Commonwealth v. Archer

Pennsylvania, COMMONWEALTH of

Appellee,

Anthony ARCHER, Appellant.

Superior Pennsylvania. Court of

Argued Sept.

Filed Dec. ground fell to the

147. The victim walked was kicked. As the co-defendants away, Taylor the victim. Id. at 149. shot victim, Taylor heard Before he shot somebody say “bang him.” Id. at 149. comment, heard a similar Saunders thought Appellant that he heard make the Trial, 2/6/96, N.T. at 161. statement. murder,1 charged theft Appellant was robbery,3 possession of by taking,2 unlawful crimi- generally4 of a crime and instruments Lorusso, Philadelphia, ap- Vincent M. for various of- conspiracy5 nal to commit these pellant. Appellant pre-trial fenses. filed a motion quash charge of first murder and Porto, Mary Atty., L. Asst. District Phila- a motion for decertification.6 The trial court Com., delphia, appellee. for Appel- denied both of motions. McEWEN, by jury. proceeded lant then to a trial On Judge, Before President and CAVANAUGH, 12, 1996, SOLE, KELLY, February jury Appellant found DEL EAKIN, JOYCE, STEVENS, taking, guilty robbery, theft unlawful SCHILLER LALLY-GREEN, possessing instru- conspiracy criminal and JJ. generally. Appellant was ments of a crime

JOYCE, J.: sentencing, Appel- acquitted of murder. At requesting a that the presented lant motion Archer, Anthony Appellant, appeals from hearing regarding court conduct a transfer- judgment of sentence entered on March ring juvenile for the case to the division reasons, following 1996. For the we af- disposition pursuant 42 Pa.C.S.A. reaching firm. Before the merits of this 6322(b). § request The court denied the appeal, we will recount the relevant facts and decertify hearing refused to the minor a procedural history. Sentencing, at disposition. 29, 1994, August On Appellant and two court then sentenced companions, Taylor [Taylor] Ollie and Khalis (15) thirty aggregate sentence of fifteen Edmonson [Edmonson] obtained a sawed-off (30) years’ imposed vari- imprisonment and Trial, 2/7/96, .22 caliber rifle. N.T. The trial court denied ous fines. They met Antoine Saunders on [Saunders] 26, 1996. post-sentence motions on March the street. pos- 143. had timely appeal followed. gun session of the at this time. Id. When commented, gun, Saunders three claims for our Appellant presents noticed (1) somebody.” “let’s rob Id. at the lower court abused Appel- 143. As review: whether denying Appellant’s lant and three these co-defendants continued its discretion in decertifi- perambulation, pursuant their to 42 Pa.C.S.A. met another co- cation motion (2) defendant, 6322(a); abused Gregory Pennington. Appellant § whether the trial court victim, approached refusing to transfer the case others Al- its discretion in Alimohamed, by juvenile judge after twenty-seven year disposition Moez old for graduate acquitted of University student from the the defendant had been 6322(b) and; Pennsylvania. point- pursuant Co-defendant to 42 Pa.C.S.A. Saunders incorrect gun Appellant, ed the at the victim while the trial court utilized an whether Taylor sentencing Appellant. Saunders hit Alimohamed. Id at §2502. §903. 1. 18Pa.C.S.A. 5. 18Pa.C.S.A. §3921.

2. 18 Pa.C.S.A. years the time of the old at 15!6 incident, years trial. and 17 old at §3701. 3. 18Pa.C.S.A. §§907, 4. 18Pa.C.S.A. Act,

