J-S41005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARLON CLOTTER,
Appellant No. 2079 MDA 2014
Appeal from the Judgment of Sentence entered November 5, 2014,
in the Court of Common Pleas of Lackawanna County,
Criminal Division, at No(s): CP-35-CR-0001884-2013
BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.
MEMORANDUM BY ALLEN, J.: FILED JULY 06, 2015
Marlon Clotter (“Appellant”) challenges the discretionary aspects of his
sentence. We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
On or about May 5, 2013, members of the Scranton
Police Department were dispatched by the Lackawanna
County Communications Center to the 700 block of Vine
Street in the City of Scranton, Lackawanna County,
Pennsylvania. The nature of the call was that a male had
been shot in this area. Upon their arrival the police found
a black male, later determined to be Rashan Crowder,
lying in the roadway with a gunshot wound to the chest.
Medical personnel were summoned and arrived at the
scene. These personnel unsuccessfully initiated life saving
measures. They subsequently transferred Mr. Crowder to
Geisinger Community Medical Center. The victim, Rashan
Crowder, was later pronounced dead at Geisinger.
*Retired Senior Judge assigned to the Superior Court.
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On May 6, 2013, an autopsy was performed by a
forensic pathologist on the decedent. The results of the
autopsy as noted by Lackawanna County Coroner Tim
Rowland indicated that Crowder, the decedent, had
sustained two gunshot wounds, one to the chest and one
to his right thigh. The cause of death was the gunshot
wound to his chest. The manner of death was listed as
homicide. As a result of the autopsy findings the police
began a criminal investigation into this incident.
The police investigation determined that Crowder was a
student at Lackawanna College and lived near the site of
his death in the Tobin Hall dormitory. Numerous
witnesses, not all in concurrence, led police to conclude
what occurred on or about May 5, 2013.
Decedent Crowder was apparently accompanied on that
fateful night by a friend named Shaquille Isbell. Isbell was
an eye witness [sic] to the relevant events. Isbell told
police that he was a friend of decedent Crowder and
attended Lackawanna College with him.
Earlier that evening Isbell and Crowder attended a
house party in the 400 block of Monroe Avenue in
Scranton about two blocks from the area of the shooting.
There may have been some words exchanged at the party,
but Isbell and Crowder left that party and walked to other
locations in their hill section neighborhood and to a mini
mart and returned to their dormitory. After the passage of
time Isbell and Crowder left their dormitory and went back
to the mini mart.
Upon leaving the mini mart to return once again to their
dormitory they happened upon a group of males and
females on the corner of Monroe Avenue and Vine Street
just up the street from the original party earlier that
evening. The two groups began to give each other
“attitude” and trash talking and insults back and forth.
The unfortunate result of this exchange was that a male
member of the group produced a handgun firing at Rashan
Crowder striking him in the right thigh. After the shooting,
a University of Scranton security car happened to arrive at
the scene thus causing the two groups to separate and
walk down the 800 block of Vine Street from Monroe
Avenue towards Madison Avenue, the location of the Tobin
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Hall dormitory. During this one block plus walk, words,
trash talk and insults resumed.
The arguments continued beyond Madison Avenue on
Vine Street to an area in the 700 block of Vine Street near
Moir Court. At that point, a second male from the group
begins to goad the male into shooting the decedent for a
second time. Repeatedly, the second male encourages
and urges the first male to fire again. When the second
shot occurs, it hits Decedent Crowder in the chest fatally
injuring him. At that point, the group of males and
females all flee the area.
Subsequent investigation and security video review
revealed that the shooter was Ryan Harding, the man
holding the gun. [Appellant] was also identified as the
male coaxing, encouraging and goading Ryan Harding to
fire shots at decedent Crowder.
[Appellant] was born on September 10, 1991, one of
eight children. His mother abused drugs and alcohol, thus
providing a traumatic childhood which began where he was
born in Queens, New York. He moved at various times to
Atlanta, Georgia and Scranton to stay with relatives or in
foster homes. From 2008 to 2012, [Appellant] was
incarcerated in SCI Pine Grove.
[Appellant] has a GED he earned while he was
incarcerated. He also has an extensive history of drugs
and alcohol abuse. His extensive history also extends to
the legal system. As a juvenile, [Appellant] was arrested
fourteen times and convicted of numerous crimes involving
physical assault. Despite [Appellant] being placed in
numerous juvenile facilities, he continued to repeat his
mistakes and past pattern of behaviors.
