J-S41005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARLON CLOTTER,

                        Appellant                   No. 2079 MDA 2014


    Appeal from the Judgment of Sentence entered November 5, 2014,
          in the Court of Common Pleas of Lackawanna County,
           Criminal Division, at No(s): CP-35-CR-0001884-2013


BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                                FILED JULY 06, 2015

      Marlon Clotter (“Appellant”) challenges the discretionary aspects of his

sentence. We affirm.

      The trial court summarized the pertinent facts and procedural history

as follows:

             On or about May 5, 2013, members of the Scranton
         Police Department were dispatched by the Lackawanna
         County Communications Center to the 700 block of Vine
         Street in the City of Scranton, Lackawanna County,
         Pennsylvania. The nature of the call was that a male had
         been shot in this area. Upon their arrival the police found
         a black male, later determined to be Rashan Crowder,
         lying in the roadway with a gunshot wound to the chest.

            Medical personnel were summoned and arrived at the
         scene. These personnel unsuccessfully initiated life saving
         measures. They subsequently transferred Mr. Crowder to
         Geisinger Community Medical Center. The victim, Rashan
         Crowder, was later pronounced dead at Geisinger.


*Retired Senior Judge assigned to the Superior Court.
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          On May 6, 2013, an autopsy was performed by a
       forensic pathologist on the decedent. The results of the
       autopsy as noted by Lackawanna County Coroner Tim
       Rowland indicated that Crowder, the decedent, had
       sustained two gunshot wounds, one to the chest and one
       to his right thigh. The cause of death was the gunshot
       wound to his chest. The manner of death was listed as
       homicide. As a result of the autopsy findings the police
       began a criminal investigation into this incident.

          The police investigation determined that Crowder was a
       student at Lackawanna College and lived near the site of
       his death in the Tobin Hall dormitory.          Numerous
       witnesses, not all in concurrence, led police to conclude
       what occurred on or about May 5, 2013.

          Decedent Crowder was apparently accompanied on that
       fateful night by a friend named Shaquille Isbell. Isbell was
       an eye witness [sic] to the relevant events. Isbell told
       police that he was a friend of decedent Crowder and
       attended Lackawanna College with him.

          Earlier that evening Isbell and Crowder attended a
       house party in the 400 block of Monroe Avenue in
       Scranton about two blocks from the area of the shooting.
       There may have been some words exchanged at the party,
       but Isbell and Crowder left that party and walked to other
       locations in their hill section neighborhood and to a mini
       mart and returned to their dormitory. After the passage of
       time Isbell and Crowder left their dormitory and went back
       to the mini mart.

          Upon leaving the mini mart to return once again to their
       dormitory they happened upon a group of males and
       females on the corner of Monroe Avenue and Vine Street
       just up the street from the original party earlier that
       evening.    The two groups began to give each other
       “attitude” and trash talking and insults back and forth.
       The unfortunate result of this exchange was that a male
       member of the group produced a handgun firing at Rashan
       Crowder striking him in the right thigh. After the shooting,
       a University of Scranton security car happened to arrive at
       the scene thus causing the two groups to separate and
       walk down the 800 block of Vine Street from Monroe
       Avenue towards Madison Avenue, the location of the Tobin


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       Hall dormitory. During this one block plus walk, words,
       trash talk and insults resumed.

          The arguments continued beyond Madison Avenue on
       Vine Street to an area in the 700 block of Vine Street near
       Moir Court. At that point, a second male from the group
       begins to goad the male into shooting the decedent for a
       second time. Repeatedly, the second male encourages
       and urges the first male to fire again. When the second
       shot occurs, it hits Decedent Crowder in the chest fatally
       injuring him.     At that point, the group of males and
       females all flee the area.

           Subsequent investigation and security video review
       revealed that the shooter was Ryan Harding, the man
       holding the gun. [Appellant] was also identified as the
       male coaxing, encouraging and goading Ryan Harding to
       fire shots at decedent Crowder.

          [Appellant] was born on September 10, 1991, one of
       eight children. His mother abused drugs and alcohol, thus
       providing a traumatic childhood which began where he was
       born in Queens, New York. He moved at various times to
       Atlanta, Georgia and Scranton to stay with relatives or in
       foster homes.     From 2008 to 2012, [Appellant] was
       incarcerated in SCI Pine Grove.

          [Appellant] has a GED he earned while he was
       incarcerated. He also has an extensive history of drugs
       and alcohol abuse. His extensive history also extends to
       the legal system. As a juvenile, [Appellant] was arrested
       fourteen times and convicted of numerous crimes involving
       physical assault.   Despite [Appellant] being placed in
       numerous juvenile facilities, he continued to repeat his
       mistakes and past pattern of behaviors.

