Com. v. McCarthy, D.

C
J-S11039-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DARNELL MCCARTHY                           :
                                               :
                       Appellant               :   No. 839 WDA 2020

       Appeal from the Judgment of Sentence Entered December 5, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No: CP-02-CR-0006471-2018


BEFORE:      STABILE, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                               FILED: APRIL 30, 2021

        Appellant, Darnell McCarthy, appeals from the judgment of sentence of

10 to 20 years’ incarceration plus 10 years of probation, which was imposed

after his non-jury trial conviction for Kidnapping, Robbery, Robbery of a Motor

Vehicle, Aggravated Assault, Terroristic Threats, Unlawful Restraint, Simple

Assault, and Person Not to Possess a Firearm.1 We affirm.

        The facts underlying this appeal are as follows, taken from the Trial

Court Opinion (TCO).

           On February 28, 2018, Michael Halloran [the victim] was
           violently assaulted as he was walking down Boggs Avenue
           in the Mt. Washington section of the City of Pittsburgh
           toward a CoGo’s convenience store. As he crossed the
           street, he was approached by two black males near a white
           van. A person, later identified as [Appellant], grabbed [the
           victim] by the arm and stated, “Hey bro, I’m not playing,”
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2901(a), 3701(a)(1)(ii), 3702, 2702(a)(4), 2706(a)(1),
2902(a), 2701(a)(3) and 6105(a)(1), (b), and (c)(7), respectively.
J-S11039-21


        and displayed a firearm from his waistband. [Appellant]
        reached into [the victim’s] pocket and removed $20.00 and
        the keys to [the victim’s] vehicle. [The victim] was “pistol
        whipped” on his head and was punched in the mouth. He
        was struck approximately five to six times. Both men
        instructed [the victim] to place his hands on a truck and
        they patted him down to find more money.

        Both men then asked [the victim] how much money he had
        on his ATM card. The men led [the victim] to the CoGo’s
        store and stood with him as he withdrew money from the
        ATM machine.         While inside the CoGo’s, [Appellant]
        threatened [the victim] by saying, “if you mess up one time,
        I’ll put your brains all over this floor.” [Appellant] and [the
        victim], while at the ATM machine, were captured by the
        video surveillance camera inside CoGo’s store.

        Both actors and [the victim] then walked back toward [the
        victim’s] residence on Boggs Avenue. The actors again
        demanded money and asked about narcotics. [The victim]
        informed them that he didn’t know what they were talking
        about. [The victim] was then instructed to get on his knees.
        [Appellant] pressed his firearm against [the victim’s] head
        as [the victim] was on his knees. The actors asked him
        where his vehicle was located and demanded that [the
        victim] get inside of his vehicle in the passenger seat.
        [Appellant] drove the vehicle and the other actor sat in the
        back seat behind [the victim] with a gun pointed at [the
        victim’s] back.     [Appellant] then drove to a housing
        complex. The three men exited [the victim’s] vehicle and
        walked to a residence.       A third male came outside.
        [Appellant] said to the third person, “look what we got.
        Look how scared he gets with a gun in his face.” [Appellant]
        then pointed the gun at [the victim’s] face. The two actors
        and [the victim] drove off. They dropped [the victim] off in
        Mt. Washington, wiped the vehicle clean and fired three
        shots into the air. The two actors ran from the scene. At a
        subsequent line-up, [the victim] identified [Appellant] as
        one of the persons who assaulted and kidnapped him.

TCO at 2-3.




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       Appellant was arrested and charged with Kidnapping, Robbery, Robbery

of a Motor Vehicle, Aggravated Assault, Terroristic Threats, Unlawful Restraint,

Simple Assault, Conspiracy and Person Not to Possess a Firearm. Appellant

proceeded to a non-jury trial on September 10, 2019. The trial court granted

Appellant’s motion for judgment of acquittal as to the Conspiracy charge.

N.T., 9/10/19, at 101. The trial court found Appellant guilty of the remaining

charges. On December 5, 2019, the trial court sentenced Appellant to 120

months’ to 240 months’ incarceration on the Kidnapping charge and 10 years

of consecutive probation on the Robbery charge.           A determination of guilt

without further penalty was ordered for the remaining charges.2              Order,

12/5/19.

       On December 19, 2019, the trial court issued an Order withdrawing the

appearance of trial counsel and appointed new counsel. On December 20,

2019, new counsel entered her appearance and filed a “Motion to Reinstate

Post-Sentence Rights Nunc Pro Tunc.”             Motion, 12/20/19.   The trial court

granted Appellant’s motion to reinstate his post-sentence rights nunc pro tunc.

