Com. v. Thomas, T. ( 2018 )

J-S36022-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TEVIN THOMAS :
:
Appellant : No. 1202 EDA 2017
Appeal from the Judgment of Sentence April 11, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0014120-2014,
CP-51-CR-0014121-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 27, 2018
Appellant, Tevin Thomas, appeals from the Judgment of Sentence of 20
to 40 years’ incarceration imposed after a jury convicted him of two counts
each of Attempted Murder and Aggravated Assault, and one count each of
Carrying a Firearm Without a License and Carrying a Firearm in Public in
Philadelphia.1 Appellant challenges the sufficiency and weight of the evidence
in support of his convictions, and the discretionary aspects of his sentence.
After careful review, we affirm on the basis of the trial court’s September 12,
2017 Pa.R.A.P. 1925(a) Opinion.
____________________________________________
1 18 Pa.C.S. §§ 901(a); 2502(a); 2702(a); 6106(a)(1); and 6108,
respectively. The Commonwealth also charged Appellant with two counts of
each of Simple Assault and Recklessly Endangering Another Person, but nolle
prossed those charges before trial. 18 Pa.C.S. §§ 2701 and 2705,
respectively.
J-S36022-18
The relevant facts, as gleaned from the certified record, are as follows.
On March 25, 2014, at around 5:30 PM, Philadelphia Police Officers
Christopher Daukaus, Michael Inemer, George Lane, and Stephen Murray
were responding to an incident on the 4800 block of Palethorp Street in
Philadelphia when they heard gunshots nearby, coming from the direction of
the intersection of Louden and Mascher Streets. The officers ran towards the
gunshots, and, at the intersection of Palethrop and Louden Streets, met two
armed men, later identified as Paris Nicholson and Demetrius Dickens.
Dickens complied with police orders to drop his weapon, and Officers
Murray and Inemer placed him under arrest. Dickens told police that he and
Nicholson had been fleeing a shooting at the corner. Officers Daukus and Lane
followed Nicholson as he attempted to escape. While in flight, Nicholson
turned and shot at the officers. Officer Lane returned fire, exchanging
approximately 15 to 20 shots with Nicholson. The officers then apprehended
Nicholson and placed him under arrest. Police recovered firearms from both
Nicholson and Dickens.2
A witness reported to Officers Daukus and Lane that a man had been
shot around the corner, on Mascher Street. Officer Lane proceeded there, and
he and additional officers began looking for the unidentified injured male.
Officer Lane discovered an injured man, later identified as Appellant,
sitting on a wall at 4761 Mascher Street. Officer Lane also recovered a Glock
____________________________________________
2 The Commonwealth prosecuted Nicholson and Dickens both of whom
pleaded guilty to multiple offenses arising from this incident.
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.9 millimeter semi-automatic pistol with an extended, 33-shot magazine from
the real wheel well of a nearby minivan. Police arrested Appellant at the scene
and an ambulance transported him to the hospital to obtain treatment for a
gunshot wound on his leg.
Appellant’s jury trial on the above charges commenced on January 5,
2016. At trial, the Commonwealth presented the testimony of eye witnesses
Carlos Cruz, Adalia Carlton, Robert Fuentes, and Luis Miranda;3 Officers Lane,
Daukaus, and Inemer; Officer Peter Brendlmaier, one of the patrol officers
dispatched to the incident; Officer Raymond Andrejczak, a member of the
Firearms Identification Unit; Officer Robert Flade, a member of the Crime
Scene Unit; Detectives James Perfidio, Francis Green, and Glenn MacClain;
Sergeant Mark Hiller; Gamal Emira, a certified forensic science and gunshot
residue expert; and Bryne Strother, a certified DNA analysis and forensic
expert. The court also admitted into evidence surveillance video from the area
near the intersection of Louden and Mascher Streets that captured the shoot-
out between Appellant, Nicholson, and Dickens.
Appellant did not testify on his own behalf. His counsel did, however,
argue in both his opening and closing arguments that Appellant had been
acting in self-defense when he fired 15 shots from his extended magazine
weapon.
____________________________________________
3Luis Miranda is also a Philadelphia police officer, but was off-duty at the time
of the crime and testified as a civilian.
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Following trial, on January 12, 2016, the jury convicted Appellant of the
above offenses. The trial court ordered Appellant to undergo a psychological
evaluation and the preparation of a Presentence Investigation (“PSI”) Report
prior to sentencing.
On April 11, 2016, after hearing testimony and argument from counsel,
and reviewing the PSI Report, the court sentenced Appellant to an aggregate
term of 20 to 40 years’ incarceration,4 including two consecutive terms in the
aggravated range of 10 to 20 years’ incarceration on each Attempted Murder
conviction.5 Appellant filed a Post-Sentence Motion on April 19, 2016, in which
he challenged the weight of the evidence, as well as the discretionary aspects
of his sentence. On May 10, 2016, the court denied Appellant’s Motion.
Appellant initially failed to file a timely Notice of Appeal. Following the
reinstatement of his direct appeal rights, however, Appellant filed the instant
appeal from his Judgment of Sentence. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following three issues on appeal:
1. Is the evidence sufficient as a matter of law to support the
convictions for [A]ttempted [M]urder and [A]ggravated
____________________________________________
4 In addition, the court sentenced Appellant to a term of 2 to 4 years’ and 1
to 2 years’ for his Carrying a Firearm Without a License and Carrying a Firearm
in Public in Philadelphia convictions, respectively. The court ordered
Appellant’s firearms sentences to run concurrently. Appellant’s Aggravated
Assault convictions merged with his Attempted Murder convictions for
purposes of sentencing.
5The court concluded that the deadly weapons enhancement, 204 Pa. Code §
303.17(b), applied and calculated Appellant’s sentence accordingly.
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[A]ssault where the evidence of record did not establish beyond
a reasonable doubt that [Appellant] was not justified (under 18
Pa.C.S.[] § 505?
2. Is the verdict of guilty with respect to the charges of
[A]ttempted [M]urder and [A]ggravated [A]ssault against the
weight of the evidence and so contrary to the evidence that it
shocks one’s sense of justice based upon the evidence of record
in these matters?
