J-A28018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

RICHARD M. DODDS

                          Appellant                  No. 287 EDA 2014


          Appeal from the Judgment of Sentence of September 30, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0014515-2010


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                       FILED NOVEMBER 25, 2014

      Richard M. Dodds appeals the September 30, 2013 judgment of

sentence entered by the Philadelphia County Court of Common Pleas. We

affirm.

      The trial court summarized the factual history of the case as follows:

      On October 31, 2010, Ian Hirst-Hermans (“Hirst-Hermans”),
      Justin Boylan (“Boylan”), Vincent Gasparo (“Gasparo”), and
      Christian Succecci (“Succecci”) attended a party in the 2100
      block of North 17th Street in the City and County of Philadelphia.
      All attended Temple University. Before attending the party they
      visited other friends, and beginning at 8:00 p.m., along with
      Andres Choi (“Choi”) and Austin Heron (“Heron”), they walked to
      Brian Jerome (“Jerome”)’s house for the party.

      After arriving, the group greeted friends. Hirst-Hermans and
      Boylan also spoke with two girls they did not know, Shannon
      Bouvia (“Bouvia”) and Anna Marczak (“Marczak”), who were in
      costume as “bunnies.” While they were downstairs, [Dodds]
      confronted Hirst-Hermans for talking to Bouvia, and Hirst-
      Hermans walked away. At one point, Boylan noticed [Dodds]
      watching them intently from the opposite side of the kitchen.
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     Although he and Hirst-Hermans ignored [Dodds], the glares
     continued. Boylan asked Bouvia if she knew [Dodds], and she
     replied that he was her brother.

     After about an hour, Boylan went upstairs with the girls. Bouvia
     admitted [Dodds] was her boyfriend, not her brother, and after
     that admission Boylan ceased talking to her. Boylan and Hirst-
     Hermans exchanged words with [Dodds] during the party.
     Boylan went back downstairs to visit with three or four friends in
     the kitchen. At least twenty minutes after he first saw [Dodds],
     Hirst-Hermans overheard him tell Bouvia that Boylan was a
     “douchebag.” Hirst-Hermans told [Dodds] to shut up.

     Choi and Hirst-Hermans observed [Dodds] by the door,
     muttering angrily.     Seeing Hirst-Hermans was uneasy, Choi
     asked whether he wanted Choi to say something to [Dodds].
     Choi then approached [Dodds] and they argued; Choi threw the
     first punch, hitting [Dodds] in the face, and [Dodds] fought back.
     The fight escalated to wrestling on the ground, and when Hirst-
     Hermans attempted to drag Choi away from [Dodds,] he was
     pulled down as well. [Dodds] punched Hirst-Hermans in the
     back as Hirst-Hermans held him in a bear hug. The fight lasted
     about fifteen seconds before other party guests broke it up.

     [Dodds] was then asked to leave, and Boylan and his friends
     returned to the party. Boylan and Hirst-Hermans walked to the
     backyard to get a beer. Conflicting estimates put the time at
     either twenty minutes to half an hour. Eventually Hirst-Hermans
     wanted to leave, as Gasparo and Succecci had already left.

     It was approximately 2:00 a.m. by the time Hirst-Hermans and
     Boylan left the house, walking up 17th Street towards Edgley
     Street. [Dodds] approached from around the corner, walking in
     a circle around them, and the three men came to a stop in the
     intersection. [Dodds] yelled, “You little fucking pussy; you don’t
     want to fuck with me, you fucked with the wrong dude.”

     Hirst-Hermans exchanged “trash talk” with [Dodds] before he
     stopped and asked, “What are you doing, what’s going on?”
     [Dodds] came to a halt about four or five feet in front of the two
     men, pointing a gun at Hirst-Hermans. Hirst-Hermans asked,
     with his arms held down by his thighs, “Are you going to shoot
     me?” [Dodds] then fired a single shot at Hirst-Hermans’ chest.

