Com. v. Rush, J. , 162 A.3d 530 ( 2017 )

J-A29016-16
2017 Pa. Super. 141
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LEWIS RUSH
Appellant No. 767 WDA 2015
Appeal from the Judgment of Sentence March 10, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-000290-2014
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED MAY 11, 2017
John Lewis Rush appeals from the March 10, 2015 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
his convictions of four counts of aggravated assault and one count each of
disarming a law enforcement officer; torture of a police animal; cruelty to
animals; resisting arrest; escape; possession of a weapon; and flight to
avoid apprehension, trial, or punishment.1 We affirm.
The trial court set forth the following facts:
On January 28, 2014, [Allegheny County Sheriff‟s Office
Deputy John Herb] was assigned to the fugitive squad, and
was looking for . . . Rush. [Rush] had a warrant out for his
arrest for violating the conditions of his probation for a
____________________________________________
1
18 Pa.C.S. §§ 2702(a)(3), 5104.1(a), 5511.2(b), 5511(a)(2.1)(i)(A),
5104, 5121(a), 907(b), and 5126(a), respectively.
J-A29016-16
prior conviction. Deputy Herb had received information
that [Rush] was in the Lawrenceville section of Pittsburgh.
Once Deputy Herb reached Butler Street in Lawrenceville,
he observed an individual who roughly matched the
description of [Rush]. That individual identified himself to
the Deputy as “John” and, shortly thereafter, lunged at the
Deputy‟s handgun. A physical struggle ensued. The
Deputy successfully pushed away from “John” and once he
had created some distance between them, the Deputy
fired his taser which struck “John” but had no effect.
Immediately thereafter, “John” charged the Deputy and
multiple punches were exchanged. At the conclusion of
the skirmish, “John” ran away from the Deputy. The
Deputy pursued, yelling at “John” that he was under
arrest. Deputy Herb eventually lost sight of “John”.
Deputy Herb radioed a report of the incident including the
location. Approximately 40 minutes later, Deputy Herb,
who was still searching for [Rush], became aware of a
report of a suspicious male in a house at 3701 Butler
Street.
...
Timothy McGill testified that he resided with his fiancée
Stephanie Kerr at 3701 Butler Street, . . . on January 28,
2014. McGill testified that [he] awoke to a loud knock on
his door. [Rush] asked McGill to let him into the
apartment to use the bathroom. McGill refused and a
heated argument ensued, which ended when McGill
slammed the door in [Rush]‟s face and locked him out.
McGill dressed and went down to the laundry room, where
he heard a noise, and upon further investigation
discovered [Rush] inside, crouched down with his back
against the wall. McGill testified that he became infuriated
at that point. He said to [Rush] that he had no business
being in the building. [Rush] jumped to his feet and McGill
observed that [Rush] now had a knife in his left hand.
McGill retreated and saw [Rush] flee down the steps but
not out the front door. As the only other option from that
location would be the basement, McGill assumed [Rush]
had gone down the basement stairs. McGill exited the
building, took a position from which he could watch the
front door, called his fiancée, and told her to lock the door
and call the police. Ten to fifteen minutes later, police
officers arrived at the scene.
-2-
J-A29016-16
...
Officer [Daniel] Nowak yelled as loud as he could, three
times, “Pittsburgh Police.” “Give up. Surrender.” He
heard no response to any of the verbal commands.
Sergeant Henderson decided to send a canine officer alone
with his dog down to the basement. Officer Phillip Lerza
arrived at the scene with Rocco, his police dog. Officer
Lerza also yelled down to the basement three times[2]
without any response. Officer Lerza and Rocco proceeded
to the basement, followed by Officer Nowak and Officer
Robert Scott. Officer Lerza requested that Officer[s]
Nowak and Scott remain on the stairs while Officer Lerza
and Rocco searched the room.
As Officer Lerza and Rocco approached the rear part of
the basement, [Rush] jumped out from behind the right-
hand side of a doorway. Officer Nowak observed [Rush]
immediately start striking Rocco in a downward punching
motion on his back. [Rush] struck Rocco from behind with
both fists. As Officer Lerza moved toward [Rush] and
Rocco, [Rush] disengaged with Rocco and struck Officer
Lerza with both hands, fists closed. Officer Nowak yelled
out and ran toward the melee. [Rush] stopped fighting
Officer Lerza and charged Officer Nowak. The two collided
at high speed. [Rush] swung wildly at Officer Nowak with
both hands. Officer Nowak blocked punches with his left
hand and struck [Rush] with the flashlight he held in his
right hand. During the combat, Officer Nowak injured his
finger and his ankle. Officer Nowak gained leverage, took
[Rush] to the ground and got on top of him. [Rush]
continued to fight, despite the Officer commanding him to
____________________________________________
2
The first command that the Office[r] gave was “Pittsburg
Police canine. Anyone in the building, sound off now, or I‟ll
send in the dog.” Next the Officer said, “Pittsburgh Police
canine. Anyone in the building, sound off now, or I‟ll send
in the dog and you will be bit.” Lastly, he said, “Pittsburgh
Police canine. Anyone in the building, sound off now, or I‟ll
send in the dog.”
