Com. v. Johnson, No. 2389 EDA 2007.

• Decision Date: 17 November 2008
• Docket Number: No. 2389 EDA 2007.
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jamar JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

961 A.2d 877

2008 PA Super 269

COMMONWEALTH of Pennsylvania, Appellee v. Jamar JOHNSON, Appellant.

No. 2389 EDA 2007.

Superior Court of Pennsylvania.

Submitted May 27, 2008.

Filed November 17, 2008.

William P. Wismer, Media, for appellant.

William R. Toal, III, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: LALLY-GREEN, SHOGAN and HUDOCK, JJ.

OPINION BY SHOGAN, J.:

¶ 1 Appellant, Jamar Johnson, appeals from the judgment of sentence entered following his conviction of multiple offenses related to the shooting of Shante Powell, an eyewitness to a double murder. We affirm.

¶ 2 The trial court stated the factual and procedural history as follows:

Appellant filed a timely notice of appeal from the sentence imposed on July 10, 2007. He was convicted by a jury in April 2004 of Criminal Attempt, Homicide¹, Recklessly Endangering Another Person², Intimidation of Witnesses or Victims³, Retaliation Against Witness or Victim⁴, and Persons Not to Possess, Use, Manufacture, Control or Transfer Firearms⁵. At sentencing, Defendant received an aggregate sentence of twenty-two to forty-nine years of incarceration, followed by three years of consecutive probation. Defendant filed a timely notice of appeal. The statement of matters complained of on appeal raised ten issues for consideration, including the legality of his sentence. The Superior Court, in an Opinion filed September 26, 2006, affirmed the judgment in part, but agreed with Appellant that the seventeen and one-half to forty year sentence imposed on the conviction for attempted murder was illegal. The Superior Court vacated the sentence and remanded the case for resentencing.

On July 10, 2007, Appellant was resentenced as follows:

                Info A     Criminal Attempt, Homicide   10 to 20 yrs
                Info C,    Recklessly Endangering
                Ct 2       Another Person               1 to 2 yrs
                Info D     Intimidation of a Witness    3 to 10 yrs
                Info E     Retaliation Against a
                           Witness                      3 to 6 yrs
                Info F     Person not to Possess
                           Firearm                      1 to 4 yrs
                

Information C, Count 2 was ordered to run consecutively to Information A and Information D was ordered to run consecutively to Information C, Count 2. Information E was ordered to run concurrently to Information D and Information F was ordered to run consecutively to Information D. Therefore, the aggregate sentence imposed was 15 to 36 years of confinement. Defense counsel raises one issue for consideration in this Appeal.

On January 14, 2003, Shante Powell testified on behalf of the Commonwealth at a preliminary hearing in a prosecution charging Raheem Johnson, the brother of the Defendant in the instant case, with two counts of Murder in the First Degree. Shante Powell was an eyewitness to the killing and testified before a District Justice as a witness for the Commonwealth against Raheem Johnson about her observations on the night of the killing. At the conclusion of the hearing, Raheem Johnson was held for court on two counts of Murder and on related charges.

About two weeks later, on February 3, 2003 in the early morning hours, Shante Powell walked from her home with her sister, Monica Powell, to an A Plus store in Chester City, Delaware County, Pennsylvania. Once there, they purchased a few items including a box of Krispy Kreme donuts, and walked back toward their apartment. As they crossed the street and approached the sidewalk on the other side, two black males sprang up from behind a set of bushes and began firing guns at Shante Powell. Monica Powell testified that Defendant appeared first. He held a gun with both of his hands and aimed the gun at her sister Shante's head and began firing. Shante Powell ducked, turned and ran away from the assailant. Monica Powell testified that Defendant pursued her sister into the middle of the street and fired an additional five or six shots at her. Despite Defendant's attempts, only one of the bullets struck Shante Powell, hitting her in her left foot.