          Often while under supervision for one crime, [Appellant]
       would be arrested for another. At age seventeen, he was
       convicted as an adult. Tellingly, while under state parole
       supervision for that offense, [Appellant] committed the
       instant offense.

                                 ***

         On August 30, 2013, [Appellant’s] preliminary hearing
       was held before Magisterial District Judge Sean McGraw.

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       On September 30, 2013, by order of President Judge
       Thomas J. Munley, the undersigned was appointed to
       preside over this case. On November 7, 2013, discovery
       deadlines were set as well as a tentative trial date for
       August of 2014.     On November 6, 2013, the District
       Attorney for Lackawanna County issued a four count bill of
       information against [Appellant]. [Appellant] was formally
       arraigned the same day.

          On January 15, 2014, defense counsel filed an
       extensive omnibus motion on behalf of [Appellant]. The
       Commonwealth responded to the omnibus on February 4,
       2014. On July 3, 2014, the Court decided [Appellant’s]
       voluminous omnibus motion.

           On July 11, 2014, the Commonwealth filed an amended
       bill of information containing five counts against
       [Appellant].    The additional fifth count was criminal
       conspiracy to commit aggravated assault[.] On that same
       day, [Appellant] entered a guilty plea to one count of
       criminal conspiracy to commit aggravated assault. All
       other charges were dropped. [The] Commonwealth agreed
       to recommend a minimum sentence of not more than
       seven years.

           On November 3, 2014, a sentencing memorandum was
       filed on behalf of [Appellant] which was thoroughly
       reviewed by the Court prior to sentencing. On November
       5, 2014, a joint sentencing hearing was held for both
       [Appellant] and the shooter, Ryan Harding.              After
       consultation with the court reporter, it was determined
       that this joint proceeding began on November 5, 2014 at
       10:01 a.m. and concluded at 1:30 p.m. It is most unusual
       for a sentencing proceeding to take three and one-half
       hours even if a joint one. In this case, it was done to allow
       extensive victim/family/friend testimony and also to allow
       [Appellant] substantial allocution. [After engaging in a
       dialogue with Appellant regarding the circumstances of the
       crime and his recent county prison misconducts, the trial
       court sentenced Appellant to a term of seven to seventeen
       years of imprisonment.]

          Subsequent to sentencing, on November 10, 2014,
       counsel for [Appellant] filed a Reconsideration of Sentence.



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           That motion was denied on November 12, 2014, by order
           of this Court.

Trial Court Opinion, 2/10/15, at 1-5 (citation omitted). This timely appeal

followed.    Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant raises the following issues:

           A. Whether the [trial] court committed an abuse of
           discretion by imposing a sentence in excess of the
           aggravated range where there were no circumstances
           warranting a sentence above the aggravated range?

           B. Whether the sentence imposed was inappropriately
           harsh and excessive and an abuse of discretion?

           C.     Whether the [trial] court failed to take into
           consideration that [Appellant] is a product of particular
           circumstances and conditions of environment that were not
           fully and completely explored in the pre-sentencing report?

Appellant’s Brief at 4.1

        A challenge to the discretionary aspects of a sentence is not

appealable as of right.        Rather, Appellant must petition for allowance of

appeal pursuant to 42 Pa.C.S.A. § 9781. Commonwealth v. Hanson, 856

____________________________________________


1
  Because Appellant entered an open plea to the crime for which he was
convicted, his challenge to the discretionary aspects of his sentence is
properly before us. See Commonwealth v. Ritchey, 779 A.2d 1183, 1185
(Pa. Super. 2001) (explaining that where there have been no sentencing
restrictions in the plea agreement, the entry of a guilty plea will not preclude
a challenge to the discretionary aspects of sentencing).




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A.2d 1254, 1257 (Pa. Super. 2004).       When an appellant challenges a

discretionary aspect of sentencing, we must conduct a four-part analysis

before we reach the merits of the appellant’s claim.   Commonwealth v.

Allen, 24 A.3d 1059, 1064 (Pa. Super. 2011).      In this analysis, we must

determine: (1) whether the present appeal is timely; (2) whether the issue

raised on appeal was properly preserved; (3) whether Appellant has filed a

statement pursuant to Pa.R.A.P. 2119(f); and (4) whether Appellant has

raised a substantial question that his sentence is not appropriate under the

Sentencing Code. Id.

