J-S73021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

COPELAND TYLER

                             Appellant                    No. 257 WDA 2016


         Appeal from the Judgment of Sentence September 3, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0015854-2014


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 2, 2016

      Copeland Tyler appeals from the judgment of sentence entered on

September 3, 2015, in the Court of Common Pleas of Allegheny County.

After careful review, we affirm.

      On October 4, 2014, Officer Matthew Schwartzmiller responded to a

shooting that occurred at the New Pennley Apartments located at 5601 Penn

Avenue    in     East   Liberty.    When   he   arrived   at   the   scene,   Officer

Schwartzmiller found the victim, Reginald Turner, lying in a stairwell, with

fatal gunshot wounds.          Officer Schwartzmiller also found Tyler with a

gunshot wound to his right forearm. Detective John Hamilton of the City of

Pittsburgh Police Department’s Mobile Crime Scene Unit photographed the

crime scene and collected five .380 caliber shell casings and three .45 caliber

shell casings.
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        Detective Robert Shaw of the City of Pittsburgh Police Department’s

Homicide Division was also on the scene and testified that although more

than one firearm was fired, no firearms were recovered on the night of

October 4, 2014. Tyler told the officers on the scene that he was shot and

gave his name, but did not provide the officers with any additional

information about what had occurred in the stairwell that evening.       Tyler

testified that he was carrying a firearm on the night in question because he

was involved in a shooting a few weeks prior, explaining “I just got shot, and

I was scared. I didn’t want to get shot again. I thought I was going to die

that day.”     N.T. Trial, 6/10/15, at 104.      Deputy Medical Examiner Dr.

Abdulrezak Shakir testified that Turner was shot three times.       One bullet

entered the back of Turner’s head, and the other two bullets passed through

Turner’s back.

        On October 28, 2014, detectives visited Tyler’s home.     After a brief

interview, Tyler admitted to shooting Turner.      The detectives transported

Tyler to police headquarters and read him his Miranda1 Rights. During the

interview at police headquarters, Tyler told the detectives that he was in fear

for his life that night.2 After encountering Turner and a third, unidentified

man in the stairwell of the New Pennley Apartments, Tyler grabbed Turner
____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
2
  During the trial, the Honorable Phillip A. Ignelzi viewed a tape of the
interview that took place at police headquarters. N.T. Trial, 6/9/15, at 77.



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and held a gun to his head, “hoping that [the third man] was going to leave

me alone so I could leave and get out of the hallway.” N.T. Trial, 6/9/15, at

108.      Tyler indicated that the third, unidentified man shot first, and Tyler

returned fire and fell down the steps with Turner. Tyler then testified that

when he regained consciousness, he proceeded to shoot Turner two more

times because he believed Turner still posed a threat. The detectives asked

Tyler why he shot an unarmed man, and Tyler replied “He had to die. He

got to go.     What am I supposed to do?”        N.T. Trial, 6/9/15, at 127.   The

Commonwealth also presented evidence that showed Tyler in an Instagram

video holding a .45 caliber firearm and firing it into the air on a residential

street.    Tyler admitted that he was the individual in the video holding the

firearm and that the video was posted to his account.

        On December 23, 2014, Tyler was charged with one count of criminal

homicide, one count of carrying a firearm without a license, and one count of

a person not to possess a firearm.3 On June 9, 2015, Tyler proceeded to a

non-jury trial before the Honorable Philip A. Ignelzi.      The trial court found

Tyler guilty of one count of voluntary manslaughter, 4 one count of carrying a

firearm without a license, and one count of a person not to possess a

firearm.      On September 3, 2015, Judge Ignelzi sentenced Tyler to an
____________________________________________


3
  18 Pa.C.S. § 2501(a); 18 Pa.C.S. § 6106; and 18 Pa.C.S. § 6105(a)(1) and
(c), respectively.
4
    18 Pa.C.S. § 2503(a)(1).



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aggregate sentence of 12½ to 29 years’ incarceration on all 3 counts, to be

served consecutively.5 The trial court also ordered Tyler to pay $15,745 in

restitution.

       On September 14, 2015, Tyler filed a timely post-sentence motion

seeking reconsideration of his sentence.         On January 19, 2016, the trial

court filed an order denying Tyler’s post-sentence motion by operation of

law.6 Tyler filed a timely notice of appeal, and on February 29, 2016, the

trial court ordered Tyler to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court filed a Rule 1925(a) opinion

on May 23, 2016.

