J-S41025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WYATT LEE RICKRODE : : Appellant : No. 746 MDA 2022
Appeal from the Judgment of Sentence Entered April 21, 2022 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000556-2020
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 19, 2023
Wyatt Lee Rickrode (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of third-degree murder.1 We affirm.
The trial court recounted the underlying facts as follows:
On May 23, 2020, Jesse Carbaugh ([the victim]) and several of his acquaintances entered onto the land at 3596 Chambersburg Rd., Franklin Township, to retrieve a few large wooden poles that the Carbaugh family had previously left on the property. The Carbaughs had rented the mobile home at 3596 Chambersburg Rd. for a period and used the poles as part of a structure attached to the back of the home. The Carbaughs received permission from the landlord to return to the property to retrieve the poles.
The new tenant at 3596 Chambersburg. Rd., [Appellant], despite being notified in advance that the Carbaughs would be coming to get the poles, claimed that he felt threatened by their presence from the moment that they entered the property. Appellant did ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2501 and 2502(c). J-S41025-22
not know [the victim] before [ the victim] arrived at the property that day. An argument ensued between the parties as to how far into the back yard Dan Carbaugh, [the victim’s] father, could drive his truck for purposes of loading the very heavy poles.
After the verbal argument, Appellant, who was visibly agitated according to eyewitness testimony, entered his mobile home. His family and friends were inside the home and observed Appellant walk to his bedroom, grab a shotgun, load ammunition into the weapon, and walk back toward the door to leave. Some of those acquaintances attempted to prevent Appellant from leaving with the weapon, even attempting to block his exit and grabbing onto him. Nevertheless, Appellant went out of the front door, walked down the front porch steps, and turned the corner of the home to confront [the victim].
Eyewitness testimony revealed that another verbal argument between Appellant and [the victim] ensued at that point. [The victim] was unarmed. A brief moment after the argument began, Appellant discharged the firearm at [the victim] from a distance of one (1) to three (3) feet away. The gunshot hit [the victim] in the stomach. He would later die as a result of that gunshot wound. Appellant asserted that he was acting in self-defense when he shot [the victim]. Consistent with that contention, Appellant would later assert the defense of justification at trial.
Trial Court Opinion, 7/22/22, at 1-2.
On February 11, 2022, the jury found Appellant guilty of third-degree
murder. On April 21, 2022, following receipt of a pre-sentence investigation
report (PSI), the trial court sentenced Appellant to 20 – 40 years in prison.
On April 28 and 29, 2022, Appellant filed a post-sentence motion and an
amended post-sentence motion, which the trial court subsequently denied.
The instant, timely appeal followed.2
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2 Appellant and the trial court have both complied with Pa.R.A.P. 1925.
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Appellant presents the following issues for review:
1. Did the lower court make the following errors in regard to admission of evidence?
a) The court allowed Jesse Carbaugh to be referenced as “the victim” rather than “the deceased” in a self defense case.
b) The court declined to admit references to the deceased having been incarcerated although it was part of the res gestae of the case.
c) The lower court denied the Appellant’s motion for a mistrial when the Commonwealth’s expert rendered a key opinion which was not included in the expert’s report.
2. Was the jury’s verdict against the weight of the evidence?
3. Did the lower court make the following errors in regard to sentencing:
a) The sentence was excessive.
b) The court factored in lack of remorse although it was a self-defense case.
c) The court took no action although the Commonwealth assured Appellant it would not raise the fact that Appellant was a “person not to possess [firearms]” at sentencing but then did raise it as a sentencing factor.
Appellant’s Brief at 4-5 (reordered, footnote omitted).
In his first issue, Appellant challenges the trial court’s denial of two
motions in limine and his motion for a mistrial. Appellant’s Brief at 25-34.
We first address Appellant’s motion in limine claims.
Initially,
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When ruling on a trial court’s decision to grant or deny a motion in limine, we apply an evidentiary abuse of discretion standard of review. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion. Instead, an abuse of discretion occurs only where the trial court has reached a conclusion that overrides or misapplies the law, or when the judgment exercised is manifestly unreasonable, or is the result of partiality, prejudice, bias or ill-will. Further, to the extent we are required to review the trial court’s conclusions of law, our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Cook, 231 A.3d 913, 919 (Pa. Super. 2020) (citations
and quotation marks omitted).