     In the instant case, Appellant filed a timely notice of appeal, and

properly preserved his claim in a post-sentence motion.        Additionally,

Appellant has complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 8-9.

We must therefore determine whether Appellant has raised a substantial

question for our review.

     A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

norms underlying the sentencing process.     Commonwealth v. Ventura,

975 A.2d 1128, 1133 (Pa. Super. 2009) (citations omitted). Here, within his

2119(f) statement Appellant argues:

           [Appellant] asserts that the [trial] court erred when it
        imposed a sentence above the aggravated range where
        the totality of the circumstances was neither so unique nor
        egregious to warrant the imposition of such a sentence.
        As such, he argues that the [trial] court committed an

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         abuse of discretion and/or the sentence was contrary to
         the guideline provisions of the Sentencing Guideline[s]
         when it sentenced him.

                                     ***

            Counsel for Appellant recognizes that the sentence
         imposed herein was within the statutory limits.
         Nevertheless, [Appellant] argues that the [trial] court
         committed a manifest abuse of discretion when it imposed
         a sentence outside the aggravated range. He submits that
         the circumstances surrounding the commission of the
         crime did not warrant the imposition of an aggravated
         sentence. As such, [Appellant] believes that the sentence
         was harsh and unreasonable and an abuse of discretion
         warranting a review by [Superior] Court.

Appellant’s Brief at 8-9.

      We view the arguments in Appellant’s Rule 2119(f) statement

essentially to assert that in sentencing Appellant, the trial court failed to

engage in individualized sentencing. We find this claim to raise a substantial

question. See Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super.

2005) (concluding such a claim raises a substantial question because it

“essentially challenges the adequacy of the reasons given by the court for its

sentencing choice”); see also Commonwealth v. Dunphy, 20 A.3d 1215,

1222 (Pa. Super. 2011) (explaining that a claim that the sentencing court

failed to give specific reasons for sentencing raises a substantial question).

      The standard employed when reviewing the discretionary aspects of

sentencing is very narrow.     Commonwealth v. Koren, 646 A.2d 1205,

1208 (Pa. Super. 1994).      We may reverse only if the sentencing court

abused its discretion or committed an error of law. Id. We must accord the



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sentencing court’s decision great weight because it was in the best position

to review the defendant’s character, defiance or indifference, and the overall

effect and nature of the crime. Id. Because the trial judge is in the best

position to view a defendant’s “character, displays of remorse, defiance or

indifference,   and   the   overall   effect   and   nature   of   the   crime,”

Commonwealth v. Hess, 745 A.2d 29, 33 (Pa. Super. 2000), we generally

defer to the trial judge’s assessment of the defendant and the evidence in

fashioning a proper sentence.

      After considering the arguments of the parties, and Appellant’s

explanation for his actions, the trial court imposed a seven to seventeen-

year sentence. In doing so, the trial court provided the following reasons:

            THE COURT:       Okay, there’s a plea bargain that is
         guiding the court’s minimum here. But I think because the
         matter brings [Appellant] into the aggravated range, I
         have to look at other factors as well before I accept it.
         And this is obviously a serious offense that [Appellant]
         pled to criminal conspiracy for aggravated assault.
         However, [Appellant] has been involved in the criminal
         justice system since the age of 13 and extensively and
         with great opportunity to correct himself because I think if
         my count is accurate, about 14 times in the juvenile
         system. Then, he goes into the adult system with his last
         offense. Then, he serves time at Pine Grove. Then, he
         comes out of Pine Grove and he’s on parole when this
         offense takes place, okay? Understanding that [Appellant]
         may have an extensive substance abuse history, I don’t
         view that as an excuse. I view that as a choice that he’s
         making. At the time that this is going on, it’s on a public
         street. There’s a lack of concern for the other people
         involved. Because this isn’t just three people involved
         here. There’s a crowd of people on both sides, both with
         him and with the decedent, Mr. Crowder.               While
         [Appellant’s] been in jail pending sentence, he hasn’t been

