J-S45024-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RICHARD TERRELL,
Appellant No. 1671 EDA 2013
Appeal from the Judgment of Sentence May 10, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-01103791-2005, CP-51-CR- 02065551-2006, CP-51-CR-0016127-2009
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED NOVEMBER 26, 2014
Appellant failed to preserve at sentencing or in his three separate
motions for reconsideration the discretionary sentencing arguments he now
advances on appeal, except for his assertion that his sentence was
manifestly excessive. The learned majority errs in stating that Appellant’s
challenge to the court’s alleged failure to consider the required sentencing
factors was “clearly . . . . preserved in his post-sentence motion.” Majority
Memorandum at 4. Nowhere in his post-sentence motion did Appellant set
forth that the sentencing court failed to consider the relevant sentencing ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S45024-14
criteria. Rather, Appellant merely challenged the excessiveness of the
sentence. These two claims are obviously distinct. See Commonwealth v.
Dodge, 77 A.3d 1263 (Pa.Super. 2013). Similarly, Appellant did not
preserve any argument relative to the court’s failure to order a presentence
report. Accordingly, he is not entitled to relief on that issue. I therefore
concur in the result of the learned majority’s rejection of Appellant’s
discretionary sentencing claims relative to the trial court’s failure to consider
the appropriate sentencing factors and its failure to order a presentence
report. In addition, I note that I find his position that his sentence was
manifestly excessive to be without merit.
However, I must respectfully dissent from the majority’s award of
relief based on Appellant’s claim that the trial court’s sentence was the
product of bias and ill-will. The majority contends that this issue was
preserved at sentencing because the sentencing court interrupted counsel
after counsel responded to the trial court’s earlier reference to Appellant as
an animal. As the majority notes, counsel stated, “this notion that he’s an
animal who is going to kill somebody, I mean, I gave what his total sum
convictions are—” N.T., 5/10/13, at 20.1
____________________________________________
1 Sentencing counsel did not object to the court’s statements at the time they were made and only referenced the animal statement in presenting his own argument. Counsel at sentencing also expressly set forth that he believed the sentence was excessive, but never contended the sentence was the result of bias or ill-will.
-2- J-S45024-14
The full context of this exchange demonstrates that Appellant was not
raising a bias claim, but was maintaining that Appellant’s criminal record
consisted of only four convictions: simple assault, resisting arrest, carrying a
firearm without a license, and false identification, as well as one juvenile
adjudication. The majority nonetheless cites Commonwealth v. Smith, 69
A.3d 259 (Pa.Super. 2013), for the proposition that because the sentencing
court in this matter interrupted counsel, he prevented counsel from
asserting bias. Smith is simply inapposite as it related to the defendant’s
multiple attempts to either request new counsel at sentencing or to proceed
pro se. The court there repeatedly expressed no interest in hearing the
defendant and instructed him to pursue his rights with this Court. Here,
unlike Smith, the Court did not cut off all attempts by Appellant to relate his
sentencing claims. Indeed, counsel continued by arguing various mitigating
factors and, at the end of the proceeding, expressly leveled an
excessiveness challenge. Smith is neither persuasive nor controlling in this
context. Indeed, Appellant actually leveled this aspect of his position for the
first time in his Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Accordingly, this portion of his argument is waived, and it is
improper for the majority to afford relief on that claim. See
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).2
2 The majority concludes that a finding of waiver would be hyper-technical. I myself am frequently loathe to find waiver, especially where there is no (Footnote Continued Next Page)
-3- J-S45024-14
Even assuming arguendo that counsel’s reference to the sentencing
court’s statement that Appellant was an animal implicitly preserved an issue
of bias and ill-will, which the court certainly did not perceive since it did not
address the contention at sentencing, and only was provided an opportunity
to discuss the issue after it lost jurisdiction in its Rule 1925(a) opinion, the
claim still fails on its merits.
The trial court’s statement that Appellant was a crime wave is
supported by the record. Appellant had twenty-two or twenty-three arrests,
including multiple arrests while on probation. In several of those instances,
the victim was his wife, who declined to press charges. The court’s outrage
over Appellant’s alleged abuse of his wife, and its claim that his wife could
“wind up dead” is, in my respectful view, entirely warranted. N.T., 5/10/13,
at 14, 15. Spousal abuse is a serious problem. It has recently and
viscerally come to the forefront of society with the high profile case involving
a popular NFL player, Ray Rice, and his videotaped knocking out of his then-
fiancée in an elevator. Certainly, a sentencing court has an obligation to
_______________________ (Footnote Continued)
clear case law or rule providing for such waiver, see In re K.A.T., 69 A.3d 691 (Pa.Super. 2013) (Bowes, J., concurring), or, the court, prior to losing jurisdiction, was afforded an adequate opportunity to address the issue and did so correctly. See In re T.P., 78 A.3d 1166 (Pa.Super. 2013). This, however, is not the case herein. Caselaw on discretionary sentencing claims is legion on the issue of waiver. The majority’s finding of non-waiver, while novel, is merely an attempt to circumnavigate well-ensconced principles in order to arrive at its desired result: admonishing the sentencing court.