^1. 18 Pa.C.S. § 901

^2. 18 Pa.C.S. § 2705

^3. 18 Pa.C.S. § 4952

^4. 18 Pa.C.S. § 4953

^5. 18 Pa.C.S. § 6105

Trial Court Opinion, 12/27/07, at 1-3.

¶ 3 Appellant raises the following issues on appeal:

1. Did the lower court commit abuse of discretion and error of law in imposing sentences, to be served consecutively, the aggregate of which totaled 15 to 36 years, where the trial court imposed a sentence that was manifestly excessive to the point that it constituted too severe a punishment given the circumstances of the crime and the character of the Appellant, and where the sentence was based solely on the serious nature of the crimes?

2. Is the sentence of 3 to 10 years for Intimidation of a Witness illegal, as a violation of Apprendi [v.] New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), imposed as it was without a finding by the jury as to the grading of the offense that was the subject of the intimidation, which was necessary to raise the grading of the offense from a third degree felony to a second degree felony?

Appellant's Brief at 4.

¶ 4 Initially, we note that Appellant's first issue challenges the discretionary aspects of his sentence. Our standard of review is one of abuse of discretion. 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. Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super.2006).

¶ 5 Because Appellant's claim challenges the discretionary aspects of a sentence, it must be considered to be a petition for permission to appeal, as the right to pursue such a claim is not absolute. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004). A party who desires to raise such a challenge must meet two requirements before an appeal of the judgment of sentence will be heard on the merits. Id. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence. Id.; Pa.R.A.P. 2119(f). Second, the appellant must show that there is a substantial question that the sentence imposed is inappropriate. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2002).

¶ 6 Herein, the first requirement is met because Appellant's brief includes the necessary separate concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we will next determine whether Appellant's issue raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.

¶ 7 Appellant claims that the sentencing court abused its discretion in imposing consecutive sentences where the court failed to consider certain mitigating factors such as Appellant's prospects for rehabilitation as demonstrated by his involvement in various programs. Essentially, Appellant asserts that the sentencing court abused its discretion in imposing consecutive sentences after being advised that Appellant "had begun formal instruction in such [programs] as citizenship, parenting, and victim awareness." Appellant's Brief at 12.

¶ 8 We have stated that the imposition of consecutive rather than concurrent sentences lies within the sound discretion of the sentencing court. Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa.Super.2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing Commonwealth v. Hoag, 445 Pa.Super. 455, 665 A.2d 1212, 1214 (1995)). Long standing precedent of this Court recognizes that 42 Pa.C.S.A. § 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Commonwealth v. Marts, 889 A.2d 608, 612 (Pa.Super.2005) (citing Commonwealth v. Graham, 541 Pa. 173, 184, 661 A.2d 1367, 1373 (1995)). A challenge to the imposition of consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of sentence. Lloyd, 878 A.2d at 873. "We see no reason why [a defendant] should be afforded a `volume discount' for his crimes by having all sentences run concurrently." Hoag, 665 A.2d at 1214. Also, an allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate. Commonwealth v. Petaccio, 764 A.2d 582, 587 (Pa.Super.2000). Accordingly, Appellant's assertion of abuse of discretion for imposing consecutive sentences without properly considering mitigating factors fails to present a substantial question to justify this Court's review of his claim. Thus, we decline to address this issue.¹

¶ 9 Appellant next argues that the sentence imposed on his conviction of intimidation of a witness is illegal because it violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, Appellant asserts that his sentence of 3 to 10 years for intimidation of a witness was illegal because the jury had not made a specific finding with respect to the facts in support of elevating the grading of the offense to a first degree felony rather than a third degree felony.² Appellant contends that, in order to change the grading of the offense, the jury was required to make a finding regarding the level of the underlying crime for which the intimidated witness was due to testify.

¶ 10 Initially, we note that Appellant concedes that this issue has not been previously raised. Appellant's Brief at 14-15. However, this issue challenges...