     Hirst-Hermans fell to the ground in the middle of the street,
     vomiting and bleeding heavily from his mouth and the right side

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J-A28018-14


     of his chest. His eyes rolled up in his head and his face turned
     white. Boylan, Jerome, Neil Tierney (“Tierney”) and Heron ran
     to him and together turned Hirst-Hermans over. Boylan called
     911 while Heron and Tierney pressed down upon Hirst-Hermans’
     chest, trying futilely to stop the bleeding. [Dodds] remained
     standing at the scene with the gun in his hand.

     At around 2:00 a.m., Police Sergeant Miranda Cruz, responding
     to an unrelated back[-]up call, was driving southbound on 17th
     Street and noticed a large crowd of people gathered at 17th and
     Edgley Streets. As she left her car to investigate, she saw
     [Dodds] walking towards her with a black handgun, his arms
     held straight out and pointing the gun at her chest. [Dodds] told
     her that he had just shot a male, it was in self-defense, and he
     had a license to carry. Sergeant Cruz ordered [Dodds] to drop
     the gun but he did not comply, and so she called for immediate
     assistance. [Dodds] still did not drop the gun, though Sergeant
     Cruz ordered him to do so or she would shoot him. The scene
     was chaotic with many witnesses yelling that [Dodds] had shot
     Hirst-Hermans. By the time backup arrived, Sergeant Cruz
     stood over [Dodds] pointing her gun at him, with his own gun on
     the ground. Officers approached [Dodds] and ordered him to
     put the gun down. Officer Stephens secured the black Glock 19
     with his foot then placed handcuffs on [Dodds] with the help of
     his partner, Officer Christopher Manigault.

                                      ***

     At the hospital, emergency room staff cut off Hirst-Hermans’
     clothes and rushed him immediately into surgery, as he was in
     highly unstable condition with a high heart rate and low blood
     pressure.   He had lost at least 30% of his blood volume.
     Doctors sutured a vein in his right arm closed to stop the
     bleeding. A vein was removed from his leg to replace the
     shattered axillary artery in his right arm.      Hirst-Hermans
     remained in surgery for three hours.

     Hirst-Hermans remained in the hospital for five days.          He
     attended physical therapy twice a week for a year, and did not
     regain mobility in his right arm until after a year. Six weeks
     after leaving the hospital he could only twitch a finger. To the
     present day, he has no skin sensation in his hand; a strip
     running from his hand down the back of his arm to his shoulder
     is completely numb. He has difficulty playing the guitar, writing,
     opening objects, and dressing himself. He was not able to


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J-A28018-14


       graduate college in four years; as a result of his injuries he was
       forced to take a medical leave.

Trial Court Opinion, 3/10/2014, at 3-7 (record citations and footnotes

omitted).

       The trial court summarized the procedural history of the case as

follows:

       On October 31, 2010, [Dodds] was arrested and charged with
       Attempted Murder of the First Degree, Aggravated Assault,
       [Possessing Instruments of Crime (“PIC”)], Simple Assault, and
       Recklessly Endangering Another Person (“REAP”).[1]

       On July 10, 2013, this case proceeded to trial by jury on the
       charges of Attempted Murder, Aggravated Assault, and
       Possessing of an Instrument of Crime. The charges of Simple
       Assault and Recklessly Endangering Another Person were nolle
       prossed.

       On July 19, 2013, the jury convicted [Dodds] of Aggravated
       Assault and PIC, and acquitted him of Attempted Murder.
       Sentencing was deferred to September 30, 2013, pending a Pre-
       Sentence Investigation and mental health report.

       On September 30, 2013, [the trial court] sentenced [Dodds] to
       an aggregate sentence of ten (10) to twenty (20) years’
       incarceration.[2,3]


____________________________________________


1
     18 Pa.C.S. §§ 901 (18 Pa.C.S. § 2503(a)), 2702, 907, 2701, and
2705, respectively.
2
       For aggravated assault, the court sentenced Dodds to ten to twenty
years’ incarceration, which is the statutory maximum sentence for that
offense. For PIC, the court imposed a concurrent sentence of two and one
half to five years’ incarceration.
3
      Dodds undisputedly was subject to the mandatory minimum sentence
provided in 42 Pa.C.S. § 9712(a), which requires the imposition of a
(Footnote Continued Next Page)


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J-A28018-14


      On October 7, 2013, [Dodds] filed a Post-Sentence Motion for
      Modification of Sentence with new counsel, alleging that [the
      trial court] exceeded the sentencing guidelines without
      justification.