1925(a) Opinion, 2/16/16, at 7 (“1925(a) Op.”).
-3-
J-A29016-16
stop resisting. Officer Lerza grabbed [Rush]‟s arms but
could not get handcuffs on [Rush] due to [Rush]‟s
resistance.
Officer [John] Baker arrived to assist Officers Lerza and
Nowak, but the three of them were still unable to handcuff
[Rush].[3] A sheriff‟s deputy came down with his taser in
dry stun mode. The Deputy tased [Rush] in the leg to no
effect. Officer Nowak pulled [Rush]‟s shirt over his head
and instructed the Deputy to tase [Rush] on the uncovered
skin. After three applications of the taser to [Rush]‟s bare
skin, [Rush] stopped fighting and the officers were able to
handcuff [Rush]. Once [Rush] was restrained, Officer
Nowak observed Officer Lerza pat Rocco and discover that
Rocco was covered in blood. Officer Nowak saw a knife on
the ground near [Rush] and observed Officer Lerza pick up
Rocco and run upstairs.
...
Officer Lerza rushed Rocco to a local veterinary
hospital. While Rocco was being examined, Officer Lerza
noticed pain in his shoulder. Upon closer examination, he
discovered that he had been stabbed through several
layers of clothing.
...
Dr. Julie Compton, a Board-certified veterinary surgeon,
testified as an expert in veterinary surgery. Dr. Compton
testified that she worked at the Pittsburgh Veterinary
Specialty and Emergency Center (PVSEC), and in that
capacity became familiar with a dog named Rocco who had
been stabbed. Initially, Dr. Compton testified that she was
at home but was notified by her resident that Rocco was
stabile [sic] with a laceration about three centimeters long.
____________________________________________
3
Detective Thomas Ninehouser, who was also present at the scene
“described [Rush]‟s demeanor as „[C]razy, uncooperative, resisting.‟”
1925(a) Op. at 9.
-4-
J-A29016-16
Forty-five minutes later, she received another call that
Rocco‟s condition had worsened. Dr. Compton arrived and
performed two surgeries. During the first surgery, she
discovered that Rocco‟s left kidney had sustained
irreversible damage. She also observed that his aorta and
vena cava were stripped of all soft tissues and the external
wound of three centimeters was approximately five inches
long internally. Two days later she performed a second
surgery. Rocco had liters of blood in his abdomen
indicative of extensive internal hemorrhaging. Dr.
Compton could not find the source of the bleeding. While
attempting to find the source of the bleeding, Dr. Compton
discovered that Rocco‟s spine had been fractured by the
knife wound. She stated that “to shred a piece of bone off
a dog‟s spine underneath inches of muscle would take a
very large amount of force.” Dr. Compton said that
Commonwealth Exhibit 14, a pocket knife with the tip
broken off, was consistent with the weapon that caused
Rocco‟s injuries. She testified that the force required to
break off the tip of the blade would be similar to the force
required to injure the dog‟s spine. Further, she testified
that the length of the blade would have been sufficient to
cause Rocco‟s wounds, assuming the knife was fully
inserted into the dog. Rocco died on January 30, 2014
from hemorrhaging resulting from a stab wound.
1925(a) Opinion, 2/16/16, at 3-4, 6-10 (“1925(a) Op.”) (internal citations
omitted).
On December 5, 2014, a jury found Rush guilty of the aforementioned
crimes. On March 10, 2015, the trial court sentenced Rush to an aggregate
term of 14 years and 10 months‟ to 36 years and 6 months‟ incarceration,
followed by 8 years‟ probation.4 Rush filed post-sentence motions, which
____________________________________________
4
The trial court sentenced Rush to 30 to 84 months‟ incarceration for
the conviction for disarming a law enforcement officer, 40 to 84 months‟
incarceration for the conviction for torture of a police animal, 36 to 90
months‟ incarceration for the aggravated assault conviction, 36 to 90
(Footnote Continued Next Page)
-5-
J-A29016-16
the trial court denied on April 16, 2015. On May 15, 2015, Rush timely filed
a notice of appeal.
Rush raises the following issues on appeal:
I. Did the trial court err and abuse its discretion by
failing to disqualify a sitting juror who was openly
weeping during trial testimony regarding the death
of the canine, Rocco?
II. Did the trial court err in failing to give the requested
jury instruction for malice in relation to the Torture
of a Police Animal charge as the standard jury
instruction fails to define a necessary element?
III. Was the sentence of 178 to 438 months of
imprisonment, followed by 8 years of probation,
manifestly excessive, unreasonable, and contrary to
the dictates of the Sentencing Code, and thus an
abuse of the sentencing court‟s discretion?
Rush‟s Br. at 7 (suggested answers omitted).
