Com. v. Haines, J. ( 2016 )

J-S26010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES HAINES
Appellant No. 147 EDA 2015
Appeal from the Judgment of Sentence July 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005834-2012
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MAY 04, 2016
Appellant, James Haines, appeals from the judgment of sentence entered
on July 8, 2013, as made final by the denial of his post-sentence motion on
November 12, 2013. We affirm.
The trial court made the following findings of fact:
In the early morning hours of March 11, 2012, [Appellant] and
Pedro Rosado (Rosado) were at an after-hours club called
Passions. As [Appellant] and Rosado were exiting the club that
morning around 6:00 [a.m.], the security guards stopped them
and told them to wait, because there were allegedly people in
the parking lot that had weapons. Eventually the guards let
them leave, and [Appellant] and Rosado were seen getting into a
red Dodge Challenger. Rosado got into the driver’s side of the
vehicle, and [Appellant] got into the passenger’s side of the
vehicle. [Appellant], who had a black semi-automatic handgun
in his hand, stuck his hand out the window of the vehicle, and
fired shots into the air.[1] After witnessing the shots fired by
1
At trial, the Commonwealth presented evidence that Appellant did not fire
the gun into the air, but instead fired the gun towards the security guards.
(Footnote Continued Next Page)
* Retired Senior Judge assigned to the Superior Court
J-S26010-16
[Appellant], the club’s security guards returned fire in the
direction of the Challenger. [Appellant] and Rosado then exited
the parking lot and drove off in the red Dodge Challenger.
On that same morning, Officer Kenneth Fazio was on patrol and,
around 6:00 [a.m.], when he heard gunshots, he proceeded to
the 3500 block of Kensington Avenue. Officer Fazio observed a
Dodge Challenger parked in the running lane, and approached
the vehicle. As the officer approached, he observed bullet holes
in the vehicle and [Appellant] screaming, “Help me, help me!”
Inside the vehicle, Officer Fazio observed Rosado in the
passenger seat, with blood all over the vehicle. Rosado was
transported by police to Temple University Hospital, where he
was pronounced dead at 7:06 [a.m.]
[Appellant] was then taken to the Homicide Unit, where he made
a statement to Detective [James] Crone. In the statement
[Appellant] indicated that, as he and Rosado were exiting the
club the security guards told him that someone was in the
parking lot with a weapon. At this point both men went to
Rosado’s vehicle and got inside. [Appellant] then stuck his hand
out of the passenger side window and shot the gun multiple
times. He stated that he fired the gun because he was scared
and was, “trying to scare the men away.” [Appellant] then
heard gunfire returned. At that point [Appellant] noticed that
Rosado, who was driving the vehicle, was shot. He slid him over
to the passenger side of the vehicle and began to drive the car
_______________________
(Footnote Continued)
N.T., 5/9/13, at 69-70, 130-131. The Appellant, however, gave a statement
to Detective James Crone of the Philadelphia Homicide Unit that he “fired a
couple of rounds in the sky trying to scare the men away.” N.T., 4/29/13, at
118. Based upon its Rule 1925(a) opinion, it is evident that the trial court
found Appellant’s statement on this issue more credible than the testimony
proffered by the Commonwealth’s witnesses. Nonetheless, the trial court
determined that Appellant’s actions constituted involuntary manslaughter.
When the trial court makes factual determinations after a bench trial relating
to the evidence presented at trial, we are bound by those factual
determinations as long as they are supported by the record. See
Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. 1997), appeal
denied, 705 A.2d 1304 (Pa. 1998) (citation omitted). As the trial court’s
factual finding in this regard is supported by the record, we proceed with
that being considered the evidence viewed in the light most favorable to the
Commonwealth.
-2-
J-S26010-16
down Kensington Avenue. At this point the car would no longer
continue driving and stopped. As he did this he noticed the
officer approaching the vehicle and he told the officer that
Rosado was inside the vehicle and needed help.
Trial Court Opinion, 5/20/15, at 2-3 (internal citations omitted).
The procedural history of this case is as follows. On May 25, 2012,
Appellant was charged via criminal information with involuntary
manslaughter,2 possession of a firearm by a prohibited person,3 carrying a
firearm without a license,4 carrying a firearm on the streets of Philadelphia,5
possessing an instrument of crime,6 and three counts of recklessly
endangering another person.7 At the conclusion of a bench trial, on May 10,
2013, the trial court found Appellant not guilty of two counts of recklessly
endangering another person and guilty of the six remaining counts. On July
8, 2013, Appellant was sentenced to an aggregate term of 7½ to 16 years’
2
18 Pa.C.S.A. § 2504(a).
3
18 Pa.C.S.A. § 6105(a)(1).
4
18 Pa.C.S.A. § 6106(a)(1).
5
18 Pa.C.S.A. § 6108.
6
18 Pa.C.S.A. § 907(a).
7
18 Pa.C.S.A. § 2705.
-3-
J-S26010-16
imprisonment.8 On July 15, 2013, Appellant filed a post-sentence motion.
