Commonwealth v. Andrews

TAMILIA, MELVIN Before ORIE BROSKY, JJ. MELVIN, Judge:

ORIE discretionary challenge to the This is a Danny An- aspects sentencing. Appellant, drews, guilty of five counts of was found conspiracy,2 and two robbery,1 two counts of an instrument of counts of sixty- initially crime.3 He was sentenced to thirty years prison. five to one hundred appeal Superior a Court of After direct Pennsylvania, re-sentencing we remanded for failure, on court’s on based record, an awareness of the to indicate ranges, provide a applicable guideline and to supporting statement of reasons deviation remand, guidelines.4 the sen- from the On tencing a record that included court created applicable ranges of the recitation of the again imposed a sentence of sentence and years pris- sixty-five thirty to one hundred appeal affirm. on. This follows. We appeal all Mr. Andrews’ issues on are re the sentence lated to the contention that was an abuse of on his conviction alleg because the discretion range edly applicable guideline exceeded the imposing- failed to state its reasons for Mr. Andrews’ brief correct such a sentence. statement, required ly separate a includes Pennsylvania Appellate Rules of Pro cedure, attempts by which he to demonstrate question regarding exists that a substantial imposed. appropriateness of the sentence R.A.P., 9781(b); § 42 Pa.C.S.A. Pa. Rule See 2119(f), Pa.C.S.A.; Tu 42 Commonwealth v. (1987). 508, ladziecki, Pa. 522 A.2d 17 513 par The determination whether Defender, Paekel, ques ticular issue constitutes substantial Asst. Public John W. on a case appellant. tion must be evaluated ease Philadelphia, for portions § for reconsideration of of our decision. 3701. 18 Pa.C.S.A. Andrews, Commonwealth v. § 903. 2. 18 Pa.C.S.A. (1993) (unpublished 641 A.2d 1218 memoran- addition, dum). Supreme our Court denied 907(a). § 3. 18 Pa.C.S.A. appeal. appellant's petition Fi- for allowance of Supreme nally, of United States denied Court completing procedural his- 4. For the sake of appellant’s subsequent petition for certiorari. tory, appellant’s motion we note that denied infor- Losch, to be mindful as a fact and Pa.Su- basis. Commonwealth Mr. Andrews’ behavior n. 7 mation about per. 535 A.2d re- “However, updated pre-sentence an to allow An we will be inclined incarcerated. provided the a color- have appeal port presumably where an advances would judge’s trial actions that an argument able no reason information. We see same (1) specific provi- were: inconsistent with under the required updated report would be (2) Code; contrary Sentencing or sion of the took sentencing court circumstances. underlie the to the fundamental norms which consideration. information into the additional that Mr. sentencing process.” Id. findWe pre- updated no need seek There was a colorable ar- Andrews’ averments advance Furthermore, as stated report. sentence underly- gument that the fundamental norms adjusted above, Mr. Andrews the fact that sentencing com- ing process have been only one of prison is favorably to life may promised case. therefore his We by the sentenc- variables considered several the merits of his claim. consider have this right no to ing court and there is all others. precedence over one factor take First, Mr. Andrews claims that Id. request granting trial court erred in not his report prepared pre-sentence for a new to be conglom- is a second issue Mr. Andrews’ prior re-sentencing. Mr. and considered to sentencing allegations eration accurately sentencing is Andrews notes that violated the its discretion and court abused a matter vested in the sound discretion of the include the sentencing These bases code. sentencing judgment court whose will not be (a) sentencing court: allegations that appeal disturbed on absent an abuse of dis manifestly were imposed sentences which Campion, 449 cretion. Commonwealth v. (b) excessive; unjustifiably unreason- (1996). 1328, Pa.Super. 672 A.2d 1333 range ably aggravated deviated above Further, Losch, supra, as on we stated Sentencing without a suf- of the Guidelines sentencing judge remand: “the at a second aggra- of individualized ficient identification hearing penalty should reassess the to be factors, explanation of vating or sufficient imposed especially on the where defendant — (c) upon departure; relied reasons for the forward with relevant defense counsel comes incorporated already considered and factors previously not available.” evidence which was (d) Sentencing ranges; into Guideline However, at 122.5 Mr. Andrews’ 535 A.2d imposing upon Mr. Andrews the erred in adjustment penitentia in the favorable to life imposed upon his lengthy sentence as same ry upon is one of several variables which co-defendant, distinguishing the dis- without focus; right judge the trial should there is no (e) histories; and parity in their criminal precedence to have this one factor take over to Mr. An- gave insufficient consideration Losch, all A.2d at 123. others. 535 rehabilitation, to potential drews’ us, presently we In the case before required fully con- other factors to be sentencing note that the court had available sentencing deci- sidered and balanced pre-sentence report issued in 1992 at to it the are interrelated sion. These bases original sentencing. A new the time of the together. possible, will be considered where pre-sentence report would have advised the sentence, selecting appropriate In sentencing Mr. Andrews’ activities court of protection required is to consider However, court Mr. Andrews’ while incarcerated. and the public, gravity of the offense information to the sen provided counsel 42 the defendant. needs of rehabilitative conceded tencing court. The Commonwealth 9721(b). imposing § a sen- When cita Pa.C.S.A. Andrews had no institutional Mr. confinement, the court must tence of total The sentenc during his incarceration. tion history, character and condition accept consider the willingness his to ing court indicated below, disregard sentencing incorrectly court did not sentencing that he court stated 5. The supplied Andrews’ counsel. retrospective Mr. required view of information Instead, to take a was accepted true and indicated a he it as sentencing, as if no time i.e. sentence on remand fully willingness the information. to be mindful of passed. more had as discussed 768 prior record has al- existence of a as the nature and

