Com. v. Klotz-Cooper, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARMELLA ROSE KLOTZ-COOPER :
:
Appellant : No. 874 EDA 2018
Appeal from the Judgment of Sentence February 26, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003000-2017
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 28, 2019
Carmella Rose Klotz-Cooper (Cooper) appeals from the judgment of
sentence, entered in the Court of Common Pleas of Montgomery County,
following her conviction of four counts of robbery and one count of conspiracy
to commit robbery. After our review, we affirm the judgment of sentence
based on the opinion authored by the Honorable William R. Carpenter.
On April 3, 2017, at 11:50 p.m., Cooper and her three co-conspirators
committed a home invasion robbery at a residence on County Line Road in
Lower Moreland. While her husband (Matthew Cooper), another woman
(Carmen Giddings) and two other men (Xavier Tucker and Daniel Tucker) beat
and held the adult victims at gunpoint, Cooper, wearing a gold “Scream”1
____________________________________________
1The “Scream” mask, known as “Ghostface,” is from the Scream horror movie
series and features an elongated open mouth. The mask was inspired by The
Scream painting by Edvard Munch.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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mask, went upstairs to the bedroom of an eight-year old girl. Cooper hit the
child with an unknown object, grabbed her by the hair and forced her down
the hallways and stairs. The home invaded was that of Matthew Cooper’s
foster parents.
Following a stipulated bench trial, the court convicted Cooper, and on
February 26, 2018, the court sentenced her to a term of imprisonment of nine
to twenty years. Cooper filed a post-sentence motion, which was denied. This
appeal followed. Both Cooper and the trial court complied with Pennsylvania
Rule of Appellate Procedure 1925.
On appeal, Cooper challenges the discretionary aspects of her sentence,
claiming the court failed to consider mitigating factors, including her age, her
prior history of sexual abuse and post-traumatic stress disorder, and her
potential for rehabilitation. She also challenges her sentence relative to two
of her co-conspirators:
Was there an inadequate statement of reasons particular to each
defendant as to why Carmella Klotz-Cooper received a sentence
of 9-20 years when co-defendant Xavier Tucker received a
sentence of 5½ - 12 years after he was found guilty of grabbing a
woman by the throat to wake her up then taking her cane and
beating another man over the head; and when co-defendant
Carmen Giddings received a sentence of 3-10 years when she was
a full participant in the home invasion?
Appellant’s Brief, at 2.
Cooper properly preserved these issues in her February 28, 2018 post-
sentence motion, filed a timely appeal on March 28, 2018, and has provided
a statement pursuant to Pa.R.A.P. 2119(f) in her appellate brief. See
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Appellant’s Brief, at 7. See also Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa. Super. 2011); Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010). With respect to her claim that the court failed to consider
mitigating factors, we find no substantial question. See Commonwealth v.
Kane, 10 A.3d 327, 335–36 (Pa. Super. 2010) (finding claim “that the court
gave inadequate consideration to certain mitigating factors, does not raise a
substantial question”); Commonwealth v. Rhoades, 8 A.3d 912, 918–19
(Pa. Super. 2010) (“an allegation that the sentencing court failed to consider
mitigating factors generally does not raise a substantial question for our
review.”); see also Commonwealth v. DiSalvo, 70 A.3d 900 (Pa. Super.
2013) (failure to give adequate weight to mitigating circumstances does not
present substantial question); Commonwealth v. Rhoades, 8 A.3d 912 (Pa.
Super. 2012) (same).2
____________________________________________
2 We note that this same allegation raised in the context of an aggravated-
range sentence may raise a substantial question. See, e.g., Commonwealth
v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (substantial
question raised where appellant alleged sentencing court imposed sentence in
aggravated range without adequately considering mitigating circumstances).
Here, Cooper faced a maximum sentence of 50-100 years’ imprisonment; the
court sentenced her in the standard range of the Sentencing Guidelines.
