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Commonwealth v. McCain

Superior Court of Pennsylvania

December 4, 2017


         Appeal from the Judgment of Sentence May 11, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0007290-2013



          MUSMANNO, J.

         The Commonwealth of Pennsylvania appeals from the judgment of sentence imposed following Leroy McCain's ("McCain") convictions of aggravated assault, conspiracy, simple assault, persons not to possess firearms, firearms not to be carried without a license, carrying a firearm on public streets in Philadelphia, and recklessly endangering another person.[1]We vacate McCain's judgment of sentence, and remand for resentencing.

         In its Opinion, the trial court set forth the relevant facts underlying this appeal as follows:

On May 4, 2013, Anthony Rodriguez [("Anthony")] was selling cell phones at a vending stand near 5th [Street] and Lehigh Avenue in Philadelphia. Wilfredo Rodriguez [("Wilfredo")], who owned the stand, was also working there at that time. Anthony was selling a certain phone on commission for an associate named Mikey. That day, an unnamed buyer drove up to the stand and bought the cell phone from Anthony. Later that day, the buyer returned and complained that the phone he had bought was fake. Anthony replied that he no longer had the buyer's purchase money. [Anthony] asked the buyer to give him a day to get his money back, and the buyer replied that he would be back.
At some point afterward, the buyer returned to the stand and began fighting with Anthony. The buyer had a companion with him, a tall, thin young man. Wilfredo engaged the companion in a fight while the buyer fought with Anthony. During the altercation, the companion called over to [McCain], who was on the other side of Lehigh Avenue. [McCain] came over, and the companion urged him to pull out his firearm. Anthony and Wilfredo saw [McCain] pull a gun out of his jacket or waistband and began yelling, "Don't do it, don't do it." [McCain] pointed his gun at Anthony, seemed to hesitate, and then fired three times at the ground near Anthony. The bullet ricocheted off the cement and struck Wilfredo in the foot.
On May 7, 2013, Detective [Samuel] Gonzalez [("Detective Gonzalez")] took a statement from Anthony in which Anthony identified [McCain] as the shooter from a photo array. At trial, Detective Gonzalez entered into evidence images from a surveillance video from the pawn shop across the street. The image shows "an older male with a - type of dark colored baseball cap, appears he's wearing glasses … dark colored checkered shirt … either black or blue, dark blue, blue and white … with dark color possibly, dark color pants." This matched the description provided by Anthony, which was a "black male, about five-ten … stocky build … looked older, maybe around 50 years old … wearing glasses and a blue baseball cap … wearing [a] black jacket, blue jeans, and he had [] black and white sneakers."
Counsel[] stipulated that, had Detective Dusak been called, he would have testified to blood discovered at the gas station near that location and two .45 caliber FCCs (fire cartridge casings) in the area near the pumps towards Lehigh Avenue. Officer [Gregory] Welsh would testify that the FCC 1 and FCC 2 were fired from the same firearm. The detectives executed a search warrant at [McCain's] residence and recovered a baseball cap. Counsel[] further stipulated that [McCain] was 55 at the time of arrest and did not have a valid license to carry a firearm. [McCain] was ineligible to possess a firearm due to a prior conviction.

Trial Court Opinion, 12/6/16, at 2-3 (citations to record omitted).

         Following a bench trial, McCain was convicted of the above-mentioned crimes. The trial court deferred sentencing and ordered a pre-sentence investigation report ("PSI"). On May 11, 2016, the trial court sentenced McCain to an aggregate term of 11½ to 23 months in prison, with immediate parole to house arrest, followed by 7 years of reporting probation and 50 hours of community service. The trial court did not grant McCain credit for time served.

         On May 18, 2016, the Commonwealth filed a Motion for Reconsideration of Sentence, which was denied by operation of law on September 16, 2016. The Commonwealth subsequently filed a timely Notice of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.

         The Commonwealth raises the following issue for our review: "Did the [trial] court abuse its discretion where it failed to protect the public from a violent, unrepentant, career felon and offered flawed reasons for its extreme deviation from the sentencing guidelines in imposing a lenient sentence of house arrest for shooting a victim with an illegal firearm?" Commonwealth's Brief at 4.

         The Commonwealth argues that the trial court abused its discretion by imposing a sentence below the mitigated range of the sentencing guidelines.[2]Id. at 14. The Commonwealth points to McCain's substantial record (which includes convictions for, inter alia, robbery, rape, aggravated assault and possession of a firearm by a convicted felon), as well as his classification as a repeat felony offender. Id. The Commonwealth claims that the trial court's sentence fails to protect the public from a violent criminal. Id. at 16. Additionally, the Commonwealth challenges the trial court's classification of the shooting as an "accidental injury, " and argues that McCain's conviction of aggravated assault precludes a determination that the resulting injury was accidental. Id. at 17. The Commonwealth claims that the trial court trivialized Wilfredo's injury by characterizing it as a wound to his foot. Id. at 18; see also id. (wherein the Commonwealth states that the bullet shattered Wilfredo's shin bone; the injury required surgical repair and the implantation of a metal rod and several screws; and, as a result ...

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