Com. v. Mouzon

• Decision Date: 19 December 2002
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jerome MOUZON, Appellant.
• Court: Pennsylvania Supreme Court

812 A.2d 617

571 Pa. 419

COMMONWEALTH of Pennsylvania, Appellee, v. Jerome MOUZON, Appellant.

Supreme Court of Pennsylvania.

Argued April 9, 2002.

Decided December 19, 2002.

Gerald A. Stein, Philadelphia, Philip J. Degnan, Newark, NJ, for Jerome Mouzon.

Catherine Lynn Marshall, Hugh D. Burns, Jr., Philadelphia, for Commonwealth of Pennsylvania.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NIGRO.

The issue presented in the instant appeal is whether the Superior Court erred in refusing to review Appellant Jerome Mouzon's challenge to the discretionary aspects of his criminal sentence based upon its conclusion that his claim of excessiveness failed to raise a substantial question as a matter of law because his sentence was within the statutory limits. As we find the Superior Court erred, we reverse.

Traditionally, the trial court is afforded broad discretion in sentencing criminal defendants "because of the perception that the trial court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it." Commonwealth v. Ward, 524 Pa. 48, 568 A.2d 1242, 1243 (1990). Under Pennsylvania's Sentencing Code, 42 Pa.C.S. § 9701 et seq., a trial court must "follow the general principle that the sentence imposed should 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."¹ Id. § 9721(b). The court must also consider the statutory Sentencing Guidelines, which were promulgated in order to address the problems associated with disparity in sentencing. See id.; see also 42 Pa.C.S. §§ 2151-2155 (governing creation and adoption of the Sentencing Guidelines); 204 Pa.Code §§ 303.1-303.18 (Pennsylvania Sentencing Guidelines); see generally Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775, 776-77 (1987) (discussing the formation of the Sentencing Commission and the development of the Guidelines).²

The Sentencing Guidelines enumerate aggravating and mitigating circumstances, assign scores based on a defendant's criminal record and based on the seriousness of the crime, and specify a range of punishments for each crime.³ "In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed." 42 Pa.C.S. § 9721(b); see 204 Pa.Code § 303.1(d). The Sentencing Guidelines are not mandatory, however, so trial courts retain broad discretion in sentencing matters, and therefore, may sentence defendants outside the Guidelines.⁴See 42 Pa.C.S. § 9721(b); Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.Super.1997). If a court departs from the sentencing recommendations contained in the Sentencing Guidelines, it must "provide a contemporaneous written statement of the reason or reasons for the deviation." 42 Pa.C.S. § 9721(b); see 204 Pa.Code § 303.1(d).

Appellate review of sentences is governed by § 9781 of the Pennsylvania Sentencing Code, which makes clear that there is no absolute right to appellate review of the discretionary aspects of a sentence.⁵See id. § 9781. Rather, allowance of an appeal raising such a claim will be granted only when the appellate court with initial jurisdiction over such claims, most typically the Superior Court, determines that there is a substantial question that the sentence is not appropriate under the Sentencing Code. See id. § 9781(b).⁶ To facilitate the Superior Court's exercise of discretion under § 9781(b), Rule 2119(f) of the Pennsylvania Rules of Appellate Procedure requires appellants seeking appellate review of the discretionary aspects of a sentence to include in their brief a separate "concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence," which "shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence." Pa.R.A.P. 2119(f). From an appellant's Rule 2119(f) statement, the Superior Court decides whether to review the discretionary aspects of a sentence based upon a case-by-case determination as to whether "a substantial question concerning the sentence exists." In the Interest of M.W., 555 Pa. 505, 725 A.2d 729, 731 (1999) (citing Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17, 19 (1987)). To demonstrate that a substantial question exists, "a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature." Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999) (quoting Commonwealth v. Saranchak, 544 Pa. 158, 675 A.2d 268, 277 (1996)); see Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.2000),allocatur denied, 563 Pa. 672, 759 A.2d 920 (2000) (appellant is required only to make a plausible argument that his sentence is either inconsistent with a particular provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process).

Pursuant to § 9781(f) of the Sentencing Code, "[n]o appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals." 42 Pa.C.S. § 9781(f). As a result, this Court lacks jurisdiction to consider challenges to the discretionary aspects of sentences that the Superior Court has already reviewed. See id. § 9781(b), (f); Tuladziecki, 522 A.2d at 18. However, nothing in the Sentencing Code precludes this Court from reviewing the Superior Court's application of legal principles. See Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (1996). In fact, we have previously concluded that this Court may review issues, such as the one presented by this appeal, regarding whether the Superior Court correctly interpreted and applied the Sentencing Code and case law in sentencing matters. Id.

Here, Appellant's sentence was imposed after he was convicted for committing several armed robberies and related offenses in Philadelphia over an eleven-day period in October 1997. The crimes involved three separate incidents where Appellant and several co-conspirators entered two food markets and a restaurant and, at gunpoint, stole money from customers and the establishments' cash registers. A police investigation of the crimes led to the arrest of one co-conspirator on November 14, 1997. Later that same day, the police obtained and executed an arrest warrant for Appellant and a search warrant for his residence, which resulted in the recovery of an old .44 magnum revolver from the basement, which witnesses later identified as the one used in the robberies. On November 15, 1997, Appellant gave a statement to the police acknowledging his involvement in one of the robberies and admitting that he had brandished the .44 magnum handgun. Following further police investigation, on December 19, 1997, Appellant gave a second inculpatory statement regarding his involvement in one of the other robberies.

Upon the completion of the police investigation, Appellant was charged with numerous crimes stemming from his involvement in the three robberies. Following a three-day trial, on December 22, 1998, a jury found Appellant guilty of eight counts of robbery, eight counts of possessing an instrument of crime, and seven counts of conspiracy.⁷ On June 23, 1999, the trial court imposed a prison term of ten to twenty years for each of five robbery convictions, ten to twenty years for each of two conspiracy convictions and two and one-half to five years for one possessing an instrument of crime conviction.⁸ The court ordered that all of the sentences were to run consecutively, for an aggregate sentence of seventy-two and one-half years to one hundred forty-five years imprisonment. This sentence was within the statutory legal limits, but was above the aggravated range of the Sentencing Guidelines. The trial court stated on the record that it considered the applicable Guidelines, the presentence report, and the mental health evaluation of Appellant. N.T., 6/23/99, at 26-28. The court also explained its reasons for deviating from the Guidelines, which included: Appellant's denial of his involvement in the crimes despite multiple identifications by proximate eyewitnesses; his "social hereditary history," i.e., his father was also incarcerated; his lack of remorse for terrorizing a neighborhood and for pointing a handgun at innocent victims and threatening to shoot them; his history of substance abuse and its adverse affects on his family and employment; his poor likelihood of rehabilitation; and the danger he poses to the community. Id. at 26-30. Appellant filed a post-sentence motion to vacate and reconsider the sentence, which the trial court denied on June 30, 1999.

On appeal to the Superior Court, Appellant alleged that the trial court abused its discretion in sentencing him to the absolute maximum penalty for each offense, arguing that under the circumstances of the case, sentencing him to what amounted to a life sentence was arbitrary, excessive, unreasonable, shocking to the conscience and disproportionate to the crimes committed. Appellant pointed out that he was a twenty-year-old first-time offender with neither an adult or juvenile record, and that he did not discharge a gun or injure anyone during the robberies. According to Appellant, the sheer magnitude of the trial court's deviation from the Sentencing Guidelines presented a substantial question of excessiveness that warranted the Superior Court's review.

In a memorandum opinion filed May 23, 2001, the Superior Court concluded that Appellant failed to raise a substantial question...