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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KABRIL I. WILLIAMS-KEYES
Appellant No. 1431 MDA 2015
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000877-2015
CP-40-CR-0004138-2014
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 27, 2016
Kabril I. Williams-Keyes appeals from the aggregate judgment of
sentence of ten to twenty years of incarceration imposed following his entry
of guilty pleas in two criminal cases. We affirm.
Both cases involve Appellant’s physical abuse of Ernestine Pearson.
The following facts are taken from the affidavits of probable cause. The first
incident occurred on the evening of August 5, 2014. While visiting Ms.
Pearson’s apartment, Appellant repeatedly punched and kicked her. She
attempted to call 911, but Appellant took her phone. Appellant doused her
with grease and alcohol, and threatened to light her on fire with an aerosol
can and lighter. The abuse continued throughout the evening until the next
day, when Ms. Pearson was able to escape. A passerby observed her
* Former Justice specially assigned to the Superior Court.
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fleeing, with Appellant chasing. The witness saw Appellant dragging Ms.
Pearson by her hair back to the apartment. The bystander immediately
called police, who went to the apartment complex. Appellant, however, had
fled. Emergency personnel transported Ms. Pearson to the hospital, where
Officer Matthew Bonawits of the Edwardsville Police Department interviewed
her. The officer noted Ms. Pearson had suffered multiple injuries and one
eye was swollen shut.
For the aforementioned crimes, Appellant was charged via written
complaint on August 6, 2014. On November 19, 2014, one count of
aggravated assault, graded as a felony of the second degree, was held for
court, and docketed at criminal number 4138 of 2014. Appellant posted bail
the same day, with the condition that he refrain from entering Ms. Pearson’s
residence.
Appellant did not abide by this condition. On the evening of December
31, 2014, Ms. Pearson picked up Appellant to go shopping and pay some
bills. The two returned to her residence. Over her objection, Appellant
stayed the evening. In the morning, he confronted Ms. Pearson regarding
text messages he saw on her phone. He punched her in the head and bit
her finger. Appellant then retrieved a knife, and threatened Ms. Pearson.
Appellant’s mother was present, as well as Ms. Pearson’s two small children,
one of whom was fathered by Appellant. Appellant told his mother to leave,
stating, “You don’t want to be a witness to this.” Appellant’s mother called
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the police and went outside to flag down the responding officer, Edwardsville
Police Department Officer Michael Lehman. The officer proceeded to the
residence; however, Appellant had fled with Ms. Pearson and the two
children in a vehicle. Appellant led police on a high-speed car chase. The
pursuit ended when Appellant drove his vehicle into a guardrail, telling Ms.
Pearson that he would not go to jail and she should kiss her children
goodbye. Twenty separate criminal counts were filed against Appellant for
this incident, all of which were held for court and subsequently docketed at
criminal number 877 of 2015.
On May 19, 2015, Appellant entered a guilty plea at both cases. At
criminal case 4138 of 2014, Appellant pled guilty to the sole count of
aggravated assault. At action number 877 of 2015, the Commonwealth
withdrew seventeen of the counts. Appellant pled guilty to one count of
aggravated assault for the crimes committed against Ms. Pearson and two
counts of attempted aggravated assault against a person less than thirteen
years old, for the crimes against the two children. Sentencing was deferred
to enable preparation of a pre-sentence report.
On July 1, 2015, the parties appeared for sentencing. Appellant
received a sentence of thirty-six to seventy-two months at the sole count of
aggravated assault at action number 2014-4138. At the other action,
Appellant received sentences of forty-two to eighty-four months of
imprisonment at each count of attempted aggravated assault against a child,
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and a sentence of thirty-six to seventy-two months of incarceration at the
remaining aggravated assault count. All three sentences were imposed
consecutively to each other and concurrent to the 2014 case. Thus,
Appellant received an aggregate sentence of 120 to 240 months
incarceration.
