J-S41001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TREV BOWIES JACKSON, II : : Appellant : No. 597 MDA 2018
Appeal from the Judgment of Sentence April 25, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005766-2016, CP-67-CR-0005767-2016
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 04, 2019
Trev Bowies Jackson, II, appeals from the judgment of sentence,
entered in the Court of Common Pleas of York County, after a jury1 convicted
him of burglary,2 theft by unlawful taking,3 receiving stolen property (“RSP”),4
____________________________________________
1 Jackson was convicted in a separate bench trial of loitering and prowling at nighttime. 18 Pa.C.S.A. § 5506.
2 18 Pa.C.S.A. § 3502(a)(4).
3 18 Pa.C.S.A. § 3921(a).
4 18 Pa.C.S.A. § 3925(a).
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S41001-19
attempted first-degree murder,5 assault of a law enforcement officer,6 and
recklessly endangering another person (“REAP”).7 After careful review, we
affirm.
On November 22, 2015, Officer Lynn Anderson stopped Jackson for
improperly signaling while driving. Officer Anderson requested Jackson’s
license, registration, and proof of insurance. Jackson complied, but his license
fell underneath the car. To safely retrieve the license, Officer Anderson asked
Jackson to step out of the vehicle and place his arms behind his back. In
response, Jackson fired a single gunshot so close to Officer Anderson’s face,
he sustained a facial powder burn. Officer Anderson took cover behind
Jackson’s car. Jackson fired two more shots in Officer Anderson’s direction,
reentered his car, and fled. Officer Anderson fired seven shots toward Jackson
as he sped off. He ultimately apprehended Jackson and arrested him.
Following trial, the jury convicted Jackson on all charges on March 23,
2017. On April 25, 2017, the trial court sentenced Jackson to one to four
years’ incarceration for burglary, ten to twenty years’ incarceration for
attempted first-degree murder, twenty to forty years’ incarceration for assault
of law enforcement officer, and one to two years’ incarceration for REAP. His
5 18 Pa.C.S.A. § 2502(a).
6 18 Pa.C.S.A. § 2702.1.
7 18 Pa.C.S.A. § 2705.
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convictions for theft and RSP merged for purposes of sentencing.8 Jackson
was sentenced to an aggregate term of forty to sixty years’ incarceration.
Jackson’s sentences for burglary and REAP were ordered to run concurrent to
his sentence for attempted first-degree murder, and consecutive to his
sentence for assault of a law enforcement officer. Jackson filed post-sentence
motions for modification of sentence and for a new trial, both of which were
denied by operation of law.9 Jackson timely filed his notice of appeal and
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Instantly, Jackson raises the following issues for our review:
1. Whether the honorable trial court abused its discretion in imposing consecutive sentences of 10 to 20 years for attempted homicide and 20 to 40 years for assault of police officer in that both charges arose out of the same criminal episode?
2. Whether the charges of attempted homicide and assault of a police officer should have merged for purposes of sentencing?
3. Whether the honorable trial court erred in denying Appellant’s motion for change of venue?
Brief of Appellant, at 4.
Jackson’s first claim challenges the discretionary aspects of his
sentence. See Commonwealth v. Foust, 180 A.3d 416, 438-39.
8 The factual bases for Jackson’s burglary, theft, RSP, and loitering and prowling at nighttime are not germane to this appeal.
9 Pa.R.Crim.P. 720(B)(3)(b).
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Discretionary aspects of sentencing claims are not appealable as of right. Id.
We have previously explained:
[I]n order to reach the merits of a discretionary aspects claim, 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 allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the Sentencing Code.
Id. (citations omitted). Jackson has satisfied the first three prongs. With
regard to the fourth prong, we have held that “a bald claim of excessiveness
due to the consecutive nature of a sentence will not raise a substantial
question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013). Rather, a claim of excessiveness due to the consecutive nature of a
sentence must “articulate[] reasons why consecutive sentences in a particular
case are unreasonable” to raise a substantial question. Id. Jackson claims
imposing consecutives sentences for attempted murder and assault of a law
enforcement officer was clearly unreasonable, as both charges arose out of
the same criminal episode, and results in an excessive sentence. Brief of
Appellant, at 9-10. This raises a substantial question, entitling Jackson to
review of the merits of his challenge. See Foust, supra, at 439 (determining
argument that consecutive sentences for two murder convictions was
excessive and unreasonable raised a substantial question) (citation omitted).
Jackson avers the trial court abused its discretion because he was
sentenced more than once for a single criminal act. Brief of Appellant, at 9.
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However, this reflects a misunderstanding of the law. Jackson fired multiple
shots at Officer Anderson. N.T. Trial, 3/20/17, at 51. He was convicted of
assault of a law enforcement officer for the first shot, which inflicted a powder
burn upon Officer Anderson’s face, and of attempted murder for the
subsequent shots he fired at the officer. See N.T. Trial Court Opinion,
12/14/18, at 13 (“Having committed an assault of a law enforcement officer,
the Appellant fired twice more by his own admission.”). Jackson is not entitled
to a concurrent, rather than consecutive, sentence for his multiple offenses
simply because he committed them within a short period of time; such a
sentence would provide a “volume discount” to perpetrators of multiple crimes
in a short period of time. See Foust, supra, at 434-35 (“defendants
convicted of multiple offenses are not entitled to a ‘volume discount’ on their
aggregate sentence.”). Therefore, we conclude the trial court did not abuse
its discretion in sentencing Jackson.