Moreover, Cooper’s claim that the court failed to consider mitigating
circumstances is contradicted in the record. See N.T. Sentencing, 2/26/18,
at 49-51. See also Commonwealth v. Fowler, 893 A.2d 758, 766–67 (Pa.
Super. 2006) (where sentencing court had presentence report, we are
required to presume court properly weighed mitigating factors).
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With respect to her claim of disparate sentences,3 we find Cooper has
raised a substantial question. See Commonwealth v. Cleveland, 703 A.2d
1046 (Pa. Super. 1997) (holding substantial question raised where appellant
averred unexplained disparity between his sentence and that of co-
defendant); Commonwealth v. Krysiak, 535 A.2d 165, 167 (Pa. Super.
1987) (“[D]isparate sentences between two or more co-defendants
constitutes a substantial question necessitating our exercise of jurisdiction to
review.”). However, we conclude Cooper is not entitled to relief on this claim.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc)
(internal quotations and citations omitted).
Our legislature has determined that for each defendant, “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
____________________________________________
3 The two co-defendants to whom Cooper refers, Xavier Tucker and Carmen
Giddings, were sentenced on April 20, 2018, after Cooper filed this appeal and
after the trial court filed its Rule 1925(a) opinion. Cooper filed a motion in
this Court seeking amendment of her Rule 1925(b) statement, which this
Court granted. See Order, 6/13/18. The trial court filed a supplemental Rule
1925(a) opinion on July 30, 2018.
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defendant.” 42 Pa.C.S.A. § 9721(b). Because each co-defendant in a crime
may pose a different threat to the community and may have different
rehabilitative needs, it is not required that co-defendants receive identical
sentences. See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa.
Super. 2010); Commonwealth v. Krysiak, 535 A.2d 165, 167 (Pa. Super.
1987). Further, it is well-settled that “there should not be a great disparity in
the sentences imposed on co-defendants unless facts exist to warrant the
unequal sentences.” Commonwealth v. Szczesniewski, 591 A.2d 1055,
1056 (Pa. Super. 1991) (quoting Commonwealth v. Holler, 473 A.2d 1103,
1107 (Pa. Super. 1984)). Our Superior Court further cautioned that judges
“should endeavor to mete out similar sentences to co-defendants when justice
so dictates.” Szczesniewski, 591 A.2d at 1057 n.2. In order for different
sentences to withstand appellate scrutiny, a sentencing court must give
reasons particular to each defendant explaining why each received individual
sentences. Mastromarino, 2 A.3d at 589 (citing Krysiak, 535 A.2d at 167).
In this case, the sentencing court provided ample reasons for Cooper’s
sentence, including, in particular, her role in terrorizing an eight-year child,
the lifelong impact that her crimes will have on that child and the other
victims, as well as her role in planning the home invasion. The court set forth
the reasons for sentencing Cooper in its on-the-record statement in open
court, see N.T. Sentencing, supra at 51-52 (“This defendant is instrumental
in the planning and the execution of the crimes here. . . . These victim were
brutally terrorized, . . . and this defendant, in particular, grabbed the young
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child by the arm and pulled her by the hair. There was force throughout this
crime that was excessive and unnecessary[.]”). Additionally, in its
supplemental opinion, the court clearly explained its reasons for the disparate
sentences, noting that Cooper awakened the child by striking her with an
object on the head, and that when the child opened her eyes, she saw a person
wearing a gold “Scream” mask above her. The court gave reasons particular
to Cooper and co-defendants Tucker and Giddings, explaining why each
received a specific and individualized sentence, and stating that Cooper’s
sentence “is appropriately longer than of her two co-defendants because it
reflects her serious involvement in this crime where she willingly terrorized
and brutalized an 8-year old victim. It also reflects that she was instrumental
in planning and executing the crime.” Pa.R.A.P. 1925(a) Supplemental
Opinion, 7/30/18, at 11. See Commonwealth v. Cleveland, supra at 1048(“[W]hen there is a disparity between co-defendants’ sentences, a sentencing
court must give reasons particular to each defendant explaining why [he or
she] received [his or her individual sentence].”). We find no abuse of
discretion. Rodda, supra.Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/19
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Circulated 01/16/2019 11:39 AM
IN THE COURT OF COMMON PLEL\S OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COJ\'1MONWEALTH OF PENNSYLVANIA CP-46-CR-0003000-2017
v.
