Com. v. Spector, G. ( 2018 )

J-A05029-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY SPECTOR :
:
Appellant : No. 514 EDA 2016
Appeal from the Judgment of Sentence September 9, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012822-2013
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY MURRAY, J.: FILED MARCH 22, 2018
Gregory Spector (Appellant) appeals from the judgment of sentence
entered after a jury convicted him of attempted murder, attempted theft by
unlawful taking (attempted theft), attempted receipt of stolen property,
aggravated assault, conspiracy, possessing an instrument of crime (PIC),
simple assault, recklessly endangering another person (REAP), and robbery.1
We affirm Appellant’s convictions, but vacate his judgment of sentence and
remand for resentencing only.
The trial court summarized the facts of this case as follows:
On July 21, 2013, [Appellant] contacted the complainant,
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901(a), 2502, 3921(a), 3925(a), 2702(a)(1), 903(a),
907(a), 2701(a), 2705, and 3701(a)(1)(i).
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Sardor Bolyaganov [(Victim)], through Craigslist to purchase a
Samsung Galaxy S3 cell phone. [Appellant] and [Victim] agreed
to meet around 4:00 p.m. at Ferndale and Kentwood St[reets] in
Philadelphia to conduct the transaction. [Appellant], who was
purchasing the phone for his wife, arrived with her at that
location. They agreed upon a price of $290 and completed the
transaction. Later that afternoon, after having the phone service
activated, [Appellant’s] wife, Ashley Spector, noticed that the
phone began to cut out and indicate that there was no service.
[Appellant] called AT&T around 6:30 p.m. that evening to report
the issue and was told that the phone’s IMEI number was
coming back as being stolen. Appellant then contacted [Victim]
to return the phone and get his money back. [Victim] told
Appellant that he could give him back $200 [because] he spent
$90 in the time since the initial transaction. They agreed to
meet at the same location around 9:30 p.m.
[Appellant], along with his father, the co-defendant at trial
Lonnie Spector, left their residence in Bucks County to meet with
[Victim]. [Appellant] had in his possession his personal handgun
along with an extra magazine. While driving, [Appellant] called
911 to report what had occurred and for officers to accompany
them to meet [Victim]. Following the initial call to 911 at 9:45
p.m.[, Appellant] contacted 911 twice more, at 10:06 p.m. and
10:23 p.m.[,] to alert them to their location and to see when
officers were coming to meet them. At the same time, [Victim]
was in contact with [Appellant] asking where he was and
threatening to leave. Eventual[ly, Appellant] and his father grew
impatient and left their location where they were waiting for
police to arrive at around 10:30 p.m.
When they arrived at Ferndale and Kentwood St., [Victim]
was waiting in his car with his wife at the time, Olena Sirko
[(Sirko). Appellant] and [Victim] exited their vehicles, and
[Victim] gave [Appellant] the $200. [Appellant] then told
[Victim] that he was [not] getting the phone back and
aggressively started to yell at [Victim. Appellant’s] father,
Lonnie[,] then exited the vehicle and ran over to the other two
men and stated that he was an undercover cop. Lonnie then
grabbed [Victim] and they began to wrestle and both
eventual[ly] fell to the ground. At the same time [Appellant]
began taking pictures of [Victim’s] license plate. [Appellant]
th[e]n tried to grab [Victim] and was thrown backwards.
[Victim] and Lonnie got up and continued to punch and push
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each other. At this point[,] Lonnie was against his car with
[Victim] facing him and with [Victim’s] back to [Appellant.
Appellant] then removed his handgun and from a distance of five
or six feet fired twice toward [Victim’s] back. Appellant did not
say anything before firing. [Victim] immediately fell to the
ground. [Appellant] then walked over to [Victim] and pointed
his gun at him. [Victim] was not in possession of any weapon at
any point on that day.
[Victim] was transported to Aria Hospital-Torresdale around
11:00 p.m. He had a single bullet wound to his back with no
exit point and was in shock. The bullet shattered the T10
vertebra and also damaged the T9 vertebra. He was
immediately paralyzed from the navel down and will likely be
confined to a wheelchair for the rest of his life.