The Juvenile 42 Pa.C.S.A. court finds that the child is not amenable to 6301-6365,7 treatment, §§ regard procedures supervision sets forth or rehabilitation as Act, ing prosecution acts com delinquent provided in the Juvenile the criminal juvenile. Austin, mitted [prior jurisdiction. The Act shall retain division su- jurisdiction vests pra. amendments] exclusive 42 Pa.C.S.A. 6355. court when a minor has commit all of must consider the follow- any ted offense other than murder. Com determining the factors when minor’s 568, 579, 669 amenability age, treatment: mental 6322(a). (1995); 42 Pa.C.S.A. minor; capacity maturity of the the de- charged when minor is with mur child; gree sophistication der, jurisdiction remains in the criminal divi records, previous any; if the nature and ex- any sion divi transfer from the criminal delinquent history; tent of whether the juvenile sion to within the division is be to expira- child can rehabilitated sound discretion of the trial 42 Pa. court. jurisdiction; pro- tion of the Juvenile Court 6322(a).8 C.S.A. or report; bation institutional the nature and It is clear from of the act language which the circumstances the acts for trans- that a transfer in a is not a murder case sought; any fer other relevant factors. right, matter of and the determination of Johnson, 579, 669 Pa. at A.2d at 321. whether the interests of the and soci- state 6355(a)(4)(iii)(A). See also ety prosecution require as an is with- adult opinion denying Appellant’s In its mo- in the sound discretion of the trial court. decertification, tion for the lower court stated Moreover, merely such abuse not be following: the that it considered the notes of judgment, misap- an error a but must be testimony from Appellant’s motion to plication law or an of mani- exercise quash charge; the first murder festly judgment unreasonable based on factual from the relevant information notes of partiality, prejudice or ill will. testimony from co-defendant Edmonson’s de- 568, 542 Pa. at at 321. hearing; certification the statement Appellant’s We will address issue in first Appellant; stipulation by a that the counsel accordance with these standards. juve- placed had never been involving charge,

In when system juvenile cases murder nile and that the court had juvenile certify seeks transfer from the criminal to refused him as an adult on a rob- division, juvenile shortly division bery charge to the “child bears that before arose this incident; demonstrating the burden of or she stipulation that he and a that Dr. Allan treatment, supervision Tepper, amenable to or reha who psychologist forensic exam- juvenile by demonstrating request bilitation as a at ined the defense he Appellant’s or she meets section 6355 Com factors.” counsel who reviewed Austin, 601, juvenile history, would recommend 597, (Pa.Super.1995), treatment.9 Trial at Opinion, 2. (1996) 622, (emphasis Appellant’s age. The court also considered 6322(a). original); 42 Pa.C.S.A. If the Id.10 Although Appellant placed Act Juvenile has been amended Act 9. been had never had, 17, 1127, juvenile system, within for various of November P.L. No. 33 reasons, previous system. 1). involvement with the (Spec.Sess. only apply No. The amendments delinquent to acts committed on after the or opinion, erroneously In its stated of the act. Act effective date Section 8 of incident, Appellant was sixteen at the time of the 1). (Spec.Sess. No. 33 No. Because the incident years in fact when he was fifteen and one-half August occurred in the amendments are old. that a find six-month applicable not in this case. concerning discrepancy age his at the time of the dispositive incident is not to the issue of decertifi- charges against a minor When murder are filed McDonald, See cation. court, jurisdiction in an over adult the court has (Pa.Su 1990), (fifteen charges arising other filed and from same per. year and one-half old certified Romeri, assault); v. aggravated criminal transaction. Commonwealth as an for trial adult for Garnett, 504 Pa. additionally