      On December 23, 2013, [Dodds] filed a Supplemental Post-
      Sentence Motion for a New Trial, alleging that trial counsel was
      ineffective for failing to request a jury charge of Defense of
      Others and for failing to object to a lack of a speedy trial
      [pursuant to] Pa.R.Crim.P. 600.

      [Dodds’] motions were denied on January 21, 2014.

      On January 28, 2014, [Dodds] filed a timely notice of appeal
      before the Superior Court of Pennsylvania.

      On February 5, 2014, [the trial court] filed its Order Pursuant to
      Pa.R.A.P. 1925(b) directing [Dodds] to file a [c]oncise
      [s]tatement of [the errors] [c]omplained of on [a]ppeal within
      twenty-one days.

      On February 20, 2014, [Dodds] filed [his Rule 1925(b)
      statement], alleging that [the trial court] abused its discretion in
      refusing to grant trial counsel’s request that [Dodds] be re-
      evaluated for competency to stand trial, and that the sentence
      was excessive.

Id. at 1-2 (trial court’s footnotes omitted).     On March 10, 2014, the trial

court entered an opinion pursuant to Pa.R.A.P. 1925(a).

      Dodds raises the following two issues on appeal:

      1. Did the lower court abuse its discretion in refusing to grant
         [Dodds’] attorney’s request that [Dodds] be reassessed as to
         competency to stand trial?

      2. Did the trial court abuse its discretion in imposing an
         excessive and unreasonable sentence upon the Appellant?

                       _______________________
(Footnote Continued)

minimum sentence of five years’ incarceration upon a defendant convicted of
aggravated assault who used a firearm in connection with the crime.



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Dodds’ Brief at 3.

      The test for determining whether a defendant is competent to stand

trial is well-settled:

      A defendant is presumed to be competent to stand trial. Thus,
      the burden is on the defendant to prove, by a preponderance of
      the evidence, that he was incompetent to stand trial. In order to
      prove that he was incompetent, the defendant must establish
      that he was either unable to understand the nature of the
      proceedings against him or unable to participate in his own
      defense.

      Stated otherwise, the relevant question in a competency
      determination is whether the defendant has sufficient ability at
      the pertinent time to consult with counsel with a reasonable
      degree of rational understanding, and to have a rational as well
      as a factual understanding of the proceedings.

      We extend great deference to the trial judge’s determination as
      to competency because he or she had the opportunity to observe
      directly a defendant’s behavior.

Commonwealth v. Pruitt, 951 A.2d 307, 316 (Pa. 2008) (internal

citations, quotation marks, and brackets omitted; formatting modified).

Whether a defendant is cooperating with counsel during trial is not at issue

when determining competency; rather the relevant question is whether a

defendant     is    able   to    cooperate     with     counsel   during   the   trial.

Commonwealth v. Logan, 549 A.2d 531, 539-40 (Pa. 1988).                      Further,

mental    illness   does   not   by   itself   render    a   defendant   incompetent.

See Commonwealth v. Chopak, 615 A.2d 696, 699 (Pa. 1992).

      In the present case, defense counsel, noting concerns regarding

Dodds’ behavior, requested a psychological examination on the second day



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of the trial. Notes of Testimony (“N.T.”), 7/11/2013, at 3-6. Specifically,

defense counsel stated that Dodds’ responses to his questions were “not

appropriate.”4      Id. at 4-5.         As a result, the trial court ordered a

psychological examination.          Id. at 15.   The psychological examination

revealed that Dodds was competent to stand trial, but, if necessary, should

be evaluated on a daily basis. Id. at 14-15.