3. Is the sentence imposed unduly harsh and greater than that
which would be consistent with protection of the public, the
gravity of [Appellant’s] conduct as it relates to the impact on
the life of others in the community, and the rehabilitative needs
of [Appellant], and did the trial court take into account all
mitigating and relevant and necessary factors to be considered
by a sentencing court, as set forth in the [P]ost-[S]entence
[M]otion filed by [Appellant] (including [Appellant’s] age[,]
rehabilitative needs, and defensive actions taken in response
to the complainants’ unlawful acts)?
Appellant’s Brief at 8-9.
Sufficiency of the Evidence
In his first issue, Appellant challenges the sufficiency of the evidence
supporting his Attempted Murder and Aggravated Assault convictions. He
claims that he was acting in self-defense when he discharged his weapon. He
asserts that the testimonial, video, and forensic evidence overwhelmingly
establish that his actions were justifiable in response to Nicholson’s and
Dickens’s attempts to kill him. Id. at 29. He avers that “simply distancing
himself from Dickens and Nicholson was, in fact, insufficient to protect
[himself] from the serious bodily injury which that pair was actively trying to
inflict upon him with their handguns.” Id. at 31. He infers from the fact that
Nicholson emptied his gun and Dickens fired 22 of 23 rounds that the men
“were determined to continue their assault until completely prevented from
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doing so[,]” and that, therefore, the force he used was necessary to protect
himself against death or serious bodily injury. Id.
Appellant relies on the justification statute set forth in our Crimes Code
that permits the “use of force upon or toward another person . . . when the
actor believes that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force[.]” 18 Pa.C.S. § 505(a).
In Commonwealth v. Torres, 766 A.2d 342 (Pa. 2001), our Supreme Court
explained:
The use of force against a person is justified when the actor
believes that such force is immediately necessary for the purpose
of protecting himself against the use of unlawful force by the other
person. See 18 Pa.C.S. § 505(a). When a defendant raises the
issue of self-defense, the Commonwealth bears the burden to
disprove such a defense beyond a reasonable doubt. While there
is no burden on a defendant to prove the claim, before the defense
is properly at issue at trial, there must be some evidence, from
whatever source, to justify a finding of self-defense. If there is
any evidence that will support the claim, then the issue is properly
before the fact finder.
Id. at 345 (some citations omitted).
To disprove a self-defense claim, the Commonwealth is required to
prove 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.
Hammond, 953 A.2d 544, 559 (Pa. Super. 2008).
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In connection with his sufficiency challenge, Appellant avers that, since
he acted for the permitted purpose of self-defense, the Commonwealth failed
to offer sufficient evidence supporting his Attempted Murder and Aggravated
Assault convictions. Appellant’s Brief at 26.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
claims regarding the sufficiency of the evidence by considering whether,
viewing all the evidence admitted at trial in the light most favorable to 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.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and
citations omitted). “Further, a conviction may be sustained wholly on
circumstantial evidence, and the trier of fact—while passing on the credibility
of the witnesses and the weight of the evidence—is free to believe all, part, or
none of the evidence.” Id. “In conducting this review, the appellate court
may not weigh the evidence and substitute its judgment for the fact-finder.”
Id.Appellant challenges his convictions of Attempted Murder and
Aggravated Assault. Under the Crimes Code, a defendant “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. § 901(a).
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“A person may be convicted of attempted murder ‘if he takes a
substantial step toward the commission of a killing, with the specific intent in
mind to commit such an act.’” Commonwealth v. Dale, 836 A.2d 150, 153
(Pa. Super. 2003) (citations omitted). See 18 Pa.C.S. §§ 901, 2502. “The
substantial step test broadens the scope of attempt liability by concentrating
on the acts the defendant has done and does not any longer focus on the acts
remaining to be done before the actual commission of the crime.”
Commonwealth v. Gilliam, 417 A.2d 1203, 1205 (Pa. Super. 1980). “The
mens rea required for first-degree murder, specific intent to kill, may be
established solely from circumstantial evidence.” Commonwealth v. Schoff,
911 A.2d 147, 160 (Pa. Super. 2006). “[T]he law permits the factfinder to
infer that one intends the natural and probable consequences of his acts[.]”
Commonwealth v. Gease, 696 A.2d 130, 133 (Pa. 1997). “The offense of
attempt with intent to kill is completed by the discharging of a firearm at a
person with intent to kill, despite the fortuitous circumstances that no injury
is suffered.” Commonwealth v. Mapp, 335 A.2d 779, 781 (Pa. Super.
1975).
Under Pennsylvania law, “a person is guilty of aggravated assault if he
. . . attempts to cause serious bodily injury to another, or causes such injury
intentionally, knowingly[,] or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1).
Intent to cause serious bodily injury can be proven by wholly circumstantial
evidence, and may be inferred from acts or conduct, or from attendant
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circumstances. Commonwealth v. Holley, 945 A.2d 241, 247 (Pa. Super.
2008).
The Honorable Charles A. Ehrlich, who presided over the proceedings in
this case, has authored a comprehensive, thorough, and well-reasoned
Opinion, citing to the record, including the Notes of Testimony, as well as the
relevant case law, in addressing Appellant’s challenge to the sufficiency of the
evidence and his unsuccessful self-defense claim. After a careful review of
the parties’ arguments and the record, we adopt the trial court’s Opinion as
to this issue as our own, and conclude that Appellant’s first issue warrants no
relief. See Trial Ct. Op., 9/12/17, at 3-11 (concluding, based on the extensive
evidence, that: (1) the Commonwealth presented sufficient evidence to
support Appellant’s convictions of Attempted Murder and Aggravated Assault;
and (2) the jury reasonably inferred from the evidence, evaluated in the light
most favorable to the Commonwealth, that Appellant “provoked or continued
the use of force, when he continued firing at” Nicholson and Dickens, and that
Appellant could have safely retreated but failed to do so).
Weight of the Evidence
In his second issue, Appellant challenges the weight of the evidence
supporting his Attempted Murder and Aggravated Assault convictions.
A trial court will not grant relief on a weight of the evidence claim unless
the verdict is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007). An
appellate court will not substitute its assessment of credibility for that of the
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finder of fact. Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super.
