J-S19021-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYREE JOHNSON

Appellant No. 2149 EDA 2014

Appeal from the Judgment of Sentence June 2, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006509-2013

 CP-51-CR-0006510-2013

BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.: FILED APRIL 07, 2015

Tyree Johnson appeals from an aggregate sentence of 14-28 years’ 

imprisonment following his open guilty pleas to six counts of robbery,1four 

counts of burglary,2three counts of aggravated assault,3two counts of 

conspiracy,4one count of firearms not to be carried without a license5and 

____________________________________________

1 18 Pa.C.S. § 3701.

2 18 Pa.C.S. § 3502.

3 18 Pa.C.S. § 2702.

4 18 Pa.C.S. § 903.

5 18 Pa.C.S. § 6106.
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one count of carrying a firearm on public streets.6 Johnson contends the 

trial court abused its discretion by imposing a substantially greater sentence 

than that imposed on his co-defendant. We affirm.7

The charges against Johnson arise from two separate incidents on 

February 24, 2013 and March 4, 2013, respectively. On February 24, 2013, 

Christian Diaz and Todd Banks went to the area of 18th and Gratz Streets in 

Philadelphia after arranging for the sale of Diaz’s dirt bike on Craig’s list. 

N.T. 2/12/14, p. 16. Upon their arrival, Diaz and Banks met an unidentified 

male whom they believed to be the purchaser of the dirt bike. While the 

unidentified male was examining the bike, Johnson approached from behind 

and pointed a gun at Diaz’s and Banks’ heads. The unidentified male fled 

with the dirt bike while Johnson continued to hold Diaz and Banks at 

gunpoint. Id. at 16. Defendant next ordered the men to “get in your 

fucking car and get out of here.” Diaz and Banks entered their vehicle and 

began chasing the unidentified male on the dirt bike. As they turned onto 

Gratz Street, Johnson emerged from behind two parked cars and fired into 

the front passenger side panel of the vehicle. Diaz and Banks were unable 

to recover the dirt bike. Id. at 17. 

____________________________________________

6 18 Pa.C.S. § 6108.

7 The court sentenced Johnson on June 2, 2014. On June 9, 2014, Johnson 

filed timely post-sentence motions which the court denied on June 12, 2014. 

On July 4, 2014, Johnson filed a timely notice of appeal. Both Johnson and 

the trial court complied with Pa.R.A.P. 1925.
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On March 4, 2013, Kimberly Flack was walking home in the area of 

18th and Berks Streets in Philadelphia. As she reached her front door, 

Johnson approached from behind, placed a gun against her head and 

ordered her inside. As Johnson pushed Flack up the stairs with the gun to 

her back, co-defendants Malcolm Murray and Elijah Washington entered the 

property and followed them. When they reached the second floor, Johnson 

placed the gun to Flack’s head and ordered her into the kitchen, where he 

bent her over the counter and duct-taped her mouth shut upon 

Washington’s order to “shut her up.” Id. at 11-12. Murray and Washington 

proceeded to the second floor of the apartment, where they robbed Flack’s 

roommates, Katie Tressel, Katie Arthur and Annabelle Maxon, at gunpoint, 

taking money, debit cards, computers and cell phones. Id. at 12-13. After 

binding their hands and feet with duct tape, Murray and Washington told 

Tressel, Arthur and Maxon: “Please don’t move, if you don’t move, we won’t 

hurt you, but if you move, we’ll kill you, stay here for 30 minutes.” Id. at 

13. Murray and Washington proceeded downstairs, where Johnson was 

holding Flack at gunpoint. Johnson proceeded to take money from Flack, 

and the three men exited the property. Id. 

Police subsequently recovered video showing the three men using one 

of the victims’ debit cards. Johnson and both co-defendants were identified 

when the video was aired on the news. Id. Police also recovered video of 

the men fleeing the victims’ apartment. A search of Johnson’s house yielded 
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a red hoodie matching the one that Johnson wore in the video. Id. at 14. 

When police stopped Johnson one day later, they recovered from his person 

one of the i-pad’s stolen from Flack’s apartment. Id. 

Diaz and Banks saw Johnson on the news in the video relating to the 

March 4, 2013 home invasion and contacted police concerning the February 

24, 2013 robbery. Diaz and Banks subsequently identified Johnson from 

photo arrays. Id. at 17.

The lower court imposed an aggregate sentence of 14-28 years in CP51-CR-0006509-2013, the home invasion case, consisting of consecutive 

sentences of 5-10 years’ imprisonment for the robbery charges at counts 1 

and 6 and consecutive sentences of 2-4 years’ imprisonment for count 8 

(firearms not to be carried without a license) and count 10 (carrying 

firearms on public streets). The court imposed concurrent sentences on all 

remaining charges. In CP-51-CR-0006510-2013, the dirt bike robbery case, 

the court imposed sentences of 5-10 years’ imprisonment on the robbery 

charges at counts 1 and 7 and the conspiracy charge at count 3. These 

sentences ran concurrent to each other and to all charges at CP-51-CR0006509-2013.

In this appeal, Johnson raises a single issue: 

Was the lower court’s sentence of 14-28 years at CP51-CR-0006509-2013 manifestly excessive and 

disproportional to defendant’s conduct in that the 

court failed to give adequate weight to defendant’s 

lack of prior record and imposed a disproportionately 

longer sentence than that imposed on defendant’s 
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co-defendant (Malcolm Murray, CP-51-CR-0006508-

2013) who received an aggregate sentence of only 

10-20 years despite engaging in the same conduct 

as defendant?