The court Common- stated on the record of the offense. cites Greiner, that it recollected the A.2d 698 Appellant’s facts from 479 Pa. wealth quash charge, strong motion the murder the co- proposition that one for the defendant’s hearing de-certification outweigh “counter factor is insufficient preliminary Decertification, hearing. N.T. strongly weighing against veiling facts [sic] 1/11/98, at 7. The court Brief, noted that counsel Appellant’s certification.” stipulated Appellant’s juvenile record. Id. However, Appellant, the defendant in unlike at 11. The court clarified that it considered See charged with murder. Greiner was stipulation and a stipulation regarding Greiner, A.2d at 702 Tepper’s Dr. recommendation. the nature of the crime (holding [other in and of itself is insufficient murder] than In her opinion, well-reasoned the Honor- transfer from warrant a Carolyn able Engel Temin sets forth the court). Appellant’s Consequently, primary reasons for denying de-certification: In review- misplaced. reliance on Greiner arrest, Following [Appellant] displayed his hearing ing the record of the decertification signs no of remorse. According to a memo appears opinion, and the trial court’s prepared Joseph Detective D. Fischer solely base its the trial court did not decision Division, of the Homicide while he was severity on the of the crime and assisting processing in the of the four de- remorse, although lack of these factors early hours, fendants in the morning weighed heavily According- in the decision. was able to observe [Ap- their demeanor. ly, we conclude that the trial court did not pellant] Taylor and laughing and decertify refusing abuse its discretion in talking, Pennington whereas and Edmon- Appellant. quiet son were crying. and [Appellant] Taylor indulge continued to in morbid- argues next ly inappropriate behavior, singing rap murder, acquittal of the trial court should songs boasting Taylor’s nickname disposition transferred the of the case have was “homicide.” juvenile pursuant to 42 Pa.C.S.A. This Court finds that [Appellant] was not 6322(b). The trial court denied merely passive participant in the events request hearing. for a transfer without and that his participation was therefore Appellant thus claims that he was denied due different from that of [Appel- Edmonson. process. Again, must determine whether we actively participated lant] beating, kick- the trial court abused its discretion when robbing [Appellant’s] victim. reviewing hearing the denial of a and the participation event, active in the his lack of denial of the motion to transfer. Common remorse, apparent totally his dissocial atti- Solomon, wealth tude slaughter towards the of another hu- (Pa.Super.1996), appeal man being, and the of criminal If, in a sophistication exhibited[,] against militate proceeding charging transferring [Appellant] juvenile child is convicted of a crime less than mur for disposition. der, disposi be case transferred 3/7/96, Opinion, Trial Court at 4. The court juvenile tion to the division. Id. Solomon concluded that was unable to meet the factors forth in section dictates that set placed upon the burden him to demonstrate 6355(a)(4)(iii)(A) in a should be considered amenability his to rehabilitation. Id. 6322(b) comparable section transfer which is It apparent that the court consid in a of these factors necessary ered promulgated factors in 42 6322(a) transfer. §6355(a)(4)(iii)(A). Appellant ar gues that the lower though court abused its discre Even the trial court had the only tion severity Judge because of the same considered the benefit of Temin’s review alia, 1984), (14 murder). year-old (Pa.Super. with, charged certified as an adult when inter considering prior pellant] explained decertification this behavior as “we factors trial, Judge Fitzgerald noted that he was not looking justice, got ain’t for no ours.” decertify. 1/12/96, Trial bound denial p. pre-sentence 5/1/96, Opinion, Judge Fitzgerald Court at 7. report [Appellant] indicated that independent instead conducted an examina- poor candidate for rehabilitation and was tion of these factors found that continuing drug He also had a his use. juvenile system was not amenable to the juvenile including an record arrest stating: approximately in- one-month before this indepen- This Court made a determination health stant matter. The mental evalua- Judge dent from Temin that the defen- competent tion also indicated that he was dants were not amenable to treatment to receive the sentence. juvenile system. within the 5/1/96, Opinion, Trial Court at 8-9. The access to forth had most of material set court also noted on the record that it consid- Judge Opinion including both Temin’s severity (robbery) ered the of the offense records; defendants’ the notes of was convicted. N.T. Sen- testimony hearings from the decertification tencing, reviewing In Judge before Temin ... all of the state- opinion, record and the trial court we find ments of both defendants co-defen- provided that the trial court was with suffi- given prior during dants to trial and cient information to consider the factors set trial and other relevant factors considered 6355(a)(4)(iii)(A) forth in 42 Pa.C.S.A. by Judge Temin. This Court also had the deny Appellant’s motion for decertification presentence benefit and mental Solomon, hearing.11 supra without a health evaluations conducted on both de- such, As we conclude that the trial court did purposes sentencing. fendants for the properly not abuse its discretion and refused Regarding [Appellant], it was clear that he decertification. robbery participant was an active in this point Appellant’s final of error is that the by testimony police and the co- trial court considered an incorrect offense defendants in this case. He struck the gravity respect Sentencing score with principle victim taking and was a [sic] Appellant argues Guidelines. that because statements, property. opening his In his acquitted gunshot he was of that attorney [Appellant] admitted that in- killed the deceased cannot be considered. robbery partici- volved in this as an active argues that the further deceased’s 2/5/96,