In his second claim, Jackson argues his sentence is illegal because his
attempted first-degree murder and assault of a law enforcement officer
charges should have merged. Brief of Appellant, at 10. Merger doctrine
prohibits conviction for two separate statutory provisions constituting the
same offense. See Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994)
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J-S41001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TREV BOWIES JACKSON, II : : Appellant : No. 597 MDA 2018
Appeal from the Judgment of Sentence April 25, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005766-2016, CP-67-CR-0005767-2016
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 04, 2019
Trev Bowies Jackson, II, appeals from the judgment of sentence,
entered in the Court of Common Pleas of York County, after a jury1 convicted
him of burglary,2 theft by unlawful taking,3 receiving stolen property (“RSP”),4
____________________________________________
1 Jackson was convicted in a separate bench trial of loitering and prowling at nighttime. 18 Pa.C.S.A. § 5506.
2 18 Pa.C.S.A. § 3502(a)(4).
3 18 Pa.C.S.A. § 3921(a).
4 18 Pa.C.S.A. § 3925(a).
____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S41001-19
attempted first-degree murder,5 assault of a law enforcement officer,6 and
recklessly endangering another person (“REAP”).7 After careful review, we
affirm.
On November 22, 2015, Officer Lynn Anderson stopped Jackson for
improperly signaling while driving. Officer Anderson requested Jackson’s
license, registration, and proof of insurance. Jackson complied, but his license
fell underneath the car. To safely retrieve the license, Officer Anderson asked
Jackson to step out of the vehicle and place his arms behind his back. In
response, Jackson fired a single gunshot so close to Officer Anderson’s face,
he sustained a facial powder burn. Officer Anderson took cover behind
Jackson’s car. Jackson fired two more shots in Officer Anderson’s direction,
reentered his car, and fled. Officer Anderson fired seven shots toward Jackson
as he sped off. He ultimately apprehended Jackson and arrested him.
Following trial, the jury convicted Jackson on all charges on March 23,
2017. On April 25, 2017, the trial court sentenced Jackson to one to four
years’ incarceration for burglary, ten to twenty years’ incarceration for
attempted first-degree murder, twenty to forty years’ incarceration for assault
of law enforcement officer, and one to two years’ incarceration for REAP. His
5 18 Pa.C.S.A. § 2502(a).
6 18 Pa.C.S.A. § 2702.1.
7 18 Pa.C.S.A. § 2705.
-2- J-S41001-19
convictions for theft and RSP merged for purposes of sentencing.8 Jackson
was sentenced to an aggregate term of forty to sixty years’ incarceration.
Jackson’s sentences for burglary and REAP were ordered to run concurrent to
his sentence for attempted first-degree murder, and consecutive to his
sentence for assault of a law enforcement officer. Jackson filed post-sentence
motions for modification of sentence and for a new trial, both of which were
denied by operation of law.9 Jackson timely filed his notice of appeal and
Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Instantly, Jackson raises the following issues for our review:
1. Whether the honorable trial court abused its discretion in imposing consecutive sentences of 10 to 20 years for attempted homicide and 20 to 40 years for assault of police officer in that both charges arose out of the same criminal episode?
2. Whether the charges of attempted homicide and assault of a police officer should have merged for purposes of sentencing?
3. Whether the honorable trial court erred in denying Appellant’s motion for change of venue?
Brief of Appellant, at 4.
Jackson’s first claim challenges the discretionary aspects of his
sentence. See Commonwealth v. Foust, 180 A.3d 416, 438-39.
8 The factual bases for Jackson’s burglary, theft, RSP, and loitering and prowling at nighttime are not germane to this appeal.
9 Pa.R.Crim.P. 720(B)(3)(b).
-3- J-S41001-19
Discretionary aspects of sentencing claims are not appealable as of right. Id.
We have previously explained:
[I]n order to reach the merits of a discretionary aspects claim, 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 allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the Sentencing Code.
Id. (citations omitted). Jackson has satisfied the first three prongs. With
regard to the fourth prong, we have held that “a bald claim of excessiveness
due to the consecutive nature of a sentence will not raise a substantial
question.” Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013). Rather, a claim of excessiveness due to the consecutive nature of a
sentence must “articulate[] reasons why consecutive sentences in a particular
case are unreasonable” to raise a substantial question. Id. Jackson claims
imposing consecutives sentences for attempted murder and assault of a law
enforcement officer was clearly unreasonable, as both charges arose out of
the same criminal episode, and results in an excessive sentence. Brief of
Appellant, at 9-10. This raises a substantial question, entitling Jackson to
review of the merits of his challenge. See Foust, supra, at 439 (determining
argument that consecutive sentences for two murder convictions was
excessive and unreasonable raised a substantial question) (citation omitted).