I. Juror Disqualification
Rush claims that during testimony concerning the death of Rocco juror
number six (“Juror No. 6”) cried, which demonstrated bias and partiality. He
further claims that the trial court did not question Juror No. 6 and that the
instructions given to the jury at the conclusion of trial were insufficient to
_______________________
(Footnote Continued)
months‟ incarceration for a second aggravated assault conviction, and 36 to
90 months‟ incarceration for a third aggravated assault conviction, to run
consecutive to each other. The trial court further sentenced Rush to 2 years‟
probation for the resisting arrest conviction, 3 years‟ probation for the
escape conviction, and 3 years‟ probation for the conviction for flight to
avoid apprehension, trial, or punishment, to run consecutive to each other
and to the term of incarceration.
-6-
J-A29016-16
address the incident. Finally, Rush argues his request to dismiss Juror No. 6
should have been granted.
Article I, section 9 of the Pennsylvania Constitution, as well as the
Sixth Amendment to the United States Constitution, guarantees a defendant
the right to an impartial jury. Pa. Const., art. I § 9; U.S. Const. amend. VI.
“It is well settled that the purpose of voir dire is to ensure the empanelling
of a fair and impartial jury capable of following the instructions of the trial
court.” Commonwealth v. Lesko, 15 A.3d 345, 412-13 (Pa. 2011). Our
Supreme Court has explained that a juror is not expected “to be free from all
prejudices[;] rather, the law requires them to be able to put aside their
prejudices and determine guilt or innocence on the facts presented.”
Commonwealth v. Smith, 540 A.2d 246, 256 (Pa. 1988).
“The decision to discharge a juror is within the sound discretion of the
trial court and will not be disturbed absent an abuse of that discretion.”
Commonwealth v. Carter, 643 A.2d 61, 70 (Pa. 1994). “This discretion
exists even after the jury has been [e]mpanelled and the juror
sworn.” Id. (emphasis added). Our Supreme Court explained that “a
finding regarding a venireman‟s impartiality „is based upon determinations of
demeanor and credibility that are peculiarly within a trial [court]‟s province. .
. . [Its] predominant function in determining juror bias involves credibility
findings whose basis cannot be easily discerned from an appellate record.‟”
Smith, 540 A.2d at 256 (quoting Wainwright v. Witt, 469 U.S. 412, 428-
29 (1985)). It is the appellant‟s burden to show that the jury was not
-7-
J-A29016-16
impartial. Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014).
Further, this Court has found that per se prejudice does not result where a
juror becomes upset during the trial. See Commonwealth v. Pander, 100
A.3d 626, 632 (Pa.Super. 2014) (en banc).
In Commonwealth v. Briggs, our Supreme Court set forth the
standard for prospective juror disqualification:
The test for determining whether a prospective juror
should be disqualified is whether he is willing and able to
eliminate the influence of any scruples and render a verdict
according to the evidence, and this is to be determined on
the basis of answers to questions and demeanor. . . . It
must be determined whether any biases or prejudices can
be put aside on proper instruction of the court. . . . A
challenge for cause should be granted when the
prospective juror has such a close relationship, familial,
financial, or situational, with the parties, counsel, victims,
or witnesses that the court will presume a likelihood of
prejudice or demonstrates a likelihood of prejudice by his
or her conduct or answers to questions.
12 A.3d 291, 333 (Pa. 2011) (quoting Commonwealth v. Cox, 983 A.2d
666, 682 (Pa. 2009)).
While most cases address the issue of prospective jurors, we have
employed the same analysis in cases where a question arises about a juror‟s
impartiality during trial. See Pander, 100 A.3d at 632 (“While Hale and the
cases discussed therein involved juror challenges prior to trial, we find the
discussion therein apt . . . .”); Carter, 643 A.2d at 70 (“Th[e trial court‟s]
discretion exists even after the jury has been [e]mpanel[]ed and the juror
sworn.”). Here, there is no allegation that Juror No. 6 had a personal
-8-
J-A29016-16
relationship with any party, counsel, victim, or witness. Accordingly, we will
not presume prejudice. See Commonwealth v. Stewart, 295 A.2d 303,
305-06 (Pa. 1972) (presuming prejudice where father of the victim was in
the jury panel and had been in the same room with the rest of the jury for
more than two days). Further, this is not a situation where prejudice will be
presumed by the juror‟s conduct. See Pander, 100 A.3d at 632.
During Officer Lerza‟s cross-examination, Rush‟s counsel played a 911
tape in which Rocco was heard barking in the background. Upon hearing the
recording, Officer Lerza cried on the witness stand and Juror No. 6 cried as
well. Rush states that “[i]t is unclear whether the juror cried because of
sadness over the dog being dead, or because of the police officer‟s emotional
state, or perhaps because of memories of other dogs in the juror‟s past.”
Rush‟s Br. at 33. Nevertheless, Rush claims that the trial court should have
dismissed Juror No. 6 because: her reaction was “an obvious sign of bias
and an excessive emotional attachment to one side of the case, the
prosecution”; she could not render a verdict solely on the law and facts of
the case as her “emotions clouded her judgment”; and her emotional
response could have influenced the rest of the jury. Id.