pant. p. [Appellant] N.T. wound, injuries, gunshot other than the do and, showed no remorse for this offense required meet the criteria for serious fact, during suppress, the motion to bodily injury erroneously and that the court testimony [Appellant] along indicated that 11, gravity an offense score of when applied Taylor Mr. laughing were while in the correct score should have been a 9. police custody, much that police sepa- so so argues The Commonwealth them rated from N.T. [co-defendants]. sentencing by 1/12/96, failing waived this claim p. segregated [Appel- 209. When comply Appellate with Rule of Procedure Taylor, and Mr. presence lant] of 2119(f) regarding discretionary aspects police of singing rap songs indicat- Brief, sentencing. Commonwealth’s ing a callous attitude toward the victim in “Yo, my got this case. i.e. “I hammer” and After our review of the current case law 1/12/96,p. regarding that m... f...” N.T. whether has waived this bust 209- claim, by police, [Ap- confronted we realize that this Court has inconsis- When 11. The statements made to trial and certified for record and found it sufficient preliminary hearing were not included in the review of the issue of decertification. If the record, certified thus were not reviewed. Al- certified record is deemed insufficient review Court, though sought record was then the issue to be exam- unavailable as well, pre- Boyd, its contents were summarized in the ined is waived. 404, 1284, (Pa.Su- report Pa.Super. sentence defense 679 A.2d counsel at sen- tencing. Sentencing, per.1996), appeal 689 A.2d at 81-89. thoroughly This Court reviewed the contents of tently waived, question treated the of appealable of whether the and is therefore as gravity right. calculation of an offense impli- legality cates the of sentence or the discre- authority An court’s to review tionary aspects sentencing. Consequently, governed by sentence is 42 Pa.C.S.A. 9781. granted

