J-S05013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DA RAN MALIK SEARS,

                            Appellant                No. 1738 MDA 2015


        Appeal from the Judgment of Sentence Entered August 17, 2015
              In the Court of Common Pleas of Lycoming County
                          Criminal Division at No(s):
                           CP-41-CR-0000293-2014
                           CP-41-CR-0001293-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 14, 2017

        Appellant, Da Ran Malik Sears, appeals from the judgment of sentence

of an aggregate term of 21 to 50 years’ incarceration, imposed after he was

convicted, following a non-jury trial, of various offenses, including third-

degree murder.        On appeal, Appellant challenges the sufficiency of the

evidence to sustain his murder conviction, the trial court’s denial of his

motion to suppress statements he made to another inmate, and the

discretionary aspects of his sentence. After careful review, we affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05013-17



        We have reviewed the certified record, Appellant’s brief, 1 and the

applicable law. Additionally, we have reviewed the thorough opinion of the

Honorable Marc F. Lovecchio of the Court of Common Pleas of Lycoming

County.      We conclude that Judge Lovecchio’s extensive, well-reasoned

opinion    accurately     disposes    of   the   issues   presented   by   Appellant.

Accordingly, we adopt his opinion as our own and affirm Appellant’s

judgment of sentence on grounds set forth therein.

        Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




____________________________________________



1
    The Commonwealth has not filed a brief in this case.



                                           -2-
                                                                                                                      Circulated 01/31/2017 02:14 PM


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    ! '




                    IN THE COURT OF COMMON PLEAS OF LYCOMING COUNTY, PENNSYLVANIA


                                                                                                                        I                        _.,
            COMMONWEALTH                                   No. CR-1293-2013'
i                                                              CR-293-2014
i
              vs.                                          CRIMINAL DIVISION                                                            I·-.)




I          DA' RAN SEARS,
                 Appellant                                 1925(a) Opinion
'1
                                   OPINION IN SUPPORT OF ORDER IN
                                   C01\1PLIANCE WITH RULE 1925{a) OF
                                 THE RULES OF APPELLATE PROCEDURE

                          This opinion is written in support of this court's judgment of sentence dated

           August 17, 2015, which became final after the court denied Appellant's post sentence motion

           in an opinion and order dated October 2, 2015. The relevant facts follow.

                          On June 13, 2013, Appeliant shot and killed Donte Marks. The police initially

          charged Appellant with involuntary manslaughter, receiving stolen property, simple assault

          (bodily injury with a deadly weapon), and recklessly endangering another person under

          information 1293-2013. After further investigation, the police charged Appellant with third

          degree murder under information 293-2014 arising out of the same incident. The charges in

          both cases were consolidated for trial.

                         Appellant waived his right to a jury trial. A bench trial was held March 2-3,

          2015. The court found Appellant guilty of all of the charges. On August 17, 2015, the court

          imposed an aggregate sentence of twenty-one (21) to fifty ( 50) years of incarceration in a



                                                                                                                                                 1:
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                                                                                                       ,.. -~           ...,_   -   ~
  state correctional         institution.

                     Appellant filed a post sentence motion, which the court denied in an opinion

  and order dated October 2, 2015.

                     Appellant filed a notice of appeal.   In his concise statement, he asserted the

 following issues: (1) the evidence presented at trial was insufficient to prove malice for third

 degree murder; (2) the trial courr erred in denying his motion to suppress statements to a

 jailhouse informant; and (3) the sentence imposed was manifestly excessive and the trial

 court abused its discretion when imposing the sentence as specified in his motion to

 reconsider sentence and at the hearing on the motion.

                  Appellant first asserts that the evidence presented at trial was insufficient to

 prove malice for third degree murder. The court cannot agree.

                 In reviewing the sufficiency of the evidence, [the court] must
        determine whether the evidence admitted at trial, and all reasonable
        inferences drawn from that evidence, when viewed in the light most
        favorable to the Commonwealth as the verdict winner, was sufficient to
        enable the fact finder to conclude that the Commonwealth established all of
        the elements of the offense beyond a reasonable doubt. The Commonwealth
        may sustain its burden by means of wholly circumstantial evidence. Further,
        the trier of fact is free to believe all, part, or none of the evidence.

