J-S65035-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                                               :
               v.                              :
                                               :
    DENISE TAYLOR,                             :
                                               :
                     Appellant                 :            No. 3475 EDA 2016

           Appeal from the Judgment of Sentence September 9, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0001467-2015

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED NOVEMBER 21, 2017

        Denise Taylor (“Taylor”) appeals from the judgment of sentence

imposed following the entry of her guilty plea to third-degree murder and

possession of an instrument of crime.1 We affirm.

        In its Opinion, the trial court set forth the relevant procedural and factual

history, which we adopt for the purpose of this appeal.            See Trial Court

Opinion, 12/15/16, at 1-3.

        On appeal, Taylor raises the following issue for our review: “Was it not

improper for the [trial] court to receive testimony from Thomas Major Cook

[(“Cook”)] during sentencing proceedings consisting of the witness’s

recommendation that [Taylor] receive the maximum penalty permitted by

law?” Brief for Appellant at 3.




1
    See 18 Pa.C.S.A. §§ 2502, 907(a).
J-S65035-17


         Taylor contends that the sentencing court agreed that Cook’s testimony

during the sentencing hearing was not proper victim impact testimony, but

improperly determined that Cook’s statement had no impact on the outcome

of the hearing. Id. at 15. Taylor asserts that the sentencing court erred by

permitting, over objection, Cook to express his personal opinion that Taylor

should receive the maximum sentence, and that his opinion was shared by

the decedent’s entire family. Id. at 16. Taylor asserts that “[i]t appears from

the record that the sentencing court relied, at least in some part, upon this

impermissible       sentencing   factor   in    rejecting   defense   counsel’s

recommendation[,] and imposing a sentence of 20 to 40 years instead.” Id.

at 17.

         In its Opinion, the trial court addressed Taylor’s issue, set forth the

relevant law, and determined that the issue lacked merit. See Trial Court

Opinion, 12/15/16, at 3-6. We agree with the sound reasoning of the trial

court, which is supported by the record and free of legal error, and affirm on

this basis as to Taylor’s sole issue on appeal. See id.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/21/2017




                                    -2-
                                                                                                 Circulated 10/30/2017 12:14 PM


                                                                                                            FILED
                              IN THE COURT OF COMMON PLEAS                                                  OEC 1 5 2016
                      FIRST JUDICIAL DISTRICT-OF PENNSYLVANIA.                                      c .. \ \Appea\sUnit:
                              CRIMINAL TRIAL DIVISION                                             f\rsi'Tua~ia\ Districto1 PA
COMMONWEALTH OF PENNSYLVANIA                                   CP-5 l-CR-0001467-2015


        v.
                                                            CP-51-CR-0001467-2015C-Omm. v. TaylO!".Deolsa
                                                                              Opinion


DENISE TAYLOR
                                                                          111 Ill 1111IIll\Ill
                                                                 !Ill II\7878505011
                                                 OPINION

McDermott, J.                                                                               December 15, 2016

Procedural History

        On November 14, 2014, the Defendant, Denise Taylor, was arrested and charged with

Murder and related offenses.      On June 22, 2016, the Defendant appeared before this Court and

pled guilty to Third-Degree Murder and Possession of an Instrument of Crime ("PIC") under the

negotiated stipulation that she would receive no less than a fifteen to thirty year sentence. On

September 9, 2016, this Court sentenced the Defendant to twenty to forty years imprisonment for

Third Degree Murder and a concurrent sentence of one to two years for PIC.

        On September 14, 2016, the Defendant filed a post-sentence Motion for Reconsideration

of Sentence. On October 4, 2016, after a hearing on the record, this Court denied the

Defendant's post-sentence motion. On October 27, 2016, the Defendant filed a Notice of

Appeal. On November 1, 2016, this Court ordered the Defendant to file a Concise Statement of

Matters Complained of on Appeal pursuant to Pa.R.A.P. l 925(b ). On November 22, 2016, the

Defendant filed a timely Statement and a Motion for Extension of Time. 1 On December 5, 2016,



1
  The Defendant requested an extension to review the Notes of Testimony for June 22, 2016, which had not been
prepared at that time. The Notes of Testimony were completed on December l, 2016.
this Court granted an extension to file a J 925(b) Statement. On December 6, 2016, having

reviewed the notes of testimony in this case, the Defendant filed a supplemental 1925(b)

Statement, wherein she raised no additional issues.




