J-S45024-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37



COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD TERRELL,

                            Appellant                 No. 1671 EDA 2013


             Appeal from the Judgment of Sentence May 10, 2013
             In the Court of Common Pleas of Philadelphia County
       Criminal Division at No(s): CP-51-CR-01103791-2005, CP-51-CR-
                  02065551-2006, CP-51-CR-0016127-2009


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED NOVEMBER 26, 2014

       Appellant failed to preserve at sentencing or in his three separate

motions for reconsideration the discretionary sentencing arguments he now

advances on appeal, except for his assertion that his sentence was

manifestly excessive. The learned majority errs in stating that Appellant’s

challenge to the court’s alleged failure to consider the required sentencing

factors was “clearly . . . . preserved in his post-sentence motion.” Majority

Memorandum at 4. Nowhere in his post-sentence motion did Appellant set

forth that the sentencing court failed to consider the relevant sentencing
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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criteria.    Rather, Appellant merely challenged the excessiveness of the

sentence. These two claims are obviously distinct. See Commonwealth v.

Dodge, 77 A.3d 1263 (Pa.Super. 2013).              Similarly, Appellant did not

preserve any argument relative to the court’s failure to order a presentence

report. Accordingly, he is not entitled to relief on that issue.     I therefore

concur in the result of the learned majority’s rejection of Appellant’s

discretionary sentencing claims relative to the trial court’s failure to consider

the appropriate sentencing factors and its failure to order a presentence

report.     In addition, I note that I find his position that his sentence was

manifestly excessive to be without merit.

       However, I must respectfully dissent from the majority’s award of

relief based on Appellant’s claim that the trial court’s sentence was the

product of bias and ill-will.        The majority contends that this issue was

preserved at sentencing because the sentencing court interrupted counsel

after counsel responded to the trial court’s earlier reference to Appellant as

an animal. As the majority notes, counsel stated, “this notion that he’s an

animal who is going to kill somebody, I mean, I gave what his total sum

convictions are—” N.T., 5/10/13, at 20.1


____________________________________________


1
   Sentencing counsel did not object to the court’s statements at the time
they were made and only referenced the animal statement in presenting his
own argument. Counsel at sentencing also expressly set forth that he
believed the sentence was excessive, but never contended the sentence was
the result of bias or ill-will.



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       The full context of this exchange demonstrates that Appellant was not

raising a bias claim, but was maintaining that Appellant’s criminal record

consisted of only four convictions: simple assault, resisting arrest, carrying a

firearm without a license, and false identification, as well as one juvenile

adjudication. The majority nonetheless cites Commonwealth v. Smith, 69

A.3d 259 (Pa.Super. 2013), for the proposition that because the sentencing

court in this matter interrupted counsel, he prevented counsel from

asserting bias. Smith is simply inapposite as it related to the defendant’s

multiple attempts to either request new counsel at sentencing or to proceed

pro se.    The court there repeatedly expressed no interest in hearing the

defendant and instructed him to pursue his rights with this Court.                 Here,

unlike Smith, the Court did not cut off all attempts by Appellant to relate his

sentencing claims. Indeed, counsel continued by arguing various mitigating

factors   and,     at    the   end   of    the   proceeding,   expressly    leveled    an

excessiveness challenge. Smith is neither persuasive nor controlling in this

context. Indeed, Appellant actually leveled this aspect of his position for the

first time in his Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal.     Accordingly, this portion of his argument is waived, and it is

improper     for   the    majority    to    afford   relief   on   that   claim.      See

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).2

____________________________________________


2
  The majority concludes that a finding of waiver would be hyper-technical.
I myself am frequently loathe to find waiver, especially where there is no
(Footnote Continued Next Page)


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      Even assuming arguendo that counsel’s reference to the sentencing

court’s statement that Appellant was an animal implicitly preserved an issue

of bias and ill-will, which the court certainly did not perceive since it did not

address the contention at sentencing, and only was provided an opportunity

to discuss the issue after it lost jurisdiction in its Rule 1925(a) opinion, the

claim still fails on its merits.