we have en banc in this in- review regarding that a claim section directs clarify stance in pro- order this issue and legality as of of sentence is guidance vide to the bench-and bar. right, any discretionary claims must present question a substantial that the sen- essentially There are two distinct lines of imposed appropriate tence is not under the regard cases with to the issue before the Sentencing Sentencing Code. Id. The Code Court. The first application treats the category does not address a third discussed gravity the offense score as an error law by legal questions appealable as of Johnson: discretionary but within aspects of sen progeny right. Johnson and its tencing, requiring appellant’s therefore legal questions treat these in the same fash- 2119(f) brief contain a statement. See Com legality ion as a of sentence claim. Johnakin, Pa.Super. monwealth v. from question A is distinct 502 A.2d 622 (Pa.Super.1985) (holding legality illegal of sentence. An sentence can regarding that a claim never be waived and be reviewed sua score raises a substantial sponte by this Court. Commonwealth v. question regarding the discretionary aspects Moran, 675 A.2d of sentencing); Patton, (Pa.Super.1996). illegal An statutory one that exceeds the limits. Com (Pa.Super.1991) (concluding appellant’s (Pa.Su Ellis, underlying claim that the trial court used an per.1997). See also Commonwealth v. incorrect score is a challenge to the Anderson, sentence). discretionary aspects of See also (imposition separate punishments Commonwealth v. Brown 402 Pa.Super. Moran, merged illegal); offenses 587 A.2d 6 (Pa.Super.l991)(holding that of (sentence at 1273 of restitution to District fense deadly score and weapon en Attorney’s illegal pursuant office rendered hancement discretionary involve aspects of 9721(c)). cases all in These sentencing). Accord Commonwealth v. Pok authority impose volve the of the court to orny, 520 A.2d 511 given juris sentence: was without (Pa.Super.1987). sentence, impose resulting diction to the in illegal exception an sentence. the of With Johnson, Commonwealth v. Pa.Super. 421 sentence, imposing illegal legislature an the 433, 618 A.2d (Pa.Super.1992) 415 and its has vested in the trial court broad discretion progeny express divergent a view and treat impose a sentence in each case the incorrect gravi- of the offense Tulad comes before it. Commonwealth v. ty appealable score as a matter right. as of ziecki, 508, 515, 17, 513 Pa. 522 A.2d 20 Palmer, 988, See Commonwealth v. 700 A.2d (1987). that a “It is well sentenc established (Pa.Super.1997) 995 citing 421 ing impose court can a sentence that is the 433, 415, (Pa.Su- Pa.Super. 618 A.2d 418-419 period by maximum authorized statute.” per.1992) (holding that the calculation of of- 176, 277; Saranchak, 675 at 544 Pa. at A.2d gravity fense score legal question is a 9756(a). 42 Pa.C.S.A. discretionary appropriate). review is not Ac- Acie, cord Pa.Super. Conversely, legal question pre a 418 351, every 614 A.2d (Pa.Super.1992) (holding appellant. 308 claim framed an sented prior that gravity only pass upon record score and court can the offense “An discretionary, score are not it.” Com legal questions thus are which come before questions appealable right). Pennsylvania Department as of These monwealth of of 214, Boros, cases proposition Transportation set forth the an im- v. 533 Pa. 620 1139, proper calculation of the offense A.2d 1141 See Commonwealth 500, 877, Luktisch, presents Pa.Super. score 680 A.2d legal question a and cannot be v. 451 210 crimes; mandatory (Pa.Super.1996) (holding that issues not ular are not waived); preserved properly appeal on are take into account various courts will other 415, Lord, Ellis, v. Pa. Commonwealth sentencing.” factors when Cf. (1998) to com- (holding