Appellant first claims the trial court erred in denying his motion in limine
requesting “Jesse Carbaugh be referred to as ‘the deceased’ or by his name
and that he not be referred to as ‘victim[.]’” Motion in Limine, 1/24/22, at 4
(unnumbered). Appellant cites no legal authority supporting his claim that
using the world “victim” “unconstitutionally placed a burden upon [Appellant]
to prove that the deceased was not a victim which contorted [Appellant’s]
presumption innocence and shifted the burden of proof.” Appellant’s Brief at
26.
Appellant similarly offered no legal support for his motion at trial. The
trial court explained:
As there was no controlling authority to guide [the trial court’s] decision on the issue, the Commonwealth pointed to the non- precedential decision in Commonwealth v. Martin, 268 A.3d 424 (Pa. Super. 2021) (non-precedential), reargument denied (Jan. 26, 2022), as persuasive.[3] ____________________________________________
3 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions of Superior Court filed after May 1, 2019, may be cited for persuasive value).
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The facts in Martin were similar to the case at bar. There, the defendant did not dispute that the victim’s death was caused by the defendant discharging a firearm. Id. Like this case, the defendant claimed that the killing was justified. Id. As such, the defendant argued that the Commonwealth should have been precluded from referring to the deceased as the “victim.” Id. Throughout Martin’s trial, the Commonwealth referred to the deceased as “victim” forty-six (46) times. Id. The Superior Court found no abuse of discretion in allowing the term because the trial court provided the jury with a cautionary instruction addressing its use before the trial began. Id. The instruction informed the jury that the titles given to parties, such as “victim”, must not influence their judgment in any way. Martin, 268 A.3d 424. The trial court’s instruction also reminded the jury that counsel’s arguments are not evidence, and that it is the jury’s duty alone to decide the case based on the evidence as presented from the witness stand. Id. [The trial court] found Martin to be informative and denied Appellant’s request consistent with its reasoning.
Based upon [the trial court’s] pretrial ruling, [the court] provided [a] cautionary instruction to the jury before trial concerning how the Commonwealth might refer to Jesse Carbaugh throughout the course of trial. The pertinent part of [the] instruction was as follows:
Throughout this trial you may hear the parties refer to Jesse Carbaugh in different ways and that’s entirely appropriate because each side is allowed to frame the case according to its own theory of the case. You may hear Jesse Carbaugh referred to as either the deceased or Mr. Carbaugh or victim by the Commonwealth. The Commonwealth’s theory of the case is that Jesse Carbaugh was the victim of a homicide. [Appellant’s] theory is that [he] was acting in self-defense and Jesse Carbaugh was not a victim. Each party throughout the course of trial has the right to refer to those involved according to their own theory of the case.
[N.T., 2/7/22, at 11]. [The trial court] also took care to remind the jury of the Commonwealth’s burden of proof:
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As I mentioned, you will make sure that the Commonwealth has the burden of proving [Appellant] guilty beyond a reasonable doubt. The Commonwealth will have to prove the elements of the various charges against [Appellant] and prove beyond a reasonable doubt that he did not act in self-defense. The mere fact that [Appellant] has been arrested and charged with a commission of a crime in this case is not evidence of his guilt.
Id. at 11[]. Further, we informed the jury that statements and arguments presented by counsel are not evidence:
You should consider the statements and the arguments of counsel carefully. They are, however, not binding on you and they are not evidence.
Id. at 17[].
The law presumes the jury followed [the trial court’s] instructions. Commonwealth v. Gilliam, 249 A.3d 257, 274-75 (Pa. Super. 2021[, appeal denied, 267 A.3d 1213 (Pa. 2021)]. [The trial court’s] cautionary instruction was adequate to overcome any potential prejudice that Appellant may have suffered by the Commonwealth’s referring to Jesse Carbaugh as “the victim” during the trial.
Trial Court Opinion, 7/22/22, at 10-12 (footnote added).
We agree with the trial court’s assessment and discern no error in its
reliance on Martin, supra. As Appellant has failed to show an error or abuse
of discretion by the trial court, this claim merits no relief
Appellant next claims the trial court improperly denied his motion in
limine to admit evidence regarding the victim’s 2019 incarceration.
Appellant’s Brief at 26-27. Appellant requested “that reference to Jesse
Carbaugh being incarcerated in November 2019 be admissible as part of the
res gestae of the case.” Motion in Limine, 1/24/22, at 5 (unnumbered). The
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Commonwealth opposed the request, stating: “The defense provided no
explanation of how this is relevant and only references that it is ‘res gestae’
of the case.” Commonwealth’s Answer, 1/26/22, at 3 (unnumbered).