On November 12, 2013, the trial court denied the post-sentence motion.
On August 28, 2014, Appellant, through counsel, filed a petition
pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541-9546. On December 19, 2014, the PCRA court granted Appellant’s
PCRA petition and reinstated his direct appellate rights nunc pro tunc. This
appeal followed.9
Appellant presents two issues for our review:
1. Did the evidence at trial fail to sufficiently demonstrate that
Appellant’s actions caused [Rosado]’s death?
2. Did the [trial] court impose an unduly harsh and excessive
sentence by imposing consecutive terms of imprisonment on
numerous convictions?
Appellant’s Brief at 8.
In his first issue, Appellant argues that the evidence was insufficient to
find him guilty of involuntary manslaughter. “Whether sufficient evidence
8
The aggregate sentencing included two to five years for involuntary
manslaughter, one to two years for possession of a firearm by a prohibited
person, 42 to 84 months for carrying a firearm without a license, and one to
two years for recklessly endangering another person. The carrying a firearm
on the streets of Philadelphia charge merged with the carrying a firearm
without a license charge and the possessing an instrument of crime sentence
was ordered to run concurrently with the possession of a firearm by a
prohibited person sentence.
9
On December 30, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (concise statement). See
Pa.R.A.P. 1925(b). On January 20, 2015, Appellant filed his concise
statement. On May 20, 2015, the trial court issued its Rule 1925(a) opinion.
Both issues raised by Appellant were included in his concise statement.
-4-
J-S26010-16
exists to support the verdict is a question of law; our standard of review is
de novo and our scope of review is plenary.” Commonwealth v. Tejada,
107 A.3d 788, 792 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.
2015) (citation omitted). In reviewing a sufficiency of the evidence claim,
we must determine whether “viewing all the evidence admitted at trial in the
light most favorable to the Commonwealth as the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt.” Commonwealth v. Gonzalez, 109
A.3d 711, 716 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015)
(internal alteration and citation omitted). “The evidence does not need to
disprove every possibility of innocence, and doubts as to guilt, the credibility
of witnesses, and the weight of the evidence are for the fact-finder to
decide.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015)
(citation omitted).
In order to sustain a conviction for involuntary manslaughter, the
Commonwealth must prove beyond a reasonable doubt “1) a mental state of
either recklessness or gross negligence, and 2) a causal nexus between the
conduct of the accused and the death of the victim.” Commonwealth v.
Fabian, 60 A.3d 146, 151 (Pa. Super. 2013), appeal denied, 69 A.3d 600
(Pa. 2013) (internal alteration, quotation marks, and citation omitted).
Appellant argues that the Commonwealth failed to prove the second element
-5-
J-S26010-16
of involuntary manslaughter, i.e., that there was a causal nexus between his
actions and Rosado’s death.
This Court conducts a two-part inquiry to determine if there were a
causal nexus between a defendant’s actions and a victim’s death. “[A]
defendant’s conduct must be the antecedent but-for which the result in
question would not have occurred. Specifically, it would be unfair to hold an
individual responsible for the death of another if his actions are remote or
attenuated and the victim’s death was attributable to other factors.”
Commonwealth v. Chapman, 763 A.2d 895, 899 (Pa. Super. 2000),
appeal denied, 771 A.2d 1278 (Pa. 2001) (internal citations omitted). The
second part of this test “is satisfied when the victim’s death is the natural or
foreseeable consequence of the defendant’s actions. The inquiry is often
addressed in terms of foreseeability. Moreover, the fatal result of a
defendant’s conduct is not rendered unforeseeable merely because the
precise agency of death could not have been foretold.” Commonwealth v.
Devine, 26 A.3d 1139, 1148 (Pa. Super. 2011).
In this case, the first part of the test is satisfied. Appellant’s actions
were the antecedent but-for which Rosado would not be deceased. Armed
security guards would not open fire on a vehicle for no reason. Instead, the
armed security guards only opened fire on the vehicle occupied by Appellant
and Rosado because Appellant fired his weapon out of the window of the
vehicle.
-6-
J-S26010-16
The second part of the test is also satisfied. It was foreseeable that
either the armed security guards, or the individuals that Appellant believed
to be armed in the parking lot, would fire on the vehicle occupied by
Appellant and Rosado once Appellant opened fire. It would be difficult for
the armed security guards at the Passions after-hours club to determine
why, or toward what direction, Appellant fired his weapon. Instead, the only
information that the armed security guards had was that Appellant opened
fire within range of their position and within range of other, possibly armed,
individuals. The natural and foreseeable reaction to an individual who opens
fire in a public area is for an armed security guard to return fire.