Jackson avers the trial court abused its discretion because he was
sentenced more than once for a single criminal act. Brief of Appellant, at 9.
-4- J-S41001-19
However, this reflects a misunderstanding of the law. Jackson fired multiple
shots at Officer Anderson. N.T. Trial, 3/20/17, at 51. He was convicted of
assault of a law enforcement officer for the first shot, which inflicted a powder
burn upon Officer Anderson’s face, and of attempted murder for the
subsequent shots he fired at the officer. See N.T. Trial Court Opinion,
12/14/18, at 13 (“Having committed an assault of a law enforcement officer,
the Appellant fired twice more by his own admission.”). Jackson is not entitled
to a concurrent, rather than consecutive, sentence for his multiple offenses
simply because he committed them within a short period of time; such a
sentence would provide a “volume discount” to perpetrators of multiple crimes
in a short period of time. See Foust, supra, at 434-35 (“defendants
convicted of multiple offenses are not entitled to a ‘volume discount’ on their
aggregate sentence.”). Therefore, we conclude the trial court did not abuse
its discretion in sentencing Jackson.
In his second claim, Jackson argues his sentence is illegal because his
attempted first-degree murder and assault of a law enforcement officer
charges should have merged. Brief of Appellant, at 10. Merger doctrine
prohibits conviction for two separate statutory provisions constituting the
same offense. See Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994)
(holding assault was lesser included offense within attempted murder and
therefore merged where charges arose from single gunshot). However,
merger does not apply unless “(1) the crimes arise from a single criminal act;
-5- J-S41001-19
and (2) all of the statutory elements of one of the offenses are included in the
statutory elements of the other.” Id. at 833. The crimes of attempted murder
and assault of a law enforcement officer each have an additional element not
included in the other offense, and, therefore, do not merge for sentencing
purposes. Commonwealth v. Johnson, 874 A.2d 66, 71 (Pa. Super. 2005).
Consequently, Jackson’s challenge to the legality of his sentence fails.
Jackson’s final claim challenges the trial court’s denial of Jackson’s
motion for change of venue. Brief of Appellant, at 13. Jackson contends the
pretrial publicity was extensive and prejudicial, saturating the community and
making selection of a fair and impartial jury impossible. Brief of Appellant, at
13. With regard to change of venue due to pretrial publicity, our Supreme
Court has explained:
The determination of whether to grant a change of venue rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. This is primarily because the trial court is in the best position to assess the atmosphere of the community and to judge the necessity of any requested change. The mere existence of pretrial publicity does not warrant a change of venue. Ordinarily, a defendant is not entitled to a change of venue unless he or she can demonstrate that the pretrial publicity resulted in actual prejudice that prevented the impaneling of an impartial jury. Prejudice will be presumed, however, if the defendant is able to show that the pretrial publicity: (1) was sensational, inflammatory, and slanted toward conviction, rather than factual and objective; (2) revealed the defendant’s prior criminal record, if any, or referred to confessions, admissions or reenactments of the crime by the defendant; or (3) derived from official police or prosecutorial reports. Even if the defendant proves the existence of one or more of these circumstances, a change of venue is not warranted unless the defendant also demonstrates that the pretrial publicity was so extensive, sustained, and pervasive that the community
-6- J-S41001-19
must be deemed to have been saturated with it, and that there was insufficient time between the publicity and the trial for any prejudice to have dissipated.
Commonwealth v. Thorp, 830 A.2d 519, 528-29 (Pa. 2003) (citations
omitted).
In his motion for change of venue, Jackson brought to the trial court’s
attention seven articles published about him and his criminal episode before
trial. Brief of Appellee, at 20. Jackson referenced dash cam footage of the
incident which circulated on the internet. Brief of Appellant, at 13. Jackson
argues this publicity saturated the community and that he was therefore
prejudiced by the trial court’s denial of his motion for change of venue. Id.
The publicity surrounding Jackson’s trial was insufficient to saturate the
community. See Commonwealth v. Pappas, 845 A.2d 829, 846 (holding
appellant not entitled to change of venue where 58 articles were published,
including nine in year preceding trial). Furthermore, the last of the seven
articles concerning Jackson’s case was published approximately six months
prior to trial. N.T. Trial Court Opinion, 12/14/18, at 20; see Commonwealth
v. Casper, 392 A.2d 287, 295 (Pa. 1978) (determining two and one half
months sufficient cooling-off period to eliminate need for change of venue).
The dash cam video’s internet circulation did not prejudice Jackson either
because the Commonwealth would have shown the dash cam footage to the
jury no matter where trial took place. See Commonwealth v. Johnson, 612
A.2d 1382 (Pa. Super. 1992) (upholding denial of motion for change of venue
where jury would have heard allegedly prejudicial information no matter
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where trial was held). We cannot conclude pretrial publicity rose to the level
requiring a change of venue. Thus, Jackson has failed to demonstrate
prejudice, and there was no abuse of discretion. Therefore, his third challenge
fails.
Judgment of sentence affirmed.
Judge Murray joins this Memorandum.
Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/4/2019
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