Trial Court Opinion, 11/1/16, at 2-4 (citations to notes of testimony
omitted).
On April 24, 2015, a jury found Appellant guilty of the aforementioned
crimes. The trial court deferred sentencing for the preparation of a pre-
sentence investigation report. On September 9, 2015, the trial court
sentenced Appellant to an aggregate term of 17 to 35 years of incarceration.
Pursuant to the court’s sentencing order, Appellant’s aggregate sentence
was comprised of the following terms, all to be served consecutively: 10 to
20 years for attempted murder, 2½ to 5 years for PIC; 1 to 3 years for
REAP, 2½ to 5 years for attempted theft, and 1 to 2 years for conspiracy. 2
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2 The court imposed a sentence of 1 to 2 years of incarceration on the
conspiracy charge at Count 12. Sentencing Order, 9/5/15. As we will
discuss infra, the trial court further imposed sentences on eight additional
counts of conspiracy (Counts 3, 10, 11, 12, 13, 14, 15, and 16); each of
these were to run concurrently with his other sentences.
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Sentencing Order, 9/9/15. The sentences for Appellant’s remaining
convictions either merged or were ordered to be served concurrently with
the above-referenced sentences. See id.
The trial court summarized the subsequent procedural history as
follows:
Appellant filed a timely Motion for Reconsideration of
Sentence and Motion for a New Trial on September 18, 2015 and
September 21, 2015 respectively. The post-sentence motions
were denied by operation of law on January 19, 2016.
Appellant filed a timely appeal on February 16, 2016. This
court entered an Order pursuant to Pa.R.A.P. [1925(b)] on
February 19, 2016. Appellant, through new appellate counsel,
filed a Motion for Issuance of a New Order on April 1, 2016, [3]
which was granted. He then timely filed his response on April
25, 2016.
Trial Court Opinion, 11/1/16, at 1-2.
On appeal, Appellant presents the following issues for our review:
[1.] Was not the evidence insufficient as a matter of law to
sustain the Commonwealth’s burden of proving that the shooting
was not committed in self-defense and/or in defense of
Appellant’s father, Lonnie Spector?
[2.] Was not the evidence insufficient to sustain the attempted
murder conviction where the jury was not instructed on malice in
the context of reducing circumstances that would have negated
it?
[3.] Was not the evidence insufficient to prove the crimes of
____________________________________________
3 According to Appellant’s motion, his counsel never received service of the
trial court’s original Rule 1925(b) order and thus was unable to submit a
timely Rule 1925(b) statement without the issuance of a new order. See
Motion for Issuance of a New Order, 4/1/16.
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robbery and attempted theft and attempted theft by receiving
stolen property?
[4.] Did not the lower court abuse its discretion in failing to
give a cautionary instruction to the jury or grant a mistrial when
the prosecution misrepresented the law as it pertained to self-
defense and defense of another person in closing argument?
[5.] Should not this Court grant discretionary review of the
sentence imposed, and thereupon vacate [Appellant’s] judgment
of sentence as excessive and clearly unreasonable?
[6.] Should not the Court vacate illegally imposed sentences on
charges for which Appellant was not arraigned, or were in
violation of statute or were otherwise subject to merger?
Appellant’s Brief at 11.
First, Appellant argues that the evidence was insufficient to prove that
he did not act in self-defense or defense of another. Appellant contends that
the evidence reveals he possessed the reasonable belief that both he and his
father were in danger of death or serious bodily injury when he shot Victim.
Additionally, Appellant asserts that neither his nor his father’s conduct prior
to the shooting “could be construed as a provocation manifesting an
intention to cause death or serious bodily injury” to Victim. Id. at 23.
In reviewing a challenge to the sufficiency of the evidence, our
standard of review is as follows:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
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mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant’s participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the jury, which
passes upon the weight and credibility of each witness’s testimony, is free to
believe all, part, or none of the evidence.” Commonwealth v. Ramtahal,
33 A.3d 602, 607 (Pa. 2011).
A defendant has no burden to prove that he acted in self-defense or
defense of another. Commonwealth v. Torres, 766 A.2d 342, 345 (Pa.