Co111111011wealt/1     l',   Woodward, 129 A.3d 480, 489-90 (Pa. 2015).

                 To establish third degree murder, the Commonwealth must prove malice.

Commonwealth v. _Fisher, 622 Pa. 366, 375, 80 A.3d 1186, 1191 (2013); Co111111011weaftll v.

Morris, 958 A.2d 569, 576 (Pa. Super. 2008), appeal denied, 605 Pa. 711, 991 A.2d 311

(2010). Malice is not just ill-will, but also a wickedness of disposition, hardness of heart,

recklessness of consequences and a mind regardless of social duty. Fisher, Id. Malice may



                                                                                                       2
       be inferred from the use of a deadly weapon on a vital part of the victim's   body.

       Commonwealth v. Houser, 6 l O Pa. 264, 273, 18 A.3d 1128,      1134 (2011 ); Co111111011wealtlt v.

       Briggs, 608 Pa. 430, 456, 12 A.3d 291, 306-307 (2011); Commonwealth v. Garland, 63

       A.3d 339, 345 (Pa .. Super. 2013)(citations omitted).

                       The Commonwealth's theory in this case was that the victim was teasing

      Appellant about holding a firearm while watching a cartoon, Appellant felt that he was being

      disrespected, got angry, stood up and shot the victim in the neck. The evidence presented at

      trial supported th.is theory,

                      Although Appellant claimed that the shooting was "accidental," the evidence

      overwhelmingly established that Appellant pointed a gun at the victim and pulled the trigger

      not knowing if the gun was loaded.

                      The physical evidence was consistent with Appellant handling the gun,

     pointing the gun at the victim, and pulling the trigger when he was within only a few feet of

     the victim.

                      One witness heard arguing, with words to the effect of "I am going to fucking

     kill you" or "you motherfucker I am going to kill you" and then within seconds heard a bang

     and a big thump like someone fell on the ground. N.T., March 2, 2015, at 31-32, 46-47.

                     Another witness saw Appellant sitting with a gun in his lap while he was

     watching Phineas and Ferb. The witness heard the victim tell Appellant, "It don't even look

     right you watching Phineas and Ferb v..-ith a gun on your leg." Shortly thereafter, the victim
,I
     was shot and he fell to the floor. Appellant told the witness to hide the gun. N.T., March 3,

!i
     2015, at 69, 85-87.


                                                                                                      3
                                  Still another witness testified that while incarcerated together, Appellant told

                   him about the shooting. Appellant said he was playing with his .22 while watching Phineas

             i    and Ferb. The victim came in and was disrespecting him by calling him a "little ass boy" and
        1,
            .I
                  saying he couldn't be watching Phineas and Ferb and be holding a gun. Appellant got angry,
        11
        !
        I
             I    pointed the gun at the victim and said "I'll show you who's a little ass boy" and pulled the

                  trigger. N.T., March 3, 2015, at 34-36.

                                 Perhaps most telling, however, were Appellant's admissions to Jaw

                  enforcement. Appellant was interviewed on June 13, 2013, the day of the shooting.       The

                  interview was both video and audio taped. The tape was played during the trial.

                                 Appellant conceded that the words between him and the victim might be

                  "misconstrued" as "they was arguing.'' Transcript of Appellant's Interview, at 28. He

                 admitted to holding the gun in his hand. Id. at 29. He also admitted that while holding it in

                 his hand "it went off and Donte got hit." Id. at 34. Furthermore, he was "pretty sure" that he

                 pointed the gun at Donte. Id. at 36. He could not remember if the clip was in the gun or if it

                 was loaded. Id. at 35-36.

                                 He indicated that he did not remember pulling the trigger because "it

                 happened so fast" but conceded that he "had to squeeze the trigger ... there ain't no other

                 way .... " Id. at 56, 60. When asked whether the gun went off because he squeezed the

                 trigger, he answered "had to." Id. at 61.

    I                           To corroborate Appellant's statement that he had to pull the trigger, the
,I, I            Commonwealth presented evidence that the weapon could not discharge without the trigger
i
I
                 being pulled. Specifically, the Commonwealth conducted a "trigger pull" test and a "shock


                                                                                                                  4
 and drop" test, both of which confirmed that the gun could not discharge without the trigger

 being pulled. N.T., March 2, 2015, at 109-110, 1 I 3, I 18.

