Com. v. Wilson, J.

Opinion

J-S75019-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JIMMY LEE WILSON

Appellant No. 232 EDA 2014

Appeal from the Judgment of Sentence October 31, 2013 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003317-2013

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 02, 2015

Jimmy Lee Wilson appeals from his judgment of sentence, imposed by

the Court of Common Pleas of Bucks County, following his convictions for

five counts of criminal conspiracy1 and one count each of: attempted theft

by extortion,2 criminal use of a communication facility,3 and terroristic

threats.4 Upon review, we affirm.

This matter arises from a home invasion that occurred in Levittown,

Bucks County. Wilson planned to burglarize the home of Thomas and Kecia ____________________________________________

1 18 Pa.C.S. § 903(c). 2 18 Pa.C.S. § 3923(a)(1). 3 18 Pa.C.S. § 7512(a). 4 18 Pa.C.S. § 2706(a)(1). J-S75019-14

Hall because he believed there would be a significant amount of cash in the

house due to Mr. Hall’s involvement in football pools. Wilson convinced his

co-conspirator, Kalyn Walker (Walker), to help him execute the robbery.

Prior to this, Walker did not know anything about the Hall family, except for

a familiarity with Mr. Hall’s identity. During trial, it was discovered that

Wilson’s father and Mrs. Hall were distant cousins and that Wilson had been

to the Halls’ home for family barbeques.

On the night of Saturday, February 23, 2013, Walker picked up Wilson

in his white Crown Victoria. Wilson gave Walker a black drawstring bag

containing rope as well as .45 semi-automatic pistol. Upon arriving at the

Hall residence, Wilson and Walker parked down the street. Walker entered

the residence while Wilson waited in the car.

Meanwhile, Turquoise Hall, the Halls’ then seventeen year-old

daughter, was home alone. Around 10:30 p.m., Turquoise heard a knock at

the front door. When she opened the door she saw Walker, who was

dressed in black and was wearing a black half-mask while holding a gun.

Walker told Turquoise not to scream and that it was “OK.” As Turquoise

backed up, Walker entered the residence.

Once inside, Walker instructed Turquoise to show him her parents’

bedroom. Walker proceeded to search the bedroom, but was unsuccessful in

finding any money. Shortly thereafter, Mr. and Mrs. Hall returned home.

Walker instructed Turquoise to act normally while Walker hid in the kitchen.

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The Halls entered their home and proceeded to walk into the kitchen,

where Walker was hiding. Upon encountering each other, Walker pointed his

gun at Mrs. Hall, told her to get on the floor, and demanded that everyone

empty their pockets. Walker then ordered Mrs. Hall to bind Turquoise’s

hands and then had Mr. Hall bind Mrs. Hall’s hands with the same rope.

Walker led the mother and daughter into the bathroom.

Walker then took Mr. Hall into the Halls’ bedroom and demanded

$10,000.00. Mr. Hall explained that he did not have that amount of cash in

the residence. Walker searched the bedroom once more while continuously

pointing his gun at Mr. Hall. Satisfied there was no cash, Walker instructed

Mr. Hall to untie his shoes and bind his own hands.

Walker then stated that on the following Monday at 5:30 p.m., Mr. Hall

better have $10,000.00 or he was going to kill Mrs. Hall and Turquoise.

Walker instructed Mr. Hall to drop the money in a black bag in a dumpster at

the Levittown Trace apartments in Bristol Township. Before leaving, Walker

reminded Mr. Hall that his wife and kids “were gonna get it,” if he did not

have the money. Because Walker instructed Mr. Hall not to the call the

police, he did not do so immediately out of fear for his family.

On the morning of Monday, February 25, 2013, Walker and Wilson

went to a WaWa store to purchase a phone card so that Walker could use his

disposable flip-phone. Wilson and Walker then decided to change the plan

and called Mr. Hall to inform him that the drop-off time was now 12:00 p.m.

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Following this call, Mr. Hall went to Wal-Mart to obtain a black bag. He

also went to the credit union to get a hundred dollars in denominations of

one-dollar bills. Mr. Hall planned on putting the cash in the black bag and

dropping it at the dumpster. Thereafter, he met up with his cousin and the

two of them drove towards Levittown Trace apartments.

