J. S48018/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ANTHIAN DARALL GOEHRING , :
:
Appellant : No. 1394 WDA 2015
Appeal from the Judgment of Sentence July 6, 2015
In the Court of Common Pleas of Washington County
Criminal Division No(s): CP-63-CR-0000897-2014
BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 16, 2016
Appellant, Anthian Darall Goehring, appeals from the Judgment of
Sentence entered in the Court of Common Pleas of Washington County
following Appellant’s open guilty plea to Third-Degree Murder, Conspiracy to
Commit Murder, and Robbery.1 On July 6, 2015, the trial court sentenced
Appellant to an aggregate term of thirty (30) to sixty (60) years’
incarceration.2 We affirm on the basis of the trial court’s Opinion.
1
18 Pa.C.S. § 2502(c); 18 Pa.C.S. § 903(c); 18 Pa.C.S. § 3701(a)(1)(i),
respectively.
2
The trial court sentenced Appellant as follows: for count 1, Third-Degree
Murder, twenty (20) to forty (40) years’ incarceration; for count 3,
Conspiracy to Commit Murder, ten (10) to twenty (20) years’ incarceration
to be served consecutive to the period of incarceration imposed at count 1;
for count 7, Robbery, ten (10) to twenty (20) years’ incarceration to be
served concurrent to the period of incarceration imposed at count 1.
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The trial court set forth the relevant factual history as follows:
[O]n March 31, 2014, the police responded to a report of a
shooting at 450 Chestnut Street, Apartment B[.]
Upon their arrival, they noticed multiple gunshots through the
door. They also observed a 10 year old [girl] had been struck by
two shots. She was subsequently taken to Washington Hospital
and pronounced dead. The coroner determined that the cause of
death was the gun shooting.
The investigation revealed that the four Defendants proceeded to
that apartment on the morning of March 31, two of them
remained in the car, that being Mr. White and Mr. Thomas.
[Appellant] and Mr. Cochran proceeded up the steps and
discharged firearms into the doors.
Trial Court Opinion, dated 2/9/16, at 4.
On April 17, 2015, Appellant entered a counseled open guilty plea and
the trial court sentenced him on July 6, 2015. Appellant filed a Post-
Sentence Motion on July 13, 2015, which the trial court denied on August
14, 2015. Appellant timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Did the trial court abuse its discretion and exercise
judgment that was manifestly unreasonable, when it
sentenced [Appellant] to an aggregate period of
incarceration of no less than thirty (30) years to no more
than sixty (60) years, which sentence is disproportionate
to [Appellant]’s role in the crime, excessive, and fails to
take into consideration [Appellant]’s cooperation against
his co-defendants, along with his character and history.
Appellant’s Brief at 4.
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The issue Appellant raises on appeal challenges the discretionary
aspects of his sentence. It is well settled that there is no automatic right to
appeal the discretionary aspects of a sentence. Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). Rather, to reach the
merits of a discretionary sentencing issue, this Court must conduct a four-
part analysis to determine:
(1) whether appellant filed a timely notice of appeal, Pa.R.A.P.
902, 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, 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.
Id. (citation omitted).
Appellant filed a timely Notice of Appeal, properly preserved the issue,
and complied with briefing requirements under Pa.R.A.P. 2119(f). Thus, we
must determine whether Appellant raised a substantial question for our
review.
A substantial question exists when “the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the
fundamental norms which underlie the sentencing process.”
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citations
and quotation marks omitted).
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Here, Appellant avers that the sentence is “unreasonable and unduly
excessive” because the trial court imposed “consecutive sentences” and
failed “to properly account for the appellant’s cooperation against his co-
defendants, and his history and characteristics and instead concentrates
heavily on the nature and circumstances of the offense.” Appellant’s Brief at
9. This claim presents a substantial question for review. See
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012) (holding an
allegation that a sentence fails to consider relevant sentencing criteria
violates a fundamental norm underlying the sentencing process and raises a
substantial question); Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.
Super. 2013) (holding defendant’s challenge to the consecutive nature of his
sentence raised a substantial question).
Having determined that Appellant’s issue on appeal raises a substantial
question for review, we turn to the merits of Appellant’s sentencing
challenge.
“In reviewing a challenge to the discretionary aspects of sentencing,
we evaluate the court’s decision under an abuse of discretion standard.”
Dodge, supra at 1274 (citation omitted). Additionally, “this Court’s review
of the discretionary aspects of a sentence is confined by the statutory
mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. (citation and quotation
marks omitted).