2009).
Further, this Court may not consider the underlying question of whether
the verdict is against the weight of the evidence; instead, we are limited to
evaluating only the trial court’s exercise of discretion in denying that claim.
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014). As our Supreme
Court has made clear, reversal is only appropriate “where the facts and
inferences disclose a palpable abuse of discretion[.]” Id. (citations
omitted, emphasis in original). The trial court’s denial of a weight claim is the
least assailable of its rulings. Commonwealth v. Diggs, 949 A.2d 873, 879-
80 (Pa. 2008). See Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa.
Super. 2006) (stating that because the trial court is in best position to view
the evidence presented, an appellate court will give that court “the utmost
consideration” when reviewing its weight determination).
Judge Ehrlich’s Opinion as to Appellant’s weight of the evidence claim is
comprehensive, thorough, and well-reasoned. Thus, after a careful review of
the parties’ arguments and the record, we adopt the trial court’s Opinion as
to this issue as our own, and conclude that Appellant’s weight claim warrants
no relief. See Trial Ct. Op. at 11-13 (concluding that the jury’s decision to
credit the testimony of the various civilian and expert witnesses and police
officers, and to rely on the physical evidence, does not “shock one’s sense of
justice”).
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Discretionary Aspects of Sentencing
In his final issue, Appellant challenges the imposition of an aggregate
aggravated range sentence. This claim challenges the discretionary aspects
of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right, and a challenge in this regard is properly
viewed as a petition for allowance of appeal. See 42 Pa.C.S. § 9781(b);
Commonwealth v. Tuladziecki, 522 A.2d 17, 18 (Pa. 1987);
Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An
appellant challenging the discretionary aspects of his sentence must satisfy a
four-part test. We evaluate: (1) whether Appellant filed a timely notice of
appeal; (2) whether Appellant preserved the issue at sentencing or in a motion
to reconsider and modify sentence; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for allowance of appeal; and (4)
whether the concise statement raises a substantial question that the sentence
is appropriate under the Sentencing Code. Commonwealth v. Carrillo-
Diaz, 64 A.3d 722, 725 (Pa. Super. 2013). “An appellant must articulate the
reasons the sentencing court’s actions violated the [S]entencing [C]ode.”
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, Appellant timely appealed from his Judgment of Sentence and he
preserved his challenge to the discretionary aspects of his sentence in a Post-
Sentence Motion and in a Pa.R.A.P. 2119(f) Statement in his Brief to this
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Court. Thus, we consider whether Appellant has presented this Court with a
substantial question for review.
It is well-settled that:
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. A substantial question
exists only when the appellant advances a colorable argument
that the sentencing judge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Moury, 992 A.2d at 170 (citation and quotation marks omitted).
Appellant concedes that his sentence is within the guideline range but
claims that it is excessive because the court sentenced him to aggravated
range sentences for his Attempted Murder convictions even though it had
already applied the deadly weapons sentencing enhancement. He also
challenges the imposition of consecutive, rather than concurrent, sentences
for his Attempted Murder convictions. Appellant’s Brief at 44, 48. He also
asserts that the aggravated range sentence is excessive because the court
failed to take into consideration mitigating factors. Id. at 52.
With regard to the imposition of consecutive sentences, this Court has
held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present a
substantial question in only “the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
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imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365, 372
(Pa. Super. 2012)[(en banc)].
[An appellant] may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(quotation omitted and emphasis in original).
In the case sub judice, Appellant’s challenge to the imposition of
consecutive sentences does not raise a substantial question permitting our
review. Mastromarino, 2 A.3d at 587. Thus, we decline to review its merits.
However, “[w]e have held that a substantial question is raised where an
appellant alleges the sentencing court erred by imposing an aggravated range
sentence without consideration of mitigating circumstances.”
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012). Thus,
we have reviewed the merits of Appellant’s claim that his aggravated range
sentence imposed was excessive and an abuse of the trial court’s discretion.
After a careful review of the parties’ arguments and the record, we
conclude that this issue warrants no relief, and we adopt the trial court’s
comprehensive Opinion as to this issue as our own. See Trial Ct. Op at 15-
18 (explaining that the court considered factors including the PSI Report,
mental health report, Appellant’s age, prior criminal history, rehabilitative
needs, and alleged defensive actions when sentencing him, and concluding
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that Appellant’s sentence did not violate the fundamental norms underlying
the sentencing process).
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/18
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0044_Opinion
,� Circulated 10/31/2018 02:20 PM
'
I·
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SECTION
Commonwealth of Pennsylvania CP-5 l-CR-0014120-2014
CP-5 l-CR-0014121-2014
v.
SUPERIOR COURT
Tevin Thomas NO. 1202 EDA 2017
CP-51-CR-0014120-2014 Comm v Thomas, Tevm
opmion FILED
' OPINION
SEP 12 2017
Ehrhch, J. 111111111111111 I I II Ill Ill Office of Judicial Records
8000560141
Appeals/Post Trial
Tevin Thomas, hereinafter Appellant, was found guilty of attempted murder, aggravated
assault, and two separate violations of the Uniform Firearms Act following a jury trial on January
12, 2016.1 On April 11, 2016, Appellant was sentenced to an aggregate term of twenty to forty
years' of incarceration.
A timely appeal followed On appeal, Appellant avers three points of error:
1. The evidence was insufficient as a matter of law to convict defendant of the crime of
attempted murder and aggravated assault because:
• The evidence did not establish beyond a reasonable doubt that defendant did not
act with justification and in self-defense where;
o It is undisputed that complainant Paris Nicholson unlawfully fired a gun at
defendant;
o It is undisputed that complainant Demetrius Dickens unlawfully fired a gun
at defendant;
o It is undisputed that complainant Paris Nicholson unlawfully and without
provocation fired a gun at police,
o It is undisputed that defendant was, in fact, shot by one of the complainants;
o It is undisputed that defendant did not shoot either complainant;
o It is undisputed that defendant only fired one-half of the bullets in his
firearm;
1 18 Pa.CS A §901, §2702, §6106(a)(l), and §6108, respectively
o It is undisputed that complainant Pans Nicholson and Demetrius Dickens
are not peace officers;
o It is undisputed that complainant Paris Nicholson and Demetrius Dickens
were not on property lawfully possessed by them at the time of the incident
o There is no evidence that defendant provoked the use of force by
complainant Paris Nicholson or Demetrius Dickens;
o The evidence establishes that defendant could not retreat with complete
safety because complainant Pans Nicholson and/or Demetrius Dickens
were firing at defendant even as complainants were walking backward away
from defendant; and,
o It ts undisputed that complainant Paris Nicholson fired a gun at police as he
ran away from the officers.