                  Even if the evidence is viewed in a light most favorable to Appellant, it would

 demonstrate that he pointed the gun and pulled the trigger without knowing whether the gun

 was loaded.

                  Under Pennsylvania law, if an individual points a gun at another individual

 not knowing for certain whether the gun is loaded, that individual "exhibits that type of cruel

 and wanton conduct which legal malice is made." Commonwealth v. Seibert, 424 Pa. Super.

 242, 622 A.2d 361, 366 (1993)(citing Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230,

 232 (1981 )).

                  As the Pennsylvania Supreme Court specifically noted in Young;

                           Appellant intentionally pointed a loaded gun at the victim and
          shot him in the chest. Under these circumstances, whether the gun
          discharged accidentally or was fired intentionally is irrelevant for the
          purpose of determining the existence of malice. Even if, as appellant claims,
          he did not know that the gun was loaded and intended only to "scare" the
          victim, his conduct nevertheless unjustifiably created an extremely high
          degree of risk, thereby evincing a wanton and reckless disregard for human
          life. By intentionally aiming a gun at (the victim] without knowing for a
          certainty that it was not loaded, appellant exhibited the type of cruel and
          wanton conduct of which legal malice is made.

Young, supra. For the foregoing reasons, the evidence was clearly sufficient to establish

malice.

                 Appellant next contends that the trial court erred in denying his motion to

suppress statements to a jailhouse informant. Again, the court cannot agree.

                 Appellant asserted that the statements were made in violation of his Sixth



                                                                                                5
    i;
    i'
    .
    • !
            Amendment right to counsel because the jailhouse informant, Gage Wood, was acting on
i;
;f
:i
            behalf of law enforcement.
II
Ii                         On November 26, 2012, Wood was arrested for drug offenses that allegedly
I!
iI
           occurred in July 2012 and he was interviewed by Sergeant Chris Kriner of the Old Lycoming
I
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           Police Department. N.T., January 16, 2015 ("Suppression Hearing"), at 40, 52. Sgt. Kriner

           spoke to Wood about a drug investigation and some of the people involved. Suppression

           Hearing, at 28. Sgt. Kriner did not recall asking Wood for cooperation or saying there would

           be any benefit. Suppression Hearing, at 29. Sgt. Kriner specifically inquired about individuals

           named Mancini and Matthews, Suppression Hearing, at 29. Wood spoke about some

           individuals involved in drugs, but when Sgt. Kriner asked Wood about the offenses for which

           he had been arrested, Wood did not want to talk anymore and asked to be taken to jail.

           Suppression Hearing, at 29-30, 43.

                          A couple of days later, Officer Deremer from Jersey Shore arrested Wood.

          Officer Deremer, however, did not interview Wood, Suppression Hearing, at 55.

                         Wood was represented by Attorney Robert Hoffa. Suppression Hearing, at 56,

          75. Attorney Hoffa filed a suppression motion, which was scheduled to be heard on April 29,

          2013. Suppression Hearing, at 3, 16, 56. Shortly before the hearing date, Wood expressed to

          Attorney Hoffa an interest in cooperating with the Commonwealth. Suppression Hearing, at

          5, 56. On April 26, 2013, Attorney Hoffa met with District Attorney Eric Linhardt.

          Suppression Hearing, at 18. Attorney Hoffa told DA Linhardt that Wood had a substantial

          number of names of people who were involved in drug and firearm offenses and he was

          interested in cooperating. Suppression Hearing, at 21, 56. D.A. Linhardt wanted to know


                                                                                                        6
  what Wood knew about a11 individual named Hyson Frederick because D.A. Linhardt had

  information that Wood provided Frederick with a weapon that Frederick used in a robbery

 case. Suppression Hearing, at 9-11, 24-25, 57-58, 76. Wood's suppression hearing was

 continued because of the potential plea negotiations. Suppression Hearing, at I 0, 57.

 Attorney Hoffa visited Wood at the prison and asked if he knew anything about Frederick.

 Suppression Hearing, at 10. Wood denied knowing anything about selling a gun to or getting

 a gun for Frederick. Suppression Hearing, at 10-11, 58, 77. Attorney Hoffa called DA

 Linhardt and told him that. Suppression Hearing, at 14.

