Com. v. Rusling, S.

• Court: Superior Court of Pennsylvania
• Decided: April 12, 2019
• Docket: 93 EDA 2018
• Status: Unpublished

Opinion

J-A07013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STYLLES J. RUSLING : : Appellant : No. 93 EDA 2018

Appeal from the Judgment of Sentence December 1, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008004-2016

BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.: FILED APRIL 12, 2019

Appellant, Stylles J. Rusling, appeals from the judgment of sentence

imposed on December 1, 2017, as made final by the denial of post-sentence

motions on December 18, 2017. We affirm.

The factual background of the case is as follows.1 On July 16, 2016,

Appellant was involved in an altercation with the victim, Kevin Twist.

Appellant spent the hours leading up to the altercation drinking in Reale’s

Sports Bar. Appellant worked as a bouncer at the bar, but he was not on duty

that night. After exiting the bar, at approximately 8:20 p.m., Appellant

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1 This factual summary is based on the notes of testimony from Appellant’s plea hearing on October 3, 2017. At that hearing, the Commonwealth read the facts underlying the plea into the record and then Appellant’s plea counsel had the opportunity to add certain facts to that summary. See. N.T., 10/3/2017, at 17-31. The entire incident described herein was captured on video and played for the sentencing court prior to Appellant’s sentencing hearing. ____________________________________ * Former Justice specially assigned to the Superior Court. J-A07013-19

encountered the victim in the parking lot. The victim was a passenger in a

minivan, which was blocking the entrance to the parking lot. The victim, his

mother, and his 16-year-old son were in the minivan, waiting for the return

of the driver, who was assisting a wheelchair-bound woman into a bingo hall.

Appellant’s boss, the manager of the bar, was blocked by the minivan.

Appellant approached, gesturing at the minivan and his boss’s car, and the

victim got out of the minivan. The men argued for about a minute, then the

victim walked back to the minivan. Appellant followed the victim back to the

minivan and they argued for another minute. Appellant walked to his boss’s

car and the victim followed. Then, the victim got back into the minivan, but

before he could shut the door, Appellant bent down and called him a “clown”

and a “pussy.” The victim got out of the minivan and punched Appellant in

the face twice. Appellant pushed the victim against the minivan and the victim

continued to throw punches, causing Appellant to suffer multiple fractures to

his nose. Appellant went to his knees and began pulling on the victim’s shirt.

The victim tried to pull away, and Appellant held on to the bottom of his shirt.

At that point, Appellant pulled out a .40 caliber firearm and fired two shots at

the victim in quick succession. One shot hit the victim in the arm and the

other hit him in the chest. Both Appellant and the victim’s mother attempted

to stop the bleeding with their shirts. Appellant performed chest compressions

on the victim, but he was pronounced dead by paramedics on the scene. A

toxicology report indicated that the victim had methamphetamine, cocaine,

and PCP in his system.

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On October 3, 2017, Appellant pled guilty to voluntary manslaughter 2

and possession of an instrument of crime (“PIC”).3 On December 1, 2017, the

sentencing court sentenced Appellant to ten to 20 years’ incarceration on the

voluntary manslaughter charge and five years’ probation on the PIC charge,

to be served consecutively. On December 4, 2017, Appellant filed a motion

for reconsideration of sentence. On December 18, 2017, the motion was

denied without a hearing. This timely appeal followed.4

Appellant presents a single issue for our review:

Whether the [sentencing] court abused its discretion in sentencing the [A]ppellant to an unduly harsh and excessive sentence by imposing a sentence that was far outside of the applicable sentencing guidelines?

Appellant’s Brief at 4.

In his lone issue, Appellant argues that he received an excessive

sentence. This issue challenges the discretionary aspects of his sentence.

Pursuant to statute, Appellant does not have an automatic right to appeal the

discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead,

2 18 Pa.C.S.A. § 2503(b).

3 18 Pa.C.S.A. § 907(a).

4 On December 27, 2017, Appellant filed a notice of appeal to this Court. On January 10, 2018, the sentencing court issued an order requiring Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. The court issued its opinion on April 9, 2018.

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Appellant must petition this Court for permission to appeal the discretionary

aspects of his sentence. Id.

In 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.

Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned

up). Appellant filed a timely notice of appeal and preserved the issue in his

post-sentence motion.5 Appellant’s brief contains the requisite 2119(f)

concise statement and, as such, is in compliance with the procedural

requirements to challenge the discretionary aspects of his sentence.

Generally, to raise a substantial question an appellant must “advance a

colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000). When determining whether an appellant has set forth a substantial

question, “[o]ur inquiry must focus on the reasons for which the appeal is

5 In his post-sentence motion, Appellant only challenged his sentence for voluntary manslaughter. He did not preserve a challenge to his probationary sentence for PIC.

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sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005).

