Commonwealth v. Perry

32 A.3d 232, 612 Pa. 557, 2011 Pa. LEXIS 2821
CourtSupreme Court of Pennsylvania
DecidedNovember 23, 2011
Docket25 EAP 2010
StatusPublished
Cited by84 cases

This text of 32 A.3d 232 (Commonwealth v. Perry) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Perry, 32 A.3d 232, 612 Pa. 557, 2011 Pa. LEXIS 2821 (Pa. 2011).

Opinions

OPINION

Justice TODD.

In this discretionary appeal, we consider whether the Superior Court, in vacating the sentence imposed upon Appellee Shawney Perry for carrying a loaded firearm without a license in violation of the Uniform Firearms Act (“UFA”), specifically, 18 Pa.C.S.A. § 6106(a),1 misapplied this Court’s directives, as [560]*560set forth in Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), concerning appellate review of sentences. For the reasons set forth below, we hold the Superior Court failed to give sufficient deference to the sentencing court’s imposition of sentence. Accordingly, we vacate the Superior Court’s order and remand the matter to the Superior Court for a reexamination of Perry’s judgment of sentence consistent with this opinion and with our decision in Walls.

The relevant facts were previously summarized by this Court2 as follows:

On Saturday June 8,1996, at approximately 3:00 a.m., Javon Jones and Bobby Mahalati were driving a GEO Tracker to Illusions, an after-hours club. At the same time, Appellant Perry was driving a white Lexus and [Brett Stewart] was a passenger in the vehicle. Perry had stopped the Lexus at a green light on 7th Street which was around the corner from the club. Perry and Stewart were blocking a lane of traffic while the men conversed with some women who were in the car behind them. Jones, driving the Tracker with the top and windows down, pulled along side the Lexus as the light turned red. Stewart turned to Jones and remarked, “What the f- you looking at?” Jones and Mahalati ignored Stewart. When the light turned green, Jones drove around the Lexus and stopped in front of the entrance to Illusions. Perry pulled the Lexus along the passenger side of the Tracker. Perry asked Mahalati, “What the f— you looking at?” Perry then repeated several times, “What do you want to do? Do you want to f— us?” Mahalati responded, “All right, What ever p — .” One or both of the Appellants [561]*561shouted, “What? Do you want to take care of this” and “We can take care of this around the corner.” Perry and Stewart then drove to the end of the block and turned left onto 8th Street.
Perry positioned the Lexus on 8th Street so as to leave only enough room for a single vehicle to pass. Jones and Mahalati drove past the Lexus, passing it on the right. Jones and Mahalati observed that both Perry and Stewart were holding guns. Mahalati threw his seat back in an attempt to protect himself while Jones attempted to speed away. Shots rang out and Mahalati lost feeling in his legs. Jones drove around the block in an effort to seek help. Jones flagged down Philadelphia Police Officer Tyrone Forrest, who was on duty outside of Illusions. Officer Forrest observed the bullet hole in the side of the Tracker and noted blood on the seat. After summoning an ambulance, Officer Forrest broadcasted an alert over police radio at 2:59 a.m., stating that a man had been shot and that his assailants were two black males who had driven southbound on 8th Street in a two-door white Lexus.

Commonwealth v. Perry, 568 Pa. 499, 500-01, 798 A.2d 697, 697-98 (2002) (editorial omissions original).

A few minutes after the broadcast alert, police officers observed Perry and Stewart in the white Lexus, pursued them, and stopped the vehicle. Jones was taken by police to the location of the stop, at which time he identified Perry and Stewart as the two men with whom he and Mahalati had engaged in a confrontation. During a search of the vehicle, police officers uncovered a 9mm Helwan handgun containing six bullets under the driver-side floor mat, and a .22 Beretta under the passenger-side floor mat.

Ultimately, Perry and Stewart were arrested and charged with two counts of attempted murder,3 two counts of aggravated assault,4 criminal conspiracy,5 and various UFA violations. [562]*562Following a joint trial, Perry was convicted by a jury of one count of aggravated assault and one UFA violation for carrying a firearm without a license. Stewart was acquitted of all charges.

On November 18, 2004, Perry was sentenced to 10 to 20 years for his aggravated assault conviction and a consecutive term of 2$ to 5 years for his UFA conviction; both sentences represented the maximum term of imprisonment for those offenses.6 At Perry’s sentencing hearing, the sentencing court focused on the harm inflicted on the victim and the lack of mitigation evidence, stating:

Of course, the Court knows what the guidelines are. I asked counsel about that before and I was told it was 54 to 72 plus or minus twelve.[7] ... And I know that [my sentence is] outside the guidelines and it’s quite a bit outside the guidelines and it should be, in my opinion, in [563]*563light of the damage done to this gentleman. And the jury-heard all the evidence. They heard the evidence about the so-called self-defense; they rejected that. They also heard the evidence of good character. Many people came in and testified about Mr. Perry’s good character. He is a good guy like a lot of people that are good guys and end up at one time or another doing bad things, and when they do bad things they have to account for them.
But I am taking this into account. I think that this man is paralyzed from, not the [waist] down, but from the chest down, as a result of one shot fired by Mr. Perry. He admitted he fired the shot. I see no mitigation anywhere from the people that testified and from Mr. Perry’s testimony himself, and the jury didn’t see anything, that’s why they found him guilty of the aggravated assault.

N.T. Sentencing Hearing, 11/18/04, at 52-54. The sentencing court denied Perry’s subsequent motion for reconsideration of sentence.

Thereafter, Perry appealed to the Superior Court, alleging, inter alia, that the sentencing court erred in sentencing him “outside of the guidelines solely on the basis of the serious injury to the [victim] and in disregard of all of the defense evidence regarding defendant’s excellent character, reputation, work history, prior victimization and lack of criminal record and the rehabilitative needs of the defendant.”8 Statement of Matters Complained of on Appeal, 4/20/05, at 2. Thereafter, the Superior Court, in an unpublished memorandum opinion, affirmed Perry’s sentence for aggravated assault, but vacated his judgment of sentence on the UFA conviction and remanded for resentencing, concluding the imposition of a consecutive maximum sentence for the UFA conviction was unreasonable and an abuse of discretion. Commonwealth v. Perry, 228 EDA 2005, 947 A.2d 831 (Pa.Super. filed Jan. 7, [564]*5642008).9 Judge Mary Jane Bowes dissented; she opined that the majority failed to apply the proper standard of review as set forth in 42 Pa.C.S.A. § 9781(c)(3). Noting that, pursuant to this Court’s decision in Walls, supra,

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Cite This Page — Counsel Stack

Bluebook (online)
32 A.3d 232, 612 Pa. 557, 2011 Pa. LEXIS 2821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-perry-pa-2011.