                On May 10, 2013, the pretrial conference in Wood's case was continued

 because Attorney Hoffa was in federal court, Suppression Hearing, at 13. On May 20, 2013,

 Wood wrote a letter to Hoffa asking if there was any news on his cases after the pre-trial

 conference. Suppression Hearing, at 12-13. According to Attorney Hoffa, Wood kept

 vacillating between wanting to pursue the motion to suppress and wanting to cooperate with

 the D.A. Suppression Hearing, at 15. In the post script to that letter, Wood wrote, "I'm very

· curious as to why the D.A. thought I was connected to Hyson Frederick]? I am now on a

 block with him." Suppression Hearing, at 26, 77. He also thought of more names and

 enclosed a list of them. Suppression Hearing, at 6. When Attorney Hoffa read the list, he

 realized that he and the other attorneys at his law firm represented some of the individuals on

 Wood's list. Suppression Hearing, at 7.

                On June 13, 2013, Appellant was arrested and charged with involuntary

manslaughter. Suppression Hearing, at 91. Between June 14 and July 1, 2013 Appellant and

Woods had conversations at the prison. Suppression Hearing, at 66-67, 85. Although they


                                                                                                 7
  may have had conversations     after that date, Wood stated he did not learn anything new after

  that time frame. Suppression   Hearing, at 72, 85.

                  A status conference was held in Woods cases on June 28, 2013. Before that

 conference, Wood quit vacillating and decided to cooperate.      Attorney Hoffa spoke to DA

 Linhardt outside the judge's chambers about Woods decision to cooperate.       At the

 conference,   Attorney Hoffa raised the conflict of interest issue and he was permitted   to

 withdraw as Wood's attorney. Suppression Hearing, at 20, 58-59.

                 On July 30, 2013,.Wood was arrested for a burglary that occurred in

 September 2012. Suppression Hearing, at 40, 42. Sgt. Kriner was the affiant, but he did not

 talk to Wood. Suppression Hearing, at 42.

                 On August 17, 2013, Wood wrote a letter to DA Linhardt. Suppression

Hearing, at 31, 64; Commonwealth's Exhibit I. Wood offered to provide information about

individuals who were involved in drug and firearm offenses, as well as cooperate against

about a dozen individuals he met at the prison and who admitted guilt and details about their

cases to him. Suppression Hearing, at 65. In exchange for this information, Wood wanted his

girlfriend's, his brother's and his charges dismissed or reduced to misdemeanors with a

sentence of time served or probation. Commonwealth's Exhibit 1.

                In October 2013, County Detective Stephen Sorage and Sgt. Kriner

interviewed Wood. Suppression Hearing, at 33, 67-68. Detective Sorage had information that

Wood provided a weapon to Frederick, which was used in a robbery. Suppression Hearing, at

88-89. Wood denied providing any weapon to Frederick or even knowing him until they met

in prison. Suppression Hearing, at 33-34, 68.


                                                                                                8
l:
, I




                         On November 18, 2013, Sgt. Kriner and Cpl. Spon.house met with Wood and

       his attorney John Gummo about Wood;s offer to cooperate. Suppression Hearing, at 35-36,

       46-47, 70. This interview was recorded and Sgt. Kriner prepared a police report. Suppression

       Hearing, at 44-45, 47. Sgt. Kriner again asked Wood about an individual named Mancini.

       Suppression Hearing, at 36. Wood also had notes about other individuals.    Some of the

       individuals were people who Wood had met at the county prison. Suppression Hearing, at 45.

        Sgt. Kriner described the interview as "more of a proffer meeting. "Suppression Hearing, at

       46. The purpose of the meeting was to see what kind of information Wood could provide and

       to see if the information was reliable. Suppression Hearing, at 46, 48. They discussed

       information that Wood already had. Suppression Hearing, at 48. Sgt. Kriner was not

       interested in using Wood as an informant because he knew Wood was going to jail.

      Suppression Hearing, at 49. Sgt. Kriner told Wood he would let other police agencies know

      about the information Wood was providing. Suppression Hearing, at 45, 71. Sgt. Kriner,

      though, did not recall telling Wood that that it would help his cases. Suppression Hearing, at

      45, 54.

