J-S05016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAVANCE KIRKSEY                            :
                                               :
                       Appellant               :   No. 899 WDA 2018

           Appeal from the Judgment of Sentence February 27, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0000998-2017


BEFORE:      PANELLA, P.J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 27, 2019

        Appellant Lavance Kirksey appeals from the judgment of sentence

imposed after he pled nolo contendere to third-degree murder.1 Appellant

challenges the discretionary aspects of his sentence. We affirm.

        The trial court set forth the underlying facts of this case as follows:

        On February 14, 2016, Appellant conspired with another person in
        the shooting death of Jemar Phillips [(the victim)]. The homicide
        occurred at approximately 1:00 a.m. in [the] parking lot at 18th
        and Raspberry Streets across the street from Angie’s Last Stop
        bar in Erie, Pennsylvania. [The victim] had just arrived in the
        parking lot with his two passengers, Antonio Barnes and Rejeana
        Durr. After [the victim] and Barnes exited the vehicle, they were
        approached by Appellant and one other black male, Torriano
        Beard [(co-defendant Beard)], both of whom had guns. The males
        with guns shot at [the victim] and Barnes. [The victim] died at

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. § 2502(c).
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       the scene from multiple gunshot wounds to the chest and torso.
       Appellant fled the scene shortly before the police arrived. Bullets
       were recovered from the body of [the victim] at his autopsy.

       Approximately six months later, the City of Erie police responded
       to a shots fired call. Appellant was arrested and a revolver was
       recovered on his person. The gun was sent to the Pennsylvania
       State Police Crime Lab for comparison with the bullets recovered
       from [the victim’s] body at the autopsy. The crime lab determined
       five of the bullets recovered from [the victim] were discharged
       from the firearm found in Appellant’s possession.

Trial Ct. Op., 8/16/18, at 1-2 (footnote omitted).

       On January 4, 2017, Appellant was charged with homicide, conspiracy

to commit homicide, aggravated assault, recklessly endangering another

person, possession of instruments of crime, and firearms not to be carried

without a license (VUFA).2           On January 19, 2018, Appellant pled nolo

contendere to murder of the third degree.          The remaining charges were

withdrawn.      Sentencing was deferred for preparation of a pre-sentence

investigation (PSI) report. On February 27, 2018, the trial court sentenced

Appellant to eighteen to thirty-six years’ incarceration3 consecutive to other



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2See 18 Pa.C.S. §§ 2501(a), 903, 2702(a)(1), 2705, 907(a), and 6106(a)(2),
respectively.

3 Appellant had a prior record score of zero at the time of sentencing. Third-
degree murder has an offense gravity score (OGS) of fourteen. The minimum
standard guideline range is seventy-two months to the statutory limit (forty
years), plus or minus twelve months for mitigating or aggravating factors.
Therefore, Appellant’s sentence was within the standard guideline range. See
42 Pa.C.S. § 303.16(a).




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sentences Appellant was serving.4              Appellant did not file a post-sentence

motion.

       On March 23, 2018, Appellant filed a counseled motion seeking

reinstatement of his post-sentence rights nunc pro tunc, which the trial court

granted. That same date, Appellant filed a motion for reconsideration of his

sentence. The trial court denied Appellant’s motion on March 27, 2018.

       Appellant’s timely pro se notice of appeal was docketed on April 19,

2018.5 The trial court appointed present counsel on June 15, 2018. That

same date, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

within forty-five days. Appellant filed a Rule 1925(b) statement on July 31,



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4On March 21, 2017, Appellant pled guilty to VUFA at docket CR-3186-2016.
He was sentenced to three to twenty-three and a half months’ incarceration
with thirty days credit, followed by thirty-six months’ probation. See N.T.,
2/27/18, at 17.

5 Appellant was represented by private counsel when the trial court docketed
his pro se notice of appeal. However, the court noted that despite numerous
pro se filings by Appellant, private counsel took no action to preserve
Appellant’s direct appeal rights. See Trial Ct. Memo. Op. and Order, 6/15/18,
at 1. Therefore, “in the interests of justice and judicial economy,” the trial
court accepted the pro se filing and appointed new counsel to represent
Appellant on direct appeal. Id. Although a pro se filing by a represented
defendant ordinarily constitutes a legal nullity, under these circumstances, the
trial court properly treated the pro se filing as a timely notice of appeal. See
Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015) (stating
that where an appellant “was effectively abandoned by counsel and the trial
court failed to timely appoint new counsel, [an appellant’s] pro se filing does
not offend considerations of hybrid representation”).




