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HomeMy WebLinkAboutCP-21-CR-0456-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-0456-2007 : : : : CHARGE: : (1) CRIMINAL CONSPIRACY TO : ROBBERY : (11) ACCESS DEVICE FRAUD FRANK D. BALTIMORE, JR. : OTN: K288841-0 : AFFIANT: PTL. BRIAN BARNES IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., May 1, 2008 — Defendant Frank D. Baltimore, Jr. has filed an appeal to the Superior Court of 1 Pennsylvania following an Order denying his Post-Sentence Motion. Defendant contends that this Court erred by (1) imposing an aggravated range sentence in light of substantial mitigating circumstances; (2) not following the mandate for the imposition of an aggravated range sentence at Count 1 which requires an analysis of all applicable facts and circumstances; and (3) imposing consecutive terms of imprisonment for Count 1 and 11 when those crimes arose out of the same 2 facts and circumstances. This opinion in support of the Order denying the Defendant’s Post- Sentence Motion is written pursuant to Pa. R.A.P. 1925(a). STATEMENT OF THE FACTS On Friday, January 26, 2007, Defendant Frank D. Baltimore, Jr. participated in the robbery of Mrs. Jan Sandusky. The facts related to the robbery are not in dispute and took place as follows: on the date in question, Defendant and two other individuals, Sara Mastellar 1 See Order of Court, Feb. 19, 2008. 2 See Concise Statement of Matters Complained of on Appeal, filed Mar. 24, 2008. (Defendant’s girlfriend) and Trevor Ringgold, randomly picked Mrs. Sandusky out of hundreds of people leaving their workplace in the Harrisburg area and followed her in Mastellar’s car to 3 her home in Mechanicsburg, Pennsylvania. After parking in the garage, Mrs. Sandusky left her personal belongings in the car and walked to her mailbox to retrieve the day’s mail. As she was walking to the mailbox, Trevor Ringgold and the Defendant approached her. Defendant stopped in the middle of the road, while Trevor Ringgold approached Mrs. Sandusky and asked her for jumper cables. Ringgold then proceeded to pull out a gun and point it at Mrs. Sandusky. He grabbed her by the coat and pushed her to the ground on her knees. Holding her down, he demanded her billfold. When she told him that she did not have it, he beat her over the head with the butt of the gun as Defendant watched. He asked her for the wallet again; when she gave 4 him the same response he hit her again until blood dripped from her head. Mrs. Sandusky did 5 tell the police that as she was being assaulted, Defendant told Ringgold, “come on, let’s go,” but did nothing to intercede in the beating or to alleviate her fear. 6 Mrs. Sandusky told Ringgold that her purse was in her car. Ringgold took her keys and told the Defendant to “pop” her if she moves. Ringgold took the victim’s purse and bag from her car. He and Defendant then returned to the car, where Sara Mastellar was watching from the driver’s seat, and drove away. Approximately 25 minutes later and over 10 miles away in a different county, Defendant, Ringgold, and Mastellar were videotaped using the victim’s credit card to buy clothes and jewelry at the Harrisburg East Mall. It was Defendant’s idea to go to the Jump Sportswear store in the mall because he knew the store did not regularly check identification. On the video, 3 Notes of Testimony, (hereinafter “N.T. ___”), proceedings held Sept. 18, 2007, at 2-3. 4 N.T. 3. 5 Notes of Testimony, held Oct. 16, 2007, at 2. 6 N.T. 3-4. 2 Defendant can be seen laughing and smiling while using Mrs. Sandusky’s credit card to purchase approximately $794.00 in merchandise. The card was also used several times for gas purchases after the trio left the mall. After seeking help from her neighbors, Mrs. Sandusky was taken by emergency medical personnel to the hospital where she received three staples to close the laceration on her head. She later identified Ringgold in a photo lineup and other witnesses identified Sara Mastellar in a photo lineup. The police released the surveillance videotape from the mall to the public media 7 and Defendant was identified. On January 29, 2007, the police arrested all three of the parties to 8 the robbery at Mastellar’s family beach house in Delaware. On September 18, 2007, Defendant entered a guilty plea on charges of Count 1, Criminal 910 Conspiracy to Commit Robbery (Felony 1), and Count 11, Access Device Fraud (Felony 3). A pre-sentence investigation report was prepared which recommended state incarceration for the Defendant. The Court also received a three page written victim impact statement from Mrs. Sandusky and she also testified in Court prior to sentencing. Subsequently, on October 16, 2007, Defendant was sentenced at Count 1 to three to eight years incarceration in a State Correctional Institute with credit from January 29, 2007. This sentence was an aggravated range sentence. The standard range for this Felony 1 was 12 – 24 months. Accordingly, the aggravated range sentence given to the Defendant was only 6 months above the standard range. The Court stated the following reasons for the aggravated range sentence on the record: (1) the violence of the act, and (2) the fact that the Defendant willingly 7 N.T. 4 8 N.T. 5 9 18 Pa.C.S.A. § 903 10 18 Pa.C.S.A. § 4106 3 11 participated in a robbery in which his co-defendant did, in fact, use and display a firearm. At Count 11, the Defendant was sentenced to six months to two years, to be served consecutively to 12 the sentence