The facts in the case at bar are similar to those in Commonwealth v.
Nunn, 947 A.2d 756 (Pa. Super. 2008), appeal denied, 960 A.2d 838 (Pa.
2008). In Nunn, police officers investigating a robbery confronted the
defendant who “reached under his shirt, drew a gun, and pointed it at [a
police officer].” Id. at 759. Police returned fire, injuring the defendant and
killing an innocent bystander. Id. The defendant was later convicted of
involuntary manslaughter. On appeal, he challenged the sufficiency of the
evidence supporting his conviction, arguing that he could not foresee that
his actions would cause the innocent bystander’s death. This Court affirmed
the involuntary manslaughter conviction and found that there was sufficient
evidence of causation. Specifically, this Court held that “[d]espite knowing
that [the victim] and her daughter were present, [the defendant] chose to
-7-
J-S26010-16
ignore the police commands, pull out his weapon, and point it at [a police
officer], thereby drawing police fire.” Id. at 761.
Like Nunn, where the defendant was aware of the presence of armed
officers and his proximity to innocent bystanders, Appellant here knew there
were armed security guards present,10 as well as individuals in the parking
lot that were believed to be armed. Appellant also knew that Rosado was
seated next to him. Despite these circumstances, Appellant chose to fire his
weapon out of the vehicle that he and Rosado occupied. As noted above,
the reasonable, and foreseeable, reaction of an armed security guard to an
individual opening fire is to immediately return fire. As in Nunn, we find the
evidence in this case sufficient to sustain Appellant’s conviction for
involuntary manslaughter.
We also find instructive this Court’s decision in Commonwealth v.
Lang, 426 A.2d 691 (Pa. Super. 1981). In Lang, the defendant led police
on a high speed chase. During that chase, one of the pursing officers
crashed and died as a result of his injuries. The Commonwealth charged the
10
The evidence presented at trial established that two of the security
guards, Kelly Goldwire and Kenneth Sharper, were armed and that their
firearms were visible. N.T., 5/9/13, at 47-48. Terrence Garrett, a third
security guard, testified that Appellant saw the firearms on the guards as he
exited the club and he commented on one of the guns and said he would pay
whatever amount of money to buy it. Id. at 54. Thus, the evidence of
record supports the finding that Appellant knew that some of the security
guards were armed at the time he fired his gun out of the car window.
-8-
J-S26010-16
defendant with vehicular homicide11 and the trial court granted the
defendant’s habeas corpus petition. This Court reversed, concluding that the
facts alleged by the Commonwealth were sufficient to prove criminal
causation. Specifically, this Court explained that the police officer
was duty bound to pursue [defendant], which duty arguably
became more compelling with each Vehicle Code violation. In a
sense, [the pursuing officer] was bound as if by a chain to [the
defendant’s] vehicle; and, at the speed [the defendant] was
travelling, it was foreseeable the chain would break, hurtling
[the pursuing officer] to his death.
Id. at 695 (footnote omitted).
As in Lang, the armed security guards at the nightclub were duty
bound to protect individuals inside and outside of the club, along with
themselves. Appellant was aware of this fact, and that the armed security
guards took their jobs seriously. As Appellant and Rosado exited the club,
the armed security guards made them wait because of armed individuals in
the parking lot. The armed security guards carried out their duty by
returning fire once Appellant opened fire from his vehicle. The natural and
foreseeable consequences of Appellant’s actions were that he and/or Rosado
would be shot.
11
Although Lang arose in the context of vehicular homicide, this Court has
relied upon Lang when discussing the foreseeability requirement for an
involuntary manslaughter conviction. See Commonwealth v. Rementer,
598 A.2d 1300, 1307 (Pa. Super. 1991), appeal denied, 617 A.2d 1273 (Pa.
1992).
-9-
J-S26010-16
Appellant analogizes the case at bar to Commonwealth v. Colvin,
489 A.2d 1378 (Pa. Super. 1985). In Colvin, the defendant was convicted
of involuntary manslaughter after he threw a stone at the victim’s house. A
resident then informed the victim that someone threw a stone at the house.
The victim, upon hearing this news, collapsed and died of a heart attack.
This Court reversed the involuntary manslaughter conviction, holding that
“the noise caused by the stone was not heard by the [victim]. The stone
caused property damage and the noise frightened [the other resident], and
there the direct causal relationship ends.” Id. at 1380. In other words, this
Court found that the defendant’s action was not the direct result of the
victim’s death.
As noted above, the causal relationship between Appellant’s actions
and Rosado’s death is direct. As soon as Appellant opened fire from the
vehicle, the armed security guards returned fire in the vehicle’s direction.