       On July 12, 2011, defense counsel requested a second psychological

examination for Dodds. N.T., 7/12/2013, at 3-4. The trial court, citing the

fact that there was no visible change in Dodds’ behavior since the previous

day’s psychological examination, denied the request. Id. at 4. Dodds made

no further request for a psychological examination during the remainder of

the trial.

       On July 16, 2013, Dodds elected not to testify on his own behalf. N.T.,

7/16/2013, at 140. At that point, Dodds was examined at length by both

defense counsel and the trial court. Id. at 141-46. During the examination,

Dodds indicated that he was not under the influence of any medication that

affected his ability to make a decision on whether to testify.     Id. at 141,

144. Dodds also indicated that he understood the role of the judge, jury,

district attorney, and defense counsel at his trial. Id. at 141. Notably, the

court asked Dodds whether he was taking medication for his mental illness.

____________________________________________


4
     The record is silent as to how Dodds’ responses were inappropriate.
Conversations between Dodd and defense counsel were privileged.



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Dodds indicated that he had been on medication but had not been taking it

recently.    The court asked whether that would “in any way interfere with

[Dodds’] ability to make [his] decision to testify,” and Dodds indicated that it

did not.    Id. at 144-45.      Dodds then reiterated that he did not wish to

testify. Id. at 145.

      Dodds was deemed competent to be tried on day one of trial. On the

second day, the trial court granted Dodds the opportunity to show that

circumstances had changed overnight, such that he no longer was

competent to stand trial. Dodds’ counsel ventured nothing but vague and

conclusory allusions to inappropriate answers to questions in their private

discussion. Furthermore, Dodds did not request a reevaluation in the days

that followed. Later in the trial, Dodds knowingly and intelligently declined

to testify on his own behalf, and the record does not indicate that his

behavior changed after he first was deemed competent to stand trial. This

limited record is insufficient to establish that Dodds did not understand the

nature of the proceedings against him or that he was unable to assist in his

own defense. Therefore, Dodds’ first issue does not warrant relief.

      In his second issue, Dodds claims that the trial court imposed an

excessive and unreasonable sentence.           “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to

appeal,     as   the   right   to   pursue   such   a   claim   is   not   absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004).                      To

obtain review of the merits of a challenge to the discretionary aspects of a

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particular sentence, an appellant must include the statement required by

Pa.R.A.P. 2119(f) in his brief.5 Therein, “the appellant must show that there

is a substantial question that the sentence imposed is not appropriate under

the Sentencing Code.” McAfee, 849 A.2d at 274.

       To establish a substantial question, the appellant must articulate “the

manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting Commonwealth v.

Mouzon, 812 A.2d 617, 627 (Pa. 2002)).           A challenge to a sentence that

exceeds the guidelines’ recommended range but falls within the statutory

limit may present a substantial question. See Commonwealth v. Hanson,

856 A.2d 1254 (Pa. Super. 2004). This Court’s inquiry “must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying

the appeal, which are necessary only to decide the appeal on the merits.”
____________________________________________


5
       Rule 2119 provides, in relevant part, as follows:

       Discretionary aspects of sentence.             An appellant who
       challenges the discretionary aspects of a sentence in a criminal
       matter shall set forth in a separate section of the brief a concise
       statement of the reasons relied upon for allowance of appeal
       with respect to the discretionary aspects of a sentence. The
       statement shall immediately precede the argument on the merits
       with respect to the discretionary aspects of the sentence.

Pa.R.A.P. 2119(f).




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Tirado, 870 A.2d at 365 (quoting Commonwealth v. Goggins, 748 A.2d

721, 727 (Pa. Super. 2000) (en banc)).

        Here, Dodds’ brief contains the requisite Rule 2119(f) statement.