Order, 1/3/20.      The trial court granted Appellant 60 days to file a post-

sentence motion. Order, 1/6/20. On March 2, 2020, Appellant filed a timely

post-sentence motion challenging the discretionary aspects of his sentence.

____________________________________________


2 We note that the sentence on the remaining charges was not announced in
open court during Appellant’s sentencing hearing, but rather were stated in
the trial court’s 12/5/19 sentencing order. See N.T., 9/10/19; Order,
12/5/19.



                                           -3-
J-S11039-21



Motion, 3/2/20.      The trial court denied Appellant’s post-sentence motion.

Order, 7/29/20. Appellant filed this timely direct appeal on August 3, 2020.3

       Appellant presents the following issue for our review:

          Did the [trial court] abuse its discretion in sentencing
          [Appellant] to 10 to 20 years of incarceration?

Appellant’s Brief at 3 (suggested answer omitted).

       Appellant argues that the trial court erred as a matter of law and abused

its discretion when it did not consider all the statutory factors for sentencing

codified in 42 Pa.C.S. § 9721 and sentenced Appellant solely based on the

seriousness of the crime.         Appellant's argument on appeal relates to the

discretionary aspect of his sentence. A defendant does not have an automatic

right of appeal of the discretionary aspects of a sentence and instead must

petition this Court for allowance of appeal, which “may be granted at the

discretion of the appellate court where it appears that there is a substantial

question that the sentence imposed is not appropriate under” the Sentencing

Code. 42 Pa.C.S. § 9781(b); see also Commonwealth v. Luketic, 

162 A.3d

1149

, 1160 (Pa. Super. 2017).

       Prior to reaching the merits of a discretionary sentencing issue, we must

engage in a four-part analysis to determine:

          (1) whether the appeal is timely; (2) whether Appellant
          preserved his [or her] issue; (3) whether Appellant's brief
          includes a concise statement of the reasons relied upon for
____________________________________________


3 The trial court issued its Pa.R.A.P. 1925 order on August 4, 2020. Appellant
timely complied and filed his Rule 1925(b) statement on August 11, 2020.

                                           -4-
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         allowance of appeal with respect to the discretionary aspects
         of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
         whether the concise statement raises a substantial question
         that the sentence is [not] appropriate under the
         [S]entencing [C]ode.

Commonwealth v. Williams, 

198 A.3d 1181

, 1186 (citations omitted) (first

and fourth brackets in original).

      Appellant satisfied the first three requirements. We must, therefore,

determine whether Appellant’s concise statement raises a substantial question

that the sentence is not appropriate under the Sentencing Code.

         Whether a particular issue constitutes a substantial question
         about the appropriateness of sentence is a question to be
         evaluated on a case-by-case basis. . . . We have found that
         a substantial question exists “when the appellant advances
         a colorable argument that the sentencing judge's actions
         were either: (1) inconsistent with a specific provision of the
         Sentencing Code; or (2) contrary to the fundamental norms
         which underlie the sentencing process.” [W]e cannot look
         beyond the statement of questions presented and the
         prefatory [Rule] 2119(f) statement to determine whether a
         substantial question exists.

Commonwealth v. Radecki, 

180 A.3d 441

, 467-68 (Pa. Super. 2018)

(citations omitted) (brackets in original). Appellant asserts in his Pa.R.A.P.

2119(f) statement,

         the [trial court] imposed a sentence that is manifestly
         excessive, without sufficient legal justification for the
         penalty. . . . [T]he [trial court] failed to consider and
         reference the statutory factors in 42 Pa.C.S. Section
         9721(b), and instead fashioned a sentence that only
         reflected the seriousness of the crime, which is contrary to
         the fundamental norms that underlie the sentencing
         process.



                                     -5-
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Appellant’s Brief at 11-12.

      This Court has found a substantial question exists where a sentencing

court failed to consider a defendant's individualized circumstances in its

imposition of sentence in violation of the Sentencing Code.                    See

Commonwealth v. Ahmad, 

961 A.2d 884

, 887 (Pa. Super. 2008); See

Commonwealth v. Riggs, 

63 A.3d 780

, 786 (Pa. Super. 2012) (averment

that court “failed to consider relevant sentencing criteria, including the

protection of the public, the gravity of the underlying offense and the

rehabilitative needs” of the defendant raised a substantial question).

      In the current action, we find that Appellant presents a substantial

question by setting forth an argument that his sentence is contrary to the

fundamental norm of the sentencing process that a defendant's sentence must

be individualized, because the trial court considered only the gravity of the

offense and did not consider his rehabilitative needs. See Appellant's Brief at

12; 

Luketic, 162 A.3d at 1160

.         We, therefore, consider the substantive

merits of Appellant's sentencing 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.