of the defendant well § ready Id. into the circumstances of the crime. at been factored justify serve to a sen- guidelines and cannot Mr. Andrews claims that the sen guidelines. making In tence above manifestly excessive. In tence is attempting again is argument, Mr. Andrews determining manifestly whether a sentence is just many single attack one of out and excessive, appellate give “the court must sentencing court. by the factors considered sentencing judge’s great weight to the discre put do not find that We tion, position as he or she is the best any factor or other. weight on this one undue measure factors such as the nature of Instead, from our review of the apparent it is crime, character, the defendant’s and the de sentencing hearing that the transcript of the remorse, defiance, display fendant’s or above, took a number of judge, as noted Ellis, indifference.” Commonwealth consideration, just Mr. An- factors into (Pa.Super.1997), citing A.2d Com prior drews’ record. Anderson, monwealth v. light fact that Further, a defendant’s note that position the trial court the best sentence, entirely history reflected appropriate we find is not determine an that the trial court not abuse its discre prior did record score. Commonwealth his impose manifestly sen tion and excessive A.2d 1144 Darden 366 tence. presently in the case Specifically, us, report6 indicates pre-sentence the before Mr. Andrews next claims that begin offender Mr. is a career Andrews sufficiently sentencing explain court failed to juve ning being ten times as with arrested sentencing guidelines it’s deviation from the adjudica nile, delinquency resulting in two gave po his and insufficient consideration to tions, charges. robbery for and related both A review of the tential for rehabilitation. adult, has been arrested As an Mr. Andrews sentencing hearing transcript belies these times, resulting in six convictions seventeen sentencing specifical contentions. The court receiving stolen robbery, burglary or ly noted that it took into consideration the addition, Mr. Andrews was on goods. In pre-sen sentencing guidelines, previous the time of the parole month at one evaluations, reports, psychiatric tence case, plead and he robberies at issue this prior reports and record as well as counsel’s committed guilty to other robberies ed two report experi had not that Mi'. Andrews case. The at this any problems incarcerated. The after the offenses issue enced not reflect either the sentencing prior court further stated its reasons score does record sentencing sentencing him outside the adjudications or the robberies he juvenile sentencing judge specifically guidelines. The crimes. As stat after the instant committed opined that the Mr. Aidrews was distinct in Darden: ed the court community, had not been de threat sentencing factors have not When relevant prior his convictions and commit terred computation incorporated been into ments, long history of crimes of and had a range, it necessari- minimum the standard sentencing court violence. find that the We may be consid- ly factors follows that such appropriate requirements complied with the justify a sentence ered as factors to sentencing its and did not abuse discretion range, aggravated mitigated minimum Mr. Andrews in this case. guideline range, or outside minimum Mr. also claims that the sentenc- Andrews ranges. already ing court relied on factors that were Thus, that the we find Id. 531 A.2d at incorporated into the sen- considered and considering justified in argues sentencing court was tencing guidelines. Specifically, he parties referred to provided request. have pre-sentence report both was not 6. The Although requested dispute report as pre-sentence the certified record. and there is no original report Philadelphia Probation from to its contents. Office, comply with our that office has failed to encompass that offense to guide- ishment of one these factors to sentence outside the crimi arising from the same offense ranges. another line Commonwealth nal act or transaction. Mr. Andrews