J-A12004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CASSANDRA LOCKE

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 803 WDA 2019

Appeal from the Judgment of Sentence Entered January 24, 2019

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0014132-2017

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.* MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 16, 2020

Appellant, Cassandra Locke, appeals from the judgment of sentence of

71⁄2 to 20 years of confinement, which was imposed after her conviction at a

bench trial for voluntary manslaughter - unreasonable belief killing justifiable.1

Appellant does not challenge the propriety of her conviction, which hence is

affirmed. The sole issue presented for appellate review is whether the

sentencing court abused its discretion when it sentenced Appellant in the

aggravated range of the sentencing guidelines without presenting reasons

therefor. After careful review, we agree with Appellant, and, accordingly, we

vacate the judgment of sentence and remand for resentencing.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2503(b)
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The trial court opinion summarized the facts of the case as follows:

On September 7, 2017, at approximately 10:30 p.m.

Charles McGovern entered the lobby of his apartment building to

find a female yelling on the phone to another person/entity.

McGovern pressed the button for the elevator, however the

distraught tenant told him not to get on. When the elevator doors

opened McGovern then noticed a large amount of blood drops

leading to the lobby near the entrance of the building manager’s

office. McGovern walked over to where the tenant was standing

and saw Daryl Waite wearing only black boxer shorts lying in a

pool of blood unresponsive and struggling to breath[e