                                       -6-
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Commonwealth v. Lekka, 

210 A.3d 343

, 350 (Pa. Super. 2019) (citation

omitted).

      Appellant first argues that the trial court failed to take adequate

consideration of all the factors in 42 Pa.C.S. § 9721(b). Appellant’s Brief at

14-15. Appellant argues that the trial court solely focused on the seriousness

of the crime in fashioning the sentence and erroneously failed to consider or

reference Appellant’s personal characteristics, potential for rehabilitation, or

his rehabilitative efforts. Appellant’s Brief at 9. 42 Pa.C.S. § 9721(b) states,

         the court shall follow the general principle that the sentence
         imposed should call for total confinement that is consistent
         with section 9725 (relating to total confinement) and 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 defendant.

42 Pa.C.S. § 9721(b).

      The trial court, in its 1925(a) opinion, stated that it reviewed the

presentence report (PSI) and considered the contents of that report in

imposing its sentence. TCO at 6. The trial court stated that it considered the

fact that Appellant was serving a probation sentence at the time he committed

this offense.

Id. The trial court

indicated it believes the sentence it imposed

is appropriate due to the nature and length of the events involving the

innocent, vulnerable complainant.

Id. at 7.

    The court also considered the

lasting impact of this crime on the complainant.

Id. The trial court

stated

that it “considered the defendant’s age and criminal history, noting that the




                                     -7-
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defendant has been provided with other opportunities to conform his conduct

to the law, but he chose not to do so.”

Id. at 8.

      Regarding individualized sentencing, this Court has held,

         The Sentencing Code prescribes individualized sentencing
         by requiring the sentencing court to consider the protection
         of the public, the gravity of the offense in relation to its
         impact on the victim and the community, and the
         rehabilitative needs of the defendant, . . . and prohibiting a
         sentence of total confinement without consideration of the
         nature and circumstances of the crime[,] and the history,
         character, and condition of the defendant[.]

Luketic, 162 A.3d at 1160

-61 (internal citations and quotation marks

omitted) (first brackets in original); See also 42 Pa.C.S. §§ 9721(b), 9725.

Concerning the PSI, this Court has made clear,

         [w]here [PSI] reports exist, we shall continue to presume
         that the sentencing judge was aware of relevant information
         regarding the defendant's character and weighed those
         considerations along with mitigating statutory factors.

         A [PSI] report constitutes the record and speaks for itself.
         In order to dispel any lingering doubt as to our intention of
         engaging in an effort of legal purification, we state clearly
         that [sentencing courts] are under no compulsion to employ
         checklists or any extended or systematic definitions of their
         punishment procedure. Having been fully informed by the
         pre-sentence report, the sentencing court's discretion
         should not be disturbed. This is particularly true, we repeat,
         in those circumstances where it can be demonstrated that
         the judge had any degree of awareness of the sentencing
         considerations, and there we will presume also that the
         weighing process took place in a meaningful fashion.



Commonwealth v. Watson, 

228 A.3d 928

, 936 (Pa. Super. 2020) (quotation

marks omitted) (second-fourth brackets in original) (citing Commonwealth

                                     -8-
J-S11039-21



v. Devers, 

546 A.2d 12

, 18 (Pa. 1988)).         See also Commonwealth v.

Conte, 

198 A.3d 1169

, 1177 (Pa. Super. 2018).

      During the sentencing hearing, the trial court stated that it received and

reviewed the PSI report in its entirety. N.T., 12/5/19, at 3. Additionally, at

the hearing, Appellant’s counsel stated that she would like to “reiterate some

of the information in the presentence report,” and told the court that Appellant

is the father of four young children and pointed out that Appellant had family

present in the courtroom who had been very supportive of Appellant during

the process.

Id. at 5-6.

      Appellant acknowledges the presumption afforded a trial court having

the PSI, but argues this presumption is “expressly rebutted in this case

because the trial court’s statements confirm the single-minded focus on the

seriousness of the crime.”

Id. at 17-18.

However, this assertion is belied by

the record.

      In addition to the fact that the trial court obtained and reviewed the PSI

report prior to sentencing, during the sentencing hearing it acknowledged that

it had read all of Appellant’s filings, and noted that some of them

“demonstrated that [Appellant was] doing anything but acknowledging [his]

responsibility for this conduct.”

Id. at 7.

The trial court acknowledged that

Appellant maintained his innocence to the pre-sentence investigator, but

recognized that Appellant stated that he would feel bad if a person was beaten,

robbed, kidnapped, and victimized in any type of way.