Appellant did not respond to the Commonwealth’s answer.
In his Rule 1925(b) statement, Appellant averred: “[The trial court]
erred in ruling that reference[s] to the deceased being incarcerated were not
admissible by [Appellant] when it was part of the res gestae of the case.”
Concise Statement of Matters Complained on Appeal, 6/28/22, at 1
(unnumbered).
On appeal, for the first time, Appellant explains that the victim’s
girlfriend began a relationship with Appellant following the victim’s 2019
incarceration, which “provided a possible motive for [the victim’s] aggression
toward Appellant.” Appellant’s Brief at 27. Appellant concedes that he did
not raise this theory before the trial court, stating, “A defendant does not need
to ‘show his hand’ pre-trial.” Id.
It is axiomatic that issues not first presented to the trial court are waived
on appeal. Pa. R.A.P. 302(a) (“Issues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). Even issues of
constitutional dimension are waived if they are not preserved in front of the
trial court. Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017).
Similarly, a litigant may not present a new or different legal theory in
support of relief on appeal. Id. All legal theories or arguments must first
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be presented to the trial court, which can then correct error in the first instance
before an appeal becomes necessary. “The appellate rules direct that an issue
must be raised in the trial court in order to provide that court with the
opportunity to consider the issue, rule upon it correctly, and obviate the need
for appeal.” Gustine Uniontown Assocs., Ltd. ex rel. Gustine
Uniontown, Inc. v. Anthony Crane Rental, Inc., 892 A.2d 830, 835 (Pa.
Super. 2006).
Here, the trial court specifically noted, “Appellant included no
information as to how said incarceration was relevant in the instant matter.”
Trial Court Opinion, 7/22/22, at 13. Because Appellant never raised the theory
that evidence of the victim’s incarceration was admissible to show the source
of animus between the two men in the trial court, he waived it on appeal.
Cline, 177 A.3d at 927. See also Commonwealth v. Goolson, 189 A.3d
994, 1000 (Pa. Super. 2018) (citations omitted) (appellant cannot raise new
legal theory on appeal); Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010) (courts may not act as counsel for a party).
Finally, in his first issue, Appellant claims the trial court erred in denying
his motion for a mistrial based upon misconduct by the Commonwealth’s
expert witness, Dr. Wayne Ross. Appellant’s Brief at 28-34.
We review the denial of a motion for mistrial for an abuse of discretion.
Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011). We have
explained:
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In criminal trials, declaration of a mistrial serves to eliminate the negative effect wrought upon a defendant when prejudicial elements are injected into the case or otherwise discovered at trial. A trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict. It is also settled that a mistrial is not necessary where cautionary instructions are adequate to overcome any potential prejudice.
Gilliam, 249 A.3d at 274 (emphasis added; citations and quotations omitted).
Courts “must consider all surrounding circumstances before finding that
curative instructions were insufficient and the extreme remedy of a mistrial is
required.” Commonwealth v. Manley, 985 A.2d 256, 266 (Pa. Super.
2009) (citation omitted). Lastly, “[w]hen the trial court provides cautionary
instructions to the jury in the event the defense raises a motion for a mistrial,
[t]he law presumes that the jury will follow the instructions of the court.”
Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (citation
and internal quotation marks omitted).
The trial court described the circumstances leading to Appellant’s motion
for mistrial as follows:
During direct examination, Dr. Ross described the gunshot wound inflicted to Jesse Carbaugh, an image of which was displayed to the jury and entered into evidence as Commonwealth Exhibit No. 46.
During Dr. Ross’ explanation, the following exchange occurred between him and Commonwealth Attorney Stephen Zawisky, Esq.:
Dr. Ross: … [W]hen I give you these angles or measurements, think about [the victim]
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lying flat on his back. The wound entered front to back, his front to back, slightly left to right and straight on in. So let me repeat that. His front to back slightly left to right, slightly left to right, and straight on in. [I]t wasn’t going up or going down. It just went right in about 40 inches and we’re able to see that wound in the belly and we were able to see the pellets where they were in his gut and we also put a rod in there to show the angle of the wound.
Attorney Zawisky: Now, when you say that you assume that he’s laying down, you’re talking about when he’s laying down on the autopsy?