       Tyler raises the following issue for our review:

               Was the sentence imposed by the court manifestly
               excessive, unreasonable, and an abuse of discretion
               where the court focused on improper factors,
               sentenced in the aggravated range of the guidelines
               without providing reasons, failed to consider
               rehabilitative needs and focused solely on the
               seriousness of the offense to the exclusion of other

____________________________________________


5
  Tyler’s sentence for each count was in the aggravated range under the
Pennsylvania Sentencing Guidelines. Tyler’s sentence was also within the
statutory limits for each offense.   See Exhibit 1 to Commonwealth’s
Sentencing Memorandum, 8/26/15.
6
  Pennsylvania Rules of Criminal Procedure 720(B)(3)(a) (Except as provided
in paragraph (B)(3)(b), the judge shall decide the post-sentence motion,
including any supplemental motion, within 120 days of the filing of the
motion. If the judge fails to decide the motion within 120 days, or to grant
an extension as provided in paragraph (B)(3)(b), the motion shall be
deemed denied by operation of law.).



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              factors despite the mandates of 42 Pa.C.S. §
              9721(b)?

Appellant’s Brief, at 4.

       Tyler’s claim implicates the discretionary aspects of his sentence. 7 When

the discretionary aspects of a sentence are questioned, an appeal is not

guaranteed as of right.          Commonwealth v. Moore, 617 A.2d 8, 11 (Pa.

Super. 1992). 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.

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).

       An appellate court will find a “substantial question” and review the

decision of the trial court only where an aggrieved party can articulate clear

reasons why the sentence imposed by the trial court compromises the

sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d 17

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7
 Tyler filed a timely notice of appeal and preserved his claim in a post-
sentence motion. Tyler also included a Pa.R.A.P. 2119(f) statement in his
appellate brief. See Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006); see also Pa.R.Crim.P. Rule 720.



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(Pa. 1987).     See also Commonwealth v. Jones, 613 A.2d 587, 590 (Pa.

Super. 1992) (Superior Court will grant an appeal only when appellant shows

that trial judge’s actions were either: (1) inconsistent with specific provision of

Sentencing Code; or (2) contrary to fundamental norms which underlie

sentencing process).

      “A substantial question is raised when an appellant alleges that the

sentencing court erred by imposing an aggravated range sentence without

consideration of mitigating factors.”    Commonwealth v. Hyland, 875 A.2d

1175, 1183 (Pa. Super. 2005); see also Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014) (“It is well-established that a sentencing courts

failure to consider mitigating factors raises a substantial question.”).       Our

Supreme Court has held that where “[p]re-sentence reports exist, we shall

continue to presume that the sentencing judge was aware of relevant

information    regarding   the   defendant's   character   and    weighed    those

considerations along with mitigating statutory factors.”     Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988). Additionally,

              [A] sentencing judge may consider any legal factor
              in deciding whether a defendant should be sentenced
              within the aggravated range. Second, in order to be
              adequate, the sentencing judge's reasons for
              sentencing within the aggravated range must reflect
              this consideration. Finally, the sentencing judge's
              decision regarding the aggravation of a sentence will
              not be disturbed absent a manifest abuse of
              discretion.




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Commonwealth v. Duffy, 491 A.2d 230, 233 (Pa. Super.

1985).

      The Superior Court’s standard of review when a defendant challenges the

discretionary aspects of his or her sentence is very narrow; we will reverse

only where appellant has demonstrated a manifest abuse of discretion by the

sentencing judge. Commonwealth v. Hermanson, 674 A.2d 281 (Pa. Super.

1996).

            An abuse of discretion may not be found merely
            because an appellate court might have reached a
            different conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or
            ill-will, or such lack of support so as to be clearly
            erroneous.       The rationale behind such broad
            discretion and the concomitantly deferential standard
            of appellate review is that the sentencing court is in
            the best position to determine the proper penalty for
            a particular offense based upon an evaluation of the
            individual circumstances before it. Simply stated,
            the sentencing court sentences flesh-and-blood
            defendants and the nuances of sentencing decisions
            are difficult to gauge from the cold transcript used
            upon appellate review. Moreover, the sentencing
            court enjoys an institutional advantage to appellate
            review, bringing to its decisions an expertise,
            experience, and judgment that should not be lightly
            disturbed.