The trial court found that the juror cried “during extremely emotional
testimony, during which the witness also cried” and that Rush failed to
establish how the juror‟s crying “impeded the juror‟s ability to fulfill the oath
-9-
J-A29016-16
to judge the case based on the facts and not on emotion.” 1925(a) Op. at
12. We agree with the trial court.
This Court addressed a similar situation in Pander, where a juror
became visibly upset after viewing graphic photographs of the victim and
required a break after viewing them. 100 A.3d at 631.5 Upon questioning
by the trial court, the juror stated that even though the photographs
reminded her of her late husband, who had died the previous year, she could
remain impartial. Id. The trial court denied appellant‟s request that an
alternate juror be seated. Id. On appeal, the appellant argued that
prejudice should have been presumed based on the juror‟s reaction. Id. We
disagreed, concluding that a juror becoming upset over a photograph was
not per se prejudicial. Id. at 632. We further stated “[T]hat the juror was
disturbed by pictures of the victim because it brought back memories of her
recently deceased husband does not alone indicate an inability to consider
the evidence impartially.” Id.
While in Pander the juror had to leave the courtroom, here, Juror No.
6‟s crying was barely noticed. During a break, while the jury was out of the
courtroom, the following exchange occurred:
____________________________________________
5
In Pander, the appellant filed a petition under the Post Conviction
Relief Act, claiming that his counsel had rendered ineffective assistance
during trial. We concluded that the underlying ineffective assistance of
counsel claim lacked merit.
- 10 -
J-A29016-16
[TRIAL COUNSEL]: It‟s been brought to my attention
during the testimony Juror No. 6 was crying.
THE COURT: I believe Juror No. 6 was crying when you
played the CD containing the radio between Rocco‟s K-9
partner and dispatch where the dog was heard in the
background, so it was in response to hearing your
evidence.
[TRIAL COUNSEL]: All right. Well, regardless of what
triggered the emotional response, I questioned the
potential jurors extensively as to whether they could
decide this case based on the facts of evidence and not be
swayed by passion, sympathy, emotion, et cetera. They
all assured me that they could.
The fact that this [juror] succumbed to emotion causes
me to question whether she can decide this case
impartially, so I would ask that that juror be removed.
[COMMONWEALTH]: Your Honor, I would object to that.
The juror took an oath. We have to have faith that she
would follow the oath she took. And whatever effect to
that juror or witnesses was in response to what [trial
counsel] played on his own cross-examination of Officer
Lerza.
THE COURT: I, in fact, cry at weddings and funerals of
people I don‟t know, because I respond to other people‟s
sorrow. So the fact that the officer cried on the stand may
have triggered that, we don‟t know. But the law presumes
that the jury will be able to follow the instructions given by
the Court and she will be further instructed when I give my
closing instruction that she must decide the case based on
the evidence as it was presented and not be swayed by
any bias, prejudice or emotion, so the motion is denied.
N.T., 12/11/14, at 505-06.
The juror‟s reaction in this case was much less conspicuous than in
Pander, where the juror required a break and left the courtroom. Here, as
trial counsel acknowledged, it had to be “brought to [his] attention” that the
- 11 -
J-A29016-16
juror was crying. Id at 505. Furthermore, trial counsel did not ask that the
juror be questioned, and did not object when the trial court stated that it
would further instruct the juror during “closing instructions that she must
decide the case based on the evidence as it was presented and not be
swayed by any bias, prejudice or emotion.”6 N.T., 12/11/14, at 506.
Finally, Rush has offered nothing more than speculation about Juror No. 6‟s
possible bias or influence on the rest of the jury. In short, he has failed to
meet his burden to show that the jury was not impartial, see Noel, 104
A.3d at 1169, and the trial court did not abuse its discretion in declining to
dismiss Juror No. 6.7
Rush also argues that the trial court‟s subsequent instructions were an
insufficient response to Juror No. 6‟s emotional reaction. “It is settled law
that, absent evidence to the contrary, the jury is presumed to have followed
____________________________________________
6
Rush does not contend that Juror No. 6 showed any bias either
during pre-trial voir dire or at any time after the incident in question.
7
Rush cites several cases from other jurisdictions that do not support
his claim. See State Farm Mut. Auto Ins. Co. v. Rindner, 996 So. 2d
932, 935 (Fla. Dist. Ct. App. 2008) (no abuse of discretion in denying the
motions for mistrial and new trial in personal injury case where plaintiff‟s
mother cried during her testimony); Washburn v. Holbrook, 806 P.2d 702,
703-04 (Or. Ct. App. 1991) (no abuse of discretion in denying motion for
mistrial in medical malpractice case where plaintiff, physician, and her
attorney cried during the trial); United States v. Fazio, 770 F.3d 160, 169
(2d Cir. 2014) (no abuse of discretion in dismissing juror who “professed
love for defense counsel [and] said that the government‟s counsel was
corrupt half the time,” and during trial smirked, exchanged knowing glances
with another juror, and rolled her eyes).
- 12 -
J-A29016-16
the trial court's instructions . . . .” Commonwealth v. Laird, 988 A.2d
618, 629 (Pa. 2010). During its charge to the jury, the trial court stated:
You should consider these instructions as a whole. You
may not pick out one instruction and disregard others. I
caution you not to allow sympathy, prejudice or any
emotion to influence you.
It is your duty to base your decision strictly on the
evidence. . . .
