Com. v. Farrell, J.

• Court: Superior Court of Pennsylvania
• Decided: September 22, 2020
• Docket: 590 EDA 2018
• Status: Unpublished

Opinion

J-A04017-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOHN FARRELL, : : Appellant : No. 590 EDA 2018

Appeal from the Judgment of Sentence January 4, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004372-2014 CP-51-CR-0004375-2014 CP-51-CR-0004378-2014

BEFORE: PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 22, 2020

John Farrell (Appellant) appeals1 from the judgment of sentence

imposed following his convictions for aggravated assault, conspiracy, and

possession of an instrument of crime (PIC). We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We note that Appellant should have filed a separate notice of appeal from each of the three separate trial court docket numbers. See Pa.R.A.P. 341(a); see also Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (holding that “where a single order resolves issues arising on more than one docket, separate notices of appeal must be filed for each of those cases”). However, our Supreme Court’s mandate applies prospectively to appeals filed after the date of the Walker decision, i.e., June 1, 2018. Because the instant appeal was filed on February 20, 2018, the Walker holding does not apply and we decline to quash the appeal on this basis. J-A04017-20

The underlying charges stem from an incident on March 21, 2014,

where Appellant and four co-defendants attacked a group of high school

students, stabbing and seriously injuring three of them. We glean the

following facts from the record. On March 21, 2014, at about 10 p.m.,

Appellant and co-defendants Hellena Andro, David Cramp, Ryan Palen, and

Tyler Bollinger encountered the group of students, including Joseph Galasso,

James Galasso, and Thomas Bayer (collectively, the Victims2). Appellant

and the co-defendants initiated a physical fight with the Victims by throwing

glass beer bottles at them. The Victims, who were unarmed, responded by

engaging in a fistfight, punching Appellant and the co-defendants. In the

end, the Victims were stabbed multiple times with knives and suffered

critical injuries that required hospitalization. Joseph suffered three stab

wounds, James suffered eight, and Thomas suffered five. Appellant and the

co-defendants ran from the scene to the residence of Bollinger’s father,

where Bollinger hid two knives that were used in the assault. The knives

were recovered pursuant to a search warrant executed the following day.

Based on investigation, the police identified Appellant as one of the

individuals suspected of stabbing the Victims.

Based on the foregoing, Appellant was charged with aggravated

assault and related offenses at three separate lower court docket numbers ____________________________________________

2We will refer to individual victims by their first names as two of the Victims share the same last name.

-2- J-A04017-20

for each victim, and was listed for a consolidated jury trial with his co-

defendants. Prior to trial, co-defendants Andro, Cramp, and Palen pleaded

guilty. Thereafter, the Commonwealth agreed to sever the trials of

Appellant and Bollinger. Appellant’s trial, which was held first, resulted in a

mistrial due to a hung jury. The Commonwealth then moved to consolidate

Appellant’s and Bollinger’s cases for a joint jury trial, which the trial court

granted. After several continuances, the consolidated jury trial was

scheduled for October 10, 2017. Before trial started on that date, Bollinger

entered into a negotiated guilty plea. Appellant proceeded to a jury trial

from October 10 to 16, 2017.

At the conclusion of the jury trial Appellant was found guilty of three

counts of aggravated assault, and one count each of conspiracy to commit

aggravated assault and PIC. On January 4, 2018, the trial court sentenced

Appellant to the following terms of incarceration: 5 to 15 years each for

aggravated assault of Joseph and James, 6 to 18 years for aggravated

assault of Thomas, 5 to 10 years for conspiracy, and 2½ to 5 years for PIC.

The aggravated assault convictions are to run consecutive to each other,

with the other sentences to run concurrent, resulting in an aggregate term

of incarceration of 16 to 48 years. N.T., 1/4/2018, at 75-78. Appellant was

also ordered to undergo anger management and parenting classes, comply

with the recommendations of a dual diagnosis assessment, receive

-3- J-A04017-20

vocational training, have no contact with the Victims or witnesses, pay

restitution to Thomas, and pay court costs and fines. Id. at 74-75, 77.

On January 16, 2018, Appellant timely3 filed a post-sentence motion

for reconsideration of sentence, in which he challenged the discretionary

aspects of his sentence. Aside from amending Appellant’s sentence to

provide Appellant credit for time served while on house arrest, the trial court

denied Appellant’s post-sentence motion on January 23, 2018.

This timely-filed appeal followed.4 On appeal, Appellant challenges the

discretionary aspects of his sentence of 16 to 48 years of incarceration.

Appellant’s Brief at 7. Appellant alleges there is an unexplained disparity

between his sentence and that of his co-defendants, and claims the trial

court failed to consider his rehabilitative needs and lack of criminal record.5

Id. at 10-11. Thus, we consider his issue mindful of the following.

3 See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.”).

4Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

5 Insofar as Appellant claims in his brief that the trial court failed to consider the sentencing guidelines, the nature of the offense, and evidence of mitigation concerning Appellant’s character, Appellant waived these issues by failing to raise them in his Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 1925(b)(3)(iv) (“[A]ny issue not properly included in the [s]tatement timely filed and served pursuant to subdivision (b) shall be deemed waived.”); see (Footnote Continued Next Page)

-4- J-A04017-20

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.

***

When imposing [a] sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation.

Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.

2014)).

An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction. We determine whether the appellant has invoked our jurisdiction by considering the following four factors:

(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b). (Footnote Continued) _______________________

also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) ("Any issues not raised in a 1925(b) statement will be deemed waived.”).

-5- J-A04017-20

DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102

A.3d 1001, 1006-07 (Pa. Super. 2014)).

Appellant has satisfied the first three requirements: he timely filed a

notice of appeal, preserved the issue in a post-sentence motion, and

included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, we now

consider whether Appellant has raised a substantial question for our review.