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Section 9781(c) dictates that this Court should vacate a sentence if it
finds the sentence was within the sentencing guidelines but the guidelines
were applied erroneously or the case involves circumstances where
application of the guidelines would be unreasonable. See 42 Pa.C.S. §
9781(c). Also, this Court should vacate a sentence if the sentence is outside
the guidelines and the sentence is unreasonable. See id.
In reviewing the record, this Court must consider:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) the opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) the findings upon which the sentence was based.
(4) the guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
The Honorable Edward J. Borkowski, who presided over the sentencing
hearing, has authored a thorough and well-reasoned Opinion, citing to the
record, relevant case law, and applicable statutes in addressing Appellant’s
challenge to the discretionary aspects of his sentence. After a careful review
of Appellant’s arguments and the record, we affirm on the basis of the trial
court’s Opinion, which concluded that: (1) the trial court did not abuse its
discretion in fashioning a sentence for Appellant, and (2) the trial court
considered all relevant factors, including Appellant’s presentence report,
Appellant’s history, Appellant’s apology, and the fact that Appellant
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cooperated with the police in investigating the homicide. See Trial Ct. Op.
at 4-8.
The parties are instructed to attach a copy of the trial court’s Opinion
to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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Circulated 08/26/2016 08:46 AM
IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
APPELLEE,
V. cc 201400897
ANTHIAN DARALL GOEHRING,
APPELLANT.
OPINION
BORKOWSKI, J.
PROCEDURAL HISTORY
Appellant was charged by criminal information (CC 201400897) with one
1
count of criminal homicide, one count of conspiracy,2 four counts of aggravated
assault,' one count of robbery," one count of burglary," one count of person not to
possess a firearm, 6 one count of discharging a firearm into an occupied structure, 7
and four counts of recklessly endangering another person.8
I
is Pa. C.S. § 250l(a).
' 18 -Pa.
3
C.S. § 903(c).
18 Pa. C.S. § 2702(a)(l).
-t 18 Pa. C.S. § 3701(a)(l)(i).
5
I 8 Pa. C.S. § 3502(a)(l).
6
rs Pa. C.S. § 6105(a)(l).
7
18 Pa. C.S. § 2707.l(a).
8
I 8 Pa. C.S. § 2705.
2
On April 17, 2015, Appellant entered a guilty plea to third degree murder,
conspiracy to commit murder, and robbery.
On July 6, 2015, Appellant was sentenced by the Trial Court as follows:
Count one: third degree murder - twenty to forty years incarceration;
Count three: conspiracy to commit murder - ten to twenty years
incarceration to be served consecutive to the period of incarceration imposed at
count one;
Count seven: robbery - ten to twenty years incarceration to be served
concurrent to the period of incarceration imposed at count one.
On July 13, 2015, Appellant filed a post sentence motion, which was denied
on August 14, 2015. This timely appeal follows.
STATEMENT OF ERRORS ON APPEAL
Appellant raises the following issue on appeal, and it is set forth exactly as he
framed it:
I. Did the Trial Court abuse its discretion and exercise
judgment that was manifestly unreasonable, when it
sentenced the defendant to an aggregate period of
incarceration of no less than thirty (30) years to no more
than sixty (60) years, which sentence is disproportionate
to defendant's role in the crime, excessive, and fails to
take into consideration the defendant's cooperation
against his co-defendants, along with his character and
history?
3
FACTS
The Commonwealth provided the following recitation. of facts at Appellant's
plea proceeding:
Your Honor, if we were to proceed to trial, the evidence that we
would educe would be that on March 31, 2014, the police
responded to a report of a shooting at 450 Chestnut Street,
Apartment B [ ... ] .
Upon their arrival, they noticed multiple gunshots
through the door. They also observed a 10 year old, Taniyah
Thomas, had been struck by two shots. She was subsequently
taken to Washington Hospital and pronounced dead. The
coroner determined that the cause of death was the gun
shooting.
The investigation revealed that the four Defendants
proceeded to that apartment on the morning of March 31, two
of them remained in the car, that being Mr. White and Mr.
Thomas. Mr. Goehring and Mr. Cochran proceeded up the steps
and discharged firearms into the doors.
We took statements from Mr. Goehring, Mr. White and
Mr. Thomas, and that's why the charges were filed in this
matter.
(Plea Transcript, April 17, 2015, pp. 14-15).
DISCUSSION
Appellant alleges in his sole claim that the Trial Court abused its discretion
when it sentenced Appellant disproportionate to Appellant's role in the crime, and
the Trial Court failed to take into consideration his cooperation, character, and
history. This claim is without merit.