next contends (1994) Anderson, Pa. sentencing imposing on him court erred with the same sentence his co-defendant presently before the case disparity crim distinguishing out of their court, information reveals the criminal inal it is true that the co- histories. While involved charges against Mr. Andrews prior greater, defendant’s record score was robberies, individ of different three different authority Mi\ can cite no that this Andrews buildings, uals, apartment at three different requires sentencing court to factor alone was two-day period. Mr. Andrews over a proportionately adjust as be its sentence robbery. Howev charged counts of with six tween the co-defendants. As mentioned er, charged Mr. Andrews the Commonwealth above, court has wide discre conspiracy and with three counts of supra. imposing Campion, tion in sentence. possession of an instrument three counts of disparity prior but The record scores is Therefore, was Mr. Andrews of a crime. may one factor conspiracy one charged and with one count dispositive. It is consider. of crime of an instrument count appeal building final Howev apartment Mr. Andrews’ issue on robbed. for each principles jeopardy er, for the charges is that double were consolidated statutory analysis require multiple proper that his purpose This was because of trial. conspiracy jury consecutive sentences for convict the crimes are so similar. possession of of a crime must be robbery, instruments counts of ed Mr. Andrews on five making argument, vacated.7 In he rea conspiracy two counts of two counts of robbery that if sons the three incidents con of crime. Be possession of an instrument continuous, overlapping stituted a common robbery, conspiracy possession and of cause scheme, conspir then the inchoate crimes of merge of crime not an instrument do acy possession and of instruments of crime sentencing, enti purposes of the court was single, continuing constitute a offense such impose on each separate tled to sentences imposed. one sentence can be We count. disagree. robbery The three incidents do nothing con There is about the an overlapping not constitute common concept cept invokes the of consolidation that They separate scheme. were incidents merger. not describe of Mr. Andrews does why were consolidated for trial. This is Mr. any merger or violation of double basis for charged Andrews was with three counts of except to the jeopardy for the reference conspiracy pos criminal and counts of three permitting He cites no consolidation. An session of an instrument of crime. Mr. law, none that case and we can find would apparently confusing separate drews is two argument. support this Consolidation legal concepts: merger. and consolidation purposes for the of trial did not offenses Consolidation refers to when different crimes pur for the require merger of the offenses may proceeding. Specifically, at one be tried sentencing. no need to poses of There was where: “the evidence of each of the offenses purposes merge the offenses for the of sen separate in trial for would be admissible a Furthermore, tencing. there was no viola by capable separation the other and is of jeopardy tion of double because both danger of jury so that there is no confusion.” conspiracy and the convictions convictions for (l)(a), 42 The Pa. 1127A Pa.C.S.A. R.Crim.P. an of crime possession of instrument merger, though, is a rule of statu doctrine of for two different offenses.8 were designed to determine tory construction pun- Judgment of sentence affirmed. legislature for the whether the intended sponte the court. Commonwealth issue or sua While Mr. Andrews did not raise this 7. Moran, court, legality questions the of before the trial it legality The of a sentence is the sentence. recently decided case of We are aware of the may any be at time nonwaivable issue and raised (No. Philadelphia Commonwealth Woods TAMILIA, J., joins Opinion not sufficient to a trial and files ments are overrule Concurring judge guidelines gone Statement. has outside the in who gives ade- legal an sentence if he otherwise