2001). Instead, “the Commonwealth bears the burden to disprove such a
defense beyond a reasonable doubt.” Id.
To prevail on a justification defense, there must be evidence of the
following:
a) the actor was free from fault in provoking or continuing the
difficulty which resulted in the use of deadly force; b) the actor
must have reasonably believed that he was in imminent danger
of death or serious bodily injury, and that there was a necessity
to use such force in order to save himself or others therefrom;
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and c) the actor did not violate any duty to retreat or to avoid
the danger.
* * *
The Commonwealth sustains [its] burden if it establishes at least
one of the following: 1) the accused did not reasonably believe
that he was in danger of death or serious bodily injury; or 2) the
accused provoked or continued the use of force; or 3) the
accused had a duty to retreat and the retreat was possible with
complete safety.
Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014); see also
18 Pa.C.S.A. §§ 505, 506.
We conclude that the Commonwealth sufficiently disproved Appellant’s
claim of self-defense and defense of others. Both Victim and his wife, Olena
Sirko, testified that Appellant and his father were the verbal and physical
aggressors of the altercation. N.T., 4/13/15, at 77-84; N.T., 4/14/15, at 48-
49, 113-14. Both Victim and Ms. Sirko stated that when Victim met with
Appellant and his father to return their money, it was Appellant and his
father who began yelling and cursing at Victim because he did not have the
full $290 to return to them. Id. Likewise, Victim and Ms. Sirko testified that
it was Appellant’s father who first shoved and grabbed Victim, which was the
impetus of the physical altercation that led to the shooting. Id.
Thus, the evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner, establishes that the Commonwealth
presented evidence that Appellant and his father, Lonnie, were not free from
fault in provoking the difficulty that culminated in the use of force. See
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Smith, 97 A.3d at 787. Although Appellant argues that he and his father
were not the aggressors, the jury was free to believe the testimony of Victim
and Ms. Sirko. See Ramtahal, 33 A.3d at 607. Accordingly, Appellant’s
first issue does not merit relief.
Second, Appellant argues that the “evidence was insufficient to sustain
the attempted murder conviction where the jury was not instructed on
malice in the context of reducing circumstances that would have negated it.”
Appellant’s Brief at 27. Although he attempts to frame his second issue as a
challenge to the sufficiency of the evidence, Appellant actually argues that
the trial court erred in failing to instruct the jury on imperfect self-defense.
See id. at 27-34. For several reasons, this claim fails.
Appellant, in his concise statement of errors complained of on appeal,
omitted any claim that the trial court erred in failing to instruct the jury on
imperfect self-defense. Regarding Rule 1925(b), our Supreme Court has
stated:
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule,
which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a Rule
1925(b) statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule’s terms; the
Rule’s provisions are not subject to ad hoc exceptions or
selective enforcement; appellants and their counsel are
responsible for complying with the Rule’s requirements; Rule
1925 violations may be raised by the appellate court sua sponte,
and the Rule applies notwithstanding an appellee’s request not
to enforce it; and, if Rule 1925 is not clear as to what is required
of an appellant, on-the-record actions taken by the appellant
aimed at compliance may satisfy the Rule. We yet again repeat
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the principle first stated in Lord that must be applied here:
“[I]n order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them
to file a Statement of Matters Complained of on Appeal pursuant
to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.” [Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 2011)].
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).
Therefore, because Appellant failed to preserve this issue in his Rule 1925(b)
statement, he has waived it.
Appellant has also waived this issue because he never requested that
the trial court instruct the jury on imperfect self-defense or otherwise
objected to the trial court’s instruction for attempted murder. See N.T.,
4/21/15, at 3-56. A “defendant’s failure to request a specific instruction will
waive any claim that the instruction should have been given.”
Commonwealth v. Corley, 638 A.2d 985, 990 (Pa. Super. 1994); see also
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.”).
