J-S19021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

TYREE JOHNSON

                             Appellant              No. 2149 EDA 2014


              Appeal from the Judgment of Sentence June 2, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006509-2013
                                          CP-51-CR-0006510-2013


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                           FILED APRIL 07, 2015

        Tyree Johnson appeals from an aggregate sentence of 14-28 years’

imprisonment following his open guilty pleas to six counts of robbery,1 four

counts of burglary,2 three counts of aggravated assault,3 two counts of

conspiracy,4 one count of firearms not to be carried without a license 5 and




____________________________________________


1
    18 Pa.C.S. § 3701.
2
    18 Pa.C.S. § 3502.
3
    18 Pa.C.S. § 2702.
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 6106.
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one count of carrying a firearm on public streets.6    Johnson contends the

trial court abused its discretion by imposing a substantially greater sentence

than that imposed on his co-defendant. We affirm.7

        The charges against Johnson arise from two separate incidents on

February 24, 2013 and March 4, 2013, respectively. On February 24, 2013,

Christian Diaz and Todd Banks went to the area of 18th and Gratz Streets in

Philadelphia after arranging for the sale of Diaz’s dirt bike on Craig’s list.

N.T. 2/12/14, p. 16. Upon their arrival, Diaz and Banks met an unidentified

male whom they believed to be the purchaser of the dirt bike.       While the

unidentified male was examining the bike, Johnson approached from behind

and pointed a gun at Diaz’s and Banks’ heads. The unidentified male fled

with the dirt bike while Johnson continued to hold Diaz and Banks at

gunpoint.     Id. at 16.     Defendant next ordered the men to “get in your

fucking car and get out of here.” Diaz and Banks entered their vehicle and

began chasing the unidentified male on the dirt bike. As they turned onto

Gratz Street, Johnson emerged from behind two parked cars and fired into

the front passenger side panel of the vehicle. Diaz and Banks were unable

to recover the dirt bike. Id. at 17.
____________________________________________


6
    18 Pa.C.S. § 6108.
7
   The court sentenced Johnson on June 2, 2014. On June 9, 2014, Johnson
filed timely post-sentence motions which the court denied on June 12, 2014.
On July 4, 2014, Johnson filed a timely notice of appeal. Both Johnson and
the trial court complied with Pa.R.A.P. 1925.



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       On March 4, 2013, Kimberly Flack was walking home in the area of

18th and Berks Streets in Philadelphia. As she reached her front door,

Johnson approached from behind, placed a gun against her head and

ordered her inside. As Johnson pushed Flack up the stairs with the gun to

her back, co-defendants Malcolm Murray and Elijah Washington entered the

property and followed them. When they reached the second floor, Johnson

placed the gun to Flack’s head and ordered her into the kitchen, where he

bent   her   over   the   counter   and   duct-taped   her   mouth   shut   upon

Washington’s order to “shut her up.” Id. at 11-12. Murray and Washington

proceeded to the second floor of the apartment, where they robbed Flack’s

roommates, Katie Tressel, Katie Arthur and Annabelle Maxon, at gunpoint,

taking money, debit cards, computers and cell phones. Id. at 12-13. After

binding their hands and feet with duct tape, Murray and Washington told

Tressel, Arthur and Maxon: “Please don’t move, if you don’t move, we won’t

hurt you, but if you move, we’ll kill you, stay here for 30 minutes.” Id. at

13.    Murray and Washington proceeded downstairs, where Johnson was

holding Flack at gunpoint.    Johnson proceeded to take money from Flack,

and the three men exited the property. Id.

       Police subsequently recovered video showing the three men using one

of the victims’ debit cards. Johnson and both co-defendants were identified

when the video was aired on the news. Id. Police also recovered video of

the men fleeing the victims’ apartment. A search of Johnson’s house yielded


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a red hoodie matching the one that Johnson wore in the video. Id. at 14.

When police stopped Johnson one day later, they recovered from his person

one of the i-pad’s stolen from Flack’s apartment. Id.

     Diaz and Banks saw Johnson on the news in the video relating to the

March 4, 2013 home invasion and contacted police concerning the February

24, 2013 robbery.    Diaz and Banks subsequently identified Johnson from

photo arrays. Id. at 17.

     The lower court imposed an aggregate sentence of 14-28 years in CP-

51-CR-0006509-2013, the home invasion case, consisting of consecutive

sentences of 5-10 years’ imprisonment for the robbery charges at counts 1

and 6 and consecutive sentences of 2-4 years’ imprisonment for count 8

(firearms not to be carried without a license) and count 10 (carrying

firearms on public streets). The court imposed concurrent sentences on all

remaining charges. In CP-51-CR-0006510-2013, the dirt bike robbery case,

the court imposed sentences of 5-10 years’ imprisonment on the robbery

charges at counts 1 and 7 and the conspiracy charge at count 3.     These

sentences ran concurrent to each other and to all charges at CP-51-CR-

0006509-2013.

     In this appeal, Johnson raises a single issue:

           Was the lower court’s sentence of 14-28 years at CP-
           51-CR-0006509-2013 manifestly excessive and
           disproportional to defendant’s conduct in that the
           court failed to give adequate weight to defendant’s
           lack of prior record and imposed a disproportionately
           longer sentence than that imposed on defendant’s

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            co-defendant (Malcolm Murray, CP-51-CR-0006508-
            2013) who received an aggregate sentence of only
            10-20 years despite engaging in the same conduct
            as defendant?