874 EDA 2018
CARMELL\ KLOTZ-COOPER
SUPPLEMENTAL OPINION
CARPENTER J. JULY 30, 2018
FACTUAL AND PROCJ;DURAL HISTORY
This Supplemental Opinion was ordered by the Pennsylvania
Superior Court to address the dispariry in the sentences received by Carmella
Klotz-Cooper ("Appellant") and those of her two co-defendants, Xavier Tucker
(''X. Tucker") and Carmen Giddings ("Giddings"), who were sentenced after the
filing of the original l 925(a) Opinion in this appeal.' 2
For the purpose of this Supplemental Opinion, this Court relies on
the basic factual and procedural history as set forth in its 192 S(a) Opinion
dated April 17, 2018.
--·-·---···-····---
On May 17, 2018, appellate counsel filed in the Pennsylvania Superior Court a petition
for remand to amend the concise statement of errors complained of on appeal because of the
disparity between Appellant's sentence and that of her co-defendants that was imposed after
first timely filed 19::.!S(b) concise statement. Ir was granted on June 13, 2018. The order
permitted appellate counsel to file a supplemental Pa.R.A.P. l 925(b) statement and ordered this
Court to address this additional issue, giving rise to this Supplemental Opinion.
Appellate counsel's supplemental 192 S(b) statement includes the disparity of sentences
issue and also reiterates the issue he asserted in his original 192 S(b) statement, which was
addressed in this Court's 1')25(a) Opinion dated April 17, 2018.
ISSUE
I. Whether the disparity between Appellant's sentence and those of her co-
defendants was explained with an adequate statement of reasons
particular to each defendant.
DISCUSSION
I. The disparity between Appellant's sentence and those of her co-
defendants was explained with an adequate statement of reasons
particular to each defendant.
Appellant contends that there was an inadequate statement of
reasons particular to each defendant as to why she received a sentence of 9 -
20 years' imprisonment when her co-defendant, X. Tucker, received a sentence
of 5� to 12 years' imprisonment after he was found guilty of grabbing a woman
by the throat to wake her and then taking hercane and beating another man
over the head until the point where had to be hospitalized and co-defendant,
Giddings, received a sentence of 3 to IO years' imprisonment, when she was a
full participant in the home invasion.
This issue does raise a substantial question. Commonwealth v.
Cleveland, 703 A.2d 1046 (Pa.Super.1997) (holding substantial question raised
where the appellant averred an unexplained disparity between his sentence and
that of his co-defendant); Commonwealth v. Krysiak, 535 A.2d 165, 167 (198 7)
("[DJisparate sentences between two or more co-defendants constitutes a
substantial question necessitating our exercise of jurisdiction to review."). This
claim, however, is meritless.
Sentencing is a matter vested in the sound discretion of the
sentencingjudge, and a sentence will not be disturbed on appeal absent a
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manifest abuse of discretion. In this context, an abuse of discretion is not
shown merely by an error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,
or arrived at a manifestly unreasonable decision. Commonwealth v. Grays, 167
A.3d 793, 816 (Pa.Super. 2017) (citation omitted).
The law is well-settled that co-defendants are not required to
receive identical sentences. See Krysiak, supra. Generally, a sentencing court
must indicate the reasons for differences in sentences between co-
defendants. Krysiak, supra. "This is not to say, however, that the court must
specifically refer to the sentence of a co-defendant. Rather, it requires that
when there is a disparity between co-defendants' sentences, a sentencing court
must give reasons particular to each defendant explaining why they received
their indivtdual sentences." Conunonwealth v. Mastromarino, 2 A.3d 581, 589
(Pa.Super. 2010) (quoting Cleveland, 703 A.2d at 1048).