BROSKY, dissenting J. opinion. files doing quate reasons so. TAMILIA, Judge, concurring: BROSKY, Judge, dissenting. join majority Opinion correctly

I as it law, applies however, Appellant of five counts of states and was convicted I write separately only justice robbery, conspiracy of and to observe that could two counts two going been of of an instrument of have served without outside the counts guidelines. relating crime occur- guidelines The have care- to two armed robberies been fully designed ring apartment building complexes legislative fulfill the at two intent Philadelphia single in a afternoon. The sen- for balanced on an individual ba- court, understandably geographically, tencing perhaps sis and out- giving appropri- weight raged, by appel- exasperated ate the nature of the and frustrated crime. The majority continuing vast of lant’s involvement criminal compliance sentences are guidelines, despite previous with the numerous encoun- which allow considerable conduct judicial justice system, includ- num- ters discretion. Should excessive with the ing periods incarceration, pro- guidelines ber of of threw sentences exceed degree appellant there is no likelihood of verbial at release be- “book” death, prisons, law on all becoming fore which are a maximum sentences allowed resource, charges con- limited as ordered them to be served repositories will serve told, appellant infirm and incapacitated elderly patients secutively. All was sentenced years years. Already, period in their total of 65 to 130 declining cost of serve a imprisonment. incarceration I in California exceeds the cost of understand reprehensible graying prison popu- engaged education. has behavior and The our ultimately length inspire hope lation does a lot of for successful will result rehabilitation, by prison being particularly sentences the short run. determined offi- Nevertheless, point nec- cials rather than the courts when at some it becomes the cost backwards, essary step application becomes Careful to take a observe unbearable. larger a manner guidelines mitigate picture and adherence to the can in as detached possible “enough enough.” say this foreseeable concern. imposition year of a 65 to 130 sentence for cognizant I am also the thoughtful of dis- appellant’s holdups is participation in two in by colleague, Judge sent our esteemed John effect A in a “life sentence.” life sentence Brosky, cases, G. he cites two which which degree Pennsylvania imposed first for authored, position. I to support his Com- and, such, sentencing murder as the court’s 474, Simpson, Pa.Super. monwealth 353 thought equating appel- action be of as could (1986), A.2d 760 510 Commonwealth v. Parr- lant’s murder. conduct with cold-blooded ish, 528, Pa.Super. 340 490 A.2d 905 Unfortunately, intervening years I to present since too similar our find the case Opinions years published, Supreme ago those our 12 Common- were decision rendered position Pa.Super. has 353 Simpson, Court hardened its on sentenc- wealth v. 510 (1986), ing, ignore. respect sociological philosophic argu- and or A.2d to In the I 760 1996) robbery, separate separate cited the dissent. of in two these two counts Woods, day. distinguishable. apartment complexes, are In cases the defen- albeit on the same robberies, carrying employed dant was convicted of two counts of a In he a hand- each of these (18 6108) Therefore, public gun § on a firearm street Pa.C.S.A. to facilitate the crimes. the Com- sought possession there because were two assaults involved. We convictions for monwealth of recognizing reversed there was crime each that not a break instrument of associated with of 907(a). weapon § of the between the two 18 Pa.C.S.A. We find these incidents. fact, possible In Woods it trial assaults. Mr. remained in his for the court to conclude that car, fleeing separate a hit and run and were unrelated from accident these two robberies two flight. began en- assaulted each victim to facilitate his The each Mr. Andrews events that when continuing apartments entire incident ended was one event. In the tered the different when case, was he instant Mr. Andrews convicted of two left.