Often while under supervision for one crime, [Appellant]
would be arrested for another. At age seventeen, he was
convicted as an adult. Tellingly, while under state parole
supervision for that offense, [Appellant] committed the
instant offense.
***
On August 30, 2013, [Appellant’s] preliminary hearing
was held before Magisterial District Judge Sean McGraw.
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On September 30, 2013, by order of President Judge
Thomas J. Munley, the undersigned was appointed to
preside over this case. On November 7, 2013, discovery
deadlines were set as well as a tentative trial date for
August of 2014. On November 6, 2013, the District
Attorney for Lackawanna County issued a four count bill of
information against [Appellant]. [Appellant] was formally
arraigned the same day.
On January 15, 2014, defense counsel filed an
extensive omnibus motion on behalf of [Appellant]. The
Commonwealth responded to the omnibus on February 4,
2014. On July 3, 2014, the Court decided [Appellant’s]
voluminous omnibus motion.
On July 11, 2014, the Commonwealth filed an amended
bill of information containing five counts against
[Appellant]. The additional fifth count was criminal
conspiracy to commit aggravated assault[.] On that same
day, [Appellant] entered a guilty plea to one count of
criminal conspiracy to commit aggravated assault. All
other charges were dropped. [The] Commonwealth agreed
to recommend a minimum sentence of not more than
seven years.
On November 3, 2014, a sentencing memorandum was
filed on behalf of [Appellant] which was thoroughly
reviewed by the Court prior to sentencing. On November
5, 2014, a joint sentencing hearing was held for both
[Appellant] and the shooter, Ryan Harding. After
consultation with the court reporter, it was determined
that this joint proceeding began on November 5, 2014 at
10:01 a.m. and concluded at 1:30 p.m. It is most unusual
for a sentencing proceeding to take three and one-half
hours even if a joint one. In this case, it was done to allow
extensive victim/family/friend testimony and also to allow
[Appellant] substantial allocution. [After engaging in a
dialogue with Appellant regarding the circumstances of the
crime and his recent county prison misconducts, the trial
court sentenced Appellant to a term of seven to seventeen
years of imprisonment.]
Subsequent to sentencing, on November 10, 2014,
counsel for [Appellant] filed a Reconsideration of Sentence.
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That motion was denied on November 12, 2014, by order
of this Court.
Trial Court Opinion, 2/10/15, at 1-5 (citation omitted). This timely appeal
followed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.
Appellant raises the following issues:
A. Whether the [trial] court committed an abuse of
discretion by imposing a sentence in excess of the
aggravated range where there were no circumstances
warranting a sentence above the aggravated range?
B. Whether the sentence imposed was inappropriately
harsh and excessive and an abuse of discretion?
C. Whether the [trial] court failed to take into
consideration that [Appellant] is a product of particular
circumstances and conditions of environment that were not
fully and completely explored in the pre-sentencing report?
Appellant’s Brief at 4.1
A challenge to the discretionary aspects of a sentence is not
appealable as of right. Rather, Appellant must petition for allowance of
appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856
____________________________________________
1
Because Appellant entered an open plea to the crime for which he was
convicted, his challenge to the discretionary aspects of his sentence is
properly before us. See Commonwealth v. Ritchey, 779 A.2d 1183, 1185
(Pa. Super. 2001) (explaining that where there have been no sentencing
restrictions in the plea agreement, the entry of a guilty plea will not preclude
a challenge to the discretionary aspects of sentencing).
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A.2d 1254, 1257 (Pa. Super. 2004). When an appellant challenges a
discretionary aspect of sentencing, we must conduct a four-part analysis
before we reach the merits of the appellant’s claim. Commonwealth v.
Allen, 24 A.3d 1059, 1064 (Pa. Super. 2011). In this analysis, we must
determine: (1) whether the present appeal is timely; (2) whether the issue
raised on appeal was properly preserved; (3) whether Appellant has filed a
statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has
raised a substantial question that his sentence is not appropriate under the
Sentencing Code. Id.
In the instant case, Appellant filed a timely notice of appeal, and
properly preserved his claim in a post-sentence motion. Additionally,
Appellant has complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 8-9.
