J-S26010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                           Appellee

                      v.

JAMES HAINES

                           Appellant                   No. 147 EDA 2015


              Appeal from the Judgment of Sentence July 8, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005834-2012

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                   FILED MAY 04, 2016

    Appellant, James Haines, appeals from the judgment of sentence entered

on July 8, 2013, as made final by the denial of his post-sentence motion on

November 12, 2013. We affirm.

    The trial court made the following findings of fact:

       In the early morning hours of March 11, 2012, [Appellant] and
       Pedro Rosado (Rosado) were at an after-hours club called
       Passions. As [Appellant] and Rosado were exiting the club that
       morning around 6:00 [a.m.], the security guards stopped them
       and told them to wait, because there were allegedly people in
       the parking lot that had weapons. Eventually the guards let
       them leave, and [Appellant] and Rosado were seen getting into a
       red Dodge Challenger. Rosado got into the driver’s side of the
       vehicle, and [Appellant] got into the passenger’s side of the
       vehicle. [Appellant], who had a black semi-automatic handgun
       in his hand, stuck his hand out the window of the vehicle, and
       fired shots into the air.[1] After witnessing the shots fired by

1
  At trial, the Commonwealth presented evidence that Appellant did not fire
the gun into the air, but instead fired the gun towards the security guards.
(Footnote Continued Next Page)


* Retired Senior Judge assigned to the Superior Court
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      [Appellant], the club’s security guards returned fire in the
      direction of the Challenger. [Appellant] and Rosado then exited
      the parking lot and drove off in the red Dodge Challenger.

      On that same morning, Officer Kenneth Fazio was on patrol and,
      around 6:00 [a.m.], when he heard gunshots, he proceeded to
      the 3500 block of Kensington Avenue. Officer Fazio observed a
      Dodge Challenger parked in the running lane, and approached
      the vehicle. As the officer approached, he observed bullet holes
      in the vehicle and [Appellant] screaming, “Help me, help me!”
      Inside the vehicle, Officer Fazio observed Rosado in the
      passenger seat, with blood all over the vehicle. Rosado was
      transported by police to Temple University Hospital, where he
      was pronounced dead at 7:06 [a.m.]

      [Appellant] was then taken to the Homicide Unit, where he made
      a statement to Detective [James] Crone. In the statement
      [Appellant] indicated that, as he and Rosado were exiting the
      club the security guards told him that someone was in the
      parking lot with a weapon. At this point both men went to
      Rosado’s vehicle and got inside. [Appellant] then stuck his hand
      out of the passenger side window and shot the gun multiple
      times. He stated that he fired the gun because he was scared
      and was, “trying to scare the men away.” [Appellant] then
      heard gunfire returned. At that point [Appellant] noticed that
      Rosado, who was driving the vehicle, was shot. He slid him over
      to the passenger side of the vehicle and began to drive the car
                       _______________________
(Footnote Continued)
N.T., 5/9/13, at 69-70, 130-131. The Appellant, however, gave a statement
to Detective James Crone of the Philadelphia Homicide Unit that he “fired a
couple of rounds in the sky trying to scare the men away.” N.T., 4/29/13, at
118. Based upon its Rule 1925(a) opinion, it is evident that the trial court
found Appellant’s statement on this issue more credible than the testimony
proffered by the Commonwealth’s witnesses. Nonetheless, the trial court
determined that Appellant’s actions constituted involuntary manslaughter.
When the trial court makes factual determinations after a bench trial relating
to the evidence presented at trial, we are bound by those factual
determinations as long as they are supported by the record.               See
Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. 1997), appeal
denied, 705 A.2d 1304 (Pa. 1998) (citation omitted). As the trial court’s
factual finding in this regard is supported by the record, we proceed with
that being considered the evidence viewed in the light most favorable to the
Commonwealth.



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        down Kensington Avenue. At this point the car would no longer
        continue driving and stopped. As he did this he noticed the
        officer approaching the vehicle and he told the officer that
        Rosado was inside the vehicle and needed help.

Trial Court Opinion, 5/20/15, at 2-3 (internal citations omitted).