771 life. Presum- tively put appellant away for cases are consider most relevant the two similar, up a bus quite except ably, appellant that sentence im- if had held transit the posed essentially here is twice as harsh as would have received forty passengers with he imposed Simpson. Simpson Indeed, the one In years the prison. 400 sentence imposition dealt with a total of imposed the of judicially smacks of a here years imprisonment to 60 six of counts type of then sentence “three strikes” life robbery, four conspiracy counts of and six fit legislature has though our not seen even possessing of of counts an instrument crime adopt a measure. to such appli- which arose from six robberies of two vogue of there Although apparently out period. ance stores in a five month vacat- time, shortly imposition of a after the was ing the sentence we stated consid- guidelines, court sentencing where this ering gravity of the offense and need sen obligation took to its review heart society to protected be it was also incum- blindly than tences rather defer upon “weigh bent court, willing a to vacate and was a effect of cumulative minimum of sentence than sentence for no other reason because thirty years, relatively which would take a manifestly was deemed exces sentence young through prime man life of his for a panel reviewing the sive sentence. long average term twice life as as sen- Simpson such as was was a case Common tence, ...” further We noted that criminal Parrish, Pa.Super. wealth v. conduct tends to diminish in offenders as (1985), and Commonwealth they age imposition thirty of a Smart, 564 A.2d 512 year “effectively appellant sentence removes (Pa.Super.1989). remain Since these cases society life, potential working from his im good I would vacate the sentence law precluding possibility of his ever becom- upon posed resentencing remand for ing contributing society.” a member of If authority. their thirty year the above is of a true sentence doubly sixty-five year then it is of true a my gen- I agreement would note with the sentence. concurring colleague, expression my eral Concurring Judge as set forth in his Tamilia argued It could be has Nevertheless, I do Statement. not believe significantly history worse criminal than did merely arguments I advance are Simpson prior spree, to his crime which is sociological philosophical. Superior or Nevertheless, dealing true. when with the purpose reviewing Court exists imposition sixty-five year of a minimum sen- court, just Supreme actions trial length tence sheer of the sentence over- Court, large part, purpose for the exists whelms such differences. A defendant’s court. There are reviewing actions history may highly be relevant when many when court takes action times deciding impose ten-year whether to sen- merely wis- assumed collective because fifteen-year tence or sentence. But when judges is to panel dom of a of three deemed life, considering locking up for someone for greater judge. a single than the wisdom of be practical purposes, history all that criminal is nothing inherently wrong this There is with significant overriding question the less than aspect appellate rea- Concepts of review. of of whether a life de sentence should be facto relating permeate decisions sonableness imposed participation in two robberies. matters, custody interpreta- child contract Conversely, argued appellant’s it could be in issues, tions and and seizure to name search sepa- in Simpson participated behalf that six reviewing a few. these we will When cases robbery ap- the episodes rate whereas here of routinely judgment or reverse the vacate participation of in pellant was convicted two. upon nothing more victims, the lower court based thereby fact that there were five of reasonable- robberies, than that our collective sense allowing charging the of does five lower I ness from that of the court. differs change of the crimi- not the essential nature approach no that should merely see reason the same engaged in. It nal conduct sentencing comes to be abdicated when it provided whereby the Common- vehicle sentencing and the court could effec- matters. wealth

772 robbery, gravity signed an offense score sentencing current scheme

Under an assigned it rape was when or what a only refer to the judges supposed are to not of- particular that gravity score for offense to them. sentencing guidelines but to adhere fense. mean that sentences cannot be This does not ranges aggravated of the Gause, when I noted in As further guidelines guidelines or even outside the guidelines sentences outside court However, where circumstances warrant. the crime unusual for which is not conduct supposed reasons for there are to be valid committed, reality reflects the sentenc- it mitigated or sentencing aggravated rejection legislature’s and ing court’s guidelines ranges going outside the or for appropriate sentencing commission’s sense of empowered to altogether. If this court is not of its own. the substitution punishment and sentencing reasons and review the court’s occurs there are Although practice when disregard them if considered invalid or insuf- agreement with in full likely to be individuals then, practical standpoint, ficient from a nevertheless, down, the sentence handed appellate guide- and the