...
You must keep your deliberations free from any bias or
prejudice. Both the Commonwealth and the Defendant
have the right to expect you to consider the evidence and
apply the law as I have outlined it.
N.T., 12/11/14, at 883, 908. When the trial court asked trial counsel
whether he had any proposed additions or corrections, counsel said nothing
about the juror incident. Thus, Rush has waived his claim that the trial
court‟s instructions were insufficient. See Pa.R.Crim.P. 647(c) (“No portions
of the charge nor omissions from the charge may be assigned as error,
unless specific objections are made thereto before the jury retires to
deliberate.”).
II. Jury Instructions
Rush next argues that the trial court abused its discretion in failing to
give his requested jury instruction on the definition of “maliciously.” Rush
contends that the offenses of cruelty to animals and torture to a police
animal required him to have acted “willfully or maliciously,” and while the
- 13 -
J-A29016-16
trial court‟s instructions defined “willfully,” they did not define “maliciously.”
Rush‟s Br. at 41.
We review a challenge to a jury instruction for an abuse of discretion
or an error of law. Commonwealth v. Brown, 911 A.2d 576, 582-83
(Pa.Super. 2006). We must consider the charge as a whole, rather than
isolated fragments. See Lesko, 15 A.3d at 397; Commonwealth v.
Simpson, 66 A.3d 253, 274 (Pa. 2013). We examine the entire instruction
“against the background of all evidence presented, to determine whether
error was committed.” Commonwealth v. Grimes, 982 A.2d 559, 564
(Pa.Super. 2009) (quoting Buckley v. Exodus Transit & Storage Corp.,
744 A.2d 298, 305 (Pa.Super. 1999)). “A jury charge is erroneous if the
charge as a whole is inadequate, unclear, or has a tendency to mislead or
confuse the jury rather than clarify a material issue.” Id. (quoting Buckley,
744 A.2d at 305). “Therefore, a charge will be found adequate unless the
issues are not made clear to the jury or the jury was palpably misled by
what the trial judge said.” Id. (quoting Buckley, 744 A.2d at 305-06).
Furthermore, “[o]ur trial courts are invested with broad discretion in crafting
jury instructions, and such instructions will be upheld so long as they clearly
and accurately present the law to the jury for its consideration.” Simpson,
66 A.3d at 274. “The trial court is not required to give every charge that is
requested by the parties and its refusal to give a requested charge does not
- 14 -
J-A29016-16
require reversal unless the [a]ppellant was prejudiced by that refusal.”
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006).
The certified record does not include any written proposed instruction
from Rush concerning the charges of torture of a police animal and cruelty to
animals. The transcript includes the following statement from Rush‟s
counsel concerning the court‟s proposed charge and Rush‟s desired
alternative:
[T]he problem with the definition in the current version of
the charge is that it doesn‟t include the language that
malice requires a wickedness of disposition, hardness of
heart, cruelty, recklessness of consequence and a mind
regardless of social duty indicating an unjustified disregard
for a probability of death or great bodily harm. That‟s
language [sic] that is part of the definition of malice and
extreme indifference to the value of, in this case, it would
be animal life, but that‟s part of the definition of malice, so
I‟m asking that the jury be instructed. That‟s based on the
case law, based on the definition of third degree murder.
N.T., 12/12/14-12/15/14,8 at 853-54.
The trial court rejected Rush‟s proposed instruction as an inaccurate
statement of the law:
the adaptation [was] longer than the instruction. Because
the statute doesn‟t require -- what you have here is that
for animal cruelty or police animals, the act is with malice
as opposed to maliciously. If the perpetrator‟s actions
show this wanton and willful disregard, an unjustified and
extremely high risk that his conduct would result in death
____________________________________________
8
The notes of testimony for December 12, 13, 14, and 15 have been
condensed into one transcript.
- 15 -
J-A29016-16
or serious bodily injury to the animal. And the statute
very clearly doesn‟t require that.
The statute requires first that the Defendant taunted,
tormented, teased, beat, kicked, struck, tortured,
mutilated, injured[,] disabled[,] poisoned[,] or killed an
animal. It doesn‟t require extremely high risks of death or
serious bodily injury. So that‟s an inaccurate statement of
the law.
Id.
Instead, the trial court followed the suggested standard jury
instructions:
[Rush] has been charged with one count of animal cruelty
involving a police animal. To find [Rush] guilty of this
offense, you must find that the following elements have
been proven beyond a reasonable doubt: First, that
[Rush] taunted, tormented, teased, beat, kicked, struck,
tortured, mutilated, injured, disabled, poisoned or killed a
police animal.
And second, that [Rush] did so willfully or maliciously.
That is, that he did so with the intent to commit and act
that he knew the law would forbid or by consciously
disregarding a substantial and unjustifiable risk that his
conduct would bring about the harm to be prevented.
...
[Rush] has been charged with an additional and
separate count of animal cruelty. To find [Rush] guilty of
this offense, you must find that the following elements
have been proven beyond a reasonable doubt: First, that
[Rush] killed, maimed, mutilated, disfigured or tortured
any dog or cat, whether belonging to himself or another.