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2018, one day late.6 The trial court filed a responsive Rule 1925(a) opinion,

in which it addressed the merits of Appellant’s sentencing claim and suggested

that Appellant was not entitled to relief.

       Appellant raises one issue for our review: “Whether the [A]ppellant’s

sentence is manifestly excessive, clearly unreasonable and inconsistent with

the objectives of the sentencing code[.]” Appellant’s Brief at 3.

       Appellant argues that the trial court’s sentence of eighteen to thirty-six

years’ incarceration is “manifestly excessive, clearly unreasonable and

inconsistent with the objectives of the Pennsylvania Sentencing Code.” Id. at

6. He asserts that the objectives of 42 Pa.C.S. § 9721(b) “could have been

achieved without the imposition of such a lengthy sentence.” Id. Appellant

also contends that the trial court failed to consider mitigating factors in

fashioning his sentence. Id. Specifically, Appellant notes that (1) he had no

criminal history and a prior record score of zero; (2) he ultimately accepted

responsibility by pleading no contest and did not dispute the facts presented

at the sentencing hearing; and (3) he had other mitigating circumstances,

such as his age, rehabilitative potential, and the fact that he has six minor

children. Id. at 6-7.
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6  Although Appellant’s Rule 1925(b) was untimely filed, the trial court
addressed the merits of Appellant’s claim in its Rule 1925(a) opinion.
Therefore, we decline to find waiver, and there is no need to remand this
matter. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.
2009) (en banc) (stating that where a Rule 1925(b) statement is untimely
filed, “this Court may decide the appeal on the merits if the trial court had
adequate opportunity to prepare an opinion addressing the issues being raised
on appeal.”).

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      Appellant’s sole claim is a challenge to the discretionary aspects of his

sentence. It is well settled that “[c]hallenges to the discretionary aspects of

sentencing do not entitle an appellant to review as of right.” Commonwealth

v. Derry, 150 A.3d 987, 991 (Pa. Super. 2016). Rather, before reaching the

merits of such claims, we must determine:

      (1) whether the appeal is timely; (2) whether [the a]ppellant
      preserved his issues; (3) whether [the a]ppellant’s brief includes
      a concise statement of the reasons relied upon for allowance of
      appeal with respect to the discretionary aspects of sentence; and
      (4) whether the concise statement raises a substantial question
      that the sentence is inappropriate under the [S]entencing [C]ode.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citation

omitted).

      Instantly, Appellant preserved his issue in a post-sentence motion and

timely appealed from the denial of his post-sentence motion. Appellant also

included in his brief a Pa.R.A.P. 2119(f) statement. Further, Appellant has

raised a substantial question for our review.       See Commonwealth v.

Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015) (stating that “an excessiveness

claim in conjunction with an assertion that the court did not adequately

consider a mitigating factor may present a substantial question” (citation

omitted)).

      Our standard of review in this context is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the

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       sentencing court ignored or misapplied the law, exercised its
       judgment for reasons of partiality, prejudice, bias or ill will, or
       arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

       “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 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) (citation

omitted). Further, when “the trial court has the benefit of a [PSI] report, we

presume that the court was aware of relevant information regarding the

defendant’s character and weighed those considerations along with any

mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.

Super. 2014).

       Where a sentence is imposed within the guidelines, we may only reverse

the trial court if we find that the circumstances of the case rendered the

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).

Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing

standards contained in 42 Pa.C.S. § 9721(b). 7       See Commonwealth v.

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7 Section 9721(b) states that “the sentence imposed should call for
confinement that is consistent with the protection of the public, the gravity of



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Baker, 72 A.3d 652, 663 (Pa. Super. 2013). However, “[w]e cannot re-weigh

the sentencing factors and impose our judgment in the place of the sentencing

court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009).

       Here, at sentencing, the trial court explained:

       Okay. Well, in fashioning this sentence I’m taking into account
       the statements of both counsel, further noting [Appellant] refused
       to give a statement this morning which he certainly does not have
       to do. I’m also taking into account the statement of Stacy Pulliam,
       sister of [the victim], and Terri Pacley, also the sister of [the
       victim].

       I’m also taking into account several letters that were received by
       the [c]ourt including from Juanita Baez, who is the girlfriend of
       [Appellant], and also a letter from I believe it was [Appellant]
       although it was not signed. Apparently[,] it is from [Appellant], it
       came from the prison, and his name is on the envelope.