Appellant thereafter filed, on July 9, 2015, a post-sentence motion
requesting a sentence modification, in which he complained that the
imposed sentence was above the applicable mitigated guideline ranges, and
that the court failed to consider several mitigating factors. Motion for
1
Reconsideration, 7/9/15, at 1-2. The motion was denied July 22, 2015.
Appellant lodged a timely notice of appeal on August 19, 2015.
Appellant complied with the trial court’s order to file a Pa.R.A.P.
1925(b) statement, and the court issued its responsive opinion on December
22, 2015. The matter is now ready for our review. Appellant raises four
claims.
1. Whether the [s]entencing [c]ourt imposed an improper
sentence under the law[?]
____________________________________________
1
This motion was filed by private counsel, Stephen Molitoris, Esquire, who
entered his appearance on July 21, 2015. At the time of the post-sentence
motion, Appellant was represented by the office of the public defender, who
also filed a post-sentence on Appellant’s behalf. The public defender
subsequently withdrew.
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2. Whether the [s]entencing [c]ourt erred in denying
Appellant’s post-sentence Motion for
Reconsideration/Modification of Sentence[?]
3. Whether there exists a substantial question that the
sentence imposed is inappropriate in that imposition of the
sentence occurred with an application of the sentencing
guidelines that resulted in a clearly unreasonable aggregate
sentence[?]
4. Whether there exists a substantial question that the
sentence imposed is inappropriate in that imposition of the
sentence resulted in a manifestly excessive and unreasonable
aggregate sentence[?]
Appellant’s brief at 5. All four of these challenges implicate the discretionary
aspects of the sentence.
Preliminarily, we note that “there is no absolute right to appeal when
challenging the discretionary aspect of a sentence.” Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa.Super. 2008). An appellant must first
satisfy a four-part test to invoke this Court’s jurisdiction. We examine
(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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation
omitted). As we have set forth, the first two requirements have been met.
We next assess whether Appellant’s failure to include a separate
concise statement as required by Pa.R.A.P. 2119(f) is fatal. The Rule states:
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(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence. The
statement shall immediately precede the argument on the merits
with respect to the discretionary aspects of the sentence.
Pa.R.A.P. 2119(f). Since the Commonwealth has not objected to the
statement’s absence, we decline to find the claim waived on that basis.
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2009).
We now address whether Appellant has presented a substantial
question. Since Appellant has not included a Rule 2119(f) statement, and
mindful that we may not review the merits of the question at this juncture,
we have examined other portions of the brief. Commonwealth v. Dodge,
77 A.3d 1263, 1271 (Pa.Super. 2013) (court may look to statement of
questions presented).
We determine the existence of a substantial question on a case-by-
case basis. A substantial question exists only 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.
Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.
Commonwealth v. Diehl, 140 A.3d 34, 44–45 (Pa.Super. 2016) (internal
citations and quotation marks omitted).
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Appellant’s statement of questions presents a boilerplate allegation
that the sentence violates two precepts. He argues, “Instantly, by failing to
properly consider and weigh the relevant sentencing factors under the
Sentencing Code and guidelines, the sentence imposed was a result of an
inconsistent application of the Sentencing Code and ran afoul of the
fundamental norms underlying the substantial question.” Appellant’s brief at
10. This allegation does not raise a substantial question. Commonwealth
v. Lewis, 911 A.2d 558, 567 (Pa.Super. 2006) (“A claim that a sentencing
court failed to consider certain mitigating factors does not raise a substantial
question that the sentence is inappropriate.”); Commonwealth v. Haynes,
125 A.3d 800, 807 (Pa.Super. 2015) (assertion that the trial court failed to
consider his mental health issues and rehabilitative needs does not raise
substantial question).