Moreover, even if Appellant had properly raised and preserved this
issue, he would not have been entitled to a charge on imperfect self-
defense. Our Supreme Court has held that “a trial court shall only instruct
on an offense where the offense has been made an issue in the case and
where the trial evidence reasonably would support such a verdict.”
Commonwealth v. Bond, 985 A.2d 810, 821 (Pa. 2009) (quotations and
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citations omitted). To prevail on a claim of imperfect self-defense, a
defendant must have possessed “an unreasonable rather than a reasonable
belief that deadly force was required to save the actor’s life. All other
principles of justification under 18 Pa.C.S.[A.] § 505 must [be satisfied.]”
Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (quotations
and citations omitted). Therefore, “if the defendant was not free from fault,
neither self-defense nor imperfect self-defense is a viable defense.” Id. at
1124-25. As we discussed above in Appellant’s first issue, the
Commonwealth presented evidence that neither Appellant nor his father
were free from fault in provoking the altercation that eventually led to
Victim’s shooting. Accordingly, even if it were properly preserved,
Appellant’s second issue would be meritless.
Third, Appellant argues that the evidence was insufficient to sustain
his convictions of robbery and attempted theft. Appellant contends that the
Commonwealth failed to present evidence demonstrating that he caused
serious bodily injury to Victim while attempting to commit a theft.
The jury found Appellant guilty of robbery pursuant to Section
3701(a)(1)(i), which states that “[a] person is guilty of robbery if, in the
course of committing a theft, he . . . inflicts serious bodily injury upon
another.” See 18 Pa.C.S.A. § 3701(a)(1)(i). Importantly, “[a]n act shall be
deemed ‘in the course of committing a theft’ if it occurs in an attempt to
commit theft[.]” 18 Pa.C.S.A. § 3701(a)(2). “A person is guilty of theft if
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he unlawfully takes, or exercises unlawful control over, movable property of
another with intent to deprive him thereof.” 18 Pa.C.S.A. § 3921(a). “A
person commits an attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward the commission of
that crime.” 18 Pa.C.S.A. § 901(a).
Here, there is no dispute that Appellant caused serious bodily injury to
Victim. Appellant, however, asserts that there was no evidence that he
attempted to commit a theft because even though he refused to return the
phone to Victim after Victim returned his money, he intended to turn the
phone over to police so that they could return it to its rightful owner. This
Court, however, has rejected “self-help” or “claim of right” as a defense to
theft. Commonwealth v. Dombrauskas, 418 A.2d 493, 497 (Pa. Super.
1980). We explained that “the proposition not only is lacking in sound
reason and logic, but it is utterly incompatible with and has no place in an
ordered and orderly society such as ours[.]” Id. Thus, “public policy
precludes the assertion of a claim of right defense to a charge of theft by
unlawful taking.” Id.
The record reflects that after Appellant informed Victim that the phone
did not work because it was stolen, Appellant agreed to accept $200 in
exchange for returning the phone to Victim. N.T., 4/14/15, at 39-41. Upon
meeting with Victim and receiving his money, however, Appellant refused to
return the phone. Id. at 45-47. Once Appellant received the $200 from
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Victim and refused to return the phone, Appellant took a substantial step
towards unlawfully exercising control over the movable property of another.
Therefore, the record, viewed in the light most favorable to the
Commonwealth, establishes that Appellant committed an attempted theft
while causing serious bodily injury to Victim. See Franklin, 69 A.3d at 722-
23. The evidence thus was sufficient to sustain Appellant’s convictions for
robbery and attempted theft, such that Appellant’s third issue does not
entitle him to relief.
Fourth, Appellant challenges the trial court’s failure to give a
cautionary instruction to the jury or grant a mistrial when the prosecutor
allegedly misstated the law relating to self-dense during closing arguments.
Appellant’s Brief at 37-39. Specifically, Appellant takes issue with the
prosecutor stating during closing argument that in order to prevail on a
claim of self-defense, a defendant must have “clean hands,” i.e. be free from
fault in provoking the altercation that led to the use of force. Id. at 37.
Appellant also argues that the prosecutor inappropriately stated that the use
of force in defense requires a defendant to be in a “kill-or-be-killed
situation.” Id. at 38. Appellant maintains that these statements constituted
prosecutorial misconduct.
