J-A13034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DUWAYNE DIXON,

                          Appellant                   No. 1052 WDA 2015


           Appeal from the Judgment of Sentence of June 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0016492-2008


BEFORE: OLSON, STABILE and MUSMANNO, JJ.

CONCURRING MEMORANDUM BY OLSON, J.:                  FILED AUGUST 16, 2016

       I agree with my learned colleagues in the Majority that the trial court’s

use of a racial epithet warrants a remand of this case for resentencing.

However, as the trial court will again be imposing a sentence on Appellant, I

think it is important to address another issue raised by Appellant in the

hopes of giving additional guidance to the trial court at the time of

Appellant’s second resentencing hearing. Specifically, Appellant argues that,

at the time of his first resentence, the trial court improperly focused upon

retribution and refused to consider how Appellant rehabilitated himself since

the initial sentencing.    After reviewing the transcript of the June 3, 2015

sentencing hearing, it is clear to me that the trial court had no tolerance for

even   considering   how    Appellant   may   have   changed    since   he   was

incarcerated. As a defendant’s rehabilitative needs is a factor that must be
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considered by the sentencing court pursuant to 42 Pa.C.S.A. § 9721, I

believe that the trial court erred in failing to address this factor.           More

importantly,   I   believe   that   the   trial   court’s   apparent   disinterest   in

improvements made by Appellant in the eight years since the crime

occurred, and the trial court’s statements during the June 2015 sentencing

hearing, reflect bias on the part of the trial court.

      As noted by the learned Majority,

      [t]he sentencing decision is of paramount importance in our
      criminal justice system, and must be adjudicated by a fair and
      unbiased judge. This means, a jurist who assess[es] the case in
      an impartial manner, free of personal bias or interest in the
      outcome. Because of the tremendous discretion a judge has
      when sentencing, a defendant is entitled to sentencing by a
      judge whose impartiality cannot reasonably be questioned. A
      tribunal is either fair or unfair. There is no need to find actual
      prejudice, but rather, the appearance of prejudice is sufficient to
      warrant the grant of new proceedings.

Commonwealth v. Williams, 69 A.3d 735, 744 (Pa. Super. 2013) (internal

quotation marks and citations omitted).            I believe that the trial court’s

expressed disinclination to even hear about Appellant’s efforts to better

himself, coupled with the court’s preconceived determination that Appellant

had not changed, more than demonstrated an appearance of prejudice and

rendered the sentencing proceeding unfair.

      At the outset of the resentencing hearing, counsel for Appellant

informed the trial court that “[Appellant] has changed a lot since he initially

was convicted of this crime. It happened when he was 18 years old. He’s



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now 26, he’s no longer a teenager and starting to make – according to his

family – he’s starting to make the right choices.”       N.T., 6/3/15, at 3.

Counsel indicated that some of Appellant’s family members were present

and wanted to address the court. Id. Counsel then called Jermaine Carter,

Appellant’s uncle, to testify. However, before Mr. Carter was even sworn in,

the trial court made the following statement on the record: “The one thing I

like to do is, so that we’re starting from bedrock, is to give the facts about

why we are here.” Id. at 4-5. The court then outlined the facts of the case,

the significant injuries by the victim, and Appellant’s decision to follow the

instructions of his gang’s leader to shoot the victim.        The trial court

concluded by stating, “[s]o I want everyone to start from bedrock as to

where we are so this little guy here1, ‘Bear’2 doesn’t look like he’s being

victimized. Let’s get to reality. Now tell me what you want to tell me.” Id.

at 6. Thus, even before Mr. Carter addressed the court and discussed any

improvements Appellant made over the years, the trial court clearly

intimated that it had no interest in hearing about Appellant’s rehabilitative

needs and, instead, was focused upon the crime.

        As soon as Mr. Carter began to speak, he was interrupted by the trial

court. Specifically, the following exchange occurred:
____________________________________________


1
  The trial court made several remarks about Appellant’s small stature during
the hearing. N.T., 6/3/15, at 6, 10, 13.
2
    “Bear” is Appellant’s nickname.



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       MR. CARTER: Thank you. I would like to say that [Appellant]
       was raised with good morals and good values from a caring, a
       loving family. And yes, he probably went through challenging
       moments in his life, but the young man you see here today is
       not the same young man that went through the system.