Because Mr. Hall did not make the 12:00 p.m. drop-off, Wilson and

Walker decided to increase the amount of money demanded. They informed

Mr. Hall via text message that the amount had increased to $15,000.00.

Upon receiving this text, Mr. Hall notified the police. While Mr. Hall was

giving his statement, he continued to receive calls and text messages from

Wilson and Walker, which grew increasingly menacing as the day went on.

Between 4:30 p.m. and 5:00 p.m., Mr. Hall received two text messages,

typed by Wilson, which stated: “[…] If you don’t make it, just hide your

kids. I will go to one of the college[s] tonight. I got a picture of all four of

your kids. And I’m not waiting until tomorrow, so get that money,” and

“Fuck it. I’m gonna put you through hell. You going to wish you paid that

money.” N.T. Trial, 9/30/13, at 189-90.

Shortly thereafter, Mr. Hall, accompanied by several officers of the

Bristol Township Police Department, went to the Levittown Trace apartments

and put the black bag in the dumpster. A few minutes later, Wilson and

Walker arrived in Walker’s white Crown Victoria and parked in the parking lot

across the street. Walker exited the vehicle and scanned the parking lot.

Walker observed a plainclothes police officer and, believing him to be a

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security guard; Walker and Wilson left the lot and drove into the back of the

Levittown Trace apartment complex. Walker parked and exited the vehicle,

while Wilson remained inside. Walker then approached the dumpster and

retrieved the black bag. At that point, the police intercepted and arrested

Walker. Another officer arrested Wilson immediately thereafter.

Trial began on September 30, 2013, and concluded on October 4,

2013. The jury found Wilson guilty of the aforementioned offenses and, on

October 31, 2013, sentenced him to an aggregate term of 12 to 37 years’

imprisonment. At the time of sentencing, Wilson had a prior record score of

5.5

On November 12, 2013, Wilson, through counsel, filed post-trial

motions, which included a motion to reconsider sentence. On December 17,

2013, the court held a hearing on Wilson’s post-trial motions and granted, in

part, his motion to reconsider sentence. The court vacated its sentence on

the attempted theft by extortion conviction and imposed a new sentence of

6 months’ to 5 years’ incarceration. This reduced Wilson’s aggregate

sentence to 11 to 37 years’ imprisonment. This timely appeal followed.

On appeal, Wilson claims his sentence is excessive and thus challenges

the discretionary aspects of his sentence. A challenge to the discretionary

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5 Wilson’s prior record score was 5 based on a prior juvenile robbery conviction from when he was 15 years old as well as a felony possession with intent to deliver conviction from when he was 18.

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aspects of a sentence is not appealable as of right. Rather, an appellant

must petition for allowance of appeal pursuant to 42 Pa.C.S. § 9781.

Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super. 2004).

Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his 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. The third and fourth of these requirements arise because Appellant’s attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

Here, Wilson has filed a timely appeal and preserved this issue by

filing a post-sentence motion for reconsideration of sentence. He has also

included in his brief a statement pursuant to Pa.R.A.P. 2119(f), in which he

claims, inter alia, that the court erred when it failed to explain a sentence

that exceeded the aggravated range of the sentencing guidelines. This

Court has previously found that a claim that the sentencing court imposed a

sentence outside of the guidelines without specifying sufficient reasons

presents a substantial question for our review. See Commonwealth v.

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Holiday, 954 A.2d 6, 10 (Pa. Super. 2008). Thus, we review the merits of

Wilson’s challenge to the discretionary aspects of his sentence.

Our standard of review is well established:

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. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010).

In every case where the court imposes a sentence outside the

guidelines, the court shall provide a contemporaneous written statement of

the reason or reasons for the deviation from the guidelines. See 42 Pa.C.S.

9721(b). Failure to comply shall be grounds for vacating the sentence and

resentencing the defendant. Id. For the offense of conspiracy to commit

robbery, the sentencing guidelines call for a standard range sentence of 4 to

5 years, and in the aggravated range, 6 years. Here, the court sentenced

Wilson to 8 to 20 years on the count of conspiracy to commit robbery.

Wilson asserts that the court failed to explain its deviation from the

guidelines, however, the record belies this claim.

