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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT GRAY, :
:
Appellant : No. 2480 EDA 2014
Appeal from the Judgment of Sentence March 7, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0015175-2008
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 07, 2015
Robert Gray (“Gray”) appeals from the judgment of sentence entered
following his convictions of third-degree murder, robbery, criminal
conspiracy, and possessing instruments of crime. Gray pled guilty to these
crimes and presently he challenges only the sentence imposed on these
convictions. For the following reasons, we affirm.
The trial court aptly summarized the facts as follows:
On March 31, 2008, approximately 5 PM, Decedent,
Nicholas Pisano, and Joshua McDonald were inside
Decedent's home at 356 North Front Street,
Philadelphia, PA when Yushwa Alwan arrived.
Decedent and Alwan engaged in short conversation
and Alwan left. Decedent had approximately six
pounds of marijuana hidden in his apartment and
Alwan knew the drugs were there. Alwan solicited
the cooperation of [Gray] and co- conspirator Joseph
Harville (aka Zazzy) to rob Decedent. [Gray]
cooperated with the police from the time of his arrest
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and gave a full statement and confession. [Gray]
told detectives:
"Zazzy [] called me up on my cell and asked
me what I was doing. I decided to go down
meet and them both on Francis Street where
his grandmother lives."
"I got to Francis Street, I parked and hung out
a little while that’s when [Alwan] starts talking
about this dude that had all this weed. He said
he just left the boy’s house and the guy had
like ten pounds of weed in the dryer. He said
the boy had a lot of money in the Nike box in
the back room where the dog was at. [Alwan]
was like we should roll on the boy. He said the
guy was a punk and we wouldn’t have to do
nothing but scare the boy. We all agreed and
then [Alwan] gave Zazzy the gun."
The co- conspirators purchased a pizza which they
planned to use as a rouse to gain entry into the
apartment by staging a pizza delivery. They planned
for [Gray] to conduct the actually robbery. Police
investigators later found [Gray’s] fingerprints on the
box containing the pizza. [Gray’s] statement
continued:
“I parked the car under the bridge around the
corner from the boy's house, then me and
Zazzy and [Alwan] walked around to the
house. [Alwan] walked a little bit behind and
showed us where the house is at, then he
stayed back while me and Zazzy went to the
dude’s house. I walked up the steps first and
Zazzy was behind me. I still had the pizza with
me and when Zazzy rang the doorbell he says
‘delivery.’ The guy inside opens the door and
says wrong bell, you want the back. He had a
bible in his hand and said like two more times,
you want the back. He’s like I’m telling you,
you got the wrong apartment it happens all the
time, you want the back door. I said, no, I
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want some weed. He was like, you definitely
got the wrong house. That’s when Zazzy
comes up from behind me with the gun and
pushes passed me. He knocked the pizza box
out of my hand when he pushed me. As Zazzy
pushed by me the guy must have seen the gun
because he looked shocked.”
[Zazzy] shot Decedent once in the stomach causing
his death. When McDonald observed Decedent being
confronted he retrieved a gun from under the couch
where he was seated and chased [Zazzy] and [Gray]
out of the apartment and onto nearby Callowhill
Street.
Decedent was transported to Hahnemann Hospital
where he was pronounced dead. Dr. Greg McDonald
performed an autopsy of Decedent’s remains and
concluded that he died as a result of a single
gunshot wound to the abdomen and that the manner
of death was homicide. Commonwealth v.
Harville, CP-51-CR-009496 -2008; 1944 EDA 2011,
N.T. 6/29/2011 [at] 52.
Trial Court Opinion, 11/24/14, at 1-2.
As noted above, Gray pled guilty to aforementioned crimes, and the
trial court sentenced him to an aggregate term of thirty-five to seventy
years of incarceration.1 Gray filed a post-sentence motion, which was
denied on July 26, 2014. This appeal followed.
Gray presents the following two issues challenging the sentence
imposed by the trial court:
1
More specifically, the trial court sentenced Gray to twenty to forty years
for third-degree murder, ten to twenty years for conspiracy, five to ten years
for robbery, and two and a half to five years for PIC. All sentences except
the PIC sentence were ordered to run consecutively.