We must therefore determine whether Appellant has raised a substantial
question for our review.
A substantial question will be found where the defendant advances a
colorable argument that the sentence imposed is either inconsistent with a
specific provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Ventura,
975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Here, within his
2119(f) statement Appellant argues:
[Appellant] asserts that the [trial] court erred when it
imposed a sentence above the aggravated range where
the totality of the circumstances was neither so unique nor
egregious to warrant the imposition of such a sentence.
As such, he argues that the [trial] court committed an
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abuse of discretion and/or the sentence was contrary to
the guideline provisions of the Sentencing Guideline[s]
when it sentenced him.
***
Counsel for Appellant recognizes that the sentence
imposed herein was within the statutory limits.
Nevertheless, [Appellant] argues that the [trial] court
committed a manifest abuse of discretion when it imposed
a sentence outside the aggravated range. He submits that
the circumstances surrounding the commission of the
crime did not warrant the imposition of an aggravated
sentence. As such, [Appellant] believes that the sentence
was harsh and unreasonable and an abuse of discretion
warranting a review by [Superior] Court.
Appellant’s Brief at 8-9.
We view the arguments in Appellant’s Rule 2119(f) statement
essentially to assert that in sentencing Appellant, the trial court failed to
engage in individualized sentencing. We find this claim to raise a substantial
question. See Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super.
2005) (concluding such a claim raises a substantial question because it
“essentially challenges the adequacy of the reasons given by the court for its
sentencing choice”); see also Commonwealth v. Dunphy, 20 A.3d 1215,
1222 (Pa. Super. 2011) (explaining that a claim that the sentencing court
failed to give specific reasons for sentencing raises a substantial question).
The standard employed when reviewing the discretionary aspects of
sentencing is very narrow. Commonwealth v. Koren, 646 A.2d 1205,
1208 (Pa. Super. 1994). We may reverse only if the sentencing court
abused its discretion or committed an error of law. Id. We must accord the
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sentencing court’s decision great weight because it was in the best position
to review the defendant’s character, defiance or indifference, and the overall
effect and nature of the crime. Id. Because the trial judge is in the best
position to view a defendant’s “character, displays of remorse, defiance or
indifference, and the overall effect and nature of the crime,”
Commonwealth v. Hess, 745 A.2d 29, 33 (Pa. Super. 2000), we generally
defer to the trial judge’s assessment of the defendant and the evidence in
fashioning a proper sentence.
After considering the arguments of the parties, and Appellant’s
explanation for his actions, the trial court imposed a seven to seventeen-
year sentence. In doing so, the trial court provided the following reasons:
THE COURT: Okay, there’s a plea bargain that is
guiding the court’s minimum here. But I think because the
matter brings [Appellant] into the aggravated range, I
have to look at other factors as well before I accept it.
And this is obviously a serious offense that [Appellant]
pled to criminal conspiracy for aggravated assault.
However, [Appellant] has been involved in the criminal
justice system since the age of 13 and extensively and
with great opportunity to correct himself because I think if
my count is accurate, about 14 times in the juvenile
system. Then, he goes into the adult system with his last
offense. Then, he serves time at Pine Grove. Then, he
comes out of Pine Grove and he’s on parole when this
offense takes place, okay? Understanding that [Appellant]
may have an extensive substance abuse history, I don’t
view that as an excuse. I view that as a choice that he’s
making. At the time that this is going on, it’s on a public
street. There’s a lack of concern for the other people
involved. Because this isn’t just three people involved
here. There’s a crowd of people on both sides, both with
him and with the decedent, Mr. Crowder. While
[Appellant’s] been in jail pending sentence, he hasn’t been
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complying with the prison rules. I mean, I think - - what I
might have in front of me is a defendant that wants to
make progress, but isn’t doing a good job of it. I have to
take all of that into consideration. And I also have to take
into consideration that as a relatively young man, even
with the type of sentence that is being imposed here,
[Appellant’s] going to get out of jail as a very young man.
And two things can happen when you get out of jail, you
can improve yourself, go to school and make a positive
contribution to your life and to society. Or you could fall
back in with the same people that you’ve constantly been
able to find every time that you got out of juvenile and
even when you got out of the state correctional institution.