Brief For Appellant, p. 3. 

This claim raises a challenge to the discretionary aspects of Johnson’s 

sentence. Challenges to the discretionary aspects of sentencing do not 

entitle a petitioner to review as of right. Commonwealth v. Allen, 24 A.3d 

1058, 1064 (Pa.Super.2011). 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.

Allen, 24 A.3d at 1064. The determination of whether a particular issue 

raises a substantial question is to be evaluated on a case-by-case basis. 

Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super.2005). 

Generally, however, in order to establish a substantial question, the 

appellant must show actions by the sentencing court inconsistent with the 

Sentencing Code or contrary to the fundamental norms underlying the 
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sentencing process. Commonwealth v. Titus, 816 A.2d 251, 255 

(Pa.Super.2003).

Here, Johnson filed a timely notice of appeal and preserved his issues 

in a post-sentence motion for reconsideration. Johnson’s brief includes a 

concise statement of the reasons relied upon for allowance of appeal 

pursuant to Pa.R.A.P. 2119(f). Finally, Johnson has raised a substantial 

question for review, namely an “excessive sentence claim [] in conjunction 

with an assertion that the court did not consider mitigating factors.” 

Commonwealth v. Gonzalez, -- A.3d --, 2015 WL 252446, *15 

(Pa.Super., January 21, 2015). 

Nevertheless, Johnson’s excessiveness claim is devoid of merit. We 

find persuasive the trial court’s thorough analysis of this question:

[Johnson] essentially claims that he should have 

received a sentence identical to his coconspirator, 

Malcolm Murray. For the reasons that follow, this 

claim is without merit. 

It is well-settled that sentencing is a matter vested 

in the discretion of the sentencing court and will not 

be disturbed on appeal absent a manifest abuse of 

discretion. Commonwealth v. Gribble, 703 A.2d 

426, 437 (Pa.1997). ‘In this context, an abuse of 

discretion is not shown merely by an error in 

judgment. Rather, the [Johnson] must establish, by 

reference to the record, that the 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. Rodda, 723 A.2d 

212, 214 (Pa.Super.1999) (en banc) (citations and 

internal quotations omitted). A reviewing court must 
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accord great weight to the sentencing court’s 

discretion because it is in the best position to view a 

defendant’s character, exhibition of remorse, 

indifference, and the general nature of the crime. 

See Commonwealth v. Sierra, 752 A.2d 910, 915 

(Pa.Super.2000); Commonwealth v. Brown, 741 

A.2d 726, 735 (Pa.Super.1999) (en banc).

Here, it bears underscoring at the outset that, unlike 

his co-conspirator, Mr. Murray, [Johnson] committed 

another savage gunpoint robbery via a Craigslist 

ruse prior to the home invasion, and fired a shot at 

his victims on the public streets of Philadelphia. This 

fact alone defeats [Johnson]’s argument. 

Nonetheless, the record demonstrates that this 

[c]ourt considered all relevant facts and 

circumstances prior to imposing sentence. 

Specifically, in addition to [Johnson]’s presentence 

investigation report and the sentencing guidelines, 

this [c]ourt expressly considered the violent nature 

and circumstances of [Johnson]’s offenses, the 

protection of the public, the gravity of the offenses, 

the character and condition of [Johnson], including 

his ADHD and anger issues, his lack of prior record,

his family background and support, his expression of 

remorse, and his station in life as a young adult. 

Additionally, this [c]ourt observed on the record:

‘It’s hard to describe the violence that was inflicted 

upon four completely innocent Temple students in 

the safety of their home that they were sharing in 

order to educate themselves, to get their college 

degree. To have been violated the way they were 

truly has changed their lives forever. It must have 

been so completely and utterly terrifying. I do note 

that [Johnson] denies having a gun in the 

presentence investigation, although in the 

courtroom, he did admit to the facts which included 

holding these girls at gunpoint while Mr. Murray duct 

taped them and tied them up. He also, of course, 

pled guilty to the second offense here involving 

Craig’s List and the guy who showed up to buy a dirt 

bike or sell a dirt bike, rather, and ended up getting 
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held at gunpoint and actually being shot at in his van 

by [Johnson]. For somebody with a zero prior record 

score, it’s unusual to find this level of violence and 

utter disregard for human life and safety and, quite 

frankly, Mr. Johnson, you are fortunate that you’re 

not in the homicide room here today. It’s a difficult 

job when sentencing somebody who has no prior 

record and has never before shown, at least in any 

law enforcement way, this type of violent proclivity 

or behavior. In crafting this sentence, I believe I 

have considered both the fact that [Johnson] has 

taken responsibility and has no prior record, as well 

as the egregious violence that he committed both 

against you girls as well as against the other victim 

[Christian Diaz]....’

N. T. 06/02/14, pp. 29-30.

Thus, the record demonstrates that, contrary to 

[Johnson]’s contention, this [c]ourt duly considered 

all relevant factors and circumstances, including his 

lack of prior record, in fashioning an appropriate 

sentence. Accordingly, [Johnson] is due no relief.

Pa.R.A.P. Opinion, pp. 4-6. Based on the trial court’s analysis, we conclude 

that Johnson’s sentence was within the court’s discretion. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015