The standard of review governing the denial of a motion for mistrial is
as follows:
In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
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elements are injected into the case or otherwise discovered at
trial. By nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a mistrial serves
not only the defendant’s interest but, equally important, the
public’s interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably
be said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, . . .
assess the degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the court
abused its discretion. Judicial discretion requires action in
conformity with [the] law on facts and circumstances before the
trial court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for decision,
it misapplies the law or exercises its discretion in a manner
lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2015)
(quotations and citation omitted), appeal denied, 145 A.3d 724 (Pa. 2016).
With respect to a claim of prosecutorial misconduct in a closing
argument, this Court has explained:
[I]t is well settled that any challenged prosecutorial comment
must not be viewed in isolation, but rather must be considered in
the context in which it was offered. Our review of a prosecutor’s
comment and an allegation of prosecutorial misconduct requires
us to evaluate whether a defendant received a fair trial, not a
perfect trial. Thus, it is well settled that statements made by the
prosecutor to the jury during closing argument will not form the
basis for granting a new trial “unless the unavoidable effect of
such comments would be to prejudice the jury, forming in their
minds fixed bias and hostility toward the defendant so they could
not weigh the evidence objectively and render a true verdict.”
Commonwealth v. Fletcher, [ ] 861 A.2d 898, 916 ([Pa.]
2004). The appellate courts have recognized that not every
unwise remark by an attorney amounts to misconduct or
warrants the grant of a new trial. Additionally, like the defense,
the prosecution is accorded reasonable latitude, may employ
oratorical flair in arguing its version of the case to the jury, and
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may advance arguments supported by the evidence or use
inferences that can reasonably be derived therefrom. Moreover,
the prosecutor is permitted to fairly respond to points made in
the defense’s closing, and therefore, a proper examination of a
prosecutor’s comments in closing requires review of the
arguments advanced by the defense in summation.
Id. (some quotations and citations omitted).
Appellant takes issue with the following portions of the prosecutor’s
closing argument:
[Commonwealth]: So the law—as I was saying, the law
recognizes justification. And it’s, basically, reasonableness.
What a reasonable person would do under the same
circumstances. Now, the first thing is that the person—the
defendants in this situation must have clean hands. They must
have clean hands. They have to be free from fault in order to
say yes, I was justified in using deadly force. That means that
they can’t escalate the situation, nor can they continue the
situation. That’s what that means.
* * *
The second thing is they have to be in a killed-or-be-killed
situation. Once again, [a] killed-or-be-killed situation.
N.T., 4/20/15, at 194, 196.
Although Appellant’s claim that the prosecutor misstated the law
governing self-defense is tenuous at best, even assuming, arguendo, that
the prosecutor misstated the law during closing arguments, it did not
necessitate a mistrial. Our Supreme Court has held that even where a
prosecutor has misstated law during closing arguments, a claim of
prosecutorial misconduct will nonetheless fail where the trial court correctly
instructs the jury on the law and cautions the jury “to take the law from him
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and not from the attorneys.” Commonwealth v. Travaglia, 661 A.2d 352,
361 (Pa. 1995).
In this case, the trial court provided the jury with detailed and proper
instructions on the law relating to self-defense and defense of others. See
N.T., 4/21/15, at 89-94. Appellant did not object to these instructions. See
id. Additionally, the trial court instructed the jury that it was to develop its
understanding of the law only from the instructions of the court and not
counsel. N.T., 4/20/15, at 199-200. Therefore, we conclude that even
assuming, arguendo, that the prosecutor misstated the law relating to self-
defense, the trial court’s instructions to the jury cured any defect.
Accordingly, the trial court did not abuse its discretion in denying Appellant’s
request for a mistrial.
Fifth, Appellant challenges the discretionary aspects of his sentence.
Appellant argues that his sentence of 17 to 35 years of incarceration is
“manifestly excessive” and “clearly unreasonable.” Appellant’s Brief at 39-
40. Appellant specifically contends that the trial court failed to consider his
rehabilitative needs, his minimal risk of recidivism, mitigating factors such as
his lack of a prior criminal history and his reputation in the community, and
otherwise fashion an individualized sentence.