A.2d 306 that failure Saranchak, also v. 958. See Commonwealth ply to file directing appellant with trial 177, 277, order 268, n. 675 A.2d 1925(b) — appel- a statement waives claims (1996), U.S. -, cert. 117 S.Ct. review). late Even has though Appellant (1997) (stating 136 L.Ed.2d 617 that a presented legal question, a fact alone duty impose has no a sentence court con automatically his claim as qualify does not appropriate Sentencing under the sidered appealable right. as of Guidelines). guidance Supreme provided Our Court has Although sentencing court has no discretionary aspects the on what constitutes obligation guidelines, the sentence within 9781(b) sentencing. specifies of “Section correctly necessarily ap the trial court must discretionary allowance of of as- the point ply guidelines reach the correct pects granted of sentence where be departure sentencing outside of of before question appears that there a substantial here, applied sentencing As guidelines. imposed appropriate that the sentence correctly must ascertain the chapter. chapter under this referred to reach the proper score order to is, course, Sentencing of Code.” entire provided by sentence recommendation Tuladziecki, v. Commonwealth Sentencing Guidelines. origi- (emphasis 522 A.2d Cf. Jones, nal). purpose have stated of We that “[t]he applica (Pa.Super.1994) (holding that gravi- prior record score the offense deadly ty weapons’ enhancement is part are of used tion of the Guidelines uniformity sentencing.” mandatory establishing create the court to extent Ellis, sentencing, (Pa.Super.1997). point departure 700 A.2d at 958 correct that, has further “if a sentenc- upon appellate stated is treated as review sub improper considers factors in im- discretionary question regarding the stantial defendant, posing sentencing); aspects of and Commonwealth discretion, thereby abuses its but the sen- Krum, imposed illegal. tence is not Oth- banc) rendered (en (holding (Pa.Super.1987) erwise, every by a erroneous consideration question whether a record sentencing court will the sentence render be included in a record score should illegal in a manner which cannot be waived discretionary aspects implicates sen Krum, by a defendant.” Commonwealth v. tencing). (Pa.Su- (en banc). Sentencing Guidelines When are per.1987) qualify If we were to may then properly applied, judge exer improper calculation of offense sentence, or her discretion to sentence outside implicating legality cise his score as improper calculation of giving sentencing guidelines be the Guidelines. An we would the weight than intended.12 the offense score affects outcome more We stated, recommendations, recently ranges sentencing resulting “the list the guidelines of recommendation, may partic- improper thereby within a court for an which sentence Sentencing Pennsylvania Commission on had not abused its unless the sentence discretion purpose manifestly in 1978 for of establish as to inflict too se- was created was excessive so ing guidelines punishment. implementa- to be the courts in With the considered vere Id. Sessons, Guidelines, job imposing sentences. v. of the the trial court's Commonwealth tion determining (1987). appropriate an has Pa. Prior to the sentence become 516 775 promul appellate of difficult and review of the court’s creation the Commission more Code, discretionary aspects sentencing expand- gation Sentencing appellate has of the review of imposition of whether the court's of a was limited to a determination ed. trial statutory statutory remains limits. Com sentence within limits dis- sentence was within the Person, cretionary regardless factors the monwealth v. Pa. of the sentenc- 450 (1972). required pursuant is If sentenced a defendant to consider to the the trial court limits, statutory Guidelines. to a term within the