On November 21, 2017, both X. Tucker and Giddings proceeded to
a joint stipulated non-jury trial, iii which they stipulated to the same facts that
Appellant stipulated to at her stipulated non-jury trial on December 5, 2017. In
relevant part, X. Tucker and Giddings agreed that X. Tucker punched and
pushed the victim, Mr. Sager, causing him to fall backwards down the steps.
(Stipulated Hench Trial ll/21/17p. 15). He followed Mr. Sager down the stairs
and began to hit him over the head with a metal cane. Id. Mr. Sager sustained a
large abrasion to his left shoulder, and required medical attention. Id. He was
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transported to a nearby hospital by ambulance. It was discovered that the item
Sager had been assaulted with was a walking cane, which was discovered at the
scene of the assault. Id.In addition, X. Tucker and Giddings agreed that X. Tucker suddenly
awakened victim Brenda Davis, who was asleep on the couch in the living room.
Id. at 16. He grabbed Mrs. Davis by her throat and pulled her off the couch
while co-defendant Giddings watched. Id. X. Tucker asked Mrs. Davis who else
was in the home, and she said her son was in the basement. Id. at 16 - 17. X.
Tucker then grabbed Mrs. Tucker's walking cane and walked over to the
basement door leaving Giddings to watch Mrs. Davis. Id. at 17. At the
conclusion of the stipulated non-jury trial, both X. Tucker and Giddings were
found guilty of conspiracy and four counts of robbery.
By way of comparison Appellant agreed at her stipulated non-jury
trial that her role in this home invasion was that she awakened and struck,
Kaylee Davis, an eight-year-old girl who was sleeping in her bed, in her head
with an unknown object. _(Stipulated Bench Trial 12/5/17 p. 17). When Kaylee
opened her eyes, she saw a person later identified as Appellant standing over
her. Id: Appellant grabbed Kaylee by her hair and dragged her down the hallway
by her hair and arm. Id. She held her hand over Kaylee's mouth when Kaylee
screamed for help. Id. Appellant was also convicted of conspiracy and four
counts of robbery.
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On February 26, 2018, Appellant was sentenced. This Court, in
explaining its reasons for the sentence it was about to impose,
. stated
. as
follows:
The Court does have the benefit of information, which
I have carefully considered. That does include the
sentencing code, the sentencing guidelines, the
Presentence Investigation and Report, the material
submitted on behalf of the defendant by Mr. Mc Elroy in
the way of a sentencing statement, letters on behalf of
the defendant that were submitted to the Court and
given to counsel and the information that was supplied
today together with the arguments of the attorneys.
Just dealing for a moment with the sentencing
guidelines, we are dealing with a felony one, level five
offenses, offense gravity score of nine and ten.
The comment to the sentencing guidelines which I do
recognize fully are merely guidelines say as follows:
Both level five provides sentencing recommendations
for the most violent offenders, conviction has offense
gravity score of nine or greater. The standard range
requires state incarceration in a state facility.
The primary purpose of the sentencing options at this
level [is] punishment commensurate with the
seriousness of the criminal behavior and incapacitation
to protect the public.
We do also have the PPI evaluation which has been
referred to and the Presentence Investigation and
Report. Mr. McElroy did refer to the aspects of the PPI
evaluation.
In short, I find major depressive disorder, post-
traumatic stress disorder, serve alcohol use disorder,
server cannabis use disorder, and a series of
recommendations for treatment.
The Presentence Investigation and Report sets forth
the defendant's statement regarding the offense. She
said she wanted to apologize to the Davis family. She
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wishes she could take her actions back and she takes
full responsibility for her actions. She does admit to
dragging Kaylee down the hall by her hair and knows
that she grabbed her arm.