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)

(internal citations omitted).

      Furthermore, “[a] sentencing court need not undertake a lengthy

discourse for its reasons for imposing a sentence or specifically reference the

statute in question, but the record as a whole must reflect the sentencing


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court's consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010). The trial

court should consider imposing a sentence “for confinement that is consistent

with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S. § 9721(b).

        Tyler has raised a substantial question because he argues that the trial

court failed to consider mitigating factors and provide reasons supporting an

aggravated sentence in this case. See Hyland, supra.8 Tyler contends that

the sentence imposed was manifestly excessive, unreasonable, and an abuse

of the trial court’s discretion. We disagree. The trial court carefully considered

Tyler’s age, the seriousness of the crime, and Tyler’s prior criminal record in

accordance     with    Section 9721(b)         before   rendering a sentence   in the

aggravated range. See Walls, supra.

        During the sentencing proceeding, Tyler’s counsel asked the trial court to

“look at his young age, look at the fact that he had graduated from the

Academy, that he was working at Wendy’s, that he had previously been

victimized, [and] that he was shot that night.” Appellant’s Brief, at 68. We

are confident that the trial court considered Tyler’s accomplishments in

addition to the seriousness of the crime and Tyler’s prior criminal convictions.

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8
    Tyler properly preserved his claim on appeal. See Evans, supra.



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The trial court heard extensive testimony from family members and friends of

the victim in addition to Tyler’s mother and father. The trial court was satisfied

that Tyler’s conviction did not “come out of left field,” as Tyler’s father

suggested to the court. See N.T. Sentencing, 9/3/16, at 59. (Judge Ignelzi

reviewed Tyler’s criminal history, explaining “at the age of 13 [Tyler] carried a

gun.   At the age of 16 [Tyler] carried a gun.       And at the age of 18 [Tyler]

carried a gun. And [Tyler] was shot months before this.”).

       The   trial   court   also   reviewed   the   Commonwealth’s     sentencing

memorandum and the pre-sentence report. See Trial Court Opinion, 5/23/16,

at 10 (“This Court reviewed the Commonwealth’s sentencing memorandum

and it agreed with the Commonwealth that there are aggravating factors in this

case. This Court was also deeply disheartened by the pre-sentence report it

received.”); see also Devers, supra. Additionally, the trial court considered

Tyler’s young age when it rendered a verdict for the lesser-included offense of

voluntary manslaughter rather than the original charge of criminal homicide.

Specifically, the trial court showed “. . . mercy with its verdict, and as a result,

Mr. Tyler will one day leave the walls of a state prison a free man.            The

alternative would have resulted in Mr. Tyler leaving the confines of a state

prison only upon his death.” Trial Court Opinion, 5/23/16, at 9.

       Furthermore, Tyler’s prior gun convictions deeply troubled the court and

influenced the court’s decision to render a sentence in the aggravated range.

N.T. Sentencing, 9/3/15, at 61 (“those choices were made to carry guns; and


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it’s the third time [Tyler] made his choice to carry a gun”); see also Crump,

supra.     The trial court clearly stated that it considered both the evidence

presented at trial and the evidence presented during the sentencing proceeding

before determining an appropriate sentence.        Id. at 71-72 (“[T]his sentence

will be a result of many factors and considerations that the Court has. I agree

with the Commonwealth that there are aggravating factors in this case.”).

       Therefore, the trial court did not manifestly abuse its discretion when it

found that Tyler’s previous convictions for gun possession, the Instagram

photo showing Tyler shooting a firearm recklessly into the air, and Tyler’s

testimony stating that Turner “had to die” supported an aggravated sentence

in this case.    Trial Court Opinion, 5/23/16, at 8-10.    Furthermore, the trial

court determined that Tyler’s “best chance of rehabilitation [would] be

incarceration, as he is apparently not receptive to rehabilitation in public life,”

based on his prior criminal history. Id. at 10.

       For the foregoing reasons, we affirm.

       Judgment of sentence affirmed. Petition to withdraw granted.9




____________________________________________


9
  Carrie L. Allman, Esquire, Tyler’s appellate counsel, filed a petition for
leave to withdraw as counsel because she is leaving the Office of the Public
Defender of Allegheny County. The Office of the Public Defender will still
represent Tyler.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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