                       Wood provided information about Appellant and other homicides in the city.

      Suppression Hearing, at 38, 71. Wood talked about the people on his list. Suppression

      Hearing, at 36. Sgt. Kriner asked who they were and what their involvement was.

      Suppression Hearing, at 36. Sgt. Kriner did not recall whether they went down the list or if

      Wood brought it up. He also did not recall Wood saying when he got the information that he

      was providing.

                       After the November 18, 2013 interview, Sgt. Kriner spoke to the Williamsport


                                                                                                      9 .
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    ; I
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                         Bureau of Police, the Pennsylvania State Police and the South Williamsport Police
    11
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                 II     Department about the information Wood provided. Suppression Hearing, at 37.
    11
11                                     On January 16, 2014, Agent Trent Peacock of the Williamsport Bureau of
Ii, I
;I                      Police interviewed Wood. Suppression Hearing, at 87. Wood told Agent Peacock about the
             ·
/
!        I              information he had about Appellant. Wood stated that the information was from before July

                        1, 2013 and it "was the same gist of things" that he told Sgt. Kriner in November; there was

                        nothing new. When he provided the information about Appellant to the DA, it was pretty

                        much the end of his discussions with Appellant.    Suppression Hearing, at 72.

                                       Wood testified that he contacted the District Attorney and initiated everything.

                        Suppression Hearing, at 63-66. Neither the District Attorney nor the police told Wood to

                       obtain information from other inmates at the prison. Suppression Hearing, at 67.

                                      Appellant's counsel, relying on Commonwealth v. Franciscus, 710 A.2d

                       1112 (Pa. 1998), contended that Appellant's statements to Wood had to be suppressed

                       because Wood was acting as an agent of the Commonwealth and law enforcement when he

                      · spoke to Appellant in the prison. The Commonwealth asserted that Wood obtained the

                       information on his own and then informed the Commonwealth to try and help his own

                       situation.

                                      Franciscus is distinguishable.   In Franciscus, the police continually

                      communicated with the informant throughout his stay in prison. They protected the

                      informant from retaliation and encouraged him to obtain whatever useful information he

                      could.

                                     Instead, this case was more akin to Commonwealth v, Lopez, 739 A.2d 485


                                                                                                                    10
        (Pa. 1999) in which the Court affirmed the lower court's denial of the motion to suppress

  I     because the authorities made no promises to the informant and took no action to assist him in
  I
  I

,I     obtaining incriminating information from the defendant or any other inmates.
  I
                       Here, like the informant in Lopez, Wood decided on his own to attempt to

 I     obtain incriminating information from other irunates and then try to use it to obtain a lesser

       sentence. When he spoke to Appellant, he was not doing so at the request or direction of the

       police or the DA; he was acting on his own in an effort to avoid going to state prison. Under

       these circumstances, Wood was not acting as an agent oflaw enforcement. Therefore,

       Appellant's Sixth Amendment right to counsel was not violated and the statements were not

       subject to suppression.

                       Appellant's final contention is that the trial court abused its discretion and

      imposed an unduly harsh and manifestly excessive sentence in light of his poor upbringing,

      his young age, his extreme remorse, and the alleged accidental nature of this incident.

                      "Sentencing is a matter vested in the sound discretion of the sentencing judge,

      and a sentence will not be disturbed, .. absent a manifest abuse of discretion."

      Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (quoting Commonwealth                  11•


      Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002). "[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 disclosed that the judgement exercised was manifestly unreasonable, or the result

      of partiality, prejudice, bias or ill-will."' Co111111011weaftl, v. Walls, 592 Pa. 557, 926 A.2d

      957, 961 (2007)(quoting Commonwealth v. Smith, 543 Pa. 566, 673 A.2d 893, 895 (1996)).

                      When imposing a sentence, the sentencing court must consider the protection


                                                                                                         11
  of the public, gravity of offense in relation to the impact on the victim and community, and

  the rehabilitative needs of the defendant. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

  Super. 2006). The court is also guided by section 9781 (d) of the Judicial Code, which

  requires appellate courts in reviewing a sentence to determine from the record whether the

  court considered: "(1) The nature and circumstances of the offense and the history and

 characteristics of the defendant; (2) The opportunity of the sentencing court to observe the

 defendant, including any presentence investigation; (3) The findings upon which the sentence

 was based; and (4) The guidelines promulgated by the commission." 42 PA. CONS. STAT.

