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HomeMy WebLinkAbout96-1518 CriminalCOMMONWEALTH VS. CRAIG EUGENE HARRY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : 96-1518 CRIMINAL : CHARGE: (1) CRIMINAL HOMICIDE : (2) CRIMINAL HOMICIDE : (3) CRIMINAL HOMICIDE : (4) AGGRAVATED ASSAULT : (5) ROBBERY : AFFIANT: TPR. NICOLAS NEWCASTER IN RE: OPINION PURSUANT TO RULE 1925 On July 18, 1997, the defendant, Craig Harry, was found guilty on a count of third degree murder following trial by jury. On August 19, 1997, he was sentenced to undergo a period of incarceration of not less than twelve nor more than thirty years. His postsentence motions were dismissed on order. He has now appealed. We will assume that the defendant appeals on the same grounds that he raised in his postsentence motions; namely, (1) that the evidence was insufficient to support the conviction, and (2) that we erred in sentencing the defendant outside the then applicable sentencing guidelines. The charges in this case arose out of events that occurred during the late evening hours of August 28, 1996 and the early morning hours of August 29, 1996. The defendant met with one Jamel Jackson for the purpose of obtaining crack cocaine from Mr. Jackson. Jamel Jackson had been the defendant's primary source of crack cocaine for a period of several weeks immediately preceding the incident in question. The defendant met with Mr. Jackson in a parking lot in Shippensburg. They then proceeded to drive outside of town in the defendant's car. Mr. Jackson's body was found in a culvert alongside a road in the countryside on the morning of August 29, 1996. The defendant gave a statement to the police in which he stated he had pulled the car alongside the country road and that he and Jackson got out of the vehicle. An altercation occurred in the vehicle's headlights. According to the defendant, Jack~on attacked him with a knife. The defendant was able to knock the knife out of the 96-1518 CRIMINAL victim's hand. The defendant then picked up the knife to defend himself and the knife penetrated the victim's right shoulder area severing the subclavian artery. The defendant further claimed that when he realized that the victim had been stabbed, he threw the knife into a nearby cornfield. The victim began to run down the road towards Shippensburg. The defendant re~entered his car and drove after Mr. Jackson but was unable to locate him. The defendant then drove around the Shippensburg area for several hours consuming the cocaine that he had "received" from the victim. A subsequent detailed search of the cornfield yielded no knife. On the night he was stabbed, Jamel Jackson had a small knife on his person. It was still sheathed when it was discovered on his body. On the night of the incident, Jackson was wearing light summer clothing and there was no place where he could have concealed a knife large enough to have been the murder weapon. The evidence is uncontradicted that the defendant did not have enough money to purchase cocaine on the night in question. A well-established test for the sufficiency of evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the charged crime beyond a reasonable doubt. Commonwealth v. Gibson, 447 Pa. Super. 132, 668 A.2d 552 (1995). We are satisfied that the evidence in this case was sufficient to support a conviction of murder in the third degree. Here there was ample evidence to support a conclusion that it was the defendant and not the victim who had brought the murder weapon to the scene. The evidence also strongly supports an inference that the defendant intended to have cocaine on the evening in question without paying for it. The wound inflicted upon the defendant, resulting in death, allows the conclusion that it was the p~;oduct of a malicious act. Finally, the defendant's acts 2 96-1518 CRIMINAL following the stabbing are not consistent with his contentions that the injury to the victim was either the product of self-defense or accident. The defendant also complains that we deviated from sentencing guidelines in his case. At the time of this offense, the maximum penalty for third degree murder had been increased from twenty to forty years. The sentencing guidelines in effect at the time of the offense, however, reflected the former maximum sentence of twenty years. The guidelines incorporated the statutory maximum penalty into the standard range sentence. After the commission of this offense but prior to sentencing in this case, the sentencing guidelines were changed to reflect the new statutory maximum. Despite the statutory change, we proceeded to sentence acknowledging that the prior (and by then outdated) guidelines applied. Treating this as a deviation from the guidelines, we explained on the record and in writing our reasons. The main reason for our deviation was that, at the time of .lamel Jackson's death, the penalty for third degree murder was double what it had been in former times. This reflects a clear legislative intent that the penalty be enhanced for this offense. The fact that the guidelines had not yet been amended to reflect the statutory change was, in our opinion, mere happenstance. We were faced with the same situation in Commonwealth v. Simms, 97-1009 Criminal Term, Cumb. Cty. In that case, the defendant had forcefully held a towel over the face of a child in order to stop the child from crying. The infant suffocated and died. The offense in that case also occurred in the "window" between the enhancement of the penalty for third degree murder and the change in the guidelines. In our opinion in that case we said: While deviation from the guidelines is permitted, the sentencing Code requires that the court place of record its reasons for such deviation. Com. v. Byrd, 441 Pa. Super. 351,657 A.2d 961 (1995). At the 96-1518 CRIMINAL sentencing proceeding held on August 26, 1997, the sentencing guidelines were extensively discussed and the reasons for deviation from the then applicable guidelines were outlined explicitly. Even though one may comply with the procedural requirements, the adequacy of the reasons for deviation are subject to appellate review. Com. v. Mills, 344 Pa. Super. 200, 496 A.2d 752 (1985). The question becomes whether sentencing outside the guidelines was "unreasonable." In making that determination, the court must look at the nature and circumstances of the offense, the history and characteristics of the defendant, the opportunity of the sentencing court to observe the defendant, the presentence investigation report, findings on which the sentence was based, and the sentencing guidelines. Com. v. Septac, 359 Pa. Super. 375,518 A.2d 1284 (1986). In this case, we had the benefit of a presentence investigation report. We were able to observe the defendant and observe that, despite his initial denials, he had since become cooperative in this case and had expressed remorse. Counsel argued several factors in mitigation, including the care for the child and his mother which the defendant had displayed prior to the incident resulting in the child's death. We not only listened to this argument but agreed, on the record, that these factors militated against the recommendation of the Commonwealth that we impose a sentence of seventeen to thirty-five years. In considering the nature of the offense, however, we could not overlook the fact the then applicable maximum sentence was forty years. Also, in considering the guidelines, we could not ignore the fact that they were clearly linked to an outdated statutory maximum. Commonwealth v. Simms, 97-1009 Criminal, Opinion dated 1/13/98, pp.2-3. Similarly, in this 96-1518 CRIMINAL case, we considered all the factors that bore on the matter of sentence including the background of the defendant and the nature of the offense. We declined to impose the penalty sought by the Commonwealth; namely, the maximum of twenty to forty years. By the same token, as in the Simms case, we did not feel ourselves bound by a sentencing guideline that had clearly become inapposite. February 3 ''~ ~ , 1998 Jonathan Birbeck, Esquire Senior Assistant District Attorney Timothy Clawges, Esquire Assistant Public Defender Hess; J. . :rlm 5