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HomeMy WebLinkAbout03-418 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. 03-0418 CRIMINAL CHARGE: (1) ROBBERY (2) THEFT BY UNLAWFUL TAKING OR DISPOSITION (3) CRIMINAL CONSPIRACY - ROBBERY, THEFT BY UNLAWFUL TAKING JEREMY SCOTT HUNTER AFFIANT: PTL. JOSEPH SPADACCINO IN RE: OPINION PURSUANT TO RULE 1925 On July 16, 2003, following a two-day jury trial, the defendant, Jeremy Scott Hunter, was found not guilty on counts of robbery and theft but guilty on counts of conspiracy to commit robbery and theft. He was sentenced on September 2, 2003, to undergo imprisonment in the county prison for a period of one year less one day to not more than two years less one day. During the sentencing hearing, the Commonwealth had argued for a mandatory sentence of five to ten years or, in the alternative, a sentence in the standard range which would have been comparable to the mandatory sentence because of the defendant's prior record score. At the time of sentence we filed a Contemporaneous Written Sentencing Memorandum in accordance with 42 P.S. 9271 (b).~ In that memorandum we noted that a mandatory sentence applies in a case where a person "visibly possessed" a firearm or replica during the commission of a robbery. We concluded, however, that the defendant, in this case, abandoned his participation and did so under circumstances in which he reasonably believed that his co- defendant would not go through with the crime. We were satisfied that such a scenario does not require the imposition of a mandatory sentence. In our memorandum, we also addressed the sentencing guidelines. Such a statement is required when the court deviates from the sentencing guidelines. 03-0418 CRIMINAL Part of our rationale for the imposition of a much mitigated sentence in this case was the level of the defendant's participation in the underlying offenses. In this regard, we found the testimony of the defendant to be credible and entirely consistent with the verdict of the jury. The jury was satisfied that the defendant did not commit the robbery which was charged in this case but that he did not withdraw from the conspiracy in a way which would insulate him from criminal liability. At the time of the robbery, the defendant had been acquainted with his co-defendant, Matthew Gunsallis, for less than two weeks. This was during a time when Mr. Hunter had nowhere to live. The two discussed committing a robbery at the Uni-Mart convenience store at Front and Bridge Streets in New Cumberland. They spray painted plastic guns and purchased caps to be worn as masks. During the early morning hours of June 10, 2002, they started to walk to the Uni-Mart. Mr. Hunter began to verbalize his misgivings. He expressed fear of getting caught and told Gunsallis that they should not go through with the robbery. Mr. Hunter then lifted the lid of a nearby dumpster and threw in his mask and plastic pistol. According to Mr. Hunter: A ..... And I held the lid open for him, but he didn't listen to me. ! was like, throw your stuff in here, and Matt didn't care. He was like, you're a fucking pussy. ! knew you weren't down. Q. And did you take those words to heart? A. Well, it was the first time ! could actually stand up for something. ! kind of did. ! was upset. ! knew ! had to do something. ! knew ! wasn't going to do - - ! didn't want to be involved, but ! still wanted - - ! thought he would come back with me, and we could just go home. 2 03-0418 CRIMINAL Q. Was that the first time you realized that he was actually going to do it? A. I didn't actually think he was going to do it. I thought because of me running the opposite way - - because the last thing I seen him he ran towards Megan' s and I went the opposite way. I thought he was going to go home, but I didn't want to walk with him home. I just wanted to be away from him because he was kind of yelling and stuff. N.T. 128-129. Instead of going home, Gunsallis remained in the area and, eventually, entered the Uni-Mart, threatened the cashier and took fifty-three dollars. In imposing sentence in this case, we accepted the defendant's version of his attempted withdrawal from the conspiracy as credible. This, in spite of the fact that Mr. Gunsallis said that the reason why Mr. Hunter had run away was because he had seen a police car. We found that Mr. Gunsallis was less than honest in certain other important particulars of his testimony. We observed the demeanor of the witnesses, their manner of testifying and their apparent candor or lack thereof. We note again that, even accepting Mr. Hunter's testimony in its entirety, the verdict of the jury is proper. Mr. Gunsallis was sentenced to two to four years imprisonment as a result of his participation in the Uni-Mart robbery. This judge is no stranger to plea bargaining and readily understands the reasons why co-defendants do not always receive the same or even similar sentences. Nonetheless, to sentence Mr. Hunter to two and one-half times the sentence received by Mr. Gunsallis, given their respective levels of participation, struck us as unjust ( if not Kafkaesque). On October 7, 2003, the court directed the appellant to file of record, within fourteen days, a concise statement of matters complained of on appeal. Presumably, such a statement 3 03-0418 CRIMINAL would outline the issues which the Commonwealth intends to address in the Superior Court and permit the undersigned the opportunity for further analysis. Such a statement has not been filed.2 November ,2003 Jaime Keating, Esquire Chief Deputy District Attorney Ronald J. Gross, Esquire For the Defendant :rlm Kevin A. Hess, J. : The question arises whether appellate issues concerning Mr. Hunter's sentence have now been waived. See Commonwealth v. Lord. 719 A.2d 306 (Pa. 1999). 4