2. The verdict of guilty with respect to the charges of attempted murder and aggravated
assault is against the weight of the evidence and is so contrary to the evidence that it
shocks one's sense of justice insofar as;
• The evidence establishes that defendant acted with Justification and in self-defense
where;
o It is undisputed that complainant Paris Nicholson unlawfully fired a gun at
defendant;
o It is undisputed that complainant Demetrius Dickens unlawfully fired a gun
at defendant;
o It is undisputed that complainant Paris Nicholson unlawfully and without
provocation fired a gun at police,
o It is undisputed that defendant was, in fact, shot by one of the complainants;
o It is undisputed that defendant did not shoot either complainant,
o It is undisputed that defendant only fired one-half of the bullets in his
firearm;
o It is undisputed that complainant Paris Nicholson and Demetrius Dickens
are not peace officers;
o It is undisputed that complainant Paris Nicholson and Demetrius Dickens
were not on property lawfully possessed by them at the time of the incident
o There is no evidence that defendant provoked the use of force by
complainant Paris Nicholson or Demetrius Dickens;
o The evidence establishes that defendant could not retreat with complete
safety because complamant Paris Nicholson and/or Demetrius Dickens
were firing at defendant even as complainants were walking backward away
from defendant; and,
3. The sentence imposed is unduly harsh and excessive as it fails to take into account all
mitigating and relevant and necessary factors to be considered by a sentencing court,
as set forth in the post-sentence motion filed by defendant (including defendant's age
rehabilitative needs, and defensive actions taken in response to the complainants'
unlawful acts), and confinement in a state correctional facility for the term imposed is
not the least restrictive sentence necessary to effectuate the aims of the Pennsylvania's
2
sentencing laws. The sentence imposed is greater than that which would be consistent
with protection of the public, the gravity of defendant's conduct as it related to the
impact on the life of others in the community, and the rehabilitative needs of defendant
Appellant's Pa.R.A.P. 1925(b) Statement.
As will be discussed below, these claims are without merit. Accordingly, no rehef is due.
The Evidence
On March 25, 2014, at around 5:30 p.m., Philadelphia Police Officer Christopher Daukaus,
George Lane, Michael lnemer, and Murray were on the 4800 block of Palethorp Street when they
heard gunshots coming from the direction of the intersection of Mauscher Street and Louden
Street Notes of Testimony ("N.T."), 01/07/2016, at 8-10 All four officers started running toward
the gunshots Id The officers came in contact with two males, later identified as Paris Nicholson
and Demetrius Dickens, at the mtersection of Palethorp and Louden Street. Id
Upon seeing police, Demetrius Dickens dropped his firearm and put his hands up following
the officers' verbal commands. Police Officer Murray and Officer Inemer secured Dickens and
placed him under arrest.NT., 01/08/2016, at 40-41. The officers recovered a black 40 caliber
Glock 35, and one 22-round extended magazine loaded with one live round from the ground near
Dickens. Id at 40-42. After Dickens was apprehended, he told Officer Inemer "me and Paris
[Nicholson] are running from a shooting down from the corner." Id at 49
Officers Daukus and Officer Lane followed Paris Nicholson as he was attempting to flee
Id at 57. While in pursuit, Officer Inemer stated Nicholson turned and shot at the officers. Officer
Lane then returned fire. Id at 58-60. Officer Inemer testified that approximately 15 to 20 shots
were exchanged between Officer Lane and Nicholson. Id at 60 Nicholson was quickly
immobilized and secured by Officer Lane. N.T., 01/07/2016, at 14-15. A black semiautomatic
handgun with one empty magazine was recovered from Nicholson. Id at 25 As Officer Daukaus
radioed the other police officers, a Hispanic male came running from the intersection of Mascher
3
and Louden Street, and stated that a male had been shot on the 4700 block of Mascher Street. Id
at 14-16. Officer Lane proceeded to the 4700 block ofMascher Street. Id. at 19. Officer Daukaus,
who was with Nicholson, was joined by two more officers in search of the unidentified male Id
Officer Lane was the first to find Appellant sitting on a wall at 4761 Mascher Street.
Officer Lane recovered a firearm from the rear wheel well of a nearby minivan. Id at 86-88. It
was later discovered that Appellant did not have a valid hcense to carry a firearm, and was not the
registered owner of the firearm. N.T., 01/11/2016, at 8. Given Appellant's gunshot wound in his
leg, he was transported via ambulance to the hospital for treatment. N.T., 01/06/2016, at 93.
In their testimony, various witnesses supplemented and corroborated the police officers'
testimony regarding the incident. Ms. Adalia Carlton, who lives on the 4800 block of Mascher
Street, heard "two gunshots and then a lot of gunshots" from inside her apartment around 5.30
p.m. on March 25, 2014. Id. at 56-57. After hearing the shots, Ms. Carlton looked out her window
and saw a "black man in the street sitting on his buttocks with a gun m his hand asking someone
to help him." Id. at 59. She was able to recall the clothing the man was wearing. Id at 66. The
man was later identified as Appellant.
Luis Miranda also lives in the area of 4800 Mascher Street. He called 911 after hearing
gunshots at around 5:30 p.m. on March, 25 2014. Mr. Miranda stated he heard more than one gun
being fired simultaneously. Id at 163-64. Mr. Miranda looked through his window and saw
Appellant shooting and being shot at, fall and get up multiple times, and eventually sit down at
4767 Mascher Street. Id at 166-67. Mr. Miranda was able to identify Appellant's black jacket,
Jeans and hoodie from that day. Id at 170- 71.