And second, that [Rush] did so willfully or maliciously,
that is, that he did so even with the intent to commit an
act he knew the law would forbid or by consciously
disregarding a substantial and unjustifiable risk that his
conduct would bring about the harm to be prevented.
- 16 -
J-A29016-16
N.T., 12/12/14-12/15/14, at 900-02; see also Pa. SSJI (Crim) §§ 5511.2,
5511.
The statutes for torture of a police animal and cruelty to animals use
the generic terms “willfully” and “maliciously,” and do not define either of
those terms. Our legislature defines most terms related to a defendant‟s
required mental state at 18 Pa.C.S. § 302. The comment to section 302
explains its purpose as follows:
The purpose of this section is to clearly define the
various mental states upon which criminal liability is to be
based. Under existing law the words “wil[l]fully” or
“maliciously” are used in many cases. However, these
words have no settled meaning. In some instances there
is no expressed requirement concerning the existence of
mens rea. These defects in existing law are remedied by
this section which sets forth and defines the culpability
requirements and eliminates the obscurity of the terms
“malice” and “wil[l]ful.”
18 Pa.C.S. § 302 cmt. (internal citations omitted). As Rush notes, however,
while section 302(g) defines “willfully,” see 18 Pa.C.S. § 302(g) (“A
requirement that an offense be committed willfully is satisfied if a person
acts knowingly with respect to the material elements of the offense . . . .”),
it does not define “maliciously.”
Rush claims that the trial court should have used the definition of
“malice” derived from Commonwealth v. Drum, 58 Pa. 9 (1868). In
Drum, the Pennsylvania Supreme Court stated that “[m]alice is a legal
term, implying much more. It comprehends not only a particular ill-will, but
- 17 -
J-A29016-16
every case where there is wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of social
duty[.]” Id. at 15.
Rush‟s requested instruction before the trial court, however, did not
merely use the definition of “malice” set forth in Drum. Rush also requested
an instruction based on third-degree murder that presumes death. See
N.T., 12/12/14-12/15/14, at 853 (“malice requires a wickedness of
disposition, hardness of heart, cruelty, recklessness of consequence and a
mind regardless of social duty indicating an unjustified disregard for a
probability of death or great bodily harm”) (emphasis added). We
agree with the trial court that the statutes at issue here contain no such
requirement and that Rush‟s proposed instruction was not an accurate
statement of the law. Id. at 855. See 18 Pa.C.S. § 5511.2(b) (“It shall be
unlawful for any person to willfully or maliciously torture, mutilate, injure,
disable, poison or kill a police animal.”) (emphasis added); 18 Pa.C.S. §
5511(a)(2.1)(i)(A) (“willfully and maliciously . . . [k]ills, maims, mutilates,
tortures or disfigures any dog”). Thus, it would have been an error for the
trial court to accept Rush‟s modified version of malice. See Simpson, 66
A.3d at 274 (trial courts have “broad discretion in crafting jury instructions,
- 18 -
J-A29016-16
and such instructions will be upheld so long as they clearly and accurately
present the law to the jury”).9
Accordingly, because Rush‟s proposed jury instruction was a
misstatement of the law, the trial court did not abuse its discretion in
rejecting it and instructing the jury according to the Standard Jury
Instructions. Cf. Commonwealth v. Zewe, 663 A.2d 195, 199 (Pa.Super.
1995) (trial court properly refused to use appellant‟s proposed instruction
where it inaccurately stated the law “and instead relied on an instruction
that [wa]s in substantial conformity with the Pennsylvania Suggested
Standard Jury Instructions); Commonwealth v. Strong, 399 A.2d 88, 92
(no reversible error when trial court refused to read appellant‟s points for
charge when they erroneously stated the applicable law). Thus, we conclude
the trial court did not abuse its discretion or commit an error of law.
III. Discretionary Aspects of Sentencing
Rush next challenges the discretionary aspects of his sentence,
arguing that it was “manifestly excessive, unreasonable, and contrary to the
____________________________________________
9
Upon a proper request, trial courts should give a definition of malice
consistent with our opinion in Commonwealth v. Crawford, 24 A.3d 396
(Pa.Super. 2011). In Crawford we explained that “malicious” in the context
of 18 Pa.C.S. § 5511(a)(2.1)(i)(A) (cruelty to animals) “is conduct that
represents a „wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty.‟” Id. at
402 (quoting Commonwealth v. Ingram, 926 A.2d 470, 476 (Pa.Super.
2007)).
- 19 -
J-A29016-16
dictates of the Sentencing Code, and thus an abuse of the sentencing court‟s
discretion.” Rush‟s Br. at 6. “Challenges to the discretionary aspects of
sentencing do not entitle an appellant to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Before
we address such a challenge, we first determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant‟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 sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Rush filed a timely notice of appeal, preserved his claim in a timely
post-sentence motion, and included in his brief a concise statement of
reasons relied upon for allowance of appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). We must now determine whether he has
raised a substantial question that the sentence is inappropriate under the
sentencing code and, if so, review the merits.