It is true here that this defendant is a first offender.
This is the first criminal offense.
The family situation background is set of the in the
report and supplemented, of course, by the testimony
today. I carefully considered that.
It is very true that this is a defendant who did not have
f al childhood at all, did not have a proper childhood:
Sexually abused repeatedly at a young age, introduced
to drugs and alcohol at a young age.
I have indicated that the diagnosis of the PPL From age
fourteen to sixteen, she used methamphetamines daily.
There was marijuana, cocaine tried once, and alcohol
and other drugs. ·
The defendant graduated from high school - - I mean
she went to high school and did not earn her degree ·
until she was incarcerated in Montgomery County
Prison.
She does have two children that are in the custody of
her Aunt Margaret.
She had some employment from time to time, Five
Guys from September, 2016 to May of 2017. She also
worked at Giant. She worked at a diner.
The defendant was significantly involved in this
criminal activity for which the criminal activity is of a
most serious and violent nature. The criminal activity
is not to be justified or excused. The criminal activity
is not forgiven by the fact that she was victimized and
brutalized as a child in a horrible, horrible way.
We have four victims here all threatened with serious
bodily injury. One injured to the extent of requiring
snches and other treatment.
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They entered the building, the home of these people,
the one defendant carrying what the victims would
believe to be a gun and other weapons being employed
throughout this event.
As I indicated previouslv, they acted With malice, a
willingness to plan and engage in the underlying
robbery so that had if Mr. Sager died they would have
faced felony murder charges.
The defend ant [was] instrumental in the planning and
the execution of the crimes here. It would not be [a]
difficult job of the sentencing Judge to justify
consecutive sentences for each of the victims here even
separately for conspiracy.
Clearly in my View, a significant prison sentence is
appropriate here. A state prison sentence is
appropriate here. A county prison sentence is not
appropriate in my view given the nature and severity
of the crime.
Quite clearly the impact of the crimes on the victims
and the society in whole is severe. We heard victim
impact testimony today. Quite clearly people do need
to be able to feel secure in their own homes with such
an invasion life this from these kinds of criminals.
These victims were brutally terrorized, treated
horribly, and this defendant, in particular, grabbed the
young child by the arm and pulled her by the hair.
There was force throughout this crime that was
excessive and unnecessary to accomplish the goal of
the crime. These victims dearly had no ability to resist
and no match for these criminals in any way, shape or
form.
(Sentencing 2/26/18 pp. 48 - 53).
On April 20, 2018, both X. Tucker and Giddings were sentenced at
a joint sentencing hearing. First Giddings was sentenced, with this Court stating
the following reasons for the sentence it imposed:
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All right. Thank you. Well, this Court does have the
benefit of a presentence investigation, which I have
carefully considered.
I've also considered the sentencing code, the
sentencing guidelines, the information presented today
on behalf of this Defendant.
I do believe that this Defendant does show genuine
remorse for her actions.
The criminal history is insignificant insofar as she only
has a conviction for a summary retail theft and then
the present offense.
Her family situation and background is set forth in the
report at length, I have considered that.
She does have depression. That' was diagnosed in 2017.
She had counseling when she was out on bail and
otherwise led a law-abiding life during that period of
time.
Obviously, she does have supportive family and
friends, which I have taken into account.
On the other hand, there is a very serious crime here.
This Defendant was involved that included threatening
behavior; potential weapons, what appeared to be a
real gun to the victims; and that includes four victims,
all threatened with serious bodily injury and one that
actually required medical attention for stiches and
other injuries to the head and so on. One of the victims
was a child.
There certainly was malice in their actions. If Mr. Sager
had dies, they would have faced potential felony
murder charges here.
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----,---------------·-----·
I will comment that her willingness to cooperate and
they way she handled this case is to her benefit. She
was willing to testify if needed. She was willing to do
that early on. She did make a statement confessing to
the crime and entered into a stipulated bench trial,
which is the equivalent of an open guilty plea in my
mind.