        The procedural history of this case is as follows.      On May 25, 2012,

Appellant     was   charged      via   criminal   information   with   involuntary

manslaughter,2 possession of a firearm by a prohibited person,3 carrying a

firearm without a license,4 carrying a firearm on the streets of Philadelphia,5

possessing an instrument of crime,6 and three counts of recklessly

endangering another person.7 At the conclusion of a bench trial, on May 10,

2013, the trial court found Appellant not guilty of two counts of recklessly

endangering another person and guilty of the six remaining counts. On July

8, 2013, Appellant was sentenced to an aggregate term of 7½ to 16 years’




2
    18 Pa.C.S.A. § 2504(a).
3
    18 Pa.C.S.A. § 6105(a)(1).
4
    18 Pa.C.S.A. § 6106(a)(1).
5
    18 Pa.C.S.A. § 6108.
6
    18 Pa.C.S.A. § 907(a).
7
    18 Pa.C.S.A. § 2705.




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imprisonment.8      On July 15, 2013, Appellant filed a post-sentence motion.

On November 12, 2013, the trial court denied the post-sentence motion.

      On August 28, 2014, Appellant, through counsel, filed a petition

pursuant    to   the   Post-Conviction   Relief   Act   (PCRA),   42   Pa.C.S.A.

§§ 9541-9546. On December 19, 2014, the PCRA court granted Appellant’s

PCRA petition and reinstated his direct appellate rights nunc pro tunc. This

appeal followed.9

      Appellant presents two issues for our review:

    1. Did the evidence at trial fail to sufficiently demonstrate that
       Appellant’s actions caused [Rosado]’s death?

    2. Did the [trial] court impose an unduly harsh and excessive
       sentence by imposing consecutive terms of imprisonment on
       numerous convictions?

Appellant’s Brief at 8.

      In his first issue, Appellant argues that the evidence was insufficient to

find him guilty of involuntary manslaughter.      “Whether sufficient evidence

8
  The aggregate sentencing included two to five years for involuntary
manslaughter, one to two years for possession of a firearm by a prohibited
person, 42 to 84 months for carrying a firearm without a license, and one to
two years for recklessly endangering another person. The carrying a firearm
on the streets of Philadelphia charge merged with the carrying a firearm
without a license charge and the possessing an instrument of crime sentence
was ordered to run concurrently with the possession of a firearm by a
prohibited person sentence.
9
  On December 30, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (concise statement). See
Pa.R.A.P. 1925(b).     On January 20, 2015, Appellant filed his concise
statement. On May 20, 2015, the trial court issued its Rule 1925(a) opinion.
Both issues raised by Appellant were included in his concise statement.



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exists to support the verdict is a question of law; our standard of review is

de novo and our scope of review is plenary.” Commonwealth v. Tejada,

107 A.3d 788, 792 (Pa. Super. 2015), appeal denied, 119 A.3d 351 (Pa.

2015) (citation omitted). In reviewing a sufficiency of the evidence claim,

we must determine whether “viewing all the evidence admitted at trial in the

light most favorable to the Commonwealth as the verdict winner, there is

sufficient evidence to enable the fact-finder to find every element of the

crime beyond a reasonable doubt.”        Commonwealth v. Gonzalez, 109

A.3d 711, 716 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015)

(internal alteration and citation omitted). “The evidence does not need to

disprove every possibility of innocence, and doubts as to guilt, the credibility

of witnesses, and the weight of the evidence are for the fact-finder to

decide.” Commonwealth v. Forrey, 108 A.3d 895, 897 (Pa. Super. 2015)

(citation omitted).

      In order to sustain a conviction for involuntary manslaughter, the

Commonwealth must prove beyond a reasonable doubt “1) a mental state of

either recklessness or gross negligence, and 2) a causal nexus between the

conduct of the accused and the death of the victim.”       Commonwealth v.

Fabian, 60 A.3d 146, 151 (Pa. Super. 2013), appeal denied, 69 A.3d 600

(Pa. 2013) (internal alteration, quotation marks, and citation omitted).