We evaluate whether a particular sentencing issue raises a substantial
question on a case-by-case basis. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa.Super. 2011). A substantial question exists where a
defendant raises a “plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
- 20 -
J-A29016-16
the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super. 2013) (citation and internal quotation marks omitted). “[A]
defendant may raise a substantial question where he receives consecutive
sentences within the guideline ranges if . . . application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence.” Id. at
1270.
Rush contends that the following sentencing issues present substantial
questions: (1) the trial court focused on the seriousness of the crimes and
failed to consider his rehabilitative needs; (2) the trial court double-counted
factors already considered in the Sentencing Guidelines as the sole reason
for imposing a lengthy sentence; (3) the trial court failed to state the
guideline ranges at sentencing; and (4) the trial court‟s stated policy of
imposing a sentence for each victim violated the concept of individualized
sentencing. Rush has cited no case law holding that his claim that the trial
court failed to state the guideline ranges at sentencing raises a substantial
question, nor does our research reveal any.10 His remaining claims,
____________________________________________
10
Even if it did raise a substantial question, Rush‟s claim is meritless.
“[G]uidelines have no binding effect . . . they are advisory guideposts that
are valuable, may provide an essential starting point, and that must be
respected and considered; they recommend, however, rather than require a
particular sentence.” Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa.
2007). We have previously held that “[w]hen the record demonstrates that
the sentencing court was aware of the guideline ranges and contains no
indication that incorrect guideline ranges were applied or that the court
misapplied the applicable ranges, we will not reverse merely because the
(Footnote Continued Next Page)
- 21 -
J-A29016-16
however, do raise a substantial question. See Commonwealth v.
Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (finding substantial question
where appellant claimed trial court failed to consider his individualized
needs); Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa.Super.
2011) (finding substantial question where appellant argued trial court
focused on seriousness of offense and did not consider his rehabilitative
needs); Commonwealth v. Shugars, 895 A.2d 1270, 1274-75 (Pa.Super.
2006) (finding substantial question where appellant argued trial court relied
on “impermissible factors,” including his prior criminal history, as sole reason
for his increased sentence). Nevertheless, these claims do not merit relief.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa.Super. 2010). “An
abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. “A sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
_______________________
(Footnote Continued)
specific ranges were not recited at the sentencing hearing.”
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002).
Here, the sentencing transcript as a whole demonstrates the trial
court‟s awareness of the Sentencing Guidelines. This, coupled with the fact
that all of Rush‟s sentences were within or below the Sentencing Guidelines,
indicates that the trial court applied the correct guideline ranges and did not
misapply the applicable ranges. Therefore, we find no abuse of discretion.
- 22 -
J-A29016-16
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court‟s consideration of the facts of the crime and
character of the offender.” Id. at 1283.
Rush first claims that the trial court focused “almost exclusive[ly]” on
what happened the night of the crimes and that this demonstrated an
improper focus on retribution. Rush‟s Br. at 55. Rush continues that with
regard to the section 9721(b) factors,11 the trial court focused extensively on
“the gravity of the offense as it relates to the impact on the life of the victim
and on the community,” but failed to adequately consider the “protection of
the public,” and did not address at all Rush‟s “rehabilitative needs.” 42
Pa.C.S. § 9721(b). Rush further claims that the trial court erred in failing to
recite any information contained in the presentence investigation report.
We disagree. The trial court properly considered “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 [Rush‟s] rehabilitative needs.” 42 Pa.C.S.
§ 9721(b). At sentencing, the trial court stated it had considered the fact
that Rush “was on probation, absconder status, ha[d] not made himself
available in the community for supervision, and . . . was being sought by
____________________________________________
11
“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).
- 23 -
J-A29016-16
police to confirm his Megan‟s Law registration status.” N.T., 3/10/15, at 21.
It further took into consideration Rush‟s
history of assaults, and . . . review[ed] the Pre-Sentence
Report, somewhere in the neighborhood of about 20,
including aggravated assaults, simple assaults, statutory
sexual assaults, killing of a police animal, disarming of law
enforcement, crimes of violence, and just to be very clear,
that does include a few that were withdrawn and a few -- a
couple that remain pending by the age of 22.
Id. at 22. The trial court continued:
That is a significant and concerning history of violence,
and for that reason, I am going to include in my sentence
a rather long tail on a number of counts so that the Parole
Board is able to determine when Mr. Rush has
demonstrated a level of stability and capacity to return to
[the] community and conform his behavior to that which
would be expected to be a safe and law abiding citizen.
Id.
Additionally, the trial court was aware of Rush‟s mental health issues.
The trial court had before it Rush‟s pre-sentence report12 and also heard a
statement from Rush‟s mother, read by the Commonwealth.
[Rush‟s mother] wanted the Court to know that her son
has had mental health issues throughout his life that she
did try to help him with.
She said she doesn‟t, “sugarcoat” her son. She knows
that he is very dangerous. She does want it to be known
____________________________________________
12
“Where pre-sentence reports exist, we . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009) (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
- 24 -
J-A29016-16
that she did try to warn law enforcement about her son‟s
propensity for danger and violence . . .