Carlos Cruz, a 40-year resident of the 4800 block of Mascher Street, said he heard gunshots
on the day in question. After going outside, he saw Appellant in the middle of the street walking
4
./
down Louden Street and firing a gun with a large magazine. N.T., 01/06/17, at 43-48. Mr. Cruz
observed Appellant get shot and fall to the ground. When it appeared to be safe, Mr. Cruz walked
over to the Appellant to help him. Id. at 44-47. Eventually Mr. Cruz waved over nearby police
officers for further assistance. Id at 50. As he was assisting Appellant, Mr. Cruz observed a gun
in the rear well of a nearby Dodge Caravan. Id at 48-51.
Robert Fuentes regularly drives through the 4800 block of Mascher Street on his way to
and from work. On March 25, 2014 he was driving on Louden Street, when he heard gunshots
rapidly sped up in frequency. N. T. 01/0/2016, at 7. While Mr. Fuentes was stopped at a stop sign,
he saw two males, wearing hoodies and dark clothes, walk backwards in the westward direction
on Louden Street. Both men had guns in their hands and were shooting in the eastward direction.
Id at 8. The men eventually disappeared around the comer Id Mr. Fuentes then saw Appellant,
walking westward on Louden Street also firing a gun Id He witnessed Appellant fall to the
ground with the gun in his hand, get up, and pull himself to the side of the street. Id at 9 Mr.
Fuentes was not sure if Appellant had the gun in his hand when he moved to the side of the street,
however no gun was later observed where he originally fell. Id. at 10
Detective James Perfido recovered surveillance camera footage from 166 Louden Street,
187 Louden Street, and 4800 Mascher Street NT, 01/07/2016, at 134. The footage was used to
identify Appellant and corroborate the eyewitness accounts. Id at 137. For purposes of trial, the
footage was compiled into one videotape. Id at 136. The tape from Louden Street shows Pans
Nicholson and Demetrius Dickens running westbound on Louden Street from Mascher Street. Id
at 138-39 The video shows a nearby car's windshield get struck by a bullet and shatter on Louden
Steet in close proximity to Pans Nicholson who is seen running westbound with his back to the
gunfire. Id at 138 Detective Perfido testified that Appellant is seen shooting at Nicholson in the
5
,/
videotape and that it was Appellant's gunfire that struck the windshield of the neighboring car. Id
at 157. Dickens is also spotted running westbound on Louden Street and firmg a gun eastbound
in the direction: of Mascher and Loudon Street. Id at 138 In the footage from 4800 Mascher St.,
Appellant is seen advancing towards Nicholson and Dickens, as the pair run away from Appellant.
Id at 139.
Mr. Gama! Emira, certified forensic science and gunshot residue expert, analyzed
Appellant's clothing and found 42 particles of gun-shot residue. N.T., 01/11/17, at 26-27. Mr.
Emira characterized 42 particles as an "above average" amount of gunshot residue, and the amount
is consistent with someone firing a firearm. Id at 27-28
Ms Bryne Strother, certified DNA analysis and forensic science expert, testified that the
analysis of the DNA from all three handguns recovered was inconclusive as to origin. N.T.,
01/08/2016, at 70 Over 68 pieces of ballistic evidence were recovered on the first day of the
investigation However every bullet, from the fired shell casings, was not accounted for. Id at
128 Officer Andrejczak, who is a certified expert in firearms identification, stated every piece of
ballistic evidence retrieved m the investigation appeared to be fired from a handgun that was
recovered from the scene. Id at 81.
Discussion
Sufficiency of the Evidence
The standard of review of sufficiency claims is well-settled:
In reviewing a claim regarding the sufficiency of the evidence, an appellate court
must determine whether the evidence was sufficient to allow the fact finder to find
every element of the crimes charged beyond a reasonable doubt In doing so, a
reviewing court views all the evidence and reasonable inferences therefrom m the
light most favorable to the Commonwealth. Furthermore, in applying this standard,
the Commonwealth may sustain its burden of proof by means of wholly
circumstantial evidence. When performing its review, an appellate court should
evaluate the entire record and all evidence received is to be considered, whether or
6
not the trial court's rulmgs thereon were correct. Additionally, we note that the tner
of fact, while passing on the credibility of witnesses and the weight of the evidence,
is free to believe all, part, or none of the evidence.
Commonwealth v Galvin, 985 A.2d 783, 789 (Pa 2009) (internal citations omitted).
Specifically, the Appellant challenges the sufficiency of the evidence as it relates to his
conviction of attempted murder and aggravated assault
The relevant portions of the attempted murder statute are as follows:
§ 901. Criminal attempt
(a) Definition of attempt.--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. §§ 901(a)
A person can be found guilty of attempted murder, "if he takes a substantial step toward
the commission of a killing, with the specific mtent in mind to commit such an act."
Commonwealth v Hobson, 604 A.2d 717, 719 (Pa. Super. 1992) (quoting Commonwealth v Ford,
461 A.2d 1281, 1286 (Pa Super. 1983)). The specific intent necessary for a murder conviction is
"malice aforethought or simply, malice." Hobson, 604 A.2d at 719. Malice is defined as "either
of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, indicating unjustified disregard for the probability of death or great
bodily harm." Commonwealth v Hobson, 604 A.2d 717, 719 (Pa. Super. 1992) ( quoting
Commonwealth v Kersten, 482 A.2d 600, 604 (Pa. Super. 1984)).
Use of a deadly weapon on a vital part of the complamant's body is enough for a Jury to
properly infer an intent to kill. Hobson, 604 A 2d at 720. "The offense of attempt with intent to
kill is completed by the discharging of a firearm at a person with mtent to kill, despite the fortuitous
circumstances that no injury rs suffered." Commonwealth v Mapp, 335 A.2d 779, 781 (Pa. Super.
7
•'
1975); See Commonwealth v White, 323 A 2d 757, 759 (Pa. Super. 1974) (where the court found
that defendant's pointing and firing of a gun in the direction of several neighbors with the bullet
narrowly missing a neighbor's head was sufficient to permit the trier of fact to infer that appellant
possessed the requisite intent to commit murder).