-4- J-S45024-14
afford the victims of such abuse protection from her abuser even if she is
unwilling to recognize the danger posed by an abusive spouse or boyfriend.
Instantly, the majority acknowledges that Appellant’s sentence alone
does not reflect bias. See Majority Memorandum, at 15. In addition, it
openly concedes that “the bulk of the court’s comments are supported by
the record[.]” Id. Nonetheless, it remands for the repeat of sentencing
because the trial court, in indicating that it did not want to hear from
Appellant’s wife, stated, “she’ll probably get up here and try to exonerate
this animal, which I’ll hear none of.” N.T., 5/10/13, at 16.
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J-S45024-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RICHARD TERRELL,
Appellant No. 1671 EDA 2013
Appeal from the Judgment of Sentence May 10, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-01103791-2005, CP-51-CR- 02065551-2006, CP-51-CR-0016127-2009
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED NOVEMBER 26, 2014
Appellant failed to preserve at sentencing or in his three separate
motions for reconsideration the discretionary sentencing arguments he now
advances on appeal, except for his assertion that his sentence was
manifestly excessive. The learned majority errs in stating that Appellant’s
challenge to the court’s alleged failure to consider the required sentencing
factors was “clearly . . . . preserved in his post-sentence motion.” Majority
Memorandum at 4. Nowhere in his post-sentence motion did Appellant set
forth that the sentencing court failed to consider the relevant sentencing ____________________________________________
* Former Justice specially assigned to the Superior Court. J-S45024-14
criteria. Rather, Appellant merely challenged the excessiveness of the
sentence. These two claims are obviously distinct. See Commonwealth v.
Dodge, 77 A.3d 1263 (Pa.Super. 2013). Similarly, Appellant did not
preserve any argument relative to the court’s failure to order a presentence
report. Accordingly, he is not entitled to relief on that issue. I therefore
concur in the result of the learned majority’s rejection of Appellant’s
discretionary sentencing claims relative to the trial court’s failure to consider
the appropriate sentencing factors and its failure to order a presentence
report. In addition, I note that I find his position that his sentence was
manifestly excessive to be without merit.
However, I must respectfully dissent from the majority’s award of
relief based on Appellant’s claim that the trial court’s sentence was the
product of bias and ill-will. The majority contends that this issue was
preserved at sentencing because the sentencing court interrupted counsel
after counsel responded to the trial court’s earlier reference to Appellant as
an animal. As the majority notes, counsel stated, “this notion that he’s an
animal who is going to kill somebody, I mean, I gave what his total sum
convictions are—” N.T., 5/10/13, at 20.1
____________________________________________
1 Sentencing counsel did not object to the court’s statements at the time they were made and only referenced the animal statement in presenting his own argument. Counsel at sentencing also expressly set forth that he believed the sentence was excessive, but never contended the sentence was the result of bias or ill-will.
-2- J-S45024-14
The full context of this exchange demonstrates that Appellant was not
raising a bias claim, but was maintaining that Appellant’s criminal record
consisted of only four convictions: simple assault, resisting arrest, carrying a
firearm without a license, and false identification, as well as one juvenile
adjudication. The majority nonetheless cites Commonwealth v. Smith, 69
A.3d 259 (Pa.Super. 2013), for the proposition that because the sentencing
court in this matter interrupted counsel, he prevented counsel from
asserting bias. Smith is simply inapposite as it related to the defendant’s
multiple attempts to either request new counsel at sentencing or to proceed
pro se. The court there repeatedly expressed no interest in hearing the
defendant and instructed him to pursue his rights with this Court. Here,
unlike Smith, the Court did not cut off all attempts by Appellant to relate his
sentencing claims. Indeed, counsel continued by arguing various mitigating
factors and, at the end of the proceeding, expressly leveled an
excessiveness challenge. Smith is neither persuasive nor controlling in this
context. Indeed, Appellant actually leveled this aspect of his position for the
first time in his Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Accordingly, this portion of his argument is waived, and it is
improper for the majority to afford relief on that claim. See
Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).2
2 The majority concludes that a finding of waiver would be hyper-technical. I myself am frequently loathe to find waiver, especially where there is no (Footnote Continued Next Page)
-3- J-S45024-14
Even assuming arguendo that counsel’s reference to the sentencing
court’s statement that Appellant was an animal implicitly preserved an issue
of bias and ill-will, which the court certainly did not perceive since it did not
address the contention at sentencing, and only was provided an opportunity
to discuss the issue after it lost jurisdiction in its Rule 1925(a) opinion, the
claim still fails on its merits.
