J-S53021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    ARTHUR MCCORKLE                             :
                                                :
                       Appellant                :   No. 3790 EDA 2017

          Appeal from the Judgment of Sentence September 26, 2017
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0000595-2017


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                                 FILED OCTOBER 19, 2018

        Arthur McCorkle appeals from the judgment of sentence entered on

September 26, 2017, in the Bucks County Court of Common Pleas, made final

by the denial of a post-sentence motion on October 20, 2017. On June 20,

2017, McCorkle pled guilty1 to two counts of aggravated assault, robbery,

burglary, theft by unlawful taking, possession of an instrument of crime,

unlawful restraint, and false imprisonment, as well as counts of conspiracy to

commit each of the above offenses.2            The court sentenced McCorkle to an


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   Retired Senior Judge assigned to the Superior Court.

1 McCorkle pled guilty along with his co-defendants, Daron K. Davis and
Keliyah NJ Reaves. Neither co-defendant is a party to this appeal.

218 Pa.C.S. §§ 2702(a)(1) and (a)(4), 3701, 3502(a)(1), 3921(a), 907(a),
2902(a)(1), 901(a), and 903, respectively.
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aggregate term of 25 to 50 years’ incarceration.        On appeal, McCorkle

challenges the discretionary aspects of his sentence. Based on the following,

we affirm.

      The trial court recited the facts, which was set forth by the assistant

district attorney at McCorkle’s sentencing hearing, as follows:

      [O]n November 26th of 2016, at approximately 3:36 p.m., Bucks
      County Police radio received a call of a male covered in blood at
      the Grey Friars apartment complex in New Britain Township,
      Bucks County.

      On scene, responding officers located Thomas Grimes, the victim,
      who had been stabbed, beaten and his throat slashed, with blood
      pouring out of a gaping wound in his throat. Because of his throat
      being slashed, Grimes was unable to communicate with police
      officers. However, he was able to write a few notes on a note pad
      before feeling like he was passing out due to the significance of
      his injuries.

      Grimes indicated that approximately 30 minutes earlier, he was
      awakened by two black males, later identified as Defendants
      McCorkle and Davis, standing at his bed pointing guns in his face.
      Grimes noted that they were strangers. Responding officers noted
      that there were no signs of forced entry to the apartment. [The
      i]nvestigation revealed that entry to the apartment was arranged
      and the robbery set up by Defendant Reaves. Reaves had been
      an acquaintance of Mr. Grimes’ roommate and had been in the
      apartment and met Mr. Grimes several times prior because of her
      acquaintance with Grimes’ roommate, Rafeeq James; specifically,
      Reaves had a romantic relationship with James’ nephew, with
      whom she had stayed at the apartment numerous times and had
      met James and Mr. Grimes.

      While in the apartment, Reaves noticed that Mr. James had
      numerous very nice items, such as shoes and watches, and, based
      on her observations, arranged with Defendants McCorkle and
      Davis to take Mr. James’ items from the apartment when he was
      not present on November 26th. On November 26th, investigation
      revealed that Reaves had entered the Blue Dog Tavern in New
      Britain Township on multiple occasions, asking to speak with

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     Rafeeq James, who was working there that day. When speaking
     with James, Reaves mentioned she was supposed to meet James’
     nephew at the apartment. A made-up story told -- that was a
     made-up story told to facilitate James calling his roommate,
     Grimes, to allow Reaves to come into the apartment and allegedly
     wait for James’ nephew. James did call Grimes and instructed
     Grimes to allow Reaves in to wait for Anthony Bazelle, his nephew.

     Thomas Grimes unlocked the front door to allow Reaves entry and
     went back to sleep in his room, after working much of the previous
     night. Minutes later, Grimes was awakened by Defendants Davis
     and McCorkle, standing above him, each with firearms, asking
     where James’ items were and questions about a combination to
     the safe. Grimes continuously answered that he did not know the
     combination, and Davis and McCorkle continued getting more
     violent. Defendant Reaves was located in the living room at this
     time.

     Grimes was pistol whipped by McCorkle, causing multiple wounds
     to the head. He also had one of the pistols placed on his testicles,
     as he was on all fours on the floor, with both defendants
     continuing to ask about the items in the safe. Grimes’ arms and
     legs were bound by the actors. Grimes was handed a picture of
     his infant daughter that had been on the wall and told that this
     was the last time, he was going to see her if their demands were
     not met. The picture was held in front of his face. Despite
     attempting to comply with the actors, Grimes was beaten, and cut
     multiple times on his body.

     After this time period, Defendant McCorkle left the room and
     ransacked Rafeeq James’ room with the assistance of Defendant
     Reaves. Multiple bags of items were taken, including a dozen pair
     of shoes, watches, two XBox consoles and cash. While McCorkle
     and Reaves were ransacking the apartment, Davis remained in
     the bedroom with Grimes. Grimes was asked two questions that
     made him believe that he was not going to make it out alive. First,
     whether his neighbors downstairs were home; and, secondly,
     whether he had a sack of potatoes, which would act as a silencer
     on a firearm. When Grimes responded that his neighbors were
     home and he had no potatoes, Defendant Davis pushed Grimes’
     head down onto the bed, held it with one hand, and sliced his
     throat with a box cutter. When Grimes tried to push back up, the
     defendant sliced the back of his throat.