Appellant argues that the Commonwealth failed to prove the second element




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of involuntary manslaughter, i.e., that there was a causal nexus between his

actions and Rosado’s death.

      This Court conducts a two-part inquiry to determine if there were a

causal nexus between a defendant’s actions and a victim’s death.           “[A]

defendant’s conduct must be the antecedent but-for which the result in

question would not have occurred. Specifically, it would be unfair to hold an

individual responsible for the death of another if his actions are remote or

attenuated and the victim’s death was attributable to other factors.”

Commonwealth v. Chapman, 763 A.2d 895, 899 (Pa. Super. 2000),

appeal denied, 771 A.2d 1278 (Pa. 2001) (internal citations omitted). The

second part of this test “is satisfied when the victim’s death is the natural or

foreseeable consequence of the defendant’s actions.       The inquiry is often

addressed in terms of foreseeability.       Moreover, the fatal result of a

defendant’s conduct is not rendered unforeseeable merely because the

precise agency of death could not have been foretold.” Commonwealth v.

Devine, 26 A.3d 1139, 1148 (Pa. Super. 2011).

      In this case, the first part of the test is satisfied. Appellant’s actions

were the antecedent but-for which Rosado would not be deceased. Armed

security guards would not open fire on a vehicle for no reason. Instead, the

armed security guards only opened fire on the vehicle occupied by Appellant

and Rosado because Appellant fired his weapon out of the window of the

vehicle.



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      The second part of the test is also satisfied. It was foreseeable that

either the armed security guards, or the individuals that Appellant believed

to be armed in the parking lot, would fire on the vehicle occupied by

Appellant and Rosado once Appellant opened fire. It would be difficult for

the armed security guards at the Passions after-hours club to determine

why, or toward what direction, Appellant fired his weapon. Instead, the only

information that the armed security guards had was that Appellant opened

fire within range of their position and within range of other, possibly armed,

individuals. The natural and foreseeable reaction to an individual who opens

fire in a public area is for an armed security guard to return fire.

      The facts in the case at bar are similar to those in Commonwealth v.

Nunn, 947 A.2d 756 (Pa. Super. 2008), appeal denied, 960 A.2d 838 (Pa.

2008).   In Nunn, police officers investigating a robbery confronted the

defendant who “reached under his shirt, drew a gun, and pointed it at [a

police officer].” Id. at 759. Police returned fire, injuring the defendant and

killing an innocent bystander.    Id.    The defendant was later convicted of

involuntary manslaughter. On appeal, he challenged the sufficiency of the

evidence supporting his conviction, arguing that he could not foresee that

his actions would cause the innocent bystander’s death. This Court affirmed

the involuntary manslaughter conviction and found that there was sufficient

evidence of causation. Specifically, this Court held that “[d]espite knowing

that [the victim] and her daughter were present, [the defendant] chose to



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ignore the police commands, pull out his weapon, and point it at [a police

officer], thereby drawing police fire.” Id. at 761.

      Like Nunn, where the defendant was aware of the presence of armed

officers and his proximity to innocent bystanders, Appellant here knew there

were armed security guards present,10 as well as individuals in the parking

lot that were believed to be armed. Appellant also knew that Rosado was

seated next to him. Despite these circumstances, Appellant chose to fire his

weapon out of the vehicle that he and Rosado occupied. As noted above,

the reasonable, and foreseeable, reaction of an armed security guard to an

individual opening fire is to immediately return fire. As in Nunn, we find the

evidence in this case sufficient to sustain Appellant’s conviction for

involuntary manslaughter.

      We also find instructive this Court’s decision in Commonwealth v.

Lang, 426 A.2d 691 (Pa. Super. 1981). In Lang, the defendant led police

on a high speed chase. During that chase, one of the pursing officers

crashed and died as a result of his injuries. The Commonwealth charged the




10
    The evidence presented at trial established that two of the security
guards, Kelly Goldwire and Kenneth Sharper, were armed and that their
firearms were visible. N.T., 5/9/13, at 47-48. Terrence Garrett, a third
security guard, testified that Appellant saw the firearms on the guards as he
exited the club and he commented on one of the guns and said he would pay
whatever amount of money to buy it. Id. at 54. Thus, the evidence of
record supports the finding that Appellant knew that some of the security
guards were armed at the time he fired his gun out of the car window.



