HomeMy WebLinkAboutCP-21-CR-1591-2003
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
CP-21-CR-1591-2003
KONRAD L. CRIST
IN RE: OPINION PURSUANT TO RULE 1925
The defendant in this case was convicted of a count of criminal conspiracy to commit
robbery graded as a felony in the third degree (force however slight) but also convicted as an
accomplice to robbery graded as a felony in the first degree (threat of immediate serious bodily
injury). These somewhat anomalous verdicts arose out of the defendant's participation as the
get-away driver in the May 28, 2003 robbery of a Subway shop in Hampden Township,
Cumberland County.
On July 27,2004, both Mr. Crist and his co-defendant, Christopher A. Taylor, were
sentenced. Mr. Taylor received a sentence of not less than five nor more than ten years in a state
correctional institution in light of his visible possession of a firearm at the time of the robbery.
Mr. Crist received a sentence in the county prison of one to two years in prison (less one day).
The Commonwealth has appealed from the sentence ofMr. Crist complaining that we erred in
not sentencing him to the mandatory minimum of five years by virtue of the possession of a
firearm by his co-defendant. They also question our sentencing Mr. Crist outside the standard
range averring, in a statement of matters complained of on appeal, that we failed, among other
things, to provide a contemporaneous written statement of the reasons for our sentence as
required by law, citing 42 Pa.C.S.A. 9721(b).
Our reading of the Judicial Code is different from the Commonwealth's. The relevant
section of the Sentencing Code reads, in pertinent part:
CP-21-CR-1591-2003
In every case where the court imposes a sentence
outside the sentencing guidelines adopted by the
Pennsylvania Commission on Sentencing pursuant
to Section 2154 (relating to adoption of guidelines
for sentencing) and made effective pursuant to
Section 2155, 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 resentencing the defendant.
In this case we did not sentence outside the guidelines. The mitigated range on the
robbery count started at ten months. Our sentence of nearly twelve months was within the
sentencing guidelines, albeit in the mitigated range. For this reason, we did not file a
contemporaneous written statement. Instead, we sought to indicate, in open court, the reasons
for the sentence imposed. 1 These included the youth of the defendant, consideration of the many
people who attested to the defendant's character and the nature of the defendant's involvement in
the underlying offense. We add that we carefully considered the impact which this robbery had
on the young woman who was managing the Subway store at the time.
As noted in Com. v. Scott, 2004 WL 1627106 (Pa.Super. 2004):
Generally, the factors to be considered by the trial
court when determining a defendant's sentence
include the character of the defendant and the
particular circumstances of the offense in light of
the legislative guidelines for sentencing. The
sentence imposed must be consistent with the
protection of the public, the gravity of the offense,
and the rehabilitative needs of the defendant.
Id
1 There is, in any event, authority for the proposition that, if the sentencing judge states reasons for the sentence on
the record at the time of sentencing, this constitutes a "contemporaneous written statement" within the meaning of
the Sentencing Code. See Com. v. Catanch, 581 A.2d 226 (Pa.Super. 1990).
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The various factors involved in sentencing are inherently subjective. Strive as we might
for uniformity, no two judges and no two defendants are exactly alike. It is, therefore, not
surprising that the law defers to the discretion of the sentencing judge, provided that discretion is
sound. See Com. v. Roden, 730 A.2d 995 (Pa.Super. 1999).
In this case, the defendant articulated extreme remorse for what he had done. He took the
stand during his jury trial and admitted his involvement in the robbery. He indicated that he had
known his co-defendants, Chris Taylor and Dustin Joynt,2 for many years. He had worked with
Dustin at a McDonald's in Bowmansdale. In fact, Mr. Crist had worked at several fast-food
establishments. He was familiar with the policy of such eateries that, in the event of a robbery,
there was to be no resistance and employees were simply to hand over the money.
On the day in question, the three decided to commit a robbery at Dustin's place of
employment, the Subway shop in Hampden Township. Dustin had indicated that he did not have
the combination to the safe but knew the identity of the employee who did. According to Mr.
Crist, there was no discussion of the use of any weapons as he felt that force would not be
needed. The jury apparently found his testimony credible in light of their verdict on the count of
conspiracy which was to robbery by force, however slight. We continue with Mr. Crist's version
of the events.
At the time set for the robbery, Mr. Crist dropped his co-defendant Taylor off in front of
the Subway store. He then drove to the back of the store and parked near a dumpster to await
Taylor. While seated in his car, Mr. Crist observed his co-defendant emerge from the backdoor
of the Subway and demand that the manager, Jennifer Soucek, return with him to the store from
2 Dustin Joynt was the "inside man." He pled guilty prior to the trial in this case and received the same sentence as
Mr. Crist.
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CP-21-CR-1591-2003
which she had just fled. It was then that Crist noticed, for the first time, that Taylor had what
appeared to be a weapon. When Taylor again emerged from the Subway store, he was holding a
bag containing money from the sandwich shop. He entered Crist's vehicle and the two drove
away.