211 than ject penalty of not more compromising fundamental which to a maximum norms 1104(1). crime, § years. 5 For this sentencing process. underlie Common Id. wealth, Urrutia, years’ 653 sentenced to to 5 Appellant v. 439 2h conspira (Pa.Super.1995). A.2d 710 thus hold imprisonment. We Crimes of criminal any misapplication Sentencing cy grade degree of the of the same are crimes challenge Guidelines constitutes a dis attempt as the offense which is most serious cretionary aspects of claim that conspira sentence. A object or an ed or is of the solicited sentencing misapplied the Guide § of cy. 905. For his conviction Id. at presents question. lines a substantial With 5 to conspiracy, Appellant was sentenced to conclusion, expressly this we Com overrule case, all of years’ imprisonment. In this monwealth, are the sentences received (Pa.Super.1992) progeny and its statutory limits. within the proposition concerning their that a claim appealable offense score is as of legislatively the sentence If right. permitted, appellate review of sentences 9781(b).14 governed by Pa.C.S.A. Tu The standard of review ladziecki, 513 Pa. at 522 A.2d at discretionary aspects sentencing of of is an 2119(f) Moreover, Pa. R.A.P. mandates abuse of discretion. Smith, A.2d 1288 appellant challenges An who the discre- pur “Discretion is abused when the course tionary aspects of a sentence in a criminal [by the trial not mere represents sued court] set forth in his brief a concise matter shall ly judgment, judg of error but where the statement of the reasons relied manifestly ment is where unreasonable or respect of to the allowance applied law or is not where the record shows discretionary aspects of a sentence. preju that the action is a result partiality, of immediately precede statement shall dice, Smith, or ill bias will.” Pa. at argument respect on the merits with added). at 1290 (emphasis discretionary aspects of sentence. The improper Sentencing utilization of the appellant comply If an fails to with R.A.P. law, Guidelines is an error which is a 2119(f) object, Court appellee fails this question, but does not sentence render the appellant’s regard review claims with illegal.13 discretionary aspects Com sentence. set Having forth these we will principles, Saranchak, Appellant’s now review order to (1996). However, in A.2d 268 as in this statutory whether it ascertain was within stance, appellee objects, where this robbery, limits. was convicted of procedural cannot overlook this error. instance, felony degree. in this of the 1st supra, For the discussed find reasons 3701(b). felony of the 1st A challenge has waived his degree subject penalty to a maximum as years. than more Id. at 1103. For implicates discretionary aspects of sen robbery, crime was sen tencing. imprisonment tenced a term of 10 to years. Nevertheless, Sentencing, because the law decision, up Possession of an instrument of a crime is a has until been inconsistent briefly misdemeanor of the 1st is sub address claim.15 we will McFarlin, properly preserved, If claim is an incorrect (en banc). (Pa.Super.1991) requires to re this Court resentencing mand for or amend the holding applying pro 15.We find merit in Moran, directly. Pa.Su spectively relying on for the benefit of those 1996). per. (Pa.Super. Pa.Super. Commonwealth 1992) (Pa.Super. progeny. 275, 618 A.2d 415 and constitutionality Upon of 42 Metts, review of the 9781(b), section is a (Pa.Super.1995), appeal granted, Pa.C.S.A. we held that this A.2d (1996). regulation right appeal. 544 Pa. 675 A.2d 1238 reasonable of the SOLE, J., concurring dissenting: and properly DEL This Court finds that the trial court calculated the offense score as-11. affirming judg- agree I the result jury guilty robbery, The found agree with the of sentence. I also ment conspiracy taking, theft unlawful improper uti- Majority’s statement possession and of instruments of a crime. Sentencing guidelines is an lization of one possession gun had thus, law, although presents it or error actively evening. Appellant point during the the sen- legal it does not render question, robbery in and active- participated the armed Therefore, can a defendant illegal. tence ly Ap- the victim. engaged in the assault of if it is challenge to a sentence waive such a evening exhibited pellant’s behavior developed appeal. on presented or disregard for the life of the de- reckless Appellant’s ceased. acts combined with presented, a properly where co-conspirators predicated a situa- acts of his sentencing court question suggesting that a extremely likely tion it that seri- where was not a improperly guidelines utilized the is bodily ous harm would occur. Common- discretionary A claim that a matter. Baskerville, 452 wealth v. was miscalculated does not call record score (Pa.Super.1996), discretionary decision. It is mat- for a Further- According- legal conclusion. calling ter for a more, shooting during the com- occurred should, ly presented as an issue it when robbery. shooting was mission of the appellant in the developed an of conduct in part of a continuous course brief, requirement without the be reviewed conspiracy. 18 furtherance of the criminal 2119(f), compliance with Pa.R.A.P. which such, 903(g). As only challenges of the discre- applicable co-conspirators. chargeable for the acts of his tionary aspects of a sentence. acquitted of though Appellant Even Id. injuries resulting from the If, however, require this court sees fit to shooting Appellant as are attributable to well 2119(f) in these compliance with Pa.R.A.P. regardless of co-conspirators as all other who circumstances, my judgment a substantial gun. fired the should not appellant where an question will be raised from inconsistent verdict. “When benefit an improper calculation of a claims there was an in an acquittal on one count indictment score, and our review will be prior record on a second inconsistent with conviction Recognizing question mandated. count, acquittal as [the] the court looks is, challenges an error of one which what jury’s assumption of a no more than the law, requiring the needless task of eliminates exercise, they right to power had no which 2119(f) statement. through disposed to which lenity.” Commonwealth v. Swann J., S.CHILLER, J., CAVANAUGH, (Pa.Su- Concurring Dissenting join in this per.1994). find that the court was cor- We Opinion. 11, for finding rect score of injuries from the regardless of the sustained

assault, resulting gunshot from the the death have been considered as well. Find-

should to reverse the trial

ing no basis

court, judgment of sen- affirm

tence.

Judgment of sentence affirmed.

McEWEN, Judge, Concurs in President

the Result. SOLE, J., Concurring

DEL files

Dissenting Opinion.

Case Details

Case Name: Commonwealth v. Archer

Court Name: Superior Court of Pennsylvania

Date Published: Dec 16, 1998

Citation: 722 A.2d 203

Court Abbreviation: Pa. Super. Ct.