At sentencing, the Honorable Albert J. Cepparulo stated:

When I sentence you today, I want you to understand, Mr. Wilson, that the sentences are driven by the terror that you visited upon this family that night, they are also driven by my desire to offer that family and every other family who lives a peaceful life, protection from you specifically for as long a period

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as I can. I will deviate from those guidelines in one of the matters based on the statements I have made here today, the victim’s statements here today, the facts of this abominable crime, and the responsibility that you bear.

N.T. Sentencing, 10/31/13, at 24. Judge Cepparulo further explained his

reasons for deviating from the guidelines at Wilson’s hearing on his motion

for reconsideration of sentence.

[T]his was beyond aggravated because it involved at least three victims. It was also a case where you actually knew the family and set up this robbery, burglary, knowing that the family had some money. This is a case where you convinced a much younger, immature man to commit a really serious home invasion. And I am convinced beyond a doubt that it was you who convinced him and not the other way around.

I give some credence to the fact that you had three robberies as a juvenile, but I give equal credence to the fact that throughout the next ten years as an adult, there were no convictions.

I did consider, of course, that this case had a wide-ranging community impact for anyone who lived in a home. People think that their home is their safe haven; that when they come home from work, they shut the door, they may even lock the door, but that’s it. That’s the end of the outside. Now you’re with family or friends, and that’s it. But you made that a false sense of security. You changed the Halls, their lives, forever.

N.T. Reconsideration of Sentence Hearing, 12/17/13, at 17-19.

As the record shows, Judge Cepparulo explained his reasons for

deviating from the guidelines when sentencing Wilson on the count of

conspiracy to commit robbery. Accordingly, we discern no error by the

sentencing court.

Wilson further argues that the court abused its discretion when it

relied primarily on the nature of the crime and its impact on the victims in

fashioning its sentence. We also find this assertion belied by the record. In

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addition to the nature of the crime and the impact on the victims, Judge

Cepparulo also considered the need to protect the public, the fact that

Wilson had not committed a crime in 10 years, and his rehabilitative needs.

Wilson also claims that the court erred when it imposed consecutive

sentences on the counts of terroristic threats, unlawful use of a

communication facility, and attempted theft by extortion. Wilson asserts

that ordering the sentences to run consecutively resulted in an excessive

sentence in light of the criminal conduct at issue in this case.

Generally speaking, the court’s exercise of discretion in imposing

consecutive as opposed to concurrent sentences is not viewed as raising a

substantial question that would allow the granting of allowance of appeal.

Commonwealth v. Marts, 889 A.2d 608 (Pa. Super. 2005). However, this

Court has found that a substantial question is raised where a decision to

sentence consecutively increases the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal conduct at

issue in the case. See Commonwealth v. Dodge, 859 A.2d 771 (Pa.

Super. 2004), vacated and remanded on other grounds, 935 A.2d 1290

(Pa. 2007), (appellant sentenced to 58 ½ to 124 years’ imprisonment after

convicted of numerous, largely property offenses, i.e., 37 counts of receiving

stolen property, two counts of burglary, criminal trespass, etc.).

Here, the facts simply do not support such a finding of excessiveness.

Wilson orchestrated a serious home invasion that lasted for several days.

He provided Walker with the rope and the gun used to tie up and terrorize

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the Halls. Wilson also sent many of the threatening text messages to Mr.

Hall. Accordingly, Wilson fails to raise a substantial question with this

argument. Marts, supra.

In his last argument, Wilson claims that the sentencing court abused

its discretion in imposing an aggregate sentence that was grossly disparate

when compared to his co-defendant’s sentence. The law is well-settled that

co-defendants are not required to receive identical sentences. Generally, a

sentencing court must indicate the reasons for differences in sentences

between co-defendants. See Mastromarino, 2 A.3d at 589.

Here, the court explained that it sentenced Wilson as it did because he

was the mastermind of the conspiracy. Further, the court noted that Wilson

did not appear to reflect on his crimes or show any remorse, nor did he take

responsibility for his actions leading up to and during the home invasion.

Trial Court Opinion, 4/15/14, at 38. Accordingly, we discern no abuse of

discretion. Mastromarino, supra (no abuse of discretion where defendant

was “mastermind” behind heinous criminal conduct and court thoroughly

considered defendant’s circumstances and explained court’s reasons for

disparity sentences).

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/2/2015

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