Appellant's claim that the evidence was insufficient to convict Appellant of attempted
murder and aggravated assault is mentless. Appellant was seen by multiple witnesses brandishing
a gun and shooting at Paris Nicholson and Demetrius Dickens. Officer Luis Miranda, Carlos Cruz,
and Robert Fuentes all testified to witnessing Appellant advance towards the men, point and
discharge a firearm in their direction. Clothing recovered from Appellant matched the witnesses'
descnption of the assailant. In addition to the 68 pieces of ballistics evidence recovered from the
scene, Appellant's clothing was covered with an "above average" amount of gunshot residue The
surveillance video also corroborates the testimony of the various witnesses. Appellant is seen
chasing after Dickens and Nicholson, while brandishing and discharging a firearm. This act is
certainly indicative of a "substantial step" toward the commission of a kilhng.
As stated in Hobson, Appellant's actions are indicative of a recklessness of consequences
that show an "unjustified disregard for the probability of death or great bodily harm." Appellant's
actions were rife with the requisite intent of "malice" necessary for a conviction of attempted
murder. Further, as found in White, Appellant's actions illustrate his specific intent to kill, as he
pursued two specific people while discharging a firearm in the streets of Philadelphia. Here,
similarly to White, Appellant's gunfire narrowly missed the body of Nicholson, as seen in the
surveillance footage provided by the Commonwealth. As in Mapp, the mere "fortuitous
circumstances that no injury [was] suffered" by either Dickens or Nicholson as a result of
8
Appellant's actions is irrelevant to establishing a specific intent to kill. It is enough that Appellant
discharged a weapon aimed at the man, to establish the specific the intent to kill
Additionally, there was no testimony presented that conflicted with the eyewitnesses'
testimony. In the light most favorable to the Commonwealth as the verdict winner, the evidence
was sufficient to convict Appellant of attempted murder.
Similarly, the Defendant argues that the evidence is insufficient to convict him of
aggravated assault. Under Pennsylvania law, aggravated assault, a felony of the first degree, is
proven beyond a reasonable doubt if the elements set forth by statute are met. Specifically, "[a]
person is guilty of aggravated assault if he ... attempts to cause senous bodily injury to another, or
causes such mjury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life .... " 18 Pa.C.S. § 2702(a)(l). Serious bodily injury
is defined as "[b]odily mjury which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of any bodily member
or organ." 18 Pa C S.A. §2301. Where the complainant does not suffer serious bodily injury, the
Commonwealth has to prove that Appellant acted with the specific intent to cause the mjury.
Commonwealth v Holley, 945 A.2d 241, 247 (Pa. Super. 2008) Intent to cause serious bodily
injury can be proven by wholly circumstantial evidence, and may be inferred from acts or conduct,
or from attendant circumstances. Id
The elements of aggravated assault are necessarily included in the offense of attempted
murder and merge with it for sentencing purposes. Every element of aggravated assault is
subsumed in the elements of attempted murder. Commonwealth v. Anderson, 650 A.2d 20, 24
( 1994). Since the fact-finder determined that there was sufficient evidence to conclude that each
element of the offense of attempted murder was satisfied beyond a reasonable doubt, it follows
9
that each element of the offense of aggravated assault is also satisfied. Thus, Appellant's claim
regarding the insufficiency of evidence for aggravated assault must also fail.
Furthermore, Appellant's claim that the evidence did not disprove beyond a reasonable
doubt a claim of self-defense is meritless
To prove a claim of self-defense, evidence establishing the following three elements is required
a) the actor was free from fault in provokmg or contmumg 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 senous bodily injury, and that there was a
necessity to use such force in order to save himself or others therefrom; and c) the
actor did not violate any duty to retreat or to avoid the danger.
Commonwealth v Smtth, 97 A.3d 782, 787 (Pa. Super. 2014) (quotmg Commonwealth v Harris,
665 A.2d 1172, 1174 (Pa. 1995)).
During trial, the defendant has no burden to prove self-defense, but "before the defense is
properly at issue, there must be some evidence, from whatever source, to Justify such a finding."
Commonwealth v Mouzen, 53 A.3d 738, 740-41, (quoting Commonwealth v Black, 376 A 2d 627,
630 (1977)) (internal quotations omitted) "Once the question is properly raised, the burden is
upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in
self-defense." Id. The Commonwealth is only required to prove at least one of the following
beyond a reasonable doubt: "(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 Hammond, 953 A.2d 544, 559 (Pa Super. 2008). Right of self-defense is limited by duty to
retreat if possible to do so, rather than take the hfe of another person. Commonwealth v Collazo,
180 A.2d 903, 907 (Pa. 1962). However, a "defendant claiming self-defense or defense of others
does not have a duty to retreat from his dwelling except with limited exceptions, including an
instance in which the defendant or the individual defendant acts to defend is the initial aggressor."
Commonwealth v. Hornberger, 74 A.3d 279 (Pa. Super. 2013). See Commonwealth v Derby, 45 I
10
Pa.Super. 100, 678 A.2o 784 ( 1996) (holding that actor is not required to retreat from his dwelling
unless he is initial aggressor).
In the instant case, the jury as fact-finder found that Appellant was not acting in self-
defense. Some evidence was presented that Appellant may have reasonably believed that he was
in imminent danger of death of senous bodily injury. However, no evidence established Appellant
was "free from fault in provoking or continuing the difficulty which resulted in the use of deadly
force" Smith, at 787. Witness testimony and surveillance camera footage did not support this
claim.
The Commonwealth presented surveillance footage that showed a car window shatter in
very close proximity to Nicholson from a bullet fired by Appellant. Appellant was observed
chasing Nicholson and Dickens, and discharging a weapon at them. When evaluated in the light
most favorable to the Commonwealth, it is a reasonable inference that Appellant "provoked or
continued the use of force," when he continued firing at the retreating complainants. Similarly,
Appellant violated his duty to retreat at this moment, smce Appellant could have safely retreated.
Appellant's duty in these circumstances was to remove himself from the periphery of danger, not
to advance closer to it.
Therefore, based on the evidence, the Commonwealth proved beyond a reasonable doubt
that the defendant did not act with justification and in self-defense.
Weight of the Evidence
Appellant contends that the verdict was against the weight of the evidence. This claim
should fail because the standard of review for evaluating a weight-of-the-evidence claim is well
established and very narrow. Commonwealth v. Champney, 832 A 2d 403, 407 (Pa. 2003).