“The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
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2014), appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a
four-part test to invoke this Court’s jurisdiction when challenging the
discretionary aspects of a sentence.” Id. We conduct this four-part test to
determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set
forth a concise statement of reasons relied upon for the
allowance of his appeal pursuant to Pa.R.A.P. 2119(f); and (4)
the appellant raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Appellant preserved his discretionary aspects of sentencing claim
by raising it in a post-sentence motion. See Appellant’s Motion for
Reconsideration of Sentence, 9/18/15. Appellant also filed a timely notice of
appeal and included in his appellate brief a concise statement of the reasons
relied upon for the allowance of his appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). See Appellant’s Brief at 39-40. Thus, we
must determine whether Appellant’s discretionary aspects of sentencing
claim raises a substantial question for our review.
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Appellant argues, inter alia, that his sentence is excessive and that the
trial court failed to consider mitigating factors when it sentenced him. This
Court has held “that an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. 2014) (citing Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.
Super. 2005)). Accordingly, we turn our attention to the merits of
Appellant’s sentencing claim.
Our standard of review for discretionary aspects of sentencing claims
is as follows:
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.
Id. (quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.
Super. 2006)).
Section 9721(b) of the Sentencing Code sets forth general sentencing
standards for trial courts and provides, in pertinent part:
(b) General standards.—. . . the court shall follow the
general principle 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. . . . In every case in which the court imposes a
sentence for a felony or misdemeanor, modifies a sentence,
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resentences an offender following revocation of probation,
county intermediate punishment or State intermediate
punishment or resentences following remand, the court shall
make as a part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the
sentence imposed.
42 Pa.C.S.A. § 9721(b).
Our review of the discretionary aspects of a sentence is confined by
the statutory mandates of 42 Pa.C.S.A. § 9781(c) and (d). Subsection
9781(c) provides:
The appellate court shall vacate the sentence and remand the
case to the sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence
within the sentencing guidelines but applied the
guidelines erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c). In reviewing the record, we must consider:
(1) The nature and circumstances of the offense and
the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.
(3) The findings upon which the sentence was based.
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(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
We conclude that the trial court did not abuse its discretion in
sentencing Appellant. Appellant concedes that he received a sentence in the
standard guideline range. Appellant’s Brief at 40. Additionally, the trial
court had a presentence investigation report and acknowledged reviewing it.
Id. at 19. “[W]here the sentencing court imposed a standard-range
sentence with the benefit of a pre-sentence report, we will not consider the
sentence excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011). Additionally, “[i]n those circumstances, we can assume the
sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Id. (quotations and citations omitted).
Moreover, the sentencing transcript reflects that the trial court took into
consideration the sentencing standards enunciated in Section 9721(b) and
mitigating factors such as Appellant’s positive reputation as a community
volunteer and a volunteer firefighter. See N.T., 9/9/15, at 87-94.
Therefore, there is no support for Appellant’s claim that his sentence was
excessive and that the trial court did not take into consideration certain
mitigating factors in sentencing him. Accordingly, Appellant’ discretionary
aspects of sentencing claim does not entitle him to relief.
Finally, Appellant challenges the legality of several of his sentences.
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Appellant first argues the trial court improperly sentenced him on eight
different counts of conspiracy to commit various crimes—Counts 3, 10, 11,
12, 13, 14, 15, and 16 in the sentencing order. See Sentencing Order,
9/5/15. Appellant contends that he was only charged with and convicted by
the jury of one count of conspiracy—Count 3 on the criminal information.
See Information, 12/13/13. The Commonwealth concedes that Appellant’s
sentences for conspiracy at Counts 10 through 16 were improper and does
not object to vacating those judgments of sentence and leaving in place only
his sentence for conspiracy at Count 3. Commonwealth’s Brief at 51-52;
see also Commonwealth v. Schilling, 431 A.2d 1088, 1092 (Pa. Super.
