Lead Opinion
Anthony Archer, Appellant, appeals from the judgment of sentence entered on March 13, 1996. For the following reasons, we affirm. Before reaching the merits of this appeal, we will recount the relevant facts and procedural history.
On August 29, 1994, Appellant and two companions, Ollie Taylor [Taylor] and Khalis Edmonson [Edmonson] obtained a sawed-off .22 caliber rifle. N.T. Trial, 2/7/96, at 141. They met Antoine Saunders [Saunders] on the street. Id. at 143. Appellant had possession of the gun at this time. Id. When Saunders noticed the gun, he commented, “let’s rob somebody.” Id. at 143. As Appellant and these three co-defendants continued their perambulation, they met another cо-defendant, Gregory Pennington. Appellant and the others approached the victim, Al-Moez Alimohamed, a twenty-seven year old graduate student from the University of Pennsylvania. Co-defendant Saunders pointed the gun at the victim while Appellant, Saunders and Taylor hit Alimohamed. Id at 147. The victim fell to the ground and he was kicked. As the co-defendants walked away, Taylor shot the victim. Id. at 149. Before he shot the victim, Taylor heard somebody say “bang him.” Id. at 149. Saunders heard a similar comment, but thought that he heard Appellant make the statement. N.T. Trial, 2/6/96, at 161.
Appellant was charged with murder,
Appellant presents three claims for our review: (1) whether the lower court abused its discretion in denying Appellant’s decertifi-cation motion pursuant to 42 Pa.C.S.A. § 6322(a); (2) whether the trial court abused its discretion in refusing to transfer the case for disposition by a juvenile court judge after the dеfendant had been acquitted of murder, pursuant to 42 Pa.C.S.A. § 6322(b) and; (3) whether the trial court utilized an incorrect offense gravity score in sentencing Appellant.
It is clear from the language of the aсt that a transfer in a murder case is not a matter of right, and the determination of whether the interests of the state and society require prosecution as an adult is within the sound discretion of the trial court. Moreover, such abuse may not merely be an error of judgment, but must be a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will.
Johnson,
In cases involving a murder charge, when a juvenile seeks a transfer from the criminal division to juvenile division, the “child bears the burden оf demonstrating that he or she is amenable to treatment, supervision or rehabilitation as a juvenile by demonstrating that he or she meets section 6355 factors.” Commonwealth v. Austin,
The court must consider all of the following factors when determining the minor’s amenability to treatment: the age, mental capacity and maturity of the minor; the degree of criminal sophistication of the child; previous records, if any; the nature and extent of the delinquent history; whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction; probation or institutional report; the nature and circumstances of the acts for which the transfer is sought; and any other relevant factors. Johnson,
In its opinion denying the Appellant’s motion for decertification, the lower court stated that it considered the following: the notes of testimony from the Appellant’s motion to quash the first degree murder charge; the relevant factual information from the notes of testimony from co-defendant Edmonson’s de-certification hearing; the statement of the Appellant; a stipulation by counsel that the Appellant had never been placed in the juvenile system and that the juvenile court had refused to certify him as an adult on a robbery charge that arose shortly before this incident; and a stipulation that Dr. Allan Tepper, a forensic psychologist who examined the Appellant at the request of defense counsel and who reviewed the Appellant’s juvenile court history, would recommend treatment.
In her well-reasoned opinion, the Honorable Carolyn Engel Temin sets forth the primary reasons for denying de-certification:
Following his arrest, [Appellant] displayed no signs of remorse. Acсording to a memo prepared by Detective Joseph D. Fischer of the Homicide Division, while he was assisting in the processing of the four defendants in the early morning hours, he was able to observe their demeanor. [Appellant] and Taylor were laughing and talking, whereas Pennington and Edmon-son were quiet and crying. [Appellant] and Taylor continued to indulge in morbidly inappropriate behavior, singing rap songs and boasting that Taylor’s nickname was “homicide.”
This Court finds that [Appellant] was not merely a passive participant in the events and that his participation was therefore different frоm that of Edmonson. [Appellant] actively participated in beating, kicking and robbing the victim. [Appellant’s] active participation in the event, his lack of remorse, his apparent totally dissocial attitude towards the slaughter of another human being, and the degree of criminal sophistication exhibited[,] militate against transferring [Appellant] to juvenile court for disposition.
Trial Court Opinion, 3/7/96, at 4. The court concluded that Appellant was unable to meet the burden placed upon him to demonstrate his amenability to rehabilitation. Id.