She indicated to me that she knows that her son must
serve a lengthy prison sentence. She‟s comfortable with
that, because he has been institutionalized for most of his
life, and she knows at least he will get his medications
when he is incarcerated and he will be less likely to do
something.
She indicated that she herself is afraid of her son, and
that when he would stay with her, she would sleep with
her door locked.
Id. at 12-13.
As far as Rush‟s argument that the trial court did not “reiterate[]”
specific facts contained in the pre-sentence report, Rush‟s Br. at 55, he does
not cite any authority that requires the trial court to state on the record
specific facts included in the pre-sentence report. See supra n.12.
Contrary to Rush‟s claim, the trial court did not merely focus on the
events of the night of the crimes; rather, it properly considered all of the
evidence before it, including the section 9721(b) factors and all other
mitigating circumstances, and adequately stated its reasons on the record.
Thus, we find no abuse of discretion.
Next, Rush claims that the trial court erred in twice considering Rush‟s
offense gravity score and prior record score, first in the guidelines
calculation and then again when imposing sentence. Rush argues that while
a trial court may use a defendant‟s prior criminal history to supplement
other sentencing information, here, Rush‟s criminal history “was a primary
reason for the lengthy sentence imposed.” Rush‟s Br. at 59.
- 25 -
J-A29016-16
In Shugars, we explained that while “[i]t is impermissible for a court
to consider factors already included within the sentencing guidelines as the
sole reason for increasing or decreasing a sentence to the aggravated or
mitigated range[,]” a trial court may “use prior conviction history and other
factors already included in the guidelines if, they are used to supplement
other extraneous sentencing information.” 895 A.2d at 1275 (quoting
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa.Super. 2003))
(emphasis in original).
That the trial court mentioned Rush‟s prior criminal history in
fashioning his sentence does not demonstrate impermissible double-counting
of sentencing factors. As discussed above, the trial court considered the
section 9721(b) factors, including the impact on the life of the victims, the
threat Rush posed to the community, and the facts and circumstances of the
crimes. The trial court also considered the pre-sentence report, the fact that
Rush was on absconder status, and his lack of successful rehabilitation in the
past. Thus, Rush‟s prior criminal history was not the sole factor, “it was
merely just one factor among several that led to the increased sentence.”
Shugars, 895 A.2d at 1275.
Finally, Rush claims that the trial court‟s practice of imposing a
separate sentence for each victim is a violation of the concept of
individualized sentencing and such a “blanket policy” fails to consider all of
the section 9721(b) factors. Rush‟s Br. at 60.
- 26 -
J-A29016-16
“Pennsylvania's sentencing system, as evidenced by the Sentencing
Code and our case law, is based upon individualized sentencing.” Walls,
926 A.2d at 966. However, “[s]entencing is a matter vested within the
discretion of the trial court and will not be disturbed absent a manifest abuse
of discretion.” Crump, 995 A.2d at 1282. Here, the trial court stated that it
had a “general philosophy” of sentencing for each victim of a crime. 1925(a)
Op. at 20. This statement, however, does not per se establish a manifest
abuse of its discretion. Where the trial court has considered the section
9721(b) factors, the pre-sentence report, and all of the record evidence, as
the trial court did in this case, there is no abuse of discretion. See Walls,
926 A.2d at 966 (“[W]hile the sentencing court unfortunately cast doubt
upon the individualized nature of [appellant's] sentence by making certain
general comments about those who sexually victimize young children, when
viewed as a whole, the sentencing court made a sentencing decision that
was individualized with respect to [appellant].”).
The trial court stated that
numerous cases support the principle of consecutive
sentences for each victim. See Commonwealth v.
Watson, 457 A.2d 127 (Pa.Super. 1983) (although
separate sentences for indecent assault and corruption of
minors were improper because they related to the same
criminal act, the court could properly impose separate
sentences with respect to each of two victims);
Commonwealth v. Lockhart, 296 A.2d 883 (Pa.Super.
1972) (several victims robbed during same holdup).
Furthermore, this Court‟s general philosophy towards
consecutive sentencing to reflect separate crimes
committed on separate victims neither precludes argument
- 27 -
J-A29016-16
as to why such sentences should not be imposed in a
particular case nor prevents this Court from imposing a
sentence in each case appropriate to the facts of the case
and the circumstances of the defendant. This Court
imposed sentences in this case based on the facts of this
case and the circumstances of this appellant.
1925 Op. at 20. We agree.13
Thus, we conclude the trial court did not abuse its discretion in
fashioning Rush‟s sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2017
____________________________________________
13
To the extent Rush argues that the trial court abused its discretion
by imposing consecutive sentences, this claim is also without merit. The
trial court considered the facts of the crimes and Rush‟s character and
circumstances in deciding to impose a consecutive sentence. See
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011) (“[T]he
sentencing court [has] discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the same time or to
sentences already imposed.”); see also Commonwealth v. Hoag, 665
A.2d 1212, 1214 (Pa.Super. 1995) (stating appellant should not be entitled
to “a volume discount for his crimes by having all sentences run
concurrently”). We find no abuse of discretion.
- 28 -