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1. Did the [trial] court abuse its discretion in
sentencing [Gray] to the statutory maximum for
third[-]degree murder after failing to consider
[Gray’s] actions in taking responsibility for his
behavior and cooperating with law enforcement,
and after failing to consider or discuss [Gray’s]
potential and need for rehabilitation, thus
resulting in a manifestly excessive sentence?
2. Did the [trial] court abuse its discretion by
sentencing [Gray] outside of the guidelines for
conspiracy without stating sufficient reasons of
record for doing so?
Gray’s Brief at 4.
We begin by noting that Gray did not include his second issue in his
Pa.R.A.P. 1925(b) statement of matters complained of on appeal. See Rule
1925(b) Statement, 10/24/14, at 1-3. It is well settled that issues not
included in a court-ordered statement of matters complained of are waived
for purposes of appeal. Commonwealth v. Jackson, 10 A.3d 341, 347 n.4
(Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii). Our Supreme Court has
repeatedly reiterated that this is a bright-line rule and that “in order to
preserve their claims for appellate review, appellants must comply whenever
the trial court orders them to file a [s]tatement of [m]atters [c]omplained of
on [a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.
1925(b) statement will be deemed waived.” Commonwealth v. Castillo,
888 A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d
484, 494 (Pa. 2011). Here, the lower court ordered Gray to file a statement
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of matters complained of on appeal. Trial Court Order, 9/9/14. Gray failed
to include this issue therein, and so we must find that it has been waived.
Gray’s remaining issue challenges the discretionary aspects of the
sentence imposed on his third-degree murder conviction. “Challenges to the
discretionary aspects of sentencing do not entitle an appellant to review as
of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011)
(citation omitted).
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (1) whether appellant has
filed a timely notice of appeal, see Pa.R.A.P. 902 and
903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A.
§ 9781(b). Commonwealth v. Evans, 901 A.2d
528, 533 (Pa. Super. 2006).
Id.
Gary’s appeal was timely filed. Although not replicated verbatim, Gray
raised substantially the same issue in his post-sentence motion. See Motion
for Reconsideration of Sentence Pursuant to Pa.R.Cr.P. 720, 3/17/14, ¶¶ 6,
8, and so we will find that he has properly preserved it for appeal. Gray has
included a statement pursuant to Pa.R.A.P. 2119(f) in his brief, and so we
turn to the final aspect of this inquiry: whether Gray has established a
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substantial question that this sentence is not appropriate under the
Sentencing Code.
In his Rule 2119(f) statement, Gray states that “his statutory
maximum sentence for third-degree murder was contrary to the
fundamental norms of the sentencing process because he was afforded no
consideration for the fact that he took responsibility for his actions and
cooperated with the police.” Gray’s Brief at 8. With this claim, Gray is
complaining that the trial court failed to give adequate consideration to
certain mitigating factors that he believes would militate in favor of a
reduced sentence. “[T]his Court has held on numerous occasions that a
claim of inadequate consideration of mitigating factors does not raise a
substantial question for our review.” Commonwealth v. Swope, __ A.3d
__, 2015 WL 5439772 at *4 (Sept. 16, 2015); see also Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015).2
2
We recognize that a claim that the trial court failed to consider mitigating
factors in conjunction with an excessiveness claim may present a
substantial question so as to invoke our review. See Caldwell, 117 A.3d at
770. Gray does not raise an excessiveness claim in conjunction with this
allegation; he simply alleges that the trial court abused its discretion
because it did not consider this factor. Gray’s Brief at 8. However, even if
Gray had specifically coupled this claim with an allegation of excessiveness,
we would find that he is due no relief. The record reveals that the trial court
did, in fact, take Gray’s cooperation and acceptance of responsibility into
account. N.T., 3/7/14, at 21-22. It also reveals, however, that Gray’s
“cooperation” consisted of agreeing to testify against his co-conspirators in
conformance with his statement to the police, but at each trial he recanted
his statement. Id. at 12-13, 17-18.
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Gray also states that the trial court abused its discretion because “the
court did not consider the rehabilitative needs of [Gray].” Gray’s Brief at 8.
This allegation also fails to raise a substantial question so as to invoke our
review. Commonwealth v. Griffin, 65 A.3d 932, 936, appeal denied, 76
A.3d 538 (Pa. 2013).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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