1981) (“[I]t is well-settled law that a defendant can only be convicted of
crimes with which he was charged in the indictment or information, or
lesser-included offenses of those crimes.”).
Therefore, we vacate Appellant’s sentences for conspiracy at Counts
10 through 16 but do not disturb his sentence at Count 3. Because
Appellant’s sentence of 1 to 2 years of incarceration for conspiracy was for
Count 12 and his sentence for conspiracy at Count 3 was ordered to be
served concurrently with his sentence for attempted murder, vacating
Appellant’s judgment of sentence at Count 12 has reduced Appellant’s
aggregate sentence and disrupted the trial court’s sentencing scheme.
Furthermore, Appellant argues that we must vacate his sentences for
attempted theft and attempted receiving stolen property. Appellant asserts,
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inter alia, that his convictions of attempted theft and attempted receiving
stolen property merge with his conviction of robbery for purposes of
sentencing. The Commonwealth agrees that these convictions merge with
Appellant’s conviction of robbery for sentencing purposes. Commonwealth’s
Brief at 52.
Thus, we vacate Appellant’s judgments of sentence for attempted theft
and attempted receiving stolen property. Because Appellant received a
consecutive sentence of 2½ to 5 years of incarceration for his conviction of
attempted theft, vacating his judgment of sentence for that charge has also
reduced his aggregate sentence and disrupted the trial court’s sentencing
scheme. Vacating Appellant’s sentence for attempted receiving stolen
property does not affect his aggregate sentence because the trial court
ordered it to be served concurrently with his sentence for attempted theft.
Additionally, Appellant argues that his conviction of PIC merged with
his conviction of attempted murder for sentencing purposes because they
are both inchoate crimes. In support of this claim, Appellant cites Section
906 of the Pennsylvania Crimes Code, which provides as follows: “A person
may not be convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct designed to
commit or to culminate in the commission of the same crime.” See 18
Pa.C.S.A. § 906. By the plain language of the statute, PIC is not included in
Section 906. See Commonwealth v. Lee, 566 A.2d 1205, 1208 (Pa.
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Super. 1989) (holding that Section 906, which prohibits multiple convictions
of inchoate crimes, does not include PIC). Accordingly, Appellant’s
conviction of PIC did not merge with his conviction of attempted murder for
sentencing purposes.
Lastly, Appellant argues that we should vacate his judgment of
sentence for aggravated assault because that conviction merged with his
conviction of attempted murder for sentencing purposes. Once again, the
Commonwealth concedes that this Court should vacate Appellant’s
judgement of sentence for aggravated assault. See Commonwealth v.
Anderson, 650 A.2d 20, 24 (Pa. 1994) (holding that the crimes of
aggravated assault and attempted murder merge for purposes of
sentencing). Because the trial court ordered Appellant’s aggravated assault
conviction to be served concurrently with his attempted murder conviction,
vacating his judgment of sentence for aggravated assault does not disrupt
the trial court’s sentencing scheme.
In sum, we vacate Appellant’s sentences for conspiracy (Counts 10
through 16), attempted theft, attempted receiving stolen property, and
aggravated assault, and remand for resentencing because vacating
Appellant’s sentences for conspiracy at Count 12 and attempted theft
reduces his aggregate sentence and consequently, disrupts the trial court’s
sentencing scheme. Commonwealth v. McCamey, 154 A.3d 352, 359 (Pa.
Super. 2017) (resentencing is required where an order from the Superior
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Court disrupts the sentencing scheme). To clarify, upon remand, the court
shall sentence Appellant for the following convictions:
Count 1 – Criminal Attempt (Murder) – 18 Pa.C.S.A. §§ 901(a), 2502
Count 4 – PIC – 18 Pa.C.S.A. § 907(a)
Count 6 – REAP – 18 Pa.C.S.A. § 2705
Convictions affirmed. Judgment of sentence vacated. As our
disposition addresses the issues raised in the Commonwealth’s February 26,
2018 Petition for Leave to File Substituted Brief filed, the Petition is denied
as moot. Case remanded for resentencing consistent with this decision.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/18
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