at Count 1, with credit from January 29, 2007. On October 26, 2007, Defendant filed a timely Post-Sentence Motion to modify his 13 sentence. On February 19, 2008, having considered the relevant facts and circumstances surrounding the case, this Court denied Defendant’s Post-Sentence Motion. This appeal followed. On March 24, 2008, the Defendant filed his Concise Statement of Matters Complained of on Appeal. The Defendant avers the following errors: 1. The Court erred in imposing an aggravated range sentence in light of the substantial mitigating circumstances including Defendant’s lack of a prior criminal record, his age, his accepting responsibility for his actions, his remorsefulness, the rehabilitative needs of the Defendant at the time of sentencing, the fact that Defendant was not the person brandishing the firearm, that he did not assault the victim, the fact that the Defendant did not enter onto the property of the victim at any time, and the fact that Defendant told his co-Defendant “stop” and “let’s go” after the co-Defendant had struck the victim during the robbery. 2. The Court erred in not following the mandate for the imposition of an aggravated range sentence at Count 1 which requires an analysis of all applicable facts and circumstances, which, if properly considered, would justify the imposition of a standard range or mitigated range sentence in lieu of the aggravated range sentence imposed. 3. The Court erred in imposing consecutive terms of imprisonment for Counts 1 and 11 when those crimes arose out of the same facts and circumstances and therefore should have been imposed currently. 11 Notes of Testimony, Oct. 16, 2007 at 10. 12 N.T. at 9-10. 13 See Defendant’s Post-Sentence Motion, filed Oct. 26, 2007. 4 DISCUSSION I. Standard of Review Our standard of review concerning the discretionary aspects of sentencing is as follows: sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999). Significantly, an abuse of discretion is not shown merely by a miscalculation in judgment. Id. “Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Id. “[I]n fashioning [a] sentence, a judge is obligated ‘to follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” Commonwealth v. Monahan, 860 A.2d 180, 184 (Pa. Super. 2004). The sentencing Court is afforded this broad discretion in sentencing because the trial 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. Mouzon, 812 A.2d 617, 620 (Pa. 2002), citing Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa.1990). Absent a finding that the sentencing Court manifestly abused its discretion, the Appellate Court will not substitute its judgment for that of the sentencing Court. Commonwealth v. Hoag, 665 A.2d 1212, 1213-14 (Pa.1995). The defendant must show that the sentence imposed either exceeded the 5 statutory limits or it was manifestly excessive in order to successfully prove abuse of discretion. Commonwealth v. Martin, 611 A.2d 731, 735 (Pa. Super. 1992). II. This Court Did Not Err by Imposing an Aggravated Range Sentence According to 42 Pa.C.S.A § 9721(b),in every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and re-sentencing the defendant. Sentencing the Defendant to an aggravated sentence range in this case was well within this Court’s prudent discretion. Defendant pled guilty to Criminal Conspiracy to Robbery, a felony of the first degree, and Access Device Fraud, a felony of the third degree. Prior to entering his guilty plea to the charges, Defendant executed the standard guilty plea colloquy form used by the Court. In the verbal colloquy, the Defendant admitted that he participated in a plan to rob a woman and that the plan resulted in the violent theft described above. See Guilty Plea Hearing, Sept. 18, 2007, at 7-8. Defendant was aware that the government was requesting an aggravated range sentence, as the request was made in open court, in his presence. Knowing the Commonwealth’s request, he still willingly chose to plead guilty to the charges with no agreement as to the length of his sentence. See id. at 6. At sentencing, the Court candidly stated the following reasons for the aggravated range sentence: “this is an aggravated range sentence, and this sentence is based on the violence of the act, and the fact that the Defendant willingly participated in a robbery in which his co-defendant 6 did, in fact, use, display a firearm.” See Sentencing Court Order, Oct. 16, 2007 at 9. As such, this Court has complied with 42 Pa.C.S.A § 9721(b) and has not abused its discretion in sentencing Defendant to three to eight years of incarceration on Count 1. Defendant now argues on appeal that the Court erred in prescribing an aggravated sentence for Count 1, based on what he considers substantial mitigating circumstances including Defendant’s lack of a prior criminal record, his age, his accepting responsibility for his actions, his remorsefulness, the rehabilitative needs of the Defendant at the time of sentencing, the fact that Defendant was not the person brandishing the property of the victim at any time, and the fact that the Defendant told Ringgold to “stop” and “let’s go” after Ringgold struck the victim during the robbery. See Concise Statement of Matters Complained of on Appeal at 1. Again, sentencing is within the sound discretion of the Court. The Court considered Defendant’s argument regarding the above factors in its determination of the appropriate sentence for this Defendant. Still, the Court came to the conclusion that the aggravated sentence