And if you do that, maybe you wouldn’t be back here,
maybe you’ll be the person in the casket next time. You
need to think about that. I don’t consider what [the
prosecutor] says in terms of future activity because I don’t
have a crystal ball. But you need to think about whether
he is right about where your lifestyle that you have chosen
so far is leading you. I don’t see any good endings
including the one that’s in front of me right now. Going to
jail is a lousy ending. Getting killed is an even worse
ending. So I think in order to give the public the benefit of
some sort of safety coming out of this, I want to put a
longer tail on this than 14 years. But I am not going to go
to the maximum. So [Appellant] is going to be sentenced
for a minimum of 7 years to a maximum of 17 years. The
determination as to how much of that sentence is served
and how much is not served really doesn’t lie with the
court. Because you have 30 days within which to appeal
what the court has done, here, okay. And once that 30
days lapses, my jurisdiction over you gets sent to the
Department of Corrections. And they’re going to
determine based upon how you behave in jail how much of
that you serve. Now, let me use an example. If you act
like you’ve been acting in the Lackawanna County Prison,
they may want you to serve 17. If you are, in fact, serious
about getting your life together and you start taking
courses and you become a positive influence in there, you
may serve 7. A great deal of that is under your control
and according to your behavior. But you need to
understand - - you need to understand that you govern
how that happens. And then, the Department of
Corrections makes its recommendation to the Board of
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Probation and Parole. You’ve been through SCI Pine
Grove. And that’s going to determine how you come out.
But even if you get out, you’ve got a long tail on, you’ve
got a long parole on you. So you need to recognize that
you need to change your life for a long time if you intend
to do anything with yourself in the future.
N.T., 11/5/14, at 116-120. With the above comments, the trial court
thoroughly explained its decision to deviate from the applicable sentencing
guideline ranges. Thus, we cannot conclude Appellant’s sentence is
“unreasonable.” Griffin, supra.
Our careful review of the record refutes Appellant’s claims to the
contrary. Appellant first refers to the trial court’s failure to accept his
version of the shooting. Appellant’s Brief at 10. According to Appellant, “he
knew about the first impact, but not necessarily the second.” N.T., 11/5/14,
at 94. As explained by the trial court in its Pa.R.A.P. 1925(a) opinion,
Appellant’s version is of little significance:
The encounter leading to the first shot to Crowder’s
thigh occurred on Monroe Avenue and Vine Street.
[Appellant] and his group could have retreated down
Monroe Avenue to diffuse the situation and the victim also
had the means and opportunity to retreat throughout.
Other avenues of retreat existed in the alley west of
Monroe Avenue between Monroe Avenue and Madison
Avenue. A third opportunity to retreat also existed on
Madison Avenue itself. Finally, they fled in Moir Court after
the second and fatal shot. Four opportunities to avoid
confrontation were squandered by [Appellant]. These
opportunities to retreat were being encouraged by some of
[Appellant’s] group. Even if [Appellant] initially failed to
consider retreat he was encouraged to walk away by Corey
Williams and instead he stayed and encouraged escalating
the use of the gun to increase the violence and danger
rather than decrease it. Such poor judgment must be
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considered as this Court believes it persists within
[Appellant] to the date of sentencing.
Trial Court Opinion, 2/10/15, at 8-9.
As the trial court stated many times during the sentencing hearing, the
significant factor surrounding the shooting was Appellant’s actions in
“bringing a gun to a fist fight, encouraging the gun’s use and ignoring
opportunities that were pointed out to him.” Id. at 11. It is well settled
that when sentencing a criminal defendant, “the trial court is permitted to
consider the seriousness of the offense and its impact on the community.”
Marts, 889 A.2d at 615 (citation omitted).
The record also refutes Appellant’s claim that in sentencing him the
trial court improperly “double-counted” his prior record. Appellant’s Brief at
12. Rather, we view the trial court’s discussion regarding Appellant’s
lengthy prior record as demonstrating that past attempts at rehabilitation
have not only failed, but also led to additional crimes. See e.g.,
Commonwealth v. Gibson, 716 A.2d 1275, 1279 (Pa. Super. 1998)
(holding that sentence outside guidelines was justified because, inter alia,
the appellant disregarded an earlier opportunity to reform). As further
explained by the trial court:
[Appellant’s involvement within the juvenile system]
was frequent and repetitive. In virtually every instance,
[Appellant] chose to reach out to undesirable peer groups
for the absent family support rather than to the counselors
that were dedicated to trying to help [him] lead a more
productive life as a juvenile. [Appellant] admits at
sentencing this led him to become a member of the Crips
gang at least for a time.