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       complying with the prison rules. I mean, I think - - what I
       might have in front of me is a defendant that wants to
       make progress, but isn’t doing a good job of it. I have to
       take all of that into consideration. And I also have to take
       into consideration that as a relatively young man, even
       with the type of sentence that is being imposed here,
       [Appellant’s] going to get out of jail as a very young man.
       And two things can happen when you get out of jail, you
       can improve yourself, go to school and make a positive
       contribution to your life and to society. Or you could fall
       back in with the same people that you’ve constantly been
       able to find every time that you got out of juvenile and
       even when you got out of the state correctional institution.
       And if you do that, maybe you wouldn’t be back here,
       maybe you’ll be the person in the casket next time. You
       need to think about that. I don’t consider what [the
       prosecutor] says in terms of future activity because I don’t
       have a crystal ball. But you need to think about whether
       he is right about where your lifestyle that you have chosen
       so far is leading you. I don’t see any good endings
       including the one that’s in front of me right now. Going to
       jail is a lousy ending. Getting killed is an even worse
       ending. So I think in order to give the public the benefit of
       some sort of safety coming out of this, I want to put a
       longer tail on this than 14 years. But I am not going to go
       to the maximum. So [Appellant] is going to be sentenced
       for a minimum of 7 years to a maximum of 17 years. The
       determination as to how much of that sentence is served
       and how much is not served really doesn’t lie with the
       court. Because you have 30 days within which to appeal
       what the court has done, here, okay. And once that 30
       days lapses, my jurisdiction over you gets sent to the
       Department of Corrections.          And they’re going to
       determine based upon how you behave in jail how much of
       that you serve. Now, let me use an example. If you act
       like you’ve been acting in the Lackawanna County Prison,
       they may want you to serve 17. If you are, in fact, serious
       about getting your life together and you start taking
       courses and you become a positive influence in there, you
       may serve 7. A great deal of that is under your control
       and according to your behavior.           But you need to
       understand - - you need to understand that you govern
       how that happens.          And then, the Department of
       Corrections makes its recommendation to the Board of

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         Probation and Parole.     You’ve been through SCI Pine
         Grove. And that’s going to determine how you come out.
         But even if you get out, you’ve got a long tail on, you’ve
         got a long parole on you. So you need to recognize that
         you need to change your life for a long time if you intend
         to do anything with yourself in the future.

N.T., 11/5/14, at 116-120.         With the above comments, the trial court

thoroughly explained its decision to deviate from the applicable sentencing

guideline ranges.      Thus, we cannot conclude Appellant’s sentence is

“unreasonable.” Griffin, supra.

      Our careful review of the record refutes Appellant’s claims to the

contrary.   Appellant first refers to the trial court’s failure to accept his

version of the shooting. Appellant’s Brief at 10. According to Appellant, “he

knew about the first impact, but not necessarily the second.” N.T., 11/5/14,

at 94.   As explained by the trial court in its Pa.R.A.P. 1925(a) opinion,

Appellant’s version is of little significance:

            The encounter leading to the first shot to Crowder’s
         thigh occurred on Monroe Avenue and Vine Street.
         [Appellant] and his group could have retreated down
         Monroe Avenue to diffuse the situation and the victim also
         had the means and opportunity to retreat throughout.

            Other avenues of retreat existed in the alley west of
         Monroe Avenue between Monroe Avenue and Madison
         Avenue. A third opportunity to retreat also existed on
         Madison Avenue itself. Finally, they fled in Moir Court after
         the second and fatal shot. Four opportunities to avoid
         confrontation were squandered by [Appellant].         These
         opportunities to retreat were being encouraged by some of
         [Appellant’s] group. Even if [Appellant] initially failed to
         consider retreat he was encouraged to walk away by Corey
         Williams and instead he stayed and encouraged escalating
         the use of the gun to increase the violence and danger
         rather than decrease it. Such poor judgment must be

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J-S41005-15


         considered as this Court believes         it   persists     within
         [Appellant] to the date of sentencing.

Trial Court Opinion, 2/10/15, at 8-9.

      As the trial court stated many times during the sentencing hearing, the

significant factor surrounding the shooting was Appellant’s actions in

“bringing a gun to a fist fight, encouraging the gun’s use and ignoring

opportunities that were pointed out to him.”      Id. at 11.       It is well settled

that when sentencing a criminal defendant, “the trial court is permitted to

consider the seriousness of the offense and its impact on the community.”

Marts, 889 A.2d at 615 (citation omitted).

      The record also refutes Appellant’s claim that in sentencing him the

trial court improperly “double-counted” his prior record. Appellant’s Brief at

12.   Rather, we view the trial court’s discussion regarding Appellant’s

lengthy prior record as demonstrating that past attempts at rehabilitation

have not only failed, but also led to additional crimes.                 See e.g.,

Commonwealth v. Gibson, 716 A.2d 1275, 1279 (Pa. Super. 1998)

(holding that sentence outside guidelines was justified because, inter alia,

the appellant disregarded an earlier opportunity to reform).             As further

explained by the trial court:

            [Appellant’s involvement within the juvenile system]
         was frequent and repetitive. In virtually every instance,
         [Appellant] chose to reach out to undesirable peer groups
         for the absent family support rather than to the counselors
         that were dedicated to trying to help [him] lead a more
         productive life as a juvenile.      [Appellant] admits at
         sentencing this led him to become a member of the Crips
         gang at least for a time.