       THE COURT: -- he’s the same guy. He’s the same guy. He’s
       not a different guy, he’s the same guy. Now he may behave a
       little differently now that he’s been locked up for six or eight
       years but he’s the same guy. He may behave differently, look
       differently but he’s the same guy so let’s not play games. It’s
       not like we’re switching people, he’s the same guy. Let’s not
       play games about reality. He is the same guy, now tell me what
       you want to tell me.

Id. at 7. Again, Mr. Carter attempted to discuss how Appellant took steps to

improve himself since the crime and his incarceration and acknowledged

that, at the age of 18, Appellant made bad choices. Throughout Mr. Carter’s

testimony, the trial court admonished the witness by recounting the serious

nature of the crime and concluding that Appellant was “the same guy”. Id.

at 8-11. Even though the trial court told Mr. Carter “tell me what you want

to tell me”, the trial court unceremoniously ended Mr. Carter’s limited

testimony by stating “Let’s move on, I got your point.” Id. at 11.3

       The trial court’s lack of interest in Appellant’s rehabilitation continued.

When it was time for Appellant to speak, the trial court seemed to indicate a

____________________________________________


3
  After Mr. Carter testified, counsel for Appellant stated that Appellant’s
mother and sister wanted to give statements. N.T., 6/3/15, at 11. They
gave no verbal statements, however, and the record does not establish the
reason for the lack of statements. It is possible that written statements
were provided but, if so, the court did not reference them at the time it
imposed sentence or in its 1925(a) opinion.



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willingness to hear from the Appellant as to any improvements he made over

the years. Specifically, the following transpired:

      THE COURT: All right, what do you want to tell me, [Appellant]?

      APPELLANT: If I can please –

      THE COURT: -- it’s all yours. You take as much time as you
      want. You can tell me whatever you choose to tell me because
      I’m curious because I do want to know what the trajectory of
      your life is at this point. I’m interested in how you see things,
      how do you understand how this happened. Those are the kind
      of things that would make me think. It’s all yours.

Id. at 12.   Yet, before Appellant could even get a few sentences out, the

trial court interrupted him and chastised him about the severity of the crime

and the serious injuries suffered by the victim.      Appellant again tried to

express remorse for his actions and discuss how he has changed, but the

trial court had no patience. Although told he could take as much time as he

wanted to tell the court whatever he chose, Appellant’s statement was cut

short and sentence was imposed.         Id. at 17.   The trial court ended the

hearing with the following statement:

      I am always open to listening if there’s change, a real change.
      I’m always going to be thinking about [the victim], too. He’s
      always going to be on my shoulder, blind, brain damaged and
      traumatized by you and your buddies. Let’s move on.

Id. at 19.

   In my view, the transcript of the resentencing hearing establishes that,

although the trial court stated its willingness to hear about Appellant’s

change and consider his rehabilitative needs, the trial court came into the


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hearing    with   the    preconceived      notion   that   Appellant   could   not   be

rehabilitated.    The court had little tolerance for considering anything other

than the heinous crime committed and the serious injuries suffered by the

victim.4    I share the trial court’s views with respect to the serious and

senseless nature of Appellant’s crime, including the permanent and life-

altering injuries inflicted upon the victim. I do not take any of this lightly

and I truly understand how Appellant’s actions appalled the trial court and

why it properly considered the gravity of the offense as it relates to the

impact on the life of the victim, one of the other sentencing factors to

consider under 42 Pa.C.S.A. § 9721.              However, that does not permit the

trial court to ignore other statutory factors and to show disdain for Appellant

and his witnesses.        As Judge Shoyer wrote in his concurring opinion in

Commonwealth v. Spencer, 496 A.2d 1156, 1166 (Pa. Super. 1985),

“[t]he sentencing judge should appear as the fountainhead of justice, not

the spirit of revenge.” (Shoyer, J., concurring). Judicial proceedings must

be governed by law, not passion.

____________________________________________


4
  The trial court’s 1925(a) opinion makes it clear that the seriousness of the
crime was at the forefront of the court’s mind at the time of the resentencing
hearing. “The [c]ourt’s dialogue with counsel, the defense witness and
[Appellant] showed the [c]ourt considered the impact this crime had on a
young man who was working two jobs and rewarded himself with a shiny
watch.     The victim’s injuries and the long term consequences of his
interaction with [Appellant] were on the [c]ourt’s mind at sentencing. As for
rehabilitation, it was not that big of a factor.” Trial Court Opinion, 10/5/15,
at 3.



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     Judge Stabile and Judge Musmanno join this concurring memorandum.




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