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His juvenile involvement led to serious involvement with
the adult criminal justice system. He was convicted and
sentenced to SCI Pine Grove where he served adult time
and was paroled on state parole. [Appellant] was under
state parole supervision when this present case occurred.
[Appellant] has a documented penchant for repeating
his mistakes and making the wrong decisions throughout
his young life. He alleges he is making progress because
now he will accept responsibility for his criminal actions
rather than trying to make excuses for them. Despite
extensive discussions with the Court, we remain
unconvinced that [Appellant] sees the need to stop the
criminal actions which compel his need to accept
responsibility. In other words, he allegedly accepts
responsibility now for the impact of his actions without
recognizing a need to cease those actions which are the
cause of his acceptance of responsibility in the first
instance.
Trial Court Opinion, 2/10/15, at 13-14.
Our review of the record further refutes Appellant’s claim that the trial
court’s “sentence totally ignored the rehabilitation element of sentencing.”
Appellant’s Brief at 15. As amplified by the trial court in its Pa.R.A.P.
1925(a) opinion:
The sentence as fashioned also tries to address
[Appellant’s] potential for rehabilitation. It is a seven year
minimum. If [Appellant] behaves in prison and takes
advantage of prison’s educational opportunities he could
be out long before his seventeen year maximum. In being
on parole, it is hoped that the structure of future parole
supervision out of jail would afford [Appellant] the
discipline needed to thrive on the outside. Tellingly, this
crime occurred while on state parole from SCI Pine Grove.
It is hoped that a future parole experience will benefit
[Appellant] from this experience and be more successful.
The long tail, though less than the statutory maximum,
hopefully insures [Appellant] remains motivated to correct
his past behavior and lifestyle.
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Trial Court Opinion, 2/10/15, at 9. “[T]he fact that Appellant disagrees with
the sentencing court’s conclusion regarding his rehabilitative potential does
not render the sentence imposed an abuse of discretion.” Marts, 889 A.2d
at 615 (citation omitted).
Finally, we reject Appellant’s assertion that the trial court “failed to
take into consideration that [he] is a product of particular circumstances and
conditions of environment that were not fully and completely explored in the
pre-sentencing report[.]” Appellant’s Brief at 16 (emphasis omitted). At
sentencing, Appellant’s counsel was given the opportunity to supplement
and/or make corrections to the pre-sentence report, and enumerated several
“mitigating factors.” See N.T., 11/5/14, at 70-77. In its Pa.R.A.P. 1925(a)
opinion, the trial court explained:
The Court had the benefit of all the written materials in
the pre-sentence report as well as last minute filings and
letters.
The report referenced that [Appellant] had a difficult
up-bringing [sic] with a substance dependent mother and
an absent father. The dysfunctional family situation
created a need for his placement with family, friends and
foster care. Unfortunately, this added to the emotional
instability of [Appellant’s] childhood with a geographic
instability as well. Probably as a result of these
unfortunate circumstances, [Appellant] began to act out
and become involved with [the] juvenile justice system.
***
We believe, given the benefit of a thorough pre-
sentence report, an extensive juvenile record along with an
adult record and with recent prison misconducts, that we
have a grasp of [Appellant’s] particular circumstances.
The extensive colloquy between this Court and [Appellant]
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at the November 5, 2014 sentencing hearing only confirms
our impression that we have a grasp of [Appellant’s]
particular circumstances.
[Appellant] is articulate and likeable but his record of
poor judgment in terms of with whom he chooses to
associate, juvenile adjudications and his adult conviction
record prior to this mandate our decision.
Trial Court Opinion, 2/10/15, at 13-14.
Appellant’s allegation that the sentencing court “failed to consider” or
“did not adequately consider” various factors is, in effect, a request that this
Court substitute its judgment for that of the trial court. This we cannot do.
While Appellant attempts to minimize his conduct during the shooting, the
weight to be assigned this factor, as well as other factors, was properly for
the trial court. See, Koren, supra.
In sum, because we cannot conclude that Appellant’s sentence is
unreasonable, we affirm his judgment of sentence. Griffin, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2015
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