Brief For Appellant, p. 3.

      This claim raises a challenge to the discretionary aspects of Johnson’s

sentence. Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d

1058, 1064 (Pa.Super.2011).         Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test: (1) whether 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 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.

Allen, 24 A.3d at 1064. The determination of whether a particular issue

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

Commonwealth        v.   Fiascki,   886   A.2d   261,   263   (Pa.Super.2005).

Generally, however, in order to establish a substantial question, the

appellant must show actions by the sentencing court inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the




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sentencing process.      Commonwealth v. Titus, 816 A.2d 251, 255

(Pa.Super.2003).

      Here, Johnson filed a timely notice of appeal and preserved his issues

in a post-sentence motion for reconsideration.         Johnson’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant to Pa.R.A.P. 2119(f).      Finally, Johnson has raised a substantial

question for review, namely an “excessive sentence claim [] in conjunction

with an assertion that the court did not consider mitigating factors.”

Commonwealth v.         Gonzalez,    --   A.3d   --,   2015   WL   252446,   *15

(Pa.Super., January 21, 2015).

      Nevertheless, Johnson’s excessiveness claim is devoid of merit.        We

find persuasive the trial court’s thorough analysis of this question:


            [Johnson] essentially claims that he should have
            received a sentence identical to his coconspirator,
            Malcolm Murray. For the reasons that follow, this
            claim is without merit.

            It is well-settled that sentencing is a matter vested
            in the discretion of the sentencing court and will not
            be disturbed on appeal absent a manifest abuse of
            discretion. Commonwealth v. Gribble, 703 A.2d
            426, 437 (Pa.1997). ‘In this context, an abuse of
            discretion is not shown merely by an error in
            judgment. Rather, the [Johnson] must establish, by
            reference to the record, that the 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. Rodda, 723 A.2d
            212, 214 (Pa.Super.1999) (en banc) (citations and
            internal quotations omitted). A reviewing court must


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          accord great weight to the sentencing court’s
          discretion because it is in the best position to view a
          defendant’s character, exhibition of remorse,
          indifference, and the general nature of the crime.
          See Commonwealth v. Sierra, 752 A.2d 910, 915
          (Pa.Super.2000); Commonwealth v. Brown, 741
          A.2d 726, 735 (Pa.Super.1999) (en banc).

          Here, it bears underscoring at the outset that, unlike
          his co-conspirator, Mr. Murray, [Johnson] committed
          another savage gunpoint robbery via a Craigslist
          ruse prior to the home invasion, and fired a shot at
          his victims on the public streets of Philadelphia. This
          fact     alone    defeats     [Johnson]’s    argument.
          Nonetheless, the record demonstrates that this
          [c]ourt     considered    all   relevant   facts   and
          circumstances      prior   to    imposing     sentence.
          Specifically, in addition to [Johnson]’s presentence
          investigation report and the sentencing guidelines,
          this [c]ourt expressly considered the violent nature
          and circumstances of [Johnson]’s offenses, the
          protection of the public, the gravity of the offenses,
          the character and condition of [Johnson], including
          his ADHD and anger issues, his lack of prior record,
          his family background and support, his expression of
          remorse, and his station in life as a young adult.

          Additionally, this [c]ourt observed on the record:

          ‘It’s hard to describe the violence that was inflicted
          upon four completely innocent Temple students in
          the safety of their home that they were sharing in
          order to educate themselves, to get their college
          degree. To have been violated the way they were
          truly has changed their lives forever. It must have
          been so completely and utterly terrifying. I do note
          that [Johnson] denies having a gun in the
          presentence      investigation,    although  in    the
          courtroom, he did admit to the facts which included
          holding these girls at gunpoint while Mr. Murray duct
          taped them and tied them up. He also, of course,
          pled guilty to the second offense here involving
          Craig’s List and the guy who showed up to buy a dirt
          bike or sell a dirt bike, rather, and ended up getting

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           held at gunpoint and actually being shot at in his van
           by [Johnson]. For somebody with a zero prior record
           score, it’s unusual to find this level of violence and
           utter disregard for human life and safety and, quite
           frankly, Mr. Johnson, you are fortunate that you’re
           not in the homicide room here today. It’s a difficult
           job when sentencing somebody who has no prior
           record and has never before shown, at least in any
           law enforcement way, this type of violent proclivity
           or behavior. In crafting this sentence, I believe I
           have considered both the fact that [Johnson] has
           taken responsibility and has no prior record, as well
           as the egregious violence that he committed both
           against you girls as well as against the other victim
           [Christian Diaz]....’

           N. T. 06/02/14, pp. 29-30.

           Thus, the record demonstrates that, contrary to
           [Johnson]’s contention, this [c]ourt duly considered
           all relevant factors and circumstances, including his
           lack of prior record, in fashioning an appropriate
           sentence. Accordingly, [Johnson] is due no relief.

Pa.R.A.P. Opinion, pp. 4-6. Based on the trial court’s analysis, we conclude

that Johnson’s sentence was within the court’s discretion.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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