      The trial court’s statement that Appellant was a crime wave is

supported by the record. Appellant had twenty-two or twenty-three arrests,

including multiple arrests while on probation. In several of those instances,

the victim was his wife, who declined to press charges. The court’s outrage

over Appellant’s alleged abuse of his wife, and its claim that his wife could

“wind up dead” is, in my respectful view, entirely warranted. N.T., 5/10/13,

at 14, 15.      Spousal abuse is a serious problem.         It has recently and

viscerally come to the forefront of society with the high profile case involving

a popular NFL player, Ray Rice, and his videotaped knocking out of his then-

fiancée in an elevator.        Certainly, a sentencing court has an obligation to



                       _______________________
(Footnote Continued)

clear case law or rule providing for such waiver, see In re K.A.T., 69 A.3d
691 (Pa.Super. 2013) (Bowes, J., concurring), or, the court, prior to losing
jurisdiction, was afforded an adequate opportunity to address the issue and
did so correctly. See In re T.P., 78 A.3d 1166 (Pa.Super. 2013). This,
however, is not the case herein. Caselaw on discretionary sentencing claims
is legion on the issue of waiver. The majority’s finding of non-waiver, while
novel, is merely an attempt to circumnavigate well-ensconced principles in
order to arrive at its desired result: admonishing the sentencing court.



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afford the victims of such abuse protection from her abuser even if she is

unwilling to recognize the danger posed by an abusive spouse or boyfriend.

      Instantly, the majority acknowledges that Appellant’s sentence alone

does not reflect bias.   See Majority Memorandum, at 15.       In addition, it

openly concedes that “the bulk of the court’s comments are supported by

the record[.]”   Id.   Nonetheless, it remands for the repeat of sentencing

because the trial court, in indicating that it did not want to hear from

Appellant’s wife, stated, “she’ll probably get up here and try to exonerate

this animal, which I’ll hear none of.” N.T., 5/10/13, at 16.

      This reference is a far cry from the sentencing court’s actions in

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

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

Williams, the defendant was sentenced to twenty-four years and two

months incarceration to forty-eight years and four months incarceration.

This sentence was imposed after the sentencing court badgered the

defendant, called her a pathological liar without support from the record,

and described her as a classic sociopath.       The sentence in question in

Spencer was thirty-five to seventy years incarceration.           There, the

defendant viciously robbed multiple elderly citizens.   The sentencing court

opined,

             I feel that the defendant as a result of his activity has
      forfeited his right to exist in this community, on the street at
      least, and that the elderly of this City must be protected from
      animals such as this. And I shouldn't use the term “animals”


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      because, as I have said, it denigrates the animal kingdom when
      referring to people like this.

             If there was ever a case where the death penalty should
      be imposed, I would gladly pull the switch on you, Chief. I can't
      think of anything worse that you could do to human beings than
      what you did to these elderly people. And you consistently did
      it. You went back and went back. It wasn't an isolated instance.

            You took advantage of people on their death beds. I think
      the youngest victim was 79.         The oldest was 89, who
      subsequently died as a result of your activity. But that's not the
      case before me. That's just another one of your little asides.

            Elderly people in this City must be protected from animals
      like you. When you get out of prison, you are going to be part of
      that elderly, I hope anyhow.

Spencer, supra at 1163.       The statement of the sentencing court herein

pales in comparison.     Further, the sentence in this matter is not even

remotely close to those imposed in Williams and Spencer.           Those cases

simply do not warrant reversal in this matter.

      I recognize that the author of the learned majority has lost confidence

in this sentencing court’s ability to sentence impartially. My faith in my trial

court brethren in this matter has not been shaken, nor do I find the

sentencing court’s statement to indicate that its actual sentence was biased.

I cannot agree that it confused imposing sentences upon humans with

animals or descended down a worrisome path. See Majority Memorandum,

at 17.   The sentencing court was rightly appalled, and in its disgust for

Appellant’s disregard for his probation, used a term that is certainly less

than judicial.   Hyperbole aside, the aggregate sentence imposed of five to



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ten years on three separate crimes hardly warrants the conclusion that its

judgment was so impaired that the court acted purely from passion and

without regard to the law.    Sentencing courts already are tasked with the

difficult job of fashioning individualized sentences.   Although in a perfect

world no sentencing judge would ever misspeak or use less than temperate

words, we should not be second-guessing those sentences based on a

singular passing reference.

     For the aforementioned reasons, I dissent from the majority’s grant of

sentencing relief on Appellant’s unpreserved bias claim and would affirm.




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