Therein, he claims that the trial court imposed an unreasonable sentence,

failed to consider mitigating factors such as Dodds’ mental illness, and

“concentrated almost exclusively on the injury to the victim.” Dodds’ Brief

at 9.     Notably, not only was Dodds’ sentence well in excess of the

aggravated range prescribed by the guidelines, the upper bound of which

was sixty-six months, but it was equal to twice the mandatory minimum

sentence. Therefore, Dodds has raised a substantial question, and we will

review his sentence on its merits.     See Commonwealth v. Boyer, 856

A.2d 149, 152 (Pa. Super. 2004) (finding a substantial question where

appellant alleged that the court imposed statutory maximum sentence and

discussed only the nature of the crimes committed in support of the

sentence).

        When sentencing a defendant outside either the mitigating or

aggravating ranges of the Sentencing Guidelines, the trial court is required

to indicate its awareness of the range suggested by the Sentencing

Guidelines.    Mouzon, 828 A.2d at 1128.            After acknowledging the

Sentencing Guidelines, the trial court may sentence a defendant outside the

guidelines’ aggravated range, provided that the court considers (1) the

protection of the public; (2) the rehabilitative needs of the defendant; and

(3) the gravity of the offense as it relates to the impact upon the life of the

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J-A28018-14



victim and the community. Commonwealth v. Hill 66 A.3d 365, 370 (Pa.

Super. 2013).    When sentencing a defendant outside the guideline range,

the trial court must state the factual basis and specific reasons for doing so

on the record. Id.

      The trial court both acknowledged the range set by the Sentencing

Guidelines and addressed the three factors required by Hill before he

sentenced Dodds to the statutory maximum for his aggravated assault

conviction.   The trial court noted Dodds’ prior record score of zero and

indicated that the applicable standard range for the aggravated assault was

thirty-six to fifty-four months, plus or minus twelve months in mitigation or

aggravation. N.T. 9/30/2013 at 5. Thus the upper bound of the guidelines’

aggravated range was only six months greater than the mandatory minimum

five-year sentence that applied to Dodds.

      To the contrary of Dodds’ representations, the trial court addressed all

three Hill factors, painting a clear picture of its basis for imposing a lengthy

sentence. With regard to the protection of the public, upon which the trial

court actually spent far more time than it did on any other factor, the court

underscored the setting, a college party “where some young folks are

gathering and drinking beer and having a party,” and where “people

generally [don’t] think that they’ll be shot at . . . while they are drinking

from a keg.” N.T., 9/30/2013, at 56-57. The court also noted that there

was a gap between the first scuffle and the second nearly fatal confrontation

of at least five and as many as forty minutes, a time period during which

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J-A28018-14



Dodds might have left the area and avoided further trouble; the court

speculated that Dodds might have lingered only because he was emboldened

by his firearm. Id. at 58. The trial court noted “these [considerations] are

all part of my concerns when I think about the protection of the community

because    you    made . . .   [a]   decision      in    terms   of   exercising   your

discretion[;] . . you made a really bad decision and you exercised your

discretion in a very poor way to the point where this young man was injured

horribly and almost died.” Id. The trial court also emphasized that were it

not for a modicum of luck, such as it was, and the extraordinary efforts of

the victims’ friends and the responding officers, the victim very likely would

have died. Id. The trial court concluded: “And so when I think about the

protection of the community that is what—well, it’s all processed and I have

a grave concern about you being out in the community when you are

exercising discretion in that manner.”         Id.      The trial court also expressly

considered what it perceived to be Dodds’ rehabilitative needs, stressing the

need for anger management classes and mental health treatment.                     And

although the trial court did not spend many words on the gravity of the

offense, vis-à-vis the impact upon the life of the victim, the court plainly

considered it, and the record speaks for itself inasmuch as the victim came

within a hair’s breadth of bleeding out fatally and suffers continuing severe

disabilities arising from his injuries.

      Although the trial court exceeded the guidelines’ aggravated range

suggested by the Sentencing Guidelines, we find that the trial court provided

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J-A28018-14



ample justification on the record for imposing a lengthy sentence upon

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

sentenced Dodds to the statutory maximum for aggravated assault.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




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