Here, Appellant was convicted of third degree murder, conspiracy to commit
murder, and robbery, and was sentenced to an aggregate term of incarceration of
4
thirty to sixty years. It should be noted that each sentence at each of the charges
were standard range sentences, and it is well-established that the decision to
impose sentences consecutively lies within the sound discretion of the sentencing
court. Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super. 2005);
Commonwealth v. Peay, 806 A.2d 22, 29 (Pa. Super. 2002) (challenge to
excessiveness will not raise a substantial question when sentenced within statutory
limits).
A defendant challenging the discretionary aspects of his sentence must
satisfy a four-part test in order to invoke the Superior Court's jurisdiction to review
his claim:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate underthe Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotations and
citations omitted). A substantial question is raised when a defendant alleges that
the sentencing court failed to take into consideration certain statutory factors
before sentencing a defendant. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.
Super. 2012). A sentence will be deemed unreasonable if a sentencing court fails to
consider certain statutory factors before sentencing a defendant. 42 Pa. C.S. §
972l(b) ("protection of the public, gravity of the offense as it relates to the impact
5
on the life of the victim and on the community, and the rehabilitative needs of the
defendant").
Contrary to Appellant's assertion that his sentence was disproportionate to
his role in the crime, the evidence presented at Appellant's plea proceeding
included that Appellant was one of the two individuals who kicked in the front
door of an apartment building and proceeded to one of the apartments to rob the
adult male occupant. To effectuate this, Appellant and his cohort discharged their
weapons into the door of the apartment killing 10-year-old Taniyah Thomas who
was one of the four occupants. See supra p. 4; Affidavit of Probable Cause.
Furthermore, the record clearly establishes that prior to sentencing Appellant, the
Trial Court considered all relevant factors. Specifically, the Trial Court reviewed
Appellant's presentence report, his history, the apology offered by Appellant, and
the fact that Appellant cooperated with the police in investigating this homicide.
(S.T. 2-4).9 The Trial Court additionally noted that:
The Court, of course, takes into account and understands and
accepts the anger that the Thomas family has and the loss of a
l Ovyear-old girl. The Court also understands and accepts the
district attorney's position as [a minister] of justice[,] in terms
of solving this particular crime, the excellent work that went on
by the Washington County Police Department and also
demanding a strong measure of accountability in terms of the
recommendations that have been put forth.
The Court finds in this instance of evaluating individual
backgrounds as well as the nature of the events as they unfolded
9
The designation "S.T." followed by numerals refers to Sentencing Transcript, July 6, 2015.
6
and the recommendation by the DA that it is one than can be
given, in fact, despite the loss of this young girl's life, is
consistent with accountability and his role as a minister of
justice.
I've reviewed each of your backgrounds. In that regard,
Mr. Goehring' s is the most profound in terms of criminal
history, followed most closely by Mr. Cochran, and Mr.
Thomas and Mr. White less so. That's reflected both in the
cooperation that each has extended as well as in the sentencing
recommendations. The Court, again, finds those
recommendations to be consistent with the interest of justice
and the nature of events as they unfolded, although nothing can
account, whether it's 10 years, 20, 50 years or 100 years, for the
loss of this 10-year-old Ta'Niyah Thomas and the profound
effect it will have.
The Court appreciates the statement of the father, the
statement of her grandfather that was read into the record, who I
understand had a significant role in her life and has indicated, as
we all know with much of the background and history of what
occurred, will forever remain unknown.
(S.T. 4-6).
Based upon the foregoing, the Trial Court did not abuse its discretion in
sentencing Appellant as it did. See Commonwealth v. Kimbrough, 872 A.2d 1244,
1264-1265 (Pa. Super. 2005) (no abuse of discretion, and all relevant factors
considered where court reviewed presentence report prior to imposing sentence of
twenty to forty years for third degree murder, and consecutive sentences for
recklessly endangering another person); Commonwealth v. Pollard, 832 A.2d 517,
526-527 (Pa. Super. 2003) (sentence reasonable and not excessive where judge
considered presentence report, victim impact statements, and defendant's
allocution before imposing consecutive sentences of twenty to forty years for third
7
. -
degree murder, five to fifteen years for conspiracy, and one to two years for abuse
of corpse).
Appellant's claim is without merit.
CONCLUSION
Based upon the foregoing, the judgment of sentence imposed by the Trial
Court should be affirmed.
By the Court,
8