       I’m also taking into account the victim impact statements and the
       restitution claim forms. Terricia Beard sent a victim impact
       statement, and she was the fiancée of [the victim].

       I’m also taking into account the pre-sentence investigation report,
       which includes an eligibility work sheet for RRRI sentencing and
       the sentencing guidelines as promulgated by the Pennsylvania
       Commission on Sentencing, as well as information concerning the
       seriousness of the instant charge that we’re here for this morning.
       It also includes [Appellant’s] record which consists of firearms not
       [to] be carried without a license.

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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).

Section 9781(d) provides that, in reviewing the record, we must have regard
for: (1) The nature and circumstances of the offense and the history and
characteristics of the defendant[;] (2) The opportunity of the sentencing court
to observe the defendant, including any presentence investigation[;] (3) The
findings upon which the sentence was based[; and] (4) The guidelines
promulgated by the commission. 42 Pa.C.S. § 9781(d).

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                                     ***

      I’m also noting that [Appellant] has a history of alcohol abuse,
      and he also has been engaged in drug abuse. I sat through the
      trial of [co-defendant] Beard and the first-degree conviction, and
      for anybody in the gallery there is a huge difference between first
      and third-degree murder.

                                     ***

      Sir, there’s no doubt this was an ambush and a cold-blooded
      killing by you, this was a completely senseless crime. Irregardless
      of the fact that you are pleading, you have pled, I mean, no
      contest here, I’m finding you guilty under a no contest plea. All
      right?

      You know, the arguments put forth to me, I mean, I have to agree
      with Stacy and particularly, Terri about your place in society. You
      have six children, six young children, and trust me you score no
      points with me when you come in here at your age and tell me
      that you have six children, age six, age two, age two, age two,
      age one, and age eight months. Oh, you are the big ladies man
      out there, aren’t you? Big ladies man engaged in the dark side of
      our society carrying firearms and now convicted of murder. You
      know, all these children that you have, no doubt - - I doubt if you
      paid a nickel in support, I don’t have that information, and I won’t
      use that fact one way or another against you, but no doubt they
      are living in poverty, and they’ll have a father spending his days
      in prison for a long time. And it’s a shame that whatever the
      dispute was between you and your buddy [co-defendant Beard]
      and [the victim] couldn’t have been resolved in some mature adult
      fashion rather than ambushing an unsuspecting victim who simply
      was out on [the] night [of] Valentine[’s] Day 2016.

N.T. Sentencing, 2/27/18, at 15-19.

      In its Rule 1925(a) opinion, the trial court incorporated the above-

recited portion of the sentencing hearing where it explained the reasons for

the sentence it imposed. See Trial Ct. Op., 8/16/18, at 5-6. The court further

explained:

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      In the case at bar, the sentence was not manifestly excessive.
      The [PSI] Report, including the sentencing guidelines, was
      reviewed. Consideration was given to Appellant’s age, prior adult
      criminal activity and the impact of the crime on the victim and the
      community. This court imposed a sentence only after taking into
      consideration all the relevant factors and weighed the public’s
      need for protection, the gravity of Appellant’s offense and the
      Appellant’s rehabilitative needs.

Id. at 5.

      Based on our review of the record, we find no support for Appellant’s

assertion that the trial court failed to consider Appellant’s mitigating factors

or that it imposed an excessive sentence. The court considered the PSI report,

Appellant’s background, the Sentencing Guidelines, and letters from both

Appellant and Appellant’s girlfriend.    See Seagraves, 103 A.3d at 842

(stating that where “the trial court has the benefit of a [PSI] report, we

presume that the court was aware of relevant information regarding the

defendant's character and weighed those considerations along with any

mitigating factors”). The court also acknowledged that Appellant had a history

of drug and alcohol abuse and that he had six minor children. Further, the

court considered the facts and circumstances of the case, testimony from the

victim’s sisters, and a victim impact statement from the victim’s fiancée.

Ultimately, the court weighed each of those factors and found that a sentence

of 18 to 36 years’ incarceration was appropriate.      See id.   Therefore, we

discern no abuse of discretion in the trial court’s sentence. See Baker, 72

A.3d at 664 (stating that, in light of our standard of review, where the record

demonstrates that the trial court considered the appropriate sentencing


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factors, “we have no basis to find that the sentence imposed is clearly

unreasonable.”).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2019




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