In his 2119(f) statement, Appellant argues that the sentencing court

abused its discretion by imposing a sentence outside of the sentencing

guidelines without considering certain mitigating factors. Appellant’s Brief at

11-13. Thus, Appellant presents a substantial question and we will review his

appeal on the merits. See Commonwealth v. Felmlee, 828 A.2d 1105,

1107 (Pa. Super. 2003) (en banc)(stating that a substantial question is raised

where appellant alleges the sentencing court imposed an aggravated range

sentence without adequately considering mitigating circumstances).

In reviewing a [discretionary] sentencing claim, we are mindful that[ w]e must accord the sentencing court great weight as it is in the best position to view the defendant's character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. An appellate court will not disturb the lower court's judgment absent a manifest abuse of discretion. In order to constitute an abuse of discretion, a sentence must either exceed the statutory limits or be so manifestly excessive as to constitute an abuse of discretion. Further, a sentence should not be disturbed where it is evident that the sentencing court was aware of sentencing considerations and weighed the considerations in a meaningful fashion.

Commonwealth v. Miller, 965 A.2d 276, 277 (Pa. Super. 2009)(internal

quotation omitted), citing Commonwealth v. Fish, 752 A.2d 921, 923 (Pa.

Super. 2000).

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Preliminarily, Appellant received a sentence of ten to 20 years’

incarceration for voluntary manslaughter. He had a prior record score of zero.

With the deadly weapon enhancement, the standard guideline range for

voluntary manslaughter is four and one-half to six years, plus or minus one

year for an aggravated or mitigated sentence. See 204 Pa.C.S.A.

§ 303.17(b). However, the record reflects that, as part of his plea agreement

with the Commonwealth, Appellant consented to a sentence of not less than

six years’ imprisonment. At Appellant’s plea hearing, the court confirmed that

Appellant understood his sentence could be greater than six years, but not

less. N.T., 10/3/2017, at 17.

First, Appellant argues that his sentence is excessive because it is “far

outside of the aggravated range[.]” Appellant’s Brief at 11. It is well settled

that the sentencing guidelines are not mandatory—they “recommend [] rather

than require a particular sentence.” Commonwealth v. Walls, 926 A.2d

957, 965 (Pa. 2007). When a sentencing court imposes a sentence outside of

the statutory guidelines, it must “provide a contemporaneous written

statement of the reason or reasons for deviation from the guidelines,” or it

must state those reasons on the record in the presence of the defendant. 42

Pa.C.S.A. § 9721(b); Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.

Super. 2014). When fashioning a sentence, the court shall, “call for

confinement that is consistent with 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.A.

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§ 9721(b). Moreover, “where the trial court is informed by a pre-sentence

report, it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Bullock, 170

A.3d 1109, 1126 (Pa. Super. 2017)(internal quotation and citation omitted).

Here, the sentencing court put its reasons for deviation from the

guidelines on the record, in Appellant’s presence, at the sentencing hearing.

N.T., 12/1/2017, at 43-51. The court took into consideration a pre-sentence

report and letters written on behalf of the victim and on behalf of Appellant.

The sentencing court then highlighted the aspects of the case that it found

warranted a sentence outside of the aggravated range. The court noted that

Appellant was carrying a loaded gun when he had been drinking for hours and

he shot the victim in front of the victim’s mother and son. It also noted that

Appellant involved himself in a dispute, essentially over parking, which had

nothing to do with him. The court considered the fact that Appellant was

“gigantic next to [the victim],” and that Appellant instigated the physical fight

by following the victim back to the van and continuing to call him names.

N.T., 12/1/2017, at 45. Additionally, the court pointed out that the victim was

unarmed and, “[t]here was absolutely no need to pull a gun in this case.”

N.T., 12/1/2017, at 46. Finally, the sentencing court discussed a social media

post made by Appellant, which the Commonwealth included in its sentencing

memorandum. The post featured a photograph of Appellant pointing a gun at

the camera with the caption, “f**k wit me.” The court was troubled by the

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post and said it reflected a “vigilante” attitude and that Appellant was “looking

for trouble.” N.T., 12/1/2017, at 46 and 47. Appellant argues that the

sentencing court afforded impermissible weight to the photograph when

fashioning his sentence. He avers that the photograph was taken 13 years

before his sentencing, when Appellant was 15 years old. Appellant, however,

does not allege that the photograph was somehow inadmissible. Instead, he

argues that the sentencing court ignored certain mitigating factors, including

his rehabilitative potential, and placed too much emphasis on the photograph.

We find Appellant’s argument unavailing.

As stated above, the sentencing court was informed by a pre-sentence

report. The court also noted on the record that Appellant had no record, a

great deal of family support, and a background as an EMT and volunteer

firefighter. N.T., 12/1/2017, at 43-44. Obviously, “the sentencing court was

aware of sentencing considerations and weighed the considerations in a

meaningful fashion.” Miller, 965 A.2d at 277. The sentencing court’s decision

was not manifestly excessive or unreasonable. Thus, Appellant is not entitled

to relief.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/12/19

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