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     Defendant McCorkle and Reaves rushed out of the house with all
     the items, including Grimes’ phone, leaving him for dead. Grimes
     played dead for a short period of time, then staggered to his feet,
     wrapped a towel around his neck, with blood pouring out of his
     neck, and then made it to a neighbor’s front door, who called for
     help, as he was unable to speak.

     At approximately 11:00 p.m. that evening, all three defendants
     were stopped in Bensalem at the Neshaminy Valley Inn during
     another investigation.     At that time, Daron Davis was in
     possession of a Smith and Wesson 38-caliber firearm, subject to
     the second case, and was arrested for persons not to possess a
     firearm, as he had a prior offense out of Philadelphia for carrying
     a firearm without a license.

     Defendants McCorkle and Reaves were let go that evening;
     however, picked up two days later in Philadelphia after being
     positively identified by Grimes during the photo lineup.

     A search warrant was conducted at the home of McCorkle in
     Philadelphia, and multiple items from the New Britain incident
     were found there. When Davis was arrested, he was wearing
     multiple items of Mr. James, including a Gucci watch and Gucci
     sneakers.

     During the course of the police investigation, police executed
     numerous search warrants and court orders on cell phones
     belonging to all three defendants. During review of those phone
     dumps, specific conversations between Reaves, who was inside
     the apartment at the time, and McCorkle, were retrieved, during
     which specific instructions were given about when it would be the
     right time to enter the apartment.

     Additionally, conversations about the setup of the robbery were
     retrieved, and it was discovered that the robbery had been set up
     three days prior to the event between the three. Following the
     event, there were multiple discussions retrieved from Defendant
     McCorkle’s phone revealing discussion of selling numerous items
     stolen from the robbery.

     Interviews with Defendant Reaves -- interviews were conducted
     with Defendant Reaves, and she stated that she observed
     Defendant Davis leave Grimes’ bedroom with a bloodied box
     cutter and blood all over a book bag and camouflage pants he was

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     wearing. Reaves described McCorkle backing into a parking spot
     directly in front of the apartment and opening the trunk of the car
     to put the items stolen in there. Additionally, Reaves described
     multiple conversations that occurred while the three were driving
     away from the scene between Davis and McCorkle, where they
     bragged about what they had done to Grimes, believed him to be
     dead, and noted, quote, I slit his throat. His stuff was hanging
     out of his neck.

     Additionally, Davis stated “That nigger would not die. I had to stab
     him in the back of his neck because he would keep on moving."
     Davis and McCorkle were laughing when discussing Grimes and
     his injuries. It was Reaves’ belief that both McCorkle and Davis
     believed Grimes to be dead when they left the apartment.

     Grimes’ phone was thrown out of the window of McCorkle’s truck
     as they were leaving down Route 309. Reaves advised that all
     McCorkle’s clothing were discarded in Philadelphia.

     Mr. Grimes was rushed to Abington Memorial Hospital where he
     underwent lifesaving surgery to repair life-threatening wounds to
     his esophagus from his throat being cut multiple times with a box
     cutter by Defendant Davis. After waking up from surgery, doctors
     explained while his life was saved, it was 90 percent likely that his
     voice was going to be lost. Following ten days in the hospital, the
     victim regained partial use of his voice; however, remained with
     a feeding tube for several months following the incident.

Trial Court Opinion, 4/30/2018, at 2-5.

     On November 29, 2016, McCorkle was charged with numerous offenses

relating to the home invasion and assault. On June 20, 2017, he entered an

open guilty plea to all charges set forth in the criminal information.       On

September 26, 2017, prior to sentencing, the Commonwealth requested and




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was granted leave to nolle pros certain counts.3       McCorkle’s plea to the

remaining counts, as provided above, stayed unchanged. The matter then

proceeded to sentencing.4 The court imposed the following sentence: (1) a

term of 106 to 212 months’ imprisonment for aggravated assault; (2) a

consecutive term of 118 to 236 months’ incarceration for robbery; and (3) a

consecutive term of 76 to 152 months’ imprisonment for burglary.5

       McCorkle filed a post-sentence motion for reconsideration, which was

denied by the court without a hearing on October 20, 2017. This timely appeal

followed.6

       In his sole issue on appeal, McCorkle contends the trial court abused its

discretion by imposing an aggregate sentence of 25 to 50 years because the

sentences were at or near the top of the aggravated range on individual

counts, the trial court did not adequately set forth sufficient reasons on the

record for imposing such sentences, and it failed to consider certain mitigating


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3   Specifically, the Commonwealth nolle prossed charges of attempted
homicide, criminal trespass and attempt and conspiracy to the same, and
attempt and conspiracy to receiving stolen property.
4 McCorkle was sentenced at the same time as Davis and Reaves.