        During her June 22, 2016 plea hearing, the Defendant pled guilty to the following facts:

                    [O]n November 12 [] [,] 2014 into the early morning hours of
              November 13 (] [,] 2014 the defendant and the victim Sandra Barley
               were roommates at 47 North 53rd Street in the City and County of
              Philadelphia.
                   The defendant during the course of this over 10-hour period, the
              Commonwealth would produce evidence that the defendant
              whipped the victim with an extension cord repeatedly causing
              approximately 115 separate and distinct whip injuries to her body,
              and those are the distinct once whereas the Commonwealth would
              not be able to show if there were repeated marks in the same areas.
                   In addition the defendant slammed the decedent's head into the
              wall. The defendant also punched the victim multiple times. At trial
              the medical examiner would have testified that the victim suffered
              extensive soft tissue contusions as well as multiple rib fractures, and
              that the cause of death for the victim was blunt impact trauma. To
              be more specific, the decedent lost so much blood each point of
              impact or contusion on her body that the victim bled out underneath
              her skin.
                    The defendant took as stated previously over the evidence
              would be over 10 hours to inflict these injuries to the victim.
              Neighbors reported hearing screams from the victim throughout that
              at least 10-hour period of time and were available and would have
              testified at trial.
                   In addition the defendant called police. The defendant lied to
              police and told police that three unknown black men in hoodies
              came into her home and assaulted her and assaulted the victim and
              she found her in that state. The defendant then staged her apartment
              as a crime scene by knocking over certain things to say that there
              had been a break-in. Later at Homicide the defendant did admit that
              that was all a lie and she did in fact inflict these injuries causing the
              death of the victim. The medical examiner would have additionally
              testified that the manner of death was homicide.

N.T. 6/22/2016 at 18-20. Prior to sentencing, this Court reviewed presentence and mental health

reports, including a Psychological History Report prepared by the Defendant's Mitigation


                                                                                                   2
Specialist, Candace Chang, M.P.A.2            During the September 9, 2016 sentencing hearing, the

Commonwealth presented ten witnesses, including the City of Philadelphia Chief Medical

Examiner Samuel Gulino, who testified to the extent of the decedent's injuries, and seven family

members who provided victim impact testimony. These witnesses included the decedent's

husband Thomas Major Cook, daughter Felicia Barley, grandchildren Ashley Nicole Barley,

Brandon Shareaf Kennedy Moore, and Michael Moore, nephew Troy Barley, and cousin Cynthia

Calland-Dicks. Id. at 34-78. During his testimony, Thomas Major Cook recommended to this

Court, without solicitation, that the Defendant receive the maximum penalty under law. Id. at

60-63. The Defendant presented two witnesses, her children Ruthedna and Dante Taylor, who

described the Defendant's history of sexual abuse and struggles with post-traumatic stress. Id. at

90-101.

Discussion

           The Defendant raises a single issue for this Court's review, whether it was improper for

the Court to permit witness Thomas Major Cook to testify recommending that the Defendant

receive the maximum penalty permitted by law.

           Victim impact testimony is p~rmissible when the Commonwealth establishes that the

victim's death had an impact on the victim's family as opposed to presenting mere

generalizations of the effect of the death on the community at large. Commonwealth v. Hitcho,

123 A.3d 731, 761 (Pa. 2015) (citing Commonwealth v. Eichinger, 915 A.2d 1122, 1139 (Pa.

2007)). "Testimony that is a personal account describing the devastating impact the [murder]

had on the surviving [family] is wholly appropriate and admissible [.]" Commonwealth v.

Bryant, 67 A.3d 716, 726 (Pa. 2013) (citing Commonwealth v. Flor, 998 A.2d 606, 634 (Pa.



2
    Chang did not testify at the Defendant's sentencing hearing.

                                                                                                      3
2010)).     Admission   of victim impact evidences   rests within the sound discretion   of the trial court,

which must balance evidentiary       value against the potential dangers of unfairly prejudicing     the

accused.     Id. A trial court's decision will only be reversed if the defendant sustains the heavy

burden of showing that the trial court has abused its discretion by misapplying the law or

exercised a manifestly unreasonable, partial, prejudicial, biased, or ill-willed judgment.

Eichinger, supra at 1140.