The trial court’s statement that Appellant was a crime wave is
supported by the record. Appellant had twenty-two or twenty-three arrests,
including multiple arrests while on probation. In several of those instances,
the victim was his wife, who declined to press charges. The court’s outrage
over Appellant’s alleged abuse of his wife, and its claim that his wife could
“wind up dead” is, in my respectful view, entirely warranted. N.T., 5/10/13,
at 14, 15. Spousal abuse is a serious problem. It has recently and
viscerally come to the forefront of society with the high profile case involving
a popular NFL player, Ray Rice, and his videotaped knocking out of his then-
fiancée in an elevator. Certainly, a sentencing court has an obligation to
_______________________ (Footnote Continued)
clear case law or rule providing for such waiver, see In re K.A.T., 69 A.3d 691 (Pa.Super. 2013) (Bowes, J., concurring), or, the court, prior to losing jurisdiction, was afforded an adequate opportunity to address the issue and did so correctly. See In re T.P., 78 A.3d 1166 (Pa.Super. 2013). This, however, is not the case herein. Caselaw on discretionary sentencing claims is legion on the issue of waiver. The majority’s finding of non-waiver, while novel, is merely an attempt to circumnavigate well-ensconced principles in order to arrive at its desired result: admonishing the sentencing court.
-4- J-S45024-14
afford the victims of such abuse protection from her abuser even if she is
unwilling to recognize the danger posed by an abusive spouse or boyfriend.
Instantly, the majority acknowledges that Appellant’s sentence alone
does not reflect bias. See Majority Memorandum, at 15. In addition, it
openly concedes that “the bulk of the court’s comments are supported by
the record[.]” Id. Nonetheless, it remands for the repeat of sentencing
because the trial court, in indicating that it did not want to hear from
Appellant’s wife, stated, “she’ll probably get up here and try to exonerate
this animal, which I’ll hear none of.” N.T., 5/10/13, at 16.
This reference is a far cry from the sentencing court’s actions in
Commonwealth v. Williams, 69 A.3d 735 (Pa.Super. 2013), and
Commonwealth v. Spencer, 496 A.2d 1156 (Pa.Super. 1985). In
Williams, the defendant was sentenced to twenty-four years and two
months incarceration to forty-eight years and four months incarceration.
This sentence was imposed after the sentencing court badgered the
defendant, called her a pathological liar without support from the record,
and described her as a classic sociopath. The sentence in question in
Spencer was thirty-five to seventy years incarceration. There, the
defendant viciously robbed multiple elderly citizens. The sentencing court
opined,
I feel that the defendant as a result of his activity has forfeited his right to exist in this community, on the street at least, and that the elderly of this City must be protected from animals such as this. And I shouldn't use the term “animals”
-5- J-S45024-14
because, as I have said, it denigrates the animal kingdom when referring to people like this.
If there was ever a case where the death penalty should be imposed, I would gladly pull the switch on you, Chief. I can't think of anything worse that you could do to human beings than what you did to these elderly people. And you consistently did it. You went back and went back. It wasn't an isolated instance.
You took advantage of people on their death beds. I think the youngest victim was 79. The oldest was 89, who subsequently died as a result of your activity. But that's not the case before me. That's just another one of your little asides.
Elderly people in this City must be protected from animals like you. When you get out of prison, you are going to be part of that elderly, I hope anyhow.
Spencer, supra at 1163. The statement of the sentencing court herein
pales in comparison. Further, the sentence in this matter is not even
remotely close to those imposed in Williams and Spencer. Those cases
simply do not warrant reversal in this matter.
I recognize that the author of the learned majority has lost confidence
in this sentencing court’s ability to sentence impartially. My faith in my trial
court brethren in this matter has not been shaken, nor do I find the
sentencing court’s statement to indicate that its actual sentence was biased.
I cannot agree that it confused imposing sentences upon humans with
animals or descended down a worrisome path. See Majority Memorandum,
at 17. The sentencing court was rightly appalled, and in its disgust for
Appellant’s disregard for his probation, used a term that is certainly less
than judicial. Hyperbole aside, the aggregate sentence imposed of five to
-6- J-S45024-14
ten years on three separate crimes hardly warrants the conclusion that its
judgment was so impaired that the court acted purely from passion and
without regard to the law. Sentencing courts already are tasked with the
difficult job of fashioning individualized sentences. Although in a perfect
world no sentencing judge would ever misspeak or use less than temperate
words, we should not be second-guessing those sentences based on a
singular passing reference.
For the aforementioned reasons, I dissent from the majority’s grant of
sentencing relief on Appellant’s unpreserved bias claim and would affirm.
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