Dr. Ross: Right. Excuse me. Yes. He’s standing straight up when he gets shot. When I examine him, right, he’s lying flat and that’s what I mean. Sorry.
[N.T., 2/9/22, at 356-57 (emphasis added)].
Trial Court Opinion, 7/22/22, at 15-16. Defense counsel did not lodge a
contemporaneous objection to this testimony.
Following several unrelated questions, Attorney Kirstin L. Rice, Esq,
Appellant’s counsel, asked for a sidebar conference. At the conference,
Attorney Rice argued that, in commenting on the respective positions of
Appellant and the victim, Dr. Ross exceeded the scope of his expert report.
N.T., 2/9/22, at 358. The trial court sustained counsel’s objection. Id.
The Commonwealth completed its direct examination with no further
objections. Id. at 359-61. On cross-examination, Attorney Rice questioned
Dr. Ross extensively about the relative positions of the victim and Appellant
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when Appellant fired the gun. Id. at 361-65. Two additional Commonwealth
witnesses testified before the trial court recessed.
At recess, Attorney Rice again raised the issue of Dr. Ross’ opinion that Jesse Carbaugh was standing upright when he was shot. Id. at 436. Attorney Rice provided [the trial c]ourt with a copy of Dr. Ross’ expert report, and requested either a curative instruction on the matter or a mistrial. [N.T., 2/9/22, at 436]. At that time, [the trial court] stated that there would not be a mistrial. Id. at 436[]. [The trial court] also noted that the Commonwealth only asked one question addressing Dr. Ross’ statement, and [Appellant] asked about a dozen on the same subject on cross- examination. Id. at 436[]. Attorney Rice stated that she felt the questions were necessary because, had [Appellant] known that Dr. Ross would testify to that opinion, they would have brought their own expert witness in to testify. Id. at [436-37]. [The trial court] informed [Appellant] that [the defense] still had an opportunity to do so, as the trial had not yet concluded. Id. at 437[].
[The trial court] then reviewed Dr. Ross’ expert report and the transcript of his testimony in-chambers during recess and concluded that his opinion was consistent with the report. After recess, before the jury was present in the courtroom, [the court] explained to the parties:
First of all, there was no question at all from the Commonwealth eliciting [Dr. Ross’] response. The question from the Commonwealth was trying to orient the position of the [victim’s] body concerning the autopsy position and the question was quote “when you say that you assume that he’s lying down, you are talking about when he’s lying down on the autopsy.” Answer: “Right, excuse me, yes he’s standing straight up when he gets shot. When I examine him, he’s lying flat and that’s what I mean. Sorry.” [N.T., 2/9/22, at 356-57.]
That’s the extent of the Commonwealth’s questioning with regard to any comment of [the victim] standing straight up. There was no objection at the time that statement was elicited and it was after two subsequent questions and on another track when
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there was a request to approach the bench and even then not necessarily an objection just more of a complaint that there wasn’t anything in the report.
Nonetheless, [the trial court] reviewed the report. There’s actually a one sentence opinion that is only that it was a gunshot wound to the abdomen, manner of death is homicide. The rest of the report is a statement of facts and findings made by Dr. Ross during the course of his autopsy from which the various conclusions were reached.
Id. at [437-38]. Nevertheless, [the trial court] decided to provide a curative instruction to the jury before continuing the trial:
Ladies and gentlemen, before we get started with redirect examination of [Appellant], I need to address one issue with you and it pertains back to Dr. Ross’s testimony. At a point during the testimony you’ll recall he was being asked about his position relative to his examination of the body as being on the autopsy table and without being asked a question in that regard, he essentially said [the victim] was standing straight up when he gets shot. Prior to trial, there are reports that are issued and that opinion of Dr. Ross was not in any report at that time and it was a statement he made here.
My point in telling you all this is that may or may not be the case, but you may not rely on Dr. Ross’ statement that [the victim was] standing straight up as determinative of that fact. ... It’s for you to decide if that is in fact the case, but you may not rely on the Doctor’s statement that that is the case at this point in time, okay?
[N.T., 2/9/22, at 439].
Trial Court Opinion, 7/22/22, at 17-18 (emphasis added). Attorney Rice did
not object to the curative instruction or request a mistrial following that
instruction.
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Our Supreme Court has indicated a party’s failure to object to an
instruction, or seek further instructions, “indicate[s] his satisfaction with the
instruction.” Commonwealth v. Jones, 668 A.2d 491, 504 (Pa. 1995). Thus,
we discern no abuse of discretion in the trial court’s denial of Appellant’s
request for a mistrial. See id.
