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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID HARRINGTON, : No. 2211 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, June 12, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at Nos. CP-51-CR-0007927-2014,
CP-51-CR-0007928-2014
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 15, 2017
David Harrington appeals from the June 12, 2015 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County after
he pled guilty to 2 counts of criminal attempt -- murder; 2 counts of
aggravated assault; 2 counts of possessing an instrument of crime (“PIC”);
1 count of unlawful restraint; 3 violations of the Uniform Firearms Act
(“VUFA”); and 1 count of terroristic threats.1 The sentencing court imposed
consecutive sentences of 12½ to 25 years of imprisonment on each
attempted-murder conviction. The sentencing court merged one of the PIC
counts into the other and imposed 2½ to 5 years of incarceration to run
1
18 Pa.C.S.A. §§ 901(a), 2702(a), 907(a), 2902(a)(1), 6105(a)(1),
6106(a)(1), 6108, and 2706(a)(1).
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concurrent to the attempted-murder sentences. It imposed a concurrent
sentence of 5 to 10 years of incarceration on one VUFA count. The
sentencing court also imposed 1 to 2 years of imprisonment on the unlawful-
restraint conviction to run consecutive to the attempted-murder sentences.
It imposed no further penalty on the remaining counts. The sentencing
court, therefore, imposed an aggregate sentence of 26 to 52 years of
imprisonment. We affirm.
The record reflects that on May 14, 2014, at approximately 11:30 p.m.
to 11:45 p.m., appellant was at home with his then-wife,
Michelle Harrington, who was allegedly having an affair with Derrick Morris.
(Notes of testimony, 4/10/15 at 6-7.) At that time, appellant asked
Ms. Harrington to make him a sandwich. (Notes of testimony, 6/12/15 at
12-13.) As she went to make the sandwich, appellant pulled out a gun and
forced Ms. Harrington to go to the basement with him. (Notes of testimony,
4/10/15 at 7; 6/12/15 at 13.) Once in the basement, appellant instructed
the victim to chain her leg to a pipe. (Notes of testimony, 6/12/15 at 13.)
Appellant then went upstairs with the victim’s cellphone. (Id. at 14.) When
he returned to the basement, appellant shot his then-wife three times in the
face. (Notes of testimony, 4/10/15 at 7.) According to the Commonwealth,
appellant then went back upstairs and instructed two of his children, then
ages 13 and 15, to go to a neighbor’s home. (Notes of testimony, 4/10/15
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at 7.) Appellant then returned to the basement and shot Ms. Harrington two
times in the chest.2
After shooting his then-wife 5 times, appellant left his home and drove
to Derrick Morris’s home. Appellant shot Mr. Morris one time in the left eye.
(Id.) After shooting Mr. Morris, appellant drove to a bridge in
West Philadelphia and discarded the gun. (Id.) Shortly thereafter,
appellant drove to the police station, turned himself in, and gave a full
statement. (Id. at 8).
The record further reflects that both victims survived. Ms. Harrington
sustained a gunshot wound between her eyes, a gunshot wound to the left
temple, and a gunshot wound to the right temple. (Id.) A bullet fragment
remains between her eyes. She also sustained two gunshot wounds to her
chest area. Additionally, Ms. Harrington sustained multiple fractures to her
face, collar bone, and chest area. Mr. Morris sustained a gunshot wound to
the left eye that necessitated a cornea replacement. (Id.)
Appellant raises the following issues for our review:
1. Did the sentencing court err and abuse its
discretion when it imposed a sentence on
[appellant] without adequately considering his
rehabilitative needs in the context of his
tortured mental health history, in violation of
42 Pa.C.S.A. § 9721(b)?
2
The record reflects that at the guilty-plea hearing, appellant denied that he
left the basement and then returned to shoot his wife two more times.
(Notes of testimony, 4/10/15 at 9.)
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2. Did the sentencing court impose a sentence
that was contrary to the fundamental norms
underlying the sentencing process because it
was a de facto sentence of life imprisonment?
Appellant’s brief at 4.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing 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. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted; brackets in original).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
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[W]e conduct a four-part analysis to
determine: (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).