Secondly, Appellant contends that the sentence, while within the
guidelines, is excessive and unreasonable because the sentences in the 2015
matter were imposed consecutively. Where, as here, the sentences are
within the applicable guideline ranges, the sentencing judge’s decision to
impose consecutive sentences standing alone does not raise a substantial
question. As we stated in Dodge, supra:
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application
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of the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a
substantial question. See Commonwealth v. Moury, 992 A.2d
162, 171–172 (Pa.Super. 2010) (“The imposition of consecutive,
rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature
of the crimes and the length of imprisonment.”)[.]
Id. 1270 (emphasis in original).
These cases do not raise even a scintilla of doubt that applying the
guidelines to these crimes was reasonable. Over the course of an evening,
Appellant viciously beat Ms. Pearson, a woman with whom he had an infant
child, and prevented her from calling 911. When she was able to escape the
next day, an eyewitness observed Appellant forcibly dragging her back to
the apartment. Despite being ordered to have no contact with the victim, he
returned to her residence, stayed overnight, threatened her with a knife, and
led police on a high-speed chase with Ms. Pearson and her two children in
the vehicle.
Appellant argues that this subsequent contact is a point in his favor.
[T]he sentence of [Appellant] reflected harsh punishment for
having contact with the victim (a violation of his bail conditions
at the time), without consideration for his love for his family or
the initiation of the contact by the victim (contact, which, as set
forth by [Appellant], often occurred at the request of the victim,
who often asked [Appellant] to stay with her and her children or
to babysit the children while she worked.
Appellant’s brief at 7. Appellant had the duty to abide by the conditions, not
his victim. Considering the nature and circumstances of these crimes and
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the length of incarceration imposed, we do not hesitate in holding Appellant
has failed to raise a substantial question that the application of the
guidelines and the imposition of consecutive sentences in light of this
conduct was unreasonable.
Next, we review Appellant’s claim that a substantial question is
presented because the sentencing court did not consider a litany of factors
justifying a lesser sentence. See Appellant’s brief at 11-12 (Appellant pled
guilty and has demonstrated remorse, he suffers from addiction and mental
health issues, has a family, has a consistent employment history, and his
actions were uncharacteristic and fueled by substance abuse and anger
management issues). A claim that the trial court failed to consider relevant
sentencing criteria does raise a substantial question. Dodge, supra at 1273
(“Appellant’s claim that the sentencing court disregarded rehabilitation and
the nature and circumstances of the offense in handing down its sentence
presents a substantial question for our review.”). Additionally, “This Court
has also held that ‘an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.’” Commonwealth v. Caldwell, 117 A.3d 763, 770
(Pa.Super. 2015) (en banc) (quoting Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa.Super. 2014)).
Having determined Appellant raised a substantial question, we review
the merits of his sentencing challenges. This Court’s standard of review
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limits our ability to vacate and remand in cases where the court sentenced
within the guidelines. We may reverse only if applying the guidelines would
be clearly unreasonable under the circumstances. 42 Pa.C.S. § 9781(c)(2);
See Commonwealth v. Macias, 968 A.2d 773, 777 (Pa.Super. 2009)
(defining unreasonable as decision that is either irrational or not guided by
sound judgment). The sentences were within the guidelines at all counts
and the choice to apply them was rational. Section 9781(d) of the
Sentencing Code provides that when we review the record, we must have
regard for:
(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). Appellant’s claim that the sentencing court failed to
consider a host of factors is belied by the record. “Our Supreme Court has
ruled that where pre-sentence reports exist, the presumption will stand that
the sentencing judge was both aware of and appropriately weighed all
relevant information contained therein.” Commonwealth v. Griffin, 804
A.2d 1, 8 (Pa.Super. 2002) (citing Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988)). The judge specifically stated that he had reviewed and
considered the report. N.T., 7/1/15, at 27. We have already discussed the
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nature and circumstances of the offense, and the court placed findings on
the record. Appellant’s real issue is not that the court failed to consider
these issues; rather, he simply disagrees with the judge’s weighing of these
factors. Hence, we find no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2016
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Com. v. Williams-Keyes, K.
Combined Opinion