In his second issue, Appellant challenges the weight of the evidence.
Appellant’s Brief at 34-35. He contends, “This case falls squarely into the
category of mistaken self-defense, and for that Appellant cites to the transcript
as a whole, but specifically to the Appellant’s opening statement.” Id.
“A weight of the evidence claim concedes that the evidence is sufficient
to sustain the verdict but seeks a new trial on the grounds that the evidence
was so one-sided or so weighted in favor of acquittal that a guilty verdict
shocks one’s sense of justice.” In re A.G.C., 142 A.3d 102, 109 (Pa. Super.
2016) (citation omitted). “Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence.” Commonwealth. v. Widmer,
744 A.2d 745, 753 (Pa. 2000) (citation omitted).
Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court’s determination of whether the verdict is against the weight of the evidence.
Id. (citation omitted).
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Here, the trial court addressed this claim in its opinion, cited relevant
law, and concluded the claim lacked merit:
At Appellant’s jury trial, the Commonwealth presented seventeen (17) witnesses, which included eyewitnesses to the murder. [Appellant] presented four witnesses, which also included eyewitnesses. Appellant himself testified. Ultimately, the jury found the Commonwealth’s witnesses more credible than Appellant and the witnesses that he presented. [The trial court] had full opportunity to hear and see the same evidence presented to the jury. The facts discussed above fully support the jury’s verdict. [The trial court was] not shocked by that verdict. In fact, as [the trial court] recall[s] the facts of the case and testimony presented, we would not have been shocked if the jury found Appellant guilty of murder in the first degree.
Trial Court Opinion, 7/22/22, at 9-10. The trial court’s determination is
supported by the evidence, and we discern no abuse of discretion or error.
See id. Accordingly, Appellant’s second issue does not merit relief.
In his third issue, Appellant challenges the discretionary aspects of his
sentence, from which there is no absolute right to appeal. Commonwealth
v. Solomon, 247 A.3d 1163, 1167 (Pa. Super. 2021) (en banc). Rather,
where the appellant has preserved the challenge by raising it in a post-
sentence motion and timely appealing, he must (1) include in his brief a
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f); and (2) show there is a substantial question that the
sentence is not appropriate under the Sentencing Code. Id.; see also 42
Pa.C.S.A. § 9781(b).
Appellant preserved his challenge to the discretionary aspects of
sentence in a post-sentence motion and his brief includes a Rule 2119(f)
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statement. Motion for Post-Sentence Relief, 4/28/22, at 1-4 (unnumbered);
Appellant’s Brief at 8-10. Therefore, we examine whether the statement
presents a substantial question. See Commonwealth v. Brown, 249 A.3d
1206, 1211 (Pa. Super. 2021) (“We examine an appellant’s Rule 2119(f)
statement to determine whether a substantial question exists.” (citation
omitted)). “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. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (citation omitted).
Appellant asserts his sentence was excessive because “[h]e had lived a
practically blameless life until [the murder]. And yet he was sentenced at the
very top of the standard sentencing range for Murder 3.” Appellant’s Brief at
12. Appellant also complains the trial court improperly considered his lack of
remorse at sentencing despite his assertion of self-defense at trial. Id. at 13.
Lastly, he avers that, despite promising that it would not raise the issue, the
Commonwealth brought up Appellant was not allowed to possess a firearm at
sentencing. Id. at 23. Appellant maintains this denied his right to allocution.
Id. at 24-25. These claims raise a substantial question; thus, we will address
their merits. See Caldwell, 117 A.3d at 770 (“This Court has ... held that an
excessive sentence claim—in conjunction with an assertion that the court
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failed to consider mitigating factors—raises a substantial question.”);
Commonwealth v. Hardy, 99 A.3d 577, 580 (Pa. Super. 2014) (right to
allocute is of “paramount importance” and defendant need not show prejudice
because of violation of that right); Commonwealth v. Allen, 24 A.3d 1058,
1064-65 (Pa. Super. 2011) (“[A] claim that a sentence is excessive because
the trial court relied on an impermissible factor raises a substantial question.”)
(citations omitted).