best punished the harm done. These alleged “mitigation circumstances” did in no way mitigate the harm done to the victim. The Defendant in this case asked to be sentenced to the bottom of the standard range (12 months) and be allowed to serve the sentence in the county prison. While this Court fully appreciates the Defendant’s desire for leniency, the facts remain that this Defendant is an adult man who chose to participate in a beat down robbery of a hard working, innocent mother. The fact that he has no prior record score is of little consequence, given the fact that the first crime he chose to commit, for which he was prosecuted, is the highest grade of criminal offense short of murder. Defendant did nothing to stop the attack on the victim. Though he did not use or reveal a gun, he allowed the victim to believe that he both possessed a gun and would use it on her at any 7 moment. In her impact statement, Mrs. Sandusky logically assumed that Defendant was armed due to the comment by Ringgold, that “if she moves, you pop her.” (Sentencing Proceeding, Oct. 16, 2007, at 5). As she lay on the ground bleeding from her head, the Defendant stood over her as he waited for Ringgold to steal her purse. Following the robbery, Defendant callously laughed as he used the victim’s credit card to purchase various items. Even the Defendant, when asked by the Court; “Do you understand the terror that a person undergoes in this day and age when two men come up and one is wielding a weapon? The Defendant replied: “Yes, sir.” The Court asked: “You have family members here. As you said in your letter, would you like to see anything like what you did happen to them?” Again, Defendant replied: “No, sir.” This crime could have statutorily justified a sentence of 10 – 20 years. This Court carefully read the victim’s written impact statement and observed her oral statement at the sentencing proceeding. She asked for a sentence of 5 – 10 years, which was equal to that of the co-defendant who actually carried the weapon and hit her on the head. While this Court did not honor this request, her plea was rational and genuine and we felt our sentence provided her with some justice. Certainly, now the Defendant is remorseful, but that does not relieve him of the responsibility for his actions. This Defendant willingly participated in a first degree felony which caused the victim to have weekly clinical counseling to treat her anxiety, depression, fear, anger, panic attacks, and sleepless nights. The Defendant’s sentence was just, was not excessive, and was warranted by the impact it had upon the victim. 8 III. This Court Did Not Err in Imposing Consecutive Sentences Important in the consideration of this case is the general rule in Pennsylvania, that in imposing a sentence, the Court has the discretion to determine whether to make it concurrent with or consecutive to another sentence then being imposed. A challenge to the Court’s imposing consecutive rather than concurrent sentences does not present a substantial question regarding the discretionary aspects of the sentence. Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). In setting a sentence, the Court has discretion not only to deviate from guideline ranges but also to run the sentence concurrently with or consecutive to other sentences being imposed. Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003). Under the plain language of 42 Pa.C.S.A § 9765,thecrimes of Criminal Conspiracy to Commit Robbery and Access Device Fraud do not merge for sentencing purposes. These crimes did not arise from a single criminal act and all of the statutory elements of one offense are not included in the statutory elements of the other offense. The question in determining whether criminal offenses arising from a single transaction merge is not simply whether a criminal committed one act or many; rather, the important question is whether each offense requires proof of a fact which the other does not, and if this test is satisfied, there is no merger. Commonwealth v. Payne, 868 A.2d 1257 (Pa. Super. 2005). Additionally, “if the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.” Com. v. Shank, 883 A.2d 658, 671 (Pa. Super. 2005). Where there is a criminal act and that act has been broken off, and then another criminal act occurs, consecutive sentences are appropriate. Id. 9 We need not spend much time on the analysis of this issue. The crime of Access Device Fraud, Count 11, was committed approximately one half hour after the robbery. The crime occurred in a different county. Finally, in addition to Mrs. Sandusky, this crime had an additional victim, Citigroup, who received restitution for the merchandise illegally purchased at Jump Sportswear. These factors constitute a noticeable break between the two criminal acts. Additionally, Count 11 is not a lesser included offense of Criminal Conspiracy to Commit Robbery, Count 1. Therefore, this court exercised proper discretion in imposing a sentence at each count and running the sentences consecutively. This Defendant was not entitled to a two for one discount. CONCLUSION Having considered all facts and evidence presented, this Court finds that it did not err by imposing an aggravated range sentence for Count 1 or by imposing consecutive terms of imprisonment for Count 1 and 11. BY THE COURT, M.L. Ebert, Jr. J. Michelle H. Sibert, Esquire Chief Deputy District Attorney Nathan C. Wolf, Esquire Attorney for the Defendant 10 West High Street Carlisle, PA 17013 10