The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only 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.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

In his Pa.R.A.P. 2119(f) statement, Appellant asserted three instances

in which the trial court abused its discretion: 1) penalizing Appellant for

exercising his right to a trial as his co-defendants who entered negotiated

guilty pleas received shorter sentences; 2) failing to consider his lack of

-6- J-A04017-20

criminal record; and 3) failing to consider his rehabilitative needs.6

Appellant’s Brief at 10-11.

We conclude Appellant has raised a substantial question with each of

his claims. Commonwealth v. Cleveland, 703 A.2d 1046, 1048 (Pa.

Super. 1997) (holding substantial question raised where Cleveland averred

an unexplained disparity between his sentence and that of his co-

defendant); Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.

2014) (“It is well-established that a sentencing court’s failure to consider

mitigating factors raises a substantial question.”). Accordingly, we review

the merits of his claims.

Appellant argues the trial court abused its discretion because the

disparity between his sentence and co-defendants’ is “astonishing,” and to

justify the sentencing disparity “based solely on pleading guilty or

proceeding to trial, would have the effect of punishing a defendant for

exercising his right to a jury trial.” Appellant’s Brief at 13-14. Additionally,

Appellant argues the trial court failed to consider his lack of criminal record

and rehabilitative needs. Id. at 15. In support, he states he was a victim of

abuse as a child, had been diagnosed with post-traumatic stress disorder,

attention deficit hyperactivity disorder, mood swings, and oppositional

defiance disorder. Id. ____________________________________________

6 As stated supra, Appellant included other issues that he waived by failing to raise them in his Pa.R.A.P. 1925(b) statement.

-7- J-A04017-20

In addressing these claims, the trial court posited that Appellant failed

to raise a substantial question. Rule 1925(a) Opinion, 2/14/2019, at 13, 17.

Regardless, the trial court stated that even if Appellant did raise a

substantial question, the trial court “thoroughly addressed the reasons for

differences in the sentencing schemes” at sentencing between Appellant and

his co-defendants. Id. at 12. The court noted before it imposed Appellant’s

sentence, it thoroughly reviewed the pre-sentence investigative (PSI) report

and mental health assessments. Id. at 19. Moreover, the court stated it

“clearly acknowledged Appellant’s lack of prior criminal record” during

discussions involving the computation of the offense gravity score of each

offense coupled with the zero prior record score. Id. The court concluded

that it considered all relevant sentencing factors, and Appellant’s sentences

accounted for his multiple victims. Id. at 21-22.

This Court has held that a co-defendant who has entered a negotiated

guilty plea and a defendant who is sentenced after a jury trial “are not

similarly situated for sentencing purposes.” Commonwealth v. Moury,

992 A.2d 162, 171 (Pa. Super. 2010) (citation omitted). Thus, any disparity

in sentencing between a co-defendant sentenced pursuant to a negotiated

plea deal and a defendant sentenced after trial “does not demonstrate the

trial court penalized the defendant for exercising his right to a jury trial.”

Id. Furthermore, a defendant is not entitled to the same sentence as that

imposed on another person involved in the same crime. Commonwealth v.

-8- J-A04017-20

Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010). Rather, “when there is

a disparity between co-defendants’ sentences, a sentencing court must give

reasons particular to each defendant explaining why they received their

individual sentences.” Id. (citation omitted).

At sentencing, the trial court offered extensive reasons for imposing

Appellant’s sentence, including, inter alia, the seriousness of the crime,

impact on the victims, the need to protect the public, and Appellant’s lack of

remorse. N.T., 1/4/2018, at 67, 71, 73. Specifically, the trial court noted

that Appellant displayed an “extreme level of violence[,]” he inflicted severe

damage upon the Victims that will last throughout their lifetimes, he posed

“a danger to the community at large,” and he displayed “absolute lack of

remorse.” Id. Furthermore, contrary to Appellant’s assertion, the trial court

stated on the record that Appellant’s longer sentence was not punishment

for going to trial; rather, the disparity was a result of the foregoing, and his

co-defendants having pleaded guilty and “accept[ing] responsibility for their

actions.” Id. at 28, 36, 73. Additionally, the trial court noted Appellant’s

co-defendants, except for Bollinger, were sentenced “before a different

judge.” Id. at 73.

Based on the foregoing, the trial court sufficiently explained the

reasons for Appellant’s sentences. Accordingly, we conclude the trial court

did not abuse its discretion in imposing upon Appellant a higher aggregate

sentence than what his co-defendants received as part of their guilty pleas.

-9- J-A04017-20

In fashioning Appellant’s sentence, the trial court noted that Appellant

suffered abuse as a child, used drugs, and suffers from extreme mood

swings. Therefore, the trial court ordered Appellant to undergo anger

management and parenting classes, receive vocational training, and comply

with the recommendations of a dual diagnosis assessment and any

recommended treatment for mental health and drug use. In addition, the

trial court possessed and reviewed Appellant’s PSI report, and stated it

reviewed the sentencing guidelines prior to imposing Appellant’s sentence.

See Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)

(stating that where the sentencing court has the benefit of a PSI report, it is

presumed to have considered all relevant information). Therefore, contrary

to Appellant’s claim, the record indicates that the trial court referred to

Appellant’s lack of criminal record and considered Appellant’s rehabilitative

needs when imposing Appellant’s sentence. Accordingly, the trial court did

not abuse its discretion in imposing Appellant’s sentence.

Because Appellant has failed to demonstrate that he is entitled to relief

on any of his claims, we affirm Appellant’s judgments of sentence.

Judgments of sentence affirmed.

- 10 - J-A04017-20

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/22/2020

- 11 -