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           His juvenile involvement led to serious involvement with
        the adult criminal justice system. He was convicted and
        sentenced to SCI Pine Grove where he served adult time
        and was paroled on state parole. [Appellant] was under
        state parole supervision when this present case occurred.

           [Appellant] has a documented penchant for repeating
        his mistakes and making the wrong decisions throughout
        his young life. He alleges he is making progress because
        now he will accept responsibility for his criminal actions
        rather than trying to make excuses for them. Despite
        extensive discussions with the Court, we remain
        unconvinced that [Appellant] sees the need to stop the
        criminal actions which compel his need to accept
        responsibility.  In other words, he allegedly accepts
        responsibility now for the impact of his actions without
        recognizing a need to cease those actions which are the
        cause of his acceptance of responsibility in the first
        instance.

Trial Court Opinion, 2/10/15, at 13-14.

     Our review of the record further refutes Appellant’s claim that the trial

court’s “sentence totally ignored the rehabilitation element of sentencing.”

Appellant’s Brief at 15.   As amplified by the trial court in its Pa.R.A.P.

1925(a) opinion:

           The sentence as fashioned also tries to address
        [Appellant’s] potential for rehabilitation. It is a seven year
        minimum. If [Appellant] behaves in prison and takes
        advantage of prison’s educational opportunities he could
        be out long before his seventeen year maximum. In being
        on parole, it is hoped that the structure of future parole
        supervision out of jail would afford [Appellant] the
        discipline needed to thrive on the outside. Tellingly, this
        crime occurred while on state parole from SCI Pine Grove.
        It is hoped that a future parole experience will benefit
        [Appellant] from this experience and be more successful.
        The long tail, though less than the statutory maximum,
        hopefully insures [Appellant] remains motivated to correct
        his past behavior and lifestyle.

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Trial Court Opinion, 2/10/15, at 9. “[T]he fact that Appellant disagrees with

the sentencing court’s conclusion regarding his rehabilitative potential does

not render the sentence imposed an abuse of discretion.” Marts, 889 A.2d

at 615 (citation omitted).

      Finally, we reject Appellant’s assertion that the trial court “failed to

take into consideration that [he] is a product of particular circumstances and

conditions of environment that were not fully and completely explored in the

pre-sentencing report[.]”    Appellant’s Brief at 16 (emphasis omitted).   At

sentencing, Appellant’s counsel was given the opportunity to supplement

and/or make corrections to the pre-sentence report, and enumerated several

“mitigating factors.” See N.T., 11/5/14, at 70-77. In its Pa.R.A.P. 1925(a)

opinion, the trial court explained:

             The Court had the benefit of all the written materials in
         the pre-sentence report as well as last minute filings and
         letters.

            The report referenced that [Appellant] had a difficult
         up-bringing [sic] with a substance dependent mother and
         an absent father.      The dysfunctional family situation
         created a need for his placement with family, friends and
         foster care. Unfortunately, this added to the emotional
         instability of [Appellant’s] childhood with a geographic
         instability as well.    Probably as a result of these
         unfortunate circumstances, [Appellant] began to act out
         and become involved with [the] juvenile justice system.

                                      ***

            We believe, given the benefit of a thorough pre-
         sentence report, an extensive juvenile record along with an
         adult record and with recent prison misconducts, that we
         have a grasp of [Appellant’s] particular circumstances.
         The extensive colloquy between this Court and [Appellant]

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         at the November 5, 2014 sentencing hearing only confirms
         our impression that we have a grasp of [Appellant’s]
         particular circumstances.

            [Appellant] is articulate and likeable but his record of
         poor judgment in terms of with whom he chooses to
         associate, juvenile adjudications and his adult conviction
         record prior to this mandate our decision.

Trial Court Opinion, 2/10/15, at 13-14.

      Appellant’s allegation that the sentencing court “failed to consider” or

“did not adequately consider” various factors is, in effect, a request that this

Court substitute its judgment for that of the trial court. This we cannot do.

While Appellant attempts to minimize his conduct during the shooting, the

weight to be assigned this factor, as well as other factors, was properly for

the trial court. See, Koren, supra.

      In sum, because we cannot conclude that Appellant’s sentence is

unreasonable, we affirm his judgment of sentence. Griffin, supra.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2015




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