As indicated by Defense Counsel, she did not actually
physically inflict and excessive harm, but as a
conspirator, as stated by counsel, she was legally and
morally responsible for the actions of her Co-
defendants that occurred in this setting.
I do recognize that this Defendant has the potential to
do some good deeds in her life when she accepts and
receives her punishment here.
Id. at 33 - 36. Based upon these reasons, this Court sentenced Giddings to an
aggregate term of 3 to 10 years' imprisonment. Id. at 37.
As to X. Tucker, this Court in relevant part explained its reasons
for the sentence it was to impose as follows:
All right. I'll state the reasons for the sentence I will
impose.
Once again, I have the benefit of a pre-sentence
investigation and report which I have carefully
considered.
In this case by this Defendant, we also have a PPI
evaluation and summary which talks about things such
as drug-and-alcohol, mental-health issues, things of
that sort.
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He did express to the Commonwealth a willingness to
testify against Co-defendants if needed. That is
significant.
Additionally, he willingly entered into the stipulated
bench trial, which is viewed by this Court as equivalent
to an open plea of guilty. He did not put the victims
through a contested trial.
He has also exercised his right of allocution and had
written a letter to the Court expressing his remorse
and knowing that what he did was extremely wrong
and stating, quote, I was raised better and know better.
He's indicated that his year I jail or so has helped him
make decision concerning the direction of his life. His
life was going in the wrong was as indicated in part by
his criminal history.
Ouite obviously, this Defendant was fully involved in
this crime. He is criminally responsible for the acts of
his Co-defendants for this crime of violence, a crime
that was certainly designed to threaten people with
serious bodily injury, put them in fear and terrorize
them, and that is what was done.
There was a - - what appeared to be a handgun used. A
cane was used. There was a hammer in the hand of one
of the Defendants. The four vtcitms all were threatened
serious bodily injury. On is a child who was pulled by
the hair. And. the one person who was struck with a
cane required snches, which is a significant injury ..
The Defendants did act With malice.
**'�
(Sentencing 4/20/18 pp. 48 - 52). Based upon this reasoning, this Court
sentenced X. Tucker to an aggregate term of 5Y2 to 12 years' imprisonment. Id.
at 53.
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A reading of these statements evidences that this Court indicated
the reasons for the differences in the sentences between these three co-
defendants, and this Court did give reasons particular to each defendant
explaining why they received their individual sentences. Appellant's sentence is
appropriately longer than of her two co-defendants because it reflects her
serious involvement in this crime where she willingly terrorized and brutalized
an 8-year old victim. It also reflects that she was instrumental in planning and
executing the crime.
By way of comparison, Giddings, in her role in the crime, did not
actually physically inflict or use excessive force. Giddings cooperated with the
Commonwealth early in the investigation and was willing to testify. As such,
her sentence, which is the shortest of the three co-defendants, reflects these
factors. As to X. Tucker, he was remorseful and also cooperated with the
Commonwealth early on. And because he brutalized Mr. Sager using physical
violence he received a longer sentence than that of Giddings. Clearly it was
appropriate to sentence Appellant to the longest sentence because she
brutalized a child and was instrumental in the planning and execution of this
Violent crime. Therefore, the disparity between the co-defendants' sentences is
well justified and these reasons were stated on the record. Thls claim of error
on appeal lacks merit.
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CONCLUSION
Based upon the foregoing analysis, Appellant's judgment of
sentence imposed on February 26, 2018, should be affirmed.
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BY THE COURT:
WIUIAM R. CARPENTER J.
COURT OF COMMON PLEAS
MONTGOMERY COUNTY
PENNSYLVANIA
38T11 JUDICIAL DISTRICT
Copies sent on July 30, 2018
By Interoffice Mail to:
Court Administration
By First Class Mail to:
WHliam R. McElroy, Esquire
101 E. Moreland Avenue
Hatboro, PA 19040
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