5  The trial court ordered costs of prosecution and restitution, but did not
impose a further penalty with the remaining convictions. McCorkle was also
given credit for time served.

6  On November 16, 2017, the trial court ordered McCorkle to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
McCorkle had simultaneously filed a concise statement with his notice of
appeal on November 16, 2017. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on April 30, 2018.

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evidence. See McCorkle’s Brief at 8. Specifically, McCorkle argues that prior

to sentencing his co-defendant, Davis, the court noted it must consider

numerous factors, including the sentencing guidelines, the protection of the

public, and the defendant’s age. McCorkle notes the court referenced Davis’s

involvement in the attack when it imposed its sentence but with respect to

McCorkle:

      The [trial c]ourt did not make any additional comments before
      sentencing [McCorkle], although undoubtedly the initial
      comments were meant to be applied to all defendants. The
      [c]ourt then sentenced [McCorkle] to the same sentence as co-
      defendant Davis. It is notable that the [trial c]ourt did not
      address, in any meaningful way, the testimony presented in
      mitigation on [McCorkle]’s behalf[,] or distinguish [McCorkle] from
      co-defendant Davis who actually slit Mr. Grimes’ throat. The [trial
      c]ourt did not make any other comment regarding [McCorkle]’s
      age except as [noting that it must consider the defendant’s age].
      This is significant because at the time of the incident, [McCorkle]
      was 19 years old. Additionally, the [trial c]ourt did not draw any
      distinction between [McCorkle] and co-defendant Davis based on
      their prior records, other pending criminal cases or their
      backgrounds. This lack of distinction between the perpetrators of
      the crime and their relative involvement speaks to the manifest
      unreasonableness of the sentence and the singular focus on the
      nature of the crime without considering [McCorkle]’s age,
      maturity, personal circumstances and testimony presented by
      family and friends.

Id. at 12-13 (record citations omitted).

      With respect to a discretionary aspect of sentencing claim, we are

guided by the following. The standard of review for a claim challenging the

discretionary aspects of sentencing is well-established:

      Sentencing is a matter vested in the sound discretion of the judge,
      and will not be disturbed on appeal absent a manifest abuse of
      discretion. An abuse of discretion is not shown merely by an error

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      in judgment. Rather, the appellant must establish, by reference
      to the record, that then sentencing court ignored or misapplied
      the law, exercised its judgment for reasons of partiality, prejudice,
      bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citations and quotation marks omitted). To reach the merits of

a discretionary issue, this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

      Here, McCorkle filed a timely notice of appeal and included the requisite

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. However, a

review of his post-sentence motion reveals that McCorkle did not raise his

contention regarding the discretionary aspects of his sentence in the motion.

Rather, McCorkle alleged the following, in relevant part:

      4.    At the time of sentencing, sentencing guidelines were
      presented to the Court that incorrectly calculated [McCorkle]’s
      Prior Record Score and therefore contained incorrect guideline
      ranges for each of the counts to which [McCorkle] was sentenced.

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       5. At the time of sentencing, [McCorkle] failed to present rebuttal
       testimony regarding statements made by co-defendants regarding
       his participation in the crimes to which he plead guilty.

       6. At the time of sentencing, [McCorkle] failed to present
       testimony regarding the extent of his drug use immediately prior
       to the incident giving rise to the crimes to which he plead guilty.

       7. [McCorkle] requests to present additional testimony/argument
       regarding significant differences between individuals of
       [McCorkle]’s age and older adults, including the belief that
       children have a lack of maturity and an underdeveloped sense of
       responsibility leading to recklessness, impulsivity, and heedless
       risk-taking, as well as the notion that a younger individual’s
       character is not as well informed as an older adult’s character and
       therefore his traits are less fixed and his actions less likely to be
       evidence of irretrievable depravity.

Motion for Reconsideration of Sentence, 10/4/2017, at unnumbered 1-2.7

       It is well-established that “where the issues raised assail the trial court’s

exercise of discretion in fashioning the defendant’s sentence, the trial court

must be given the opportunity to reconsider the imposition of the sentence

either through the defendant raising the issue at sentencing or in a post-

sentence motion.”       Commonwealth v. Tejada, 107 A.3d 788, 798 (Pa.

Super. 2015), appeal denied, 119 A.3d 351 (Pa. 2015). Furthermore, “[t]he




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7 Moreover, McCorkle did not properly preserve this claim at the time of the
sentencing hearing. See N.T., 9/26/2017, at 98-101.




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failure to do so results in waiver of those claims.” Id. Accordingly, we find

McCorkle’s argument waived, and need not address it further.8

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/18




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8  Assuming, arguendo, McCorkle had successfully raised and preserved this
issue for appeal, we would have concluded that his current sentence is not
excessive and the trial court provided sufficient reasoning for the sentence
imposed. See Trial Court Opinion, 4/30/2018, at 5-10.

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