Moury, 992 A.2d at 170 (citation omitted; brackets in original).
Here, the record reflects that appellant filed a timely notice of appeal
and included a Pa.R.A.P. 2119(f) statement in his brief. Although appellant
filed a timely post-sentence motion for arrest of judgment, judgment of
acquittal, and modification of sentence, the Commonwealth contends that
appellant failed to preserve his first challenge, which is that the sentencing
court failed to adequately consider appellant’s rehabilitative needs in the
context of his mental health history.
In his post-sentence motion, appellant admits that the sentencing
court “did to some degree take into account [appellant’s] rehabilitative
needs and mitigating circumstances[,]” but complains that it “nonetheless
imposed an excessive maximum sentence that will certainly outlast
[appellant’s] natural lifespan” and “even the minimum sentence of 26 years
will likely extend beyond [appellant’s] lifespan.” (Post-sentence motion for
arrest of judgment, judgment of acquittal, and modification of sentence,
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6/22/15 at ¶ 10.) Appellant then concedes that “the [sentencing c]ourt did
take into consideration [appellant’s] mental health needs and other
mitigating factors,” but complains that the “sentence did not allow for the
possibility that with appropriate mental health treatment[, appellant] might
succeed at rehabilitation after serving a substantial term of incarceration
that would still be shorter than a life sentence.” (Id. at ¶ 15.) Appellant
then sets forth the gravamen of his sentencing challenge, which is that the
sentencing court imposed “what is functionally a life sentence, and a
sentence that affords no possibility for rehabilitation or parole” which,
appellant contends, “is contrary to the fundamental norms underlying the
sentencing process and is manifestly unreasonable.” (Id. at ¶ 16.)
Therefore, the sentencing challenge that appellant preserved in his
post-sentence motion is that the sentencing court imposed an excessive
sentence in light of appellant’s age. Consequently, we must determine
whether that claim raises a substantial question.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only
when an 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.” Id. (citation omitted).
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In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Rather, we look
to whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide
the merits of whether the sentence is clearly
unreasonable.
Id. at 340 (citation omitted).
Before we determine whether appellant raises a substantial question,
we again note that the sentencing court imposed a 12½ to 25-year sentence
for each attempted-murder conviction, which was below the mitigating range
of 16½ to 33 years for each of those crimes. In reviewing a sentence on
appeal, the appellate court:
shall vacate the sentence and remand the case to
the sentencing court with instructions if it finds:
(1) the sentencing court purported to
sentence within the sentencing
guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within
the sentencing guidelines but the case
involves circumstances where the
application of the guidelines would be
clearly unreasonable; or
(3) the sentencing court sentenced outside
the sentencing guidelines and the
sentence is unreasonable.
In all other cases[,] the appellate court shall affirm
the sentence imposed by the sentencing court.
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42 Pa.C.S.A. § 9781.
Therefore, momentarily setting aside the substantial-question
determination, we note that because appellant’s sentence fell outside the
guidelines range, neither Subsection (1) nor (2) of Section 9781 would
apply. As such, for this court to vacate and remand, we would be required
to find that “the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(3). In
this case, appellant’s sentence fell outside the guidelines because it was
below the mitigating range. Therefore, it is implausible that a sentence that
falls outside the guidelines because it is below the mitigating range could be
“unreasonable.”
Even though appellant’s sentence fell below the mitigating range,
appellant nevertheless complains that his sentence is manifestly
unreasonable because it was imposed when he was 52 years old and it
consisted of consecutive sentences that resulted in an aggregate sentence of
26 to 52 years, which, consequently, because of his age, constitutes a life
sentence. Just as we have noted that an appellant is not entitled to a
volume discount when a court imposes consecutive sentences for multiple
crimes,3 we note that an appellant is not entitled to a seasonal discount
when he commits his crimes in the autumn of his life.
3
See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(noting that a defendant is not entitled to a “volume discount” for multiple
crimes by having all sentences run concurrently).
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Therefore, because appellant has advanced no plausible argument as
to why his sentence is unreasonable considering the nature of his crimes and
the fact that his sentence fell below the mitigating range, appellant has
failed to raise a substantial question for our review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2017
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