These shots resulted in Rosado’s death. Thus, Colvin is inapposite and we
perceive no factual or legal impediment to our conclusion that the
Commonwealth proved both elements of causation. Accordingly, we
conclude that the evidence was sufficient to find Appellant guilty of
involuntary manslaughter.
In his second issue, Appellant argues that his sentence is excessive.
This issue challenges the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).
- 10 -
J-S26010-16
Pursuant to statute, Appellant does not have an automatic right to appeal
the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id.
As this Court has explained, in order to reach the merits of a
discretionary aspects claim,
[w]e conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation
omitted). Appellant filed a timely notice of appeal, preserved the issue in his
post-sentence motion, and included a Rule 2119(f) statement in his
appellate brief. Thus, we turn to whether Appellant has raised a substantial
question.
“In order to establish a substantial question, the appellant must show
actions by the trial court inconsistent with the Sentencing Code or contrary
to the fundamental norms underlying the sentencing process.”
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “The determination of whether a particular case raises a
substantial question is to be evaluated on a case-by-case basis.”
- 11 -
J-S26010-16
Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),
appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).
In his Rule 2119(f) statement, Appellant argues that this appeal
presents a substantial question because the trial court failed to consider his
rehabilitative needs and imposed consecutive sentences. This Court has
held that a “challenge to the imposition of [] consecutive sentences as
unduly excessive, together with [a] claim that the [trial] court failed to
consider [the defendant’s] rehabilitative needs upon fashioning its sentence,
presents a substantial question.” Commonwealth v. Caldwell, 117 A.3d
763, 770 (Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa.
2015). As Appellant raises such a claim, we conclude that he has raised a
substantial question and proceed to consider the merits of Appellant’s
discretionary aspects claim.
Pursuant to statute,
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.A. § 9721(b). Furthermore, when sentencing a defendant, the
trial court is required to consider the sentencing guidelines. See
Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014) (citation
omitted). In this case, Appellant was sentenced within the sentencing
guidelines. Accordingly, we may only vacate his sentence if this “case
- 12 -
J-S26010-16
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).
Appellant first contends that the trial court failed to meaningfully
consider mitigating factors. Specifically, he argues that the trial court did
not consider the changes he had undergone while imprisoned. As Appellant
notes, when imposing a sentence a trial court is required to state “the
reasons for the sentence. The court is not required to parrot the words of
the Sentencing Code, stating every factor that must be considered under
[s]ection 9721(b). However, the record as a whole must reflect due
consideration by the court of the statutory considerations [enunciated in that
section].” Appellant’s Brief at 22 (second alteration in original), quoting
Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal
denied, 963 A.2d 467 (Pa. 2008). The record reflects that the trial court
considered the relevant statutory factors.
At sentencing, the trial court explicitly stated that it had carefully
reviewed the pre-sentence investigation report (and demonstrated such
knowledge by recalling specific portions of the report). N.T., 7/8/13, at 32-
33. The trial court also explicitly stated that it considered Appellant’s sister’s
comments at the sentencing hearing, the arguments made by Appellant’s
counsel, and Appellant’s allocution. Id. at 33. The mitigating factor relied
upon by Appellant, the changes he had undergone while imprisoned, were
supported by his sister’s statement to the trial court along with his
- 13 -
J-S26010-16
allocution. The trial court explicitly considered this evidence at sentencing.
Furthermore, as noted above a pre-sentence investigation report was
completed and reviewed by the trial court prior to sentencing. When a trial
court has access to a pre-sentence investigation report, it is presumed that
it “was aware of relevant information regarding the defendant’s character
and weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). As such, we
conclude that the trial court properly considered all mitigating factors.
Second, Appellant argues that the consecutive nature of the sentences
was unwarranted. The general rule in this Commonwealth, however, is that
trial courts have the discretion to order sentences to run consecutively. See
Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015) (citation
omitted) (“Appellant is not entitled to a volume discount for his crimes.”);
Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015). We ascertain no abuse of discretion in the
trial court’s decision to run four of Appellant’s sentences consecutively.
Appellant’s unlawful behavior not only cost Rosado his life, but it also
endangered the lives of all surrounding the incident. The shots fired by
Appellant could have easily struck an innocent person strolling the streets of
Philadelphia and the return fire by the armed security guards could have
easily killed a bystander in the parking lot in addition to Rosado. Appellant
had two prior firearms convictions in another jurisdiction and yet continued
- 14 -
J-S26010-16
to carry an unlicensed firearm on the streets of Philadelphia – violating three
statutes merely with his possession of the firearm. In such circumstances,
the trial court found that a sentence of 7½ to 16 years’ imprisonment was
appropriate and we ascertain no abuse of discretion in this conclusion.
Accordingly, Appellant is not entitled to relief on his discretionary sentencing
challenge.
Judgment of sentence affirmed.
Judge Stabile joins this memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
- 15 -