           In furnishing a sentence, a trial court "shall follow the general principle that the sentence

imposed should call for confinement that is consistent with the protection of the public, the

gravity of the offense ] ... ] and the rehabilitative needs of the defendant." 42 Pa.C.S. § 972l(b).

Sentencing is a matter vested in the sound discretion of the trial court, and will not be disturbed

absent a manifest abuse of discretion. Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.

Super. 2014) (citing Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)).

          During the sentencing hearing held before this Court, Thomas Major Cook, the

decedent's husband, described the impact the decedent's death had on him and his family.

Without prompting, Major Cook further testified that the Defendant deserved the maximum

penalty. N.T. 9/9/2016 at 62. After the Defendant objected, this Court agreed that Major Cook's

request was not victim impact testimony and directed Major Cook to explain the effect the

decedent's death had on him and his family:

                       [THE WITNESS:) I look at my daughter and I see Saundra still
                  today, you know. It hurts still today. It's as fresh as it happened
                  November 13 when she was found dead. I'd just like to say one
                  major thing to the judge, specifically.
                      THE COURT: Go ahead. Tell me.
                      THE WITNESS: I would like the woman _or lady that inflicted
                  this punishment on her to get the maximum.
                      MR. GROSS: Objection, Your Honor. This is not victim impact.
                      THE COURT: I know but his feeling is that the punishment
                  deserves the maximum penalty. Is that correct, sir?


                                                                                                           4
                     THE WI1NESS: Yes, ma'am.
                     THE COURT: Because of the effect that it has on you?
                     THE WI1NESS: Yes.
                     THE COURT: And your daughters?
                     THE WITNESS: Not only me, my entire family. I speak for my
                 entire family, grandsons; nieces, granddaughters also, and great
                 grands. They don't have a grandmother to go _see.
                     THE COURT: That's what I need to hear about because, you
                 know, defense counsel's correct. But this is your chance to tell me,
                 and that's what I need to hear, how it's affected everyone in your
                 family. You've told me about you. So how many grand kids are
                 there?
                     THE WITNESS: There's four, five. Like I said, my great grands,
                 we don't have -- I have three great grands anda grandchild. But we
                 don't have that person to go see, to text, to talk to on the phone. We
                 don't have that anymore, and it hurts daily, you know. It hurts daily.
                     And l would like to see justice to the fullest extent and beyond
                 inflicted on that person that caused this horrible pain done, if Your
                 Honor can see fit that the maximum is given.

Id. at 62--63.

         Major Cook's unsolicited statements were not the focus of the prosecutor's or this

Court's questioning, which concentrated on the impact the decedent's death had on him and his

family. Although Major Cook's emotionally charged statements may have fallen outside the

scope of victim impact testimony, this Court, in effect, sustained the Defendant's objection by

directing Major Cook to focus on the impact the Defendant's crime had on his family. Given the

facts and circumstances surrounding this particular case, Major Cook's emotional outburst is not

surprising, and this Court acted within its discretion to maintain order and keep Major Cook on

topic.

         To the extent that Major Cook's request constituted impermissible victim impact

testimony, this Court notes that his statements were isolated and had no impact on the outcome

of the Defendant's sentencing hearing. This Court heard testimony from several Commonwealth

witnesses that explained the extent of the decedent's injuries, the defendant's history of violence,



                                                                                                   5
and the effect the murder had on the decedent's family. In furnishing an appropriate sentence,

this Court balanced the Commonwealth's arguments with evidence the Defendant presented

concerning physical and sexual abuse she sustained throughout her life.

       This Court reviewed the sentencing guidelines prior to imposing its sentence. With a

prior record score of one and an offense gravity score of fourteen, the standard range for Third-

Degree Murder, with the required deadly weapon (used) enhancement, was 102 months to the

statutory limit. After·carefully considering each side's witnesses and the above factors, this

Court imposed a standard range twenty to forty year sentence for Third-Degree Murder and a

concurrent period of one to two years for PIC, for a total sentence of twenty to forty years. In

doing so, this Court acknowledged that a lesser sentence would diminish the seriousness of the

offense. N.T.9/9/2016 at 123-125. The Defendant is not entitled to relief, as she fails to

demonstrate prejudice.

       For the foregoing reasons, the decision of this Court should be affirmed.



                                                             BY THE COURT,




                                                             Barbara A. McDermott, J.




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