 ANN. §978l(d).

                  The standard guideline range for third degree murder with a prior record score

 of zero and an offense gravity score of fourteen was 72 months (or six years) to the statutory

 limit, which is 20 years. Transcript, August, 17, 2015 ("Sentencing Transcript"), at 18-19.

 The standard guideline range for receiving stolen property with a prior record score of zero

and an offense gravity score of eight was 9-16 months. Sentencing Transcript, 19. The court

imposed a standard guideline sentence.

                The court ordered, received, and reviewed an extensive pre-sentence

investigation report. At the time of sentencing, Appellant was 20 years old and had obtained

his GED. He had been incarcerated since June 13, 2013. Sentencing Transcript, at 8.

                Unfortunately, through February of 2015, Appellant's incarceration was

replete with write-ups and sanctions. From July 11, 2013 through February 11, 2015, he

received seven write-ups, three of which related to fighting and one of which related to

refusing orders. As a result of his write-ups, he received a total of 115 days of disciplinary


                                                                                                 12
  lock-up. In addition, he received 28 warnings on other occasions from correctional staff. Just

  one month into his incarceration, he was removed from the AA Program for not attending.

  Subsequent to that, he attended no treatment programs whatsoever. Sentencing Transcript, at

  11.

                 Appellant's version of the event fairly mirrored his statement to police. He

 indicated that he and the victim were talking. He had the gun in his hand and the victim told

 him he was crazy for holding a gun and watching cartoons at the same time. According to

 Appellant, "the last thing" he remembered is that they were talking about girls. He did not

 remember pulling the trigger. "It all seemed to happen so fast." Sentencing Transcript, at 7-

 8.

                The Commonwealth's version of the incident, however, which was supported

 by the evidence at trial, was that Appellant shot the victim because he was teasing him about

_playing with or holding a gun while he was watching cartoons, which led to an argument.

The gun did not accidentally discharge; instead, Appellant pulled the trigger.

                Appellant had a long history of juvenile offenses which "were of a violent

nature and often involved other students, teacher's aides, or teachers being physically

assaulted." During sentencing, the court approximated that Appellant was involved in these

various juvenile offenses at the ages of 9, 10, 11, 12, and 13. These offenses, however, did

not count in Appellant's prior record score because they were deferred adjudications or

consent decrees for offenses which occurred before his fourteenth birthday. He was 18 years

old at the time of the present offense. Sentencing Transcript, at 8-10.

               When he was approximately seven years old, Appellant was placed in foster


                                                                                                13
I.

I,
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       care due to his mother's addiction to controlled substances and her inability to handle his

       "aggressive behaviors." During his "school years" he worked with a therapeutic support

       specialist, along with a behavioral specialist. Sentencing Transcript, at 9.

                       A significant concern of the reporting officer was that Appellant exhibited a

      pattern of behavior over several years involving assaults andthat with respect to this

      particular incident, Appellant had little if any remorse or regret. Sentencing Transcript, at 10.

                       At sentencing, the court also reviewed a comprehensive behavioral health

      evaluation prepared by Dr. Denise Feger of Crossroads Counseling, Inc. Sentencing

      Transcript, at 12-18.

                      Dr. Feger was retained by defense counsel to complete "an objective

      assessment regarding Mr. Sears' level of remorse." Dr. Feger outlined Appellant's tragic

      childhood. Considering his childhood, as well as the lack of therapeutic intervention and

     progress in the past, Dr. Feger concluded that Appellant "has not even begun to complete any

     work regarding emotional improvement as a result of the trauma he was exposed to as        a
     child." Importantly, she noted that "this has resulted in a young man who is impulsive,

     aggressive and hostile, shows little investment in others, isn't trusting of others and tends to

     lack awareness of how his past has impacted his current circumstances." She noted that

     Appellant has little trust in the "system" and will likely make very slow progress. She

     suggested that "sentencing should be considered with a more significant supervision

     requirement as th.is will allow for follow through and requiring such."