Determining the weight of the evidence is reserved exclusively for the finder of fact. Id. at 408.
11
The finder of fact is "free to believe all, part, or none of the evidence and to detenmne the
credibility of the witnesses." Id. An appellate court "may only reverse the lower court's verdict if
it is so contrary to the evidence as to shock one's sense of justice." Id Because the trial judge is
in the best position to view the evidence presented, an appellate court will give that judge the
utmost consideration when reviewing the court's determination on whether the verdict is against
the weight of the evidence Commonwealth v Morgan, 913 A.2d 906 (Pa. Super 2006).
A "true weight-of-the-evidence challenge concedes that sufficient evidence exists to
sustain the verdict but questions which evidence is to be believed." Commonwealth v Charlton,
902 A.2d 554, 561 (Pa. Super. 2006). The jury is always free to determine which testimony to
believe and how much weight to give testimony. Commonwealth v Moore, 648 A.2d 331, 333 (Pa
Super. 1994). A new criminal trial should not be granted because of a conflict in the testimony or
because the judge, on the same facts, may have arrived at a different conclusion. Commonwealth
v. Widmer, 744 A.2d 745, 752 (Pa. 2000).
To be against the weight of the evidence, the verdict must shock one's sense of justice or
be an abuse of discretion by the trial court Id. As described supra, the evidence presented at trial
was sufficient to support a conviction for attempted murder, aggravated assault and two separate
violations of the Umform Firearms Act With that analysis in mind, one must consider whether
the verdict in this case shocks one's sense of justice or represents an abuse of discretion. Given
the strength and consistency of the testimony presented by the Commonwealth's witnesses, it does
neither.
In the instant case, the jury chose to credit the testimony of the eyewitnesses, the police
officers and detectives investigating the case. The evidence found credible by the Jury was clearly
presented The testimony of several eyewitnesses was consistent and told a corroborated story.
12
.,
The eyewitness testimony was substantiated by the testimony of the various involved police
officers. Additionally, the video footage recovered from the immediate area of the crime further
substantiated the allegations against Appellant
The jury was free to determine which testimony to believe and which to disregard, based
on Champney The jury chose to believe the testimony of the various civilian and expert witnesses
and police officers, and chose to rely on the physical evidence. This does not "shock one's sense
of justice."
As such, the verdict is not against the weight of the evidence.
Unduly Harsh and Excessive Sentence
Appellant's claim that the sentence imposed is unduly harsh and excessive is meritless.
Appellant contends this court failed to take into account mitigating, relevant, and necessary factors
to be considered by a sentencing court. Appellant is seeking to challenge wholly discretionary
aspects of his sentence A thorough review of the record reveals there is nothing in the record to
suggest that the sentence imposed was inappropriate under the circumstances.
Pennsylvania courts stress that sentencing, within the sound discretion of the trial court,
will not be disturbed absent a manifest abuse of discretion. Commonwealth v Bowen, 975 A 2d
1120, 1122 (Pa. Super. 2009). A mamfest abuse of discretion is proven when appellant can
establish 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."
Bowen, 975 A.2d at 1122 (quoting Commonwealth v Rodda, 723 A.2d 212, 214 (Pa. Super
1999)). Furthermore, "when imposing a sentence, the sentencing court is required to consider the
sentence ranges set forth in the Sentencing Guidelines, but it is not bound by the Sentencing
Guidelines." Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
13
In considering whether a sentence is manifestly excessive the appellate court must give
great weight to the sentencing judge's discretion, as he is in the best position to measure various
factors such as the nature of the crime the defendant's character, and the defendant's display of
remorse, defiance, or indifference. Commonwealth v Ellis, 700 A.2d 948, 958 (Pa. Super 1997)
(citing Commonwealth v Anderson, 552 A.2d 1064 (Pa. Super. 1988)).
The discretionary aspects of a sentence may not, as a right, be challenged on appeal. Id.( cit mg 42 Pa.C.S.A § 9781 ). When an appellant challenges the discretionary aspects of a sentence,
there is no automatic right to appeal; rather, an appellant must petition for allowance of appeal.
Commonwealth v W HM, 932 A.2d 155, 162 (Pa Super. 2007)
An appellant challenging the discretionary aspects of his sentence must invoke this
Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellant's brief has a fatal defect;
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 Moury, 922 A 2d 162, 170 (Pa. Super. 2010) (citing Commonwealth v Evans,
901 A.2d 528 (Pa. Super. 2006)) (internal citations omitted).
"A substantial question exists only when the appellant advances a colorable argument that
the sentencing judge's actions were either· ( 1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing
process." Moury, 992 A.2d at 170 (quoting Commonwealth v Sierra 752 A.2d 910, 912-13 (Pa.
Super. 2000) (internal quotations omitted). There must be articulated reasons given by Appellant
that illustrate the trial court's actions violated the sentencing code Moury, 922 A.2d at 170
14
Sentencing guidelines "list ranges within which a court may sentence for particular crimes,
they are not mandatory and courts will take into account various other factors when sentencing."
Commonwealth v Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (quoting Ellis, 700 A.2d at 958).
"[W]here the sentencing judge had the benefit of a presentence investigation report, it will be
presumed that he or she was aware of the relevant information regarding the defendant's character
and weighed those considerations along with mitigating statutory factors." Commonwealth v
Clarke, 70 A 3d 1281, 1287 (Pa. Super. 2013) (mternal citations omitted)
It is true that the sentence imposed here is in the aggravated range of the guidelines;
however, this court could have sentenced the defendant to an additional fifty-two years' of
incarceration and remained within the statutory maximum. Moreover, the detailed and exhaustive
sentencing hearing, in which testimony was taken from witnesses, is entirely consistent with the
fundamental norms of the sentencmg process. Therefore, it is unclear that Appellant has raised a
substantial question to the discretionary aspects of his sentence. If the Superior Court finds that a
substantial question does exist, an analysis of the record will vindicate this court's sentence as both
lawful and appropnate.