It is apparent that the court considerеd the necessary factors promulgated in 42 Pa.C.S.A. §6355(a)(4)(iii)(A). Appellant argues that the lower court abused its discretion because it only considered the severity of the offense. Appellant cites Commonwealth v. Greiner,
Appellant next argues that upon acquittal of murder, the trial court should have transferred the disposition of the case to juvenile court pursuant to 42 Pa.C.S.A. § 6322(b). The trial court denied Appellant’s request for a transfer without a hearing. Appellant thus claims that he was denied due process. Again, we must determine whether the trial court abused its discretion when reviewing the denial of a hearing and the denial of the motion to transfer. Commonwealth v. Solomon,
Even though the trial court had the benefit of Judgе Temin’s review of the same
This Court made a determination independent from Judge Temin that the defendants were not amenable to treatment within the juvenile system. This Court had access to most of the material set forth in Judge Temin’s Opinion including both defendants’ juvenile records; the notes of testimony from the decertification hearings before Judge Temin ... all of the statements of both defendants and the co-defendants given prior to trial and during the trial and other relevant factors considered by Judge Temin. This Court also had the benefit of the presentence and mental health evaluations conducted on both defendants for the purposes of sentencing. Regarding [Appellant], it was clear that he was an active participant in this robbery by the testimony of the police and the co-defendants in this case. He struck the victim and was a principle [sic] in taking his property. In opеning statements, his attorney admitted that [Appellant] was involved in this robbery as an active participant. N.T. 2/5/96, p. 34. [Appellant] showed no remorse for this offense and, in fact, during the motion to suppress, the testimony indicated that [Appellant] along with Mr. Taylor were laughing while in police custody, so much so that police separated them from [co-defendants]. N.T. 1/12/96, p. 209. When segregated [Appellant] and Mr. Taylor, in the presence of the police were singing rap songs indicating a callous attitude toward the victim in this case. i.e. “I got my hammer” and “Yo, bust that m... f...” N.T. 1/12/96, p. 209-210. When confronted by the police, [Appellant] explained this behavior as “we ain’t looking for no justice, we got ours.” N.T. 1/12/96, p. 211. The pre-sentence report indicated that [Appellant] was a poor candidate for rehabilitation and was continuing his drug use. He also had a prior juvenile record including an arrest of approximately one-month before this instant matter. The mental health evaluation also indicated that he was competent to receive the sentence.
Trial Court Opinion, 5/1/96, at 8-9. The court also noted on the record that it considered the severity of the offense (robbery) of whiсh Appellant was convicted. N.T. Sentencing, 3/13/96, at 44. In reviewing the record and the trial court opinion, we find that the trial court was provided with sufficient information to consider the factors set forth in 42 Pa.C.S.A. § 6355(a)(4)(iii)(A) and deny Appellant’s motion for decertification without a hearing.
Appellant’s final point of error is that the trial court considered an incorrect offense gravity score with respect to the Sentencing Guidelines. Appellant argues that because he was аcquitted of murder, the gunshot that killed the deceased cannot be considered. Appellant further argues that the deceased’s injuries, other than the gunshot wound, do not meet the criteria required for serious bodily injury and that the court erroneously applied an offense gravity score of 11, when the correct score should have been a 9.
The Commonwealth argues that Appellant waived this sentencing claim by failing to comply with Rule of Appellate Procedure 2119(f) regarding discretionary aspects of sentencing. Commonwealth’s Brief, at 21. After our review of the current case law regarding whether Appellant has waived this claim, we realize that this Court has inconsis
There are essentially two distinct lines of cases with regard to the issue before the Court. The first treats the application of the offense gravity score as an error of law but within the discretionаry aspects of sentencing, therefore requiring that appellant’s brief contain a 2119(f) statement. See Commonwealth v. Johnakin,
Commonwealth v. Johnson,
An appellate court’s authority to review a sentence is governed by 42 Pa.C.S.A. § 9781. This section directs that a claim regarding the legality of sentence is an appeal as of right, but any discretionary claims must present a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Id. The Sentencing Code does not address a third category discussed by Johnson: legal questions appealable as of right. Hоwever, Johnson and its progeny treat these legal questions in the same fashion as a legality of sentence claim.
A legal question is distinct from legality of sentence. An illegal sentence can never be waived and may be reviewed sua sponte by this Court. Commonwealth v. Moran,
Conversely, a legal question is presented in every claim framed by an appellant. “An appellate court can only pass upon the legal questions which come before it.” Commonwealth of Pennsylvania Department of Transportation v. Boros,
Our Supreme Court has provided guidance on what constitutes the discretionary aspects of sentencing. “Section 9781(b) specifies that allowance of appeal of the discretionary aspects of sentence may be granted where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter. The chapter referred to is, of course, the entire Sentencing Code.” Commonwealth v. Tuladziecki,
Although a sentencing court has no obligation to sentence within the guidelines, the trial court must necessarily correctly apply the guidelines and reach the correct point of departure before sentencing outside of the guidelines. As applied here, the sentencing court must correctly ascertain the offense gravity score in order to reach the prоper sentence recommendation provided by the Sentencing Guidelines. Cf. Commonwealth v. Jones,
When the Sentencing Guidelines are properly applied, the judge may then exercise his or her discretion to sentence outside the Guidelines. An improper calculation of the offense gravity score affects the outcome of the sentencing recommendations, resulting in an improper recommendation, thereby
The standard of appellate review of discretionary aspects of sentencing is an abuse of discretion. Commonwealth v. Smith,
Having set forth these principles, we will now review Appellant’s sentence in order to ascertain whether it was within statutory limits. Appellant was convicted of robbery, in this instance, a felony of the 1st degree. 18 Pa.C.S.A. § 3701(b). A felony of the 1st degree is subject to a maximum penalty of not more than 20 years. Id. at § 1103. For the crime of robbery, Appellant was sentenced to a term of imprisonment of 10 to 20 years. N.T. Sentencing, 3/13/96, at 156. Possession of an instrument of a crime is a misdemeanor of the 1st degree which is subject to a maximum penalty of not more than 5 years. Id. at § 1104(1). For this crime, Appellant was sentenced to 2h to 5 years’ imprisonment. Crimes of criminal conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. Id. at § 905. For his conviction of conspiracy, Appellant was sentenced to 5 to 10 years’ imprisonment. In this case, all of the sentences received by Appellant are within the statutory limits.