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defendant with vehicular homicide11 and the trial court granted the

defendant’s habeas corpus petition. This Court reversed, concluding that the

facts alleged by the Commonwealth were sufficient to prove criminal

causation. Specifically, this Court explained that the police officer

      was duty bound to pursue [defendant], which duty arguably
      became more compelling with each Vehicle Code violation. In a
      sense, [the pursuing officer] was bound as if by a chain to [the
      defendant’s] vehicle; and, at the speed [the defendant] was
      travelling, it was foreseeable the chain would break, hurtling
      [the pursuing officer] to his death.

Id. at 695 (footnote omitted).

      As in Lang, the armed security guards at the nightclub were duty

bound to protect individuals inside and outside of the club, along with

themselves. Appellant was aware of this fact, and that the armed security

guards took their jobs seriously. As Appellant and Rosado exited the club,

the armed security guards made them wait because of armed individuals in

the parking lot.    The armed security guards carried out their duty by

returning fire once Appellant opened fire from his vehicle. The natural and

foreseeable consequences of Appellant’s actions were that he and/or Rosado

would be shot.




11
   Although Lang arose in the context of vehicular homicide, this Court has
relied upon Lang when discussing the foreseeability requirement for an
involuntary manslaughter conviction. See Commonwealth v. Rementer,
598 A.2d 1300, 1307 (Pa. Super. 1991), appeal denied, 617 A.2d 1273 (Pa.
1992).



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      Appellant analogizes the case at bar to Commonwealth v. Colvin,

489 A.2d 1378 (Pa. Super. 1985). In Colvin, the defendant was convicted

of involuntary manslaughter after he threw a stone at the victim’s house. A

resident then informed the victim that someone threw a stone at the house.

The victim, upon hearing this news, collapsed and died of a heart attack.

This Court reversed the involuntary manslaughter conviction, holding that

“the noise caused by the stone was not heard by the [victim]. The stone

caused property damage and the noise frightened [the other resident], and

there the direct causal relationship ends.” Id. at 1380. In other words, this

Court found that the defendant’s action was not the direct result of the

victim’s death.

      As noted above, the causal relationship between Appellant’s actions

and Rosado’s death is direct.   As soon as Appellant opened fire from the

vehicle, the armed security guards returned fire in the vehicle’s direction.

These shots resulted in Rosado’s death. Thus, Colvin is inapposite and we

perceive no factual or legal impediment to our conclusion that the

Commonwealth proved both elements of causation.             Accordingly, we

conclude that the evidence was sufficient to find Appellant guilty of

involuntary manslaughter.

      In his second issue, Appellant argues that his sentence is excessive.

This issue challenges the discretionary aspects of Appellant’s sentence. See

Commonwealth v. Haynes, 125 A.3d 800, 806 (Pa. Super. 2015).



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Pursuant to statute, Appellant does not have an automatic right to appeal

the discretionary aspects of his sentence.            See 42 Pa.C.S.A. § 9781(b).

Instead, Appellant must petition this Court for permission to appeal the

discretionary aspects of his sentence. Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four-part analysis to determine: (1) whether
      [the] appellant has filed a timely notice of appeal, see Pa.R.A.P.
      902 and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. 720; (3) whether [the] appellant’s brief has a
      fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted). Appellant filed a timely notice of appeal, preserved the issue in his

post-sentence motion, and included a Rule 2119(f) statement in his

appellate brief. Thus, we turn to whether Appellant has raised a substantial

question.

      “In order to establish a substantial question, the appellant must show

actions by the trial court inconsistent with the Sentencing Code or contrary

to   the    fundamental        norms     underlying    the       sentencing   process.”

Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted). “The determination of whether a particular case raises a

substantial   question    is   to   be   evaluated    on     a   case-by-case   basis.”