In reviewing a challenge to the discretionary aspects of the sentence,
we recognize:
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.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted). Further, where, as here, the trial court sentenced within the
guidelines, we may only vacate the judgment of sentence if it is “clearly
unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
Appellant first contends the sentence was excessive because “Appellant
had a prior record score of 0.” Appellant’s Brief at 12. Appellant acknowledges
the trial court imposed a sentence within the standard range of the sentencing
guidelines but complains the guidelines for third-degree murder “subject
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[Appellant] to the same standard range as a repeat felony or repeat violent
offender.” Id. at 13.
Appellant’s claim does not merit relief. The trial court had the benefit
of a PSI. “Where pre-sentence 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.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Further, where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
We cannot conclude the trial court’s standard-range sentence, under these
circumstances, was unreasonable.
Appellant next argues that the trial court improperly considered his lack
of remorse in fashioning Appellant’s sentence. Appellant’s Brief at 13-21.
Appellant admits lack of remorse is not an impermissible factor but
nevertheless maintains:
[T]his principle is problematic when the defendant has asserted that he felt it was necessary to use deadly force and has fully asserted a defense of self-defense.
Id. at 14. Appellant does not cite to any legal support for the assertion a trial
court cannot consider lack of remorse in unsuccessful self-defense cases. See
id.
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It is well-settled that lack of remorse is an appropriate factor to consider
at sentencing. Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001);
Commonwealth v. Summers, 245 A.3d 686, 695 (Pa. Super. 2021) (“Lack
of remorse is an appropriate sentencing consideration.”) (citation omitted).
Here, the trial court considered the trial testimony, the statements of the both
the victim’s family and Appellant’s family, Appellant’s history of mental health
problems, and his lack of a prior criminal record, before stating:
One thing that has struck me throughout was not for a minute did I believe any of the testimony in this case concerning self-defense. I think the entire incident was unnecessarily escalated and provoked by [Appellant]. I’ve also noted throughout the course of trial and proceedings that there does not appear to be much, if any, remorse being shown by [Appellant] other than for the circumstances he finds himself in. There was no evidence, in my view, of provocation leading to the murder of [the victim].
N.T., 4/21/22, at 22-23.
In its Rule 1925(a) opinion, the trial court specifically addressed
Appellant’s contention that lack of remorse was not an appropriate factor to
consider in a self-defense case:
The fact that the defense of justification is raised does not negate a defendant’s ability to be remorseful of the fact that a life was lost by that defendant’s hand, or toward the family of the deceased. A defendant may be justified in taking a life in self- defense, but we would be confident to wager that most people would be horrified at having been forced to do so. Here, Appellant exhibited no such sentiment in words or demeanor.
Trial Court Opinion, 7/22/22, at 8 (citation omitted). We agree with the trial
court’s sound reasoning.
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Lastly, Appellant claims the Commonwealth “misled” him into believing
it would not emphasize at sentencing that Appellant was a person not to
possess firearms, then reneged on this representation, interfering with
Appellant’s right to allocute. Appellant’s Brief at 24; see also id. at 21-25.
The Pennsylvania Rules of Criminal Procedure require: “At the time of
sentencing, the judge shall afford the defendant the opportunity to make a
statement in his or her behalf[.]” Pa.R.Crim.P. 708(D)(1); see also
Pa.R.Crim.P. 704(C)(1). It is the sentencing court’s obligation to inform the
defendant of his right to speak prior to sentencing. Commonwealth v.
Thomas, 553 A.2d 918, 919 (Pa. 1989). Where the trial court fails to inform
the defendant of his right, a resentencing hearing is required. Id.; see also
Commonwealth v. Hague, 840 A.2d 1018, 1019 (Pa. Super. 2003) (holding
failure to afford defendant right to allocution requires remand to allow for
allocution prior to resentencing).
Our review discloses the trial court provided Appellant the right to
allocute. See N.T., 4/21/22, at 20-21. Appellant and defense counsel
addressed the court after the Commonwealth, and defense counsel
specifically addressed the Appellant’s status as a person not to possess a
firearm. Counsel stated:
I think you’re also aware that [Appellant] had no history of violence and the incident in which he was [previously involuntarily mentally committed] was essentially a suicide attempt. He was hospitalized after, but it wasn’t like he acquired guns after that. He grew up with guns. He had his first gun at the age of like five.
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I don’t believe, and I find it hard to believe, that anybody would think that [Appellant] is a future threat to society.
Id. at 21. Appellant’s claim the trial court violated his right to allocute lacks
both record and legal support. Therefore, it does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/19/2023
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