In imposing a sentence in the mitigated range, we accepted Crist's argument that he had
not intended to participate in an armed robbery. We also took cognizance of other factors
mentioned earlier. After lengthy consideration, we concluded that a maximum county sentence
served the need to protect the public and rehabilitate this particular defendant.
A separate concern in this case is whether we erred in failing to impose a sentence of not
less than five nor more than ten years because of Mr. Crist's role as an accomplice in a robbery
in which his co-defendant displayed a firearm.3 The sentencing statute pertinent to this
discussion reads, in part:
[A ]ny person who is convicted in any court of this
Commonwealth of a crime of violence [as defined
by statute] shall, if the person visibly possessed a
firearm or a replica of a firearm... that placed the
victim in reasonable fear of death or serious bodily
injury, during the commission of the offense, be
sentenced to a minimum sentence of at least five
years of total confinement....
42 Pa.C.S.A. 9712(a). On its face, the statute applies the minimum sentence only to the person
in actual possession of the firearm. Thus, at first blush, this provision would have no application
to Mr. Crist.
The application of the mandatory minimum sentence to an unarmed accomplice has its
genesis in the case of Com. v. Williams, 509 A.2d 1292 (Pa.Super. 1986). Williams was a case in
3 The weapon involved was apparently a BB gun which was a convincing replica of a far more dangerous pistol.
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CP-21-CR-1591-2003
which the accomplice pled guilty to both conspiracy and robbery agreeing that he knew in
advance that a gun would be used. The court acknowledged that there were no Pennsylvania
cases on the issue. They cited to authority in other states where liability was imposed where the
accomplice had the purpose to promote or facilitate robbery with the use of a firearm. Id at
1294.
In Com. v. Chiari, 741 A.2d 770 (Pa.Super. 1999), the mandatory minimum sentencing
statute was applied to an unarmed accomplice where two co-defendants had advance knowledge
and intent that one of them would use a handgun in the robbery. In Com. v. Reeves, 778 A.2d
691 (Pa. Super. 2001), the mandatory sentence was again applied to an unarmed accomplice, a
getaway driver, where the participants had agreed in advance that the use of a gun was necessary.
In Com. v. Smith, 563 A.2d 905 (Pa. Super. 1989), however, the mandatory sentence was not
applied to the unarmed driver of the getaway car where his accomplice used a firearm in the
commission of the robbery, where the driver knew that the victim shot at the car as it fled, but
where there was no evidence that the defendant saw the firearm that was used by his accomplice.
Com. v. Walker, 562 A.2d 373 (Pa.Super. 1989) is the only case we have found where the
mandatory sentence was applied notwithstanding the fact that the accomplice did not have
knowledge of a gun prior to the start of the robbery. This, however, occurred in the context of a
case where the appellant took the gun from the victim, handed it to her accomplice whereupon
the accomplice used it to complete the robbery. In that case, not only did the accomplice know
of the use of the gun during the robbery but she actually made it available to her co-defendant so
that he could commit the crime.
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CP-21-CR-1591-2003
The court in Walker noted:
Appellant is correct in her argument that penal
provisions are to be strictly construed and any
ambiguities in the language of a statute should be
interpreted in a light most favorable to the accused.
"While strict construction of penal statutes is
required, however, courts are not required to give
words of a criminal statute their narrowest meaning
or disregard evident legislative intent." Com. v.
Wooten, 519 Pa. 45, 53, 545 A.2d 876,880
(1988).We continue to adhere to our construction
of Section 9712 as enunciated in Williams, supra,
and rej ect appellants argument.
Finally, appellant claims there is a vital distinction
between the instant case and Williams - - the
accomplice in Williams knew, prior to the start of
the robbery, that his co-felon was armed and
intended to use the gun during the robbery. This
argument is ingenuous when it is clear that
appellant set up the victim and as indicated above,
informed her accomplice that the victim had a gun,
which the appellant took from his waistband,
handing to her accomplice outside the automobile.
Id at 375.
The stated purpose of the judicial construct subjecting unarmed accomplices to the same
mandatory minimum sentence as their co-defendants is to avoid the anomaly which occurs when
the same sentences are not imposed. See Williams, supra at 1295. We have found no cases,
however, similar to the matter sub judice. Here, the unarmed accomplice was personally
opposed to the use of a weapon during the robbery, assumed that a weapon would not be
necessary, and learned only after the fact that his accomplice had taken a weapon into the
business establishment. We are satisfied that the application of 42 Pa.C.S. 9712 to the unique
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facts of this case would create the sort of anomalous result which our courts have sought to
avoid.
November
,2004
Kevin A. Hess, 1.
Jaime Keating, Esquire
Chief Deputy District Attorney
Charles Mackin, Esquire
F or the Defendant
:rlm
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