                     Dr. Feger concluded that there are significant underlying factors that have

     impacted Appellant's ability to make appropriate decisions. Appellant struggles to "connect,


                                                                                                     14
 bond, feel empathy, and express emotion appropriately." She set forth diagnoses ofreactive

 attachment disorder, conduct disorder, and oppositional defiant disorder. She noted that

 "considering his placements in group homes and foster homes, an absent relationship with his

 father, and his mother's challenges in remaining sober to care for him and his siblings

 adequately, this is not uncommon to meet criteria for the above-mentioned" diagnoses.

                The court also had an opportunity to question Dr. Feger. Sentencing

 Transcript, at 20-26.

                Dr. Feger confirmed her conclusions and observations as set forth in the

report. She noted that Appellant did, in fact, feel remorse over the killing of his friend. She

noted, unfortunately, that without significant intervention, given Appellant's history,

symptomology and lack of treatment, Appellant might continue to engage in criminal,

aggressive or even assaultive behaviors as a means to survive his environment. Furthermore,

and perhaps more unfortunately, she noted that Appellant was not likely to get the necessary

therapeutic intervention until he was released from prison.

                Admittedly, the court struggled with determining an appropriate sentence for

Appellant. Sentencing Transcript, at 48-57. The court considered Appellant's young age and

poor upbringing. Regardless, at this point, Appellant is who he is. Sentencing Transcript, at

23. The court could not, in good conscience, mitigate Appellant's sentence because of why

Appellant turned out to be an impulsive, aggressive, hostile, untrusting and unaware young

man.

               The circumstances of the offense were dreadful and appalling. Out of anger

and impulse, Appellant pointed a gun at his apparent best friend and pulled the trigger. The


                                                                                                  15
 court did not find credible Appellant's excuse that it was purely an accident and that he had

 no idea what was happening. Rather, the court found credible the statements of the witnesses

 regarding Appellant's expressions of anger. Simply put, Appellant could not control himself

 and, because he was being made fun of, he shot and killed his best friend. Appellant is clearly

. a danger to the public. He has been a danger since he was approximately 10 years old. He was

 in possession of a stolen firearm, playing with it while watching cartoons and then, with only

 the slightest of provocation, he shot and killed a young man. Incarceration for a lengthy

 period of time is not only advisable, but essential. The court needed to protect society from

 someone who, when he believes he is being disrespected, shoots or assaults other individuals.

 See Sentencing Transcript, at 15, 22-23.

                The impact on the victim, his family members and the community was

remarkable. A young man with a bright future was taken forever from his family and friends.

Society Jost a potentially valuable contributing member. The public's right and expectation of

a safe community was again shattered by inexplicable gun violence. Sentencing Transcript, at

52.

               The court acknowledged Appellant's young age, his tragic upbringing and the

Jack of therapeutic intervention to help him with his problems. The court also acknowledged

that Appellant expressed some remorse to Dr. Feger and, perhaps soon after the shooting

occurred, realized the impact of his actions. The court acknowledged that while in jail

Appellant eventually conformed his behavior to that as expected, but only after a series of

misconducts. The court acknowledged that with supports in place Appellant fared better.

               Still, Appellant is extremely dangerous. Sentencing Transcript, at 54-55. It


                                                                                                 16
would be naive and unreasonable    for the court to expect Appellant to control his anger and

treat a stranger or the public better than a person who Appellant   frequently   referred to as "his

brother." The court cannot take the risk of Appellant being released earlier than 21 years,

especially in light of the fact that he may very well not get appropriate treatment while

incarcerated or afterwards. Unfortunately, we live in a society that has provided less mental

health care and less therapeutic services for those with similar problems as Appellant. In fact,

given Appellant's aggressive and violent tendencies and the lack of medications and/or

diminishing treatment resources available for individuals like Appellant who suffer from

personality disorders, the court concluded that the only appropriate place for Appellant was in

a state prison. Sentencing Transcript, at 55.



               ~-      I •

DA TE: __s_-:_/&.
            __._-_J_;_,_,.
                   ":                                 By The Court,




                                                      Marc F. Lovecchio, Judge




cc:    ....-Kenneth Osokow, Esquire (ADA)
       ,...-NfcoleSpring, Esquire (APD)
         ,,.,-Work file
      .----6ary Weber, Esquire (Lycoming Reporter)
           ~Sllperior Court (original & 1)
      r




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