Id. at 6.

The trial




                                     -9-
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court heard and addressed at length Appellant’s stated issues with his trial

counsel and process.

Id. at 8-31.

      The trial court then discussed the effect the experience had on the victim

of the crime, stating,

         This is a particularly . . . harmful, emotionally harmful
         experience for the victim because of the prolonged nature
         of this event and the terror that was put upon the victim by
         the actions of the [Appellant]. . . .

         As many cases as I have seen over 40 years, the length of
         this, the length of this event, it requires a sentence that
         reflects that.

N.T., 12/5/19, at 31.

      Immediately after sentencing Appellant, the trial court stated, “this

sentence reflects not only the [Appellant] used a deadly weapon in this event

but that it was a prolonged event involving several locations.”

Id. at 32.

The

trial court added, “[I]n my view, acting on behalf of the community, and

considering what you did in this case, I just can’t take the chance that you

might do this again to somebody.”

Id. at 34-35.

The trial court stated,

         I note that you have a prior record score of five already,
         which is one of the reasons I’m imposing this sentence
         because you have had opportunities through the criminal
         justice system in the past to change your ways, and you
         haven’t.

Id. at 35.

      After a thorough review of the record, including the briefs of the parties,

the applicable law, and the sentencing transcripts, we conclude Appellant's



                                     - 10 -
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issue merits no relief.4       The trial court adequately considered Appellant’s

rehabilitative needs, ultimately deciding that Appellant was not amenable to

being rehabilitated due to his past record and the fact that he committed this

current crime while on probation. The trial court also stated that the sentence

was based on the gravity of the offenses, which it found particularly egregious

and had affected not only the victim but the community. Importantly, the

trial court was informed by a PSI report, and aspects of that report were

reiterated to the trial court by Appellant’s counsel. 

Watson, 228 A.3d at 936

;

Conte, 198 A.3d at 1177

.

       Appellant further argues that the sentence is in clear contradiction to

Commonwealth v. Ruffo, 

520 A.2d 43

(Pa. Super. 1987), because his

sentence falls outside the sentencing guidelines. Appellant's Brief at 16-17.

Even if the trial court sentences outside the sentencing guidelines, we must

affirm if the sentence is reasonable. See 42 Pa.C.S. § 9781(c)(3) (stating

that the appellate court shall vacate the sentence and remand the case to the

sentencing court with instructions if it finds . . . the sentencing court sentenced

outside the guidelines and the sentence is unreasonable). We first note that

____________________________________________


4 Neither the PSI report nor a copy of the sentence guideline form utilized by
the trial court in calculating Appellant’s sentence is included in the certified
record. “It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to allow
a complete and judicious assessment of the issues raised on appeal.”
Commonwealth v. Shreffler, __ A.3d __, 

2021 WL 1257446

*8 (filed April
6, 2021) (citation omitted); Everett Cash Mutual Insurance Company v.
T.H.E. Insurance Company, 

804 A.2d 31

, 34 (Pa. Super. 2002) (citation
omitted).

                                          - 11 -
J-S11039-21



Ruffo was decided by this Court over one year before the Pennsylvania

Supreme Court decided 

Devers, 546 A.2d at 18

(stating that where a PSI

exists there is a presumption that the sentencing judge was aware of relevant

information   regarding    defendant’s       character   and   weighed   those

considerations along with mitigating statutory factors and in circumstances

where it can be demonstrated that the trial judge had any degree of awareness

of the sentencing considerations, the presumption exists that the trial court

conducted weighing process meaningfully).

      Secondly, this Court determined that the trial court in Ruffo failed to

consider any factor other than the nature of the crime. By contrast, the trial

court in this case had the benefit of the PSI and, as discussed above, we find

that that the trial court did adequately consider the statutory elements of 42

Pa.C.S. § 9721(b) when sentencing Appellant. Additionally, we find that the

trial court considered the nature and the circumstances of the offense and the

history and characteristics of Appellant, had the opportunity to observe

Appellant, had the benefit of the PSI report, adequately stated its findings

upon which the sentence was based, and considered the guidelines

promulgated by the commission.           See 42 Pa.C.S. § 9781(d); See

Commonwealth v. Durazo, 

210 A.3d 316

, 324 (Pa. Super. 2019) (sentence

outside the guidelines found reasonable where trial court considered all the

factors in § 9781(d) and had a PSI report). We, likewise, find Appellant’s

sentence is reasonable. Based on the foregoing, we will not disturb the trial

court’s discretion. See 

Lekka, 210 A.3d at 353

; 

Conte, 198 A.3d at 1177

.

                                    - 12 -
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     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2021




                                  - 13 -

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