there is no review imposition contrary purpose to the behind voluntary essentially a exercise. lines become place. we first As guidelines of Chesson, 353 v. noted in Commonwealth Smart, Pa.Super. 387 Commonwealth (1986), A.2d 875 Pa.Super. (1989), writing for a 564 A.2d 512 purpose with the guidelines were formulated court, majority panel I indicated of a of this diminishing standardizing of sentences sentencing “[ajppellate mat- review of sentencing devel- disparity in that often mockery if and a sham ters would become county county court- and even oped from routinely all sentences were affirmed under impact of this Lest room to courtroom. court.” guise of of the trial discretion implementation of this goal escapes anyone, Id., Now, eight A.2d at 514. more than reining in necessarily requires the policy later, say precisely I that this is years dare discretion, rec- a matter that was sentencing sentencing appellate the state of review passage by legislature in ognized both the Judge Ta- matters in this Commonwealth. court back guidelines and this majority of milia states that a vast sentences See, Chesson, discussion. guidelines. Al- compliance with the are this to be the though reasons, I would like to believe that not I believe For the above case, I I am so sure. But am sure reject empowered to sentences are we routinely affirmed “exeessiveness,” sentences are numerous I believe also for manifest guidelines, that are outside the long this court duty so as as the are bound to do sentences, despite the fact are maximum legisla- or If in effect. guidelines remain the case are not out that the circumstances of sentencing guide- repeal fit to ture sees ordinary type for the of the realm of the to the maximum discretion lines restore committed. crime then this court’s current courts it relates to sentences reviewing practices as Judge agree I further with Tamilia I justified. until such time will be give “appro- designed to guidelines are abdicating responsibility our we are believe weight nature of the crime.” priate routinely affirming appellate Gause, I in Commonwealth As observed under the presented like that here sentences (1995), discretion. guise of deference the inherent guidelines into account take error to sen- Lastly, I also it was question by believe of the crime egregiousness conspiracy appellant for two counts of greater tence “increasingly sentences calling for Id., possessing an instrument two counts of egregious 659 and increasingly conduct.” Although ideally challenge a to the crime. assigned an of at 1016. Each offense is A.2d is which, multiple of sentences for what speak- imposition generally gravity offense score be made essentially in- one crime should period of ing, appropriate forth the sets sufficiency chal- through a of the evidence particular offense. We carceration for that vacating precedent for sen- lenge, there is sentencing commission that the must assume It is challenge to the sentence. it as- tences via a robbery when a was understood what (Pa.Su- Woods, 710 A.2d an incho- wealth v. conspiracy well that is established attempts to distin- majority The conspiracies per.1998). ate crime and the number of the but present from the case depends upon conspiratorial guish the number of Woods refut- has not been agreements reached not number made Woods point of we possession of conspiratorial ar- we that committed within a In stressed crimes ed. Woods to the com- rangement. present In the there is not tied weapons case offenses were and, weapon nothing suggests that the commission of an offense with the that mission of if no crime conspira- fact, even separate resulted from a violation would occur ci’imes weapon. Indeed, agreements. given actually the short committed with the torial were Woods, factor, logic to controlling time robberies it strains as stated between The con- weapon. We suggest possession both were not the of the that robberies was no was single conspiracy. that there result of a criminal cluded Woods since Perez, weapon possession v. of the Commonwealth evidence (1988), interrupted a sentence for had committed vacated Woods was offense, upon though ap- though there conspiracy appeal possession even even one majority pellant pled guilty conspiracies. separate to had two two assaults. were distinguish- nothing meaningful that there a presented We noted was has therefore, record, and, princi- anything by the Com- ing nor offered factor from Woods monwealth, suggest that there were two decisis that same ples of stare dictate ap- separate conspiracies. logic The same should be reached here. result plies Nothing proffered by the Com- here. reasons, sen- I believe the For the above brief, monwealth, petition in its or in its manifestly exces- should be vacated as tence consolidation, supports a conclusion Fur- resentencing. remanded for sive and conspiracy. than one there was more criminal ther, one I believe the sentences Consequently, I would be inclined to reverse conspiracy possess- count of count of and one conspiracy. one the sentences for criminal of re- be ing an instrument crime should illegal. versed as stronger

The above rationale is even possession context of the of an instrument charged

crime context. The relates offense possession of an of crime instrument criminally. employ

with intent it handgun in fact employ

Since did criminally, aspect of the offense is estab- PROPERTIES, Appellee, 51 PARK prac- lished. Commonwealth’s tice offense number of tying supported by language of robberies is not Bruce E. Joanne MESSINA prohibits What the statute. offense Zehms, M. Bruce J. a/k/a possession weapon of the with Zehms, Appellants. continuing Possession is status. intent. PROPERTIES, Appellant, 51 PARK nothing appellant’s to indicate that There is handgun interrupted at was any during the commission of of- time Bruce E. Joanne MESSINA such, although appel- question. As fenses Zehms, Bruce M. J. a/k/a handgun in two employed lant may have Zehms, Appellees. sug- nothing to separate there is robberies possess gun continu-

gest did not that he Pennsylvania. Superior Court of frame. ously throughout the relevant time Argued May 1998. one offense Consequently, he committed but Filed Oct. weapon possession.

I that under a scenario would note similar very panel vacated second sentence weapon in Common- offense

Case Details

Case Name: Commonwealth v. Andrews

Court Name: Superior Court of Pennsylvania

Date Published: Oct 5, 1998

Citation: 720 A.2d 764

Court Abbreviation: Pa. Super. Ct.