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Commonwealth v. Seagraves, 103 A.3d 839, 841 (Pa. Super. 2014),

appeal denied, 116 A.3d 604 (Pa. 2015) (citation omitted).

      In his Rule 2119(f) statement, Appellant argues that this appeal

presents a substantial question because the trial court failed to consider his

rehabilitative needs and imposed consecutive sentences.         This Court has

held that a “challenge to the imposition of [] consecutive sentences as

unduly excessive, together with [a] claim that the [trial] court failed to

consider [the defendant’s] rehabilitative needs upon fashioning its sentence,

presents a substantial question.” Commonwealth v. Caldwell, 117 A.3d

763, 770 (Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa.

2015). As Appellant raises such a claim, we conclude that he has raised a

substantial question and proceed to consider the merits of Appellant’s

discretionary aspects claim.

      Pursuant to statute,

      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.

42 Pa.C.S.A. § 9721(b).      Furthermore, when sentencing a defendant, the

trial court is required to consider the sentencing guidelines.               See

Commonwealth v. Tobin, 89 A.3d 663, 669 n.4 (Pa. Super. 2014) (citation

omitted).     In this case, Appellant was sentenced within the sentencing

guidelines.    Accordingly, we may only vacate his sentence if this “case




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involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).

      Appellant first contends that the trial court failed to meaningfully

consider mitigating factors.   Specifically, he argues that the trial court did

not consider the changes he had undergone while imprisoned. As Appellant

notes, when imposing a sentence a trial court is required to state “the

reasons for the sentence. The court is not required to parrot the words of

the Sentencing Code, stating every factor that must be considered under

[s]ection 9721(b).     However, the record as a whole must reflect due

consideration by the court of the statutory considerations [enunciated in that

section].”   Appellant’s Brief at 22 (second alteration in original), quoting

Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008), appeal

denied, 963 A.2d 467 (Pa. 2008).       The record reflects that the trial court

considered the relevant statutory factors.

      At sentencing, the trial court explicitly stated that it had carefully

reviewed the pre-sentence investigation report (and demonstrated such

knowledge by recalling specific portions of the report). N.T., 7/8/13, at 32-

33. The trial court also explicitly stated that it considered Appellant’s sister’s

comments at the sentencing hearing, the arguments made by Appellant’s

counsel, and Appellant’s allocution. Id. at 33. The mitigating factor relied

upon by Appellant, the changes he had undergone while imprisoned, were

supported by his sister’s statement to the trial court along with his



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allocution. The trial court explicitly considered this evidence at sentencing.

Furthermore, as noted above a pre-sentence investigation report was

completed and reviewed by the trial court prior to sentencing. When a trial

court has access to a pre-sentence investigation report, it is presumed that

it “was aware of relevant information regarding the defendant’s character

and weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).                As such, we

conclude that the trial court properly considered all mitigating factors.

      Second, Appellant argues that the consecutive nature of the sentences

was unwarranted. The general rule in this Commonwealth, however, is that

trial courts have the discretion to order sentences to run consecutively. See

Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015) (citation

omitted) (“Appellant is not entitled to a volume discount for his crimes.”);

Commonwealth v. Zirkle, 107 A.3d 127, 134 (Pa. Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015). We ascertain no abuse of discretion in the

trial court’s decision to run four of Appellant’s sentences consecutively.

      Appellant’s unlawful behavior not only cost Rosado his life, but it also

endangered the lives of all surrounding the incident.       The shots fired by

Appellant could have easily struck an innocent person strolling the streets of

Philadelphia and the return fire by the armed security guards could have

easily killed a bystander in the parking lot in addition to Rosado. Appellant

had two prior firearms convictions in another jurisdiction and yet continued



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to carry an unlicensed firearm on the streets of Philadelphia – violating three

statutes merely with his possession of the firearm. In such circumstances,

the trial court found that a sentence of 7½ to 16 years’ imprisonment was

appropriate and we ascertain no abuse of discretion in this conclusion.

Accordingly, Appellant is not entitled to relief on his discretionary sentencing

challenge.

      Judgment of sentence affirmed.

      Judge Stabile joins this memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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