes did not know why anyone would shoot at her home. Id. at 65-66.

Following an investigation and review of video surveillance footage, the Wilkes-Barre City Police Department detectives identified Appellant as the driver and owner of the car involved in the drive-by shooting of Stokes’ home. Id. at 44-59, 90-91. Detectives identified Onje Crowder as the front-seat passenger, and still photographs showed Crowder holding a firearm in his hand. Id. at 53-55.

The surveillance footage showed Appellant driving a Mitsubishi Lancer past the residence twice with "several minutes" in between passes. Id. at 103-104. On the first pass, Crowder appeared to have his hand cupped to his mouth, yelling something. Id. at 106. The Lancer backtracked and came from the opposite direction on the second trip. Id. at 104. On the second pass, the car did not change speeds or slow down. Id. at 107.

Detectives visited Appellant's home and observed the Lancer parked outside. Id. at 90-95. The Lancer had a spoiler in the video of the shooting, and when detectives executed a search warrant on the property, they recovered the spoiler in the garage. Id. at 90-94. Detectives also recovered a black North Face jacket from Appellant's bedroom that was similar to the jacket that Appellant wore in the surveillance footage. Id. at 92-93. Detectives examined the vehicle and determined that it had a small interior, and the driver's and front passenger's seats were very close together. Id. at 108.

Crowder subsequently pled guilty to two counts of aggravated assault. Id. at 108. At Appellant's trial, Crowder testified that he is Appellant's cousin and that the two are very close. Id. at 130. Crowder admitted that he intended to shoot at the house on Lockhart Street. Id. at 127-31. Crowder believed a man named Jake with whom he had had an argument lived there, and Crowder wanted to frighten this man. Id. Crowder stated that he had hidden his gun under the passenger seat and had not told Appellant it was there. Id. at 127-28. Crowder testified that he yelled, "what's good?" out of the car window before firing the gun. Id. at 131-33.

Appellant testified on his own behalf and admitted to driving the Lancer on February 18, 2019. Id. at 138-40. Appellant stated that he and Crowder were sitting about an arm's length apart. Id. at 155. He claimed that he did not know that Crowder planned to shoot at anyone and did not see Crowder brandish the gun. Id. at 141-43. Appellant testified that when he heard "pops," he sped up because he did not know where the bullets were coming from, and thought that the shots were being fired at him. Id. at 143-44, 156. Appellant claimed that he did not see the gun at any point and did not realize what had happened until the shooting was reported in the newspaper the next day. Id. at 144.

On October 21, 2020, the jury convicted Appellant of all charges.

On March 3, 2021, the Commonwealth filed a motion seeking to amend the pre-sentence investigation (PSI) report to reflect the application of the DWE to counts one, two, and six, averring that the Luzerne County Adult Probation and Parole Department (LCAPP) had not applied any enhancements to the standard-range sentencing guidelines.² See Commonwealth Mot. To Amend, 3/3/21, at 1-5. At the sentencing hearing on March 24, 2021,³ over Appellant's objection to the application of the DWE, the trial court granted the Commonwealth's motion to amend the PSI.⁴ See Trial Ct. Op., 7/22/21, at 1; N.T. Sentencing 3/24/21, at 3-4. The trial court sentenced Appellant to an aggregate of sixty-six to one hundred thirty-two months of incarceration followed by twenty-four months of probation. See Trial Ct. Op. at 1. No post-sentence motions were filed.

On April 9, 2021, Appellant timely filed a notice of appeal. On April 12, 2021, the Luzerne County Public Defender's Office filed a motion for appointment of conflicts counsel, noting that it had been appointed to represent Appellant for purposes of his appeal, but, after filing the notice of appeal, discovered that it had previously represented a witness in the case. See Mot. for Appointment of Conflicts Counsel, 4/12/21, at 1-2. The President Judge of the Luzerne County Court of Common Pleas granted the motion. See Order, 4/12/21, at 1. That same day, the trial court issued an order pursuant to Pa.R.A.P. 1925(b), and service was made on the Luzerne County District Attorney's Office and the Luzerne County Public Defender's Office. See Order, 4/12/21, at 1.

On May 21, 2021, Appellant filed a statement of errors complained of on appeal nunc pro tunc , averring that after the Luzerne County Public Defender's Office filed a notice of appeal on his behalf, and a conflict required the appointment of new counsel. See Rule 1925(b) Statement Nunc Pro Tunc , 5/21/21, at 1-2. In the nunc pro tunc Rule 1925(b) statement, new counsel asserted that he had not received the trial court's Rule 1925(b) order. Id. The trial court accepted Appellant's Rule 1925(b) statement nunc pro tunc and addressed his issue on the merits. Trial Ct. Op. at 2.

On appeal, Appellant raises a single question for our review:

Whether the trial court erred in permitting the Commonwealth to amend the [PSI report] to apply the [DWE] at sentencing.

Appellant's Brief at 1.⁵

Appellant contends that the trial court erred by applying the DWE, because Appellant did not use a weapon during the commission of the crime and the gun was not in his immediate physical control. Id. at 8-9. In support, Appellant claims that the gun was in the possession of Crowder and Appellant was unaware of its presence in the vehicle. Id.

Appellant's claim is a challenge to the discretionary aspects of his sentence. Commonwealth v. Tavarez , 174 A.3d 7, 10 (Pa. Super. 2017) ; see also Commonwealth v. Kneller , 999 A.2d 608, 613 (Pa. Super. 2010) (en banc ) (stating that "a challenge to the application of the deadly weapon enhancement implicates the discretionary aspects of sentencing").

Prior to addressing such a claim, we must determine

(1) whether the appeal is timely; (2) whether [the] [a]ppellant preserved his [or her] issue; (3) whether [the] [a]ppellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the [S]entencing [C]ode.

Id. (citations omitted); see also Pa.R.A.P. 2119(f).

Here, Appellant preserved his challenge to the discretionary aspects of his sentence by presenting his objections at the sentencing hearing, filing a timely notice of appeal, and stating a claim of error in his Rule 1925(b) statement. See N.T. Sentencing 3/24/21, at 3-4; See Rule 1925(b) Statement Nunc Pro Tunc , 5/21/21, at 1-2.⁶

Appellant has also presented a substantial question for our review. See Tavarez , 174 A.3d at 10–11 (stating that "a substantial question is raised where an appellant alleges his sentence is excessive due to the sentencing court's error in applying the deadly weapon enhancement"). Tavarez , 174 A.3d at 10–11. Therefore, we will consider the merits of Appellant's claim.

It is well settled that:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the 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.

Commonwealth v. Gonzalez , 109 A.3d 711, 731 (Pa. Super. 2015) (citation and quotation omitted).

This Court has observed that:

The deadly weapon enhancement provisions of the Sentencing Guidelines provide that an enhancement "shall apply to each conviction offense for which a deadly weapon is possessed or used." 204 Pa. Code § 303.10(a)(4). The trial court may not disregard an applicable enhancement when determining the appropriate sentencing ranges. Commonwealth v. Cornish , [589 A.2d 718, 720 (Pa. Super. 1991) ]. Further, "[i]t is imperative that the sentencing court determine the correct starting point in the [G]uidelines before imposing sentence." Id. ; see Commonwealth v. Diamond , 945 A.2d 252, 259 (Pa. Super. 2008) ("[T]he sentencing court must correctly apply the [S]entencing [G]uidelines to reach the correct point of departure, before exercising its discretion to depart from the [G]uidelines in any particular case. These rules apply to the deadly weapons enhancement.") Thus, if "the trial court erroneously calculates the starting point under the [G]uidelines," we will

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