If the sentence is legislatively permitted, appellate review of sentenсes is governed by 42 Pa.C.S.A. § 9781(b).
An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
If an appellant fails to comply with R.A.P. 2119(f) and appellee fails to object, this Court may review appellant’s clаims with regard to the discretionary aspects of sentence. Commonwealth v. Saranchak,
Nevertheless, because the law has been inconsistent up until this decision, we will briefly address Appellant’s claim.
Judgment of sentence affirmed.
McEWEN, President Judge, Concurs in the Result.
DEL SOLE, J., files Concurring and Dissenting Opinion.
Notes
. 18Pa.C.S.A. §2502.
. 18 Pa.C.S.A. §3921.
. 18Pa.C.S.A. §3701.
. 18Pa.C.S.A. §§907, 908.
. 18Pa.C.S.A. §903.
. Appellant was 15!6 years old at the time of the incident, and 17 years old at trial.
. The Juvenile Act has been amended by the Act of November 17, 1995, P.L. 1127, No. 33 (Spec.Sess. No. 1). The amendments only apply to delinquent аcts committed on or after the effective date of the act. Section 8 of Act 1995, No. 33 (Spec.Sess. No. 1). Because the incident occurred in August 1994, the amendments are not applicable in this case.
. When murder charges are filed against a minor in an adult court, the court has jurisdiction over other charges filed and arising from the same criminal transaction. Commonwealth v. Romeri,
. Although Appellant had never been placed within the juvenile system, he had, for various reasons, previous involvement with the system.
. In its opinion, the court erroneously stated Appellant was sixteen at the time of the incident, whеn in fact he was fifteen and one-half years old. Id. However, we find that a six-month discrepancy concerning his age at the time of the incident is not dispositive to the issue of decertifi-cation. See Commonwealth v. McDonald,
. The statements made prior to trial and the preliminary hearing were not included in the certified record, thus were not reviewed. Although the juvenile record was unavailable as well, its contents were summarized in the pre-sentence report and by defense counsel at sentencing. N.T. Sentencing, 3/13/96, at 81-89. This Court thoroughly reviewed the contents of the certified record and found it sufficient for review of the issue of decertification. If the certified record is deemed insufficient for review by this Court, then the issue sought to be examined is waived. Commonwealth v. Boyd,
. The Pennsylvania Commission on Sentencing was created in 1978 for the purpose of establishing guidelines to be considered by the courts in imposing sentences. Commonwealth v. Sessons,
. If a claim is properly preserved, an incorrect offense gravity score requires this Court to remand for resentencing or amend the sentence directly. Commonwealth v. Moran,
. Upon review of the constitutionality of 42 Pa.C.S.A. § 9781(b), we held that this section is a reasonable regulation of the right to appeal. Commonwealth v. McFarlin,
.We find merit in applying this holding prospectively for the benefit of those relying on Commonwealth v. Johnson,
Concurrence Opinion
concurring and dissenting:
I agree with the result affirming the judgment of sentence. I also agree with the Majority’s statement that the improper utilization of the Sentencing guidelines is an error or law, and thus, although it presents a legal question, it does not render the sentence illegal. Therefore, a defendant can waive such a challenge to a sentence if it is not presented or developed on appeal.
However, where properly presented, a question suggesting that a sentencing court improperly utilized the guidelines is not a discretionary matter. A claim that a prior record score was miscalculated does not call for a discretionary decision. It is legal matter calling for a legal conclusion. Accordingly it should, when presented as an issue and developed by an appellant in the appellate brief, be reviewed without the requirement of compliance with Pa.R.A.P. 2119(f), which is applicable only to challenges of the discretionary aspects of a sentence.
If, however, this court sees fit to require compliance with Pa.R.A.P. 2119(f) in these circumstances, in my judgment a substantial question will be raised where an appellant claims there was an improper calculation of a prior record score, and our review will be mandated. Recognizing the question for what it is, one which challenges an error of law, eliminates the needless task of requiring the 2119(f) statement.