The pnor record score and the offense gravity score are part of the guidelines used by the
court to create uniformity in sentencing. Ellis, at 958. Furthermore, "if a sentencing court
considers improper factors in imposing sentence upon a defendant, the court thereby abuses its
discretion, but the sentence imposed is not rendered illegal. Otherwise, every erroneous
consideration by a sentencing court will render the sentence illegal in a manner which cannot be
waived by a defendant." Commonwealth v Krum, 5 33 A.2d 134, 13 5 (Pa. Super. 1987) ( en bane).
Additionally, "the guidelines list ranges within which a court may sentence for particular crimes;
they are not mandatory and courts will take into account various other factors when sentencing."
15
Commonwealth v Archer, 722 A.2d 203, 210 (Pa. Super. 1998) (quotmg Ellis, at 958). See also
Commonwealth v. Saranchak, 675 A.2d 268, 277, n. 18 (Pa. 1996) (stating that a court has no duty
to impose a sentence considered appropriate under the Sentencing Guidelmes).
In the instant case, Appellant's pnor record score was zero. N.T., Sentencing Hearing,
04/11/2016, at 5. Appellant was found guilty of two counts of attempted murder and two counts
of aggravated assault. Id. The offense of attempted murder and aggravated assault merged into
the charge of attempted murder with an offense gravity score ("OGS") of 13. Id. Since Appellant
used a loaded firearm during the incident the guidelines range for one count of attempted murder
is 78 to 96 months, plus or minus 12. Id; see 204 Pa Code § 303. l 7(b ). Appellant also was found
guilty of two violations of the Uniform Firearms Act. The OGS for section 6106, based on the
loaded firearm, is 9. Id. The guidelines range for section 6106 is 12 to 24 months, plus or minus
12. Id. The OGS for section 6108, based on the loaded firearm, is 5. The guidelines range for
section 6108 is 12 to 18 months, plus or minus 3. Defense counsel concurred with the above
calculations. ld.2
The statutory maximum sentences for the crimes for which Appellant was found guilty are:
18 Pa.C.S. § 901(a) cnminal attempt- murder, 10 to 20 years (two counts), 18 Pa.C.S. § 2702(a)
aggravated assault, 10 to 20 years (two counts); 18 Pa CS § 6106(a)(l) VUFA, 3 Yi to 7; and 18
Pa.C.S. § 6108 VUFA, 2 Y2 to 5 years.3 The aggregate statutory maximum is 46 to 92 years'
incarceration. Id.
2 The Sentencing Guidelines were calculated utilizing the deadly weapon enhancement. 204 Pa Code §
303.lO(a), NT, 04/11/2016, at 5
3 See 18 Pa
CS.§ 1103-04, 42 Pa.CS § 9755(b) and§ 9756(b).
16
The Appellant was sentenced as follows: As to the two counts of attempted murder, 20 to
40 years on each count.4 As to the § 6 I 06 violation of Uniform Firearms Act charge, 2 to 4 years;
and § 6108 violation of Uniform Firearms Act charge I to 2 years. All sentences were concurrent
to each other. N T., 04/1 l /20 I 6, at 28. The aggregate sentence imposed was 20 to 40 years of
incarceration. The sentence imposed is in the aggravated range, yet well within the statutory
guidelmes
Additionally, Appellant contends this court failed to take into account mitigating, relevant,
and necessary factors, including his "age, rehabilitative needs, and defensive actions," at the
sentencing hearing Appellant's Pa.R.A.P. 1925(b) Statement at ,r 3. A review of the record,
however, shows this court considered all of these factors, as well as others, prior to sentencmg:
THE COURT Mr. Thomas, I've considered the presentence, mental health, the
prior record score report, the facts and circumstances of the case, the testimony of
the Jury trial, as well as the arguments of counsel, and the sentencing guidelines.
This was a shootout in the street It was very, frankly, outrageous, something that
you expect to see in a country where there's a civil war or people at war. The arson
case is not the issue. The arson case is not the issue here with the sentence. The real
issue is what happened on the street that day and the fact that you ran down the
street unloading, tried to kill two people. People were running for their lives and it
wasn't at three in the morning. I think late afternoon if I remember correctly.
Mr. GRENNEL: About five o'clock in the afternoon.
***
THE COURT: ... What happened here went beyond anything that I normally see
in this courtroom and certainly anything we should allow in the city. While I
understand the mental health report quoted by Counsel, I don't think that the doctor
knew the full facts and circumstances of this case But even if he did, that's what
the psychologist says.
Based on what I heard at trial, what I saw with the video, and what occurred here,
I'm going into the aggravated portion of the guidelines but I'm keeping within the
guidelmes. I think this is the appropriate sentence to protect the community, and I
hope you use the time there in a constructive way so that when you do get out -
4 As stated, the aggravated assault charge merged with attempted murder for sentencing purposes NT.,
04/11 /20 16 at 28
17
. ..
which you will get out - and I don't know what will happen m terms of being
deported as Mr. Giuliani says. I don't know where things will be 20 years from now
with our immigration laws. I don't even know where they're going to be from year
to year anymore. We'll have to deal with those consequences.
N.T. 04/11/2016, at 27-29.
Appellant fails to demonstrate that the sentence is mappropriate under the sentencing code
or inconsistent with a specific provision of the sentencing code. The sentence imposed does not
violate norms that underlie the sentencing process. Despite Appellant's contention, this court took
all appropriate factors into consideration in determining this sentence A thorough review of the
record reveals an in-depth discussion of Appellant's prior criminal history, facts and circumstances
of the case, and testimony from witnesses dunng the jury trial The court based sentencing on this
as well as Appellant's presentence report and mental health report.
As is evident from the record, the sentence imposed in this case was not manifestly
unreasonable nor was it the product of partiality, prejudice, bias, or ill will. Rather, it is entirely
appropriate given the violence committed by Appellant. Because the trial court is given broad
discretion in sentencing, and Appellant does not assert that the trial court went beyond the
sentencing guidelines, this claim must fail.
18
..
..
Jt ' •
Conclusion
In summary, this court has carefully reviewed the entire record and finds no harmful,
prejudicial, or reversible error and nothing to justify the granting of Appellant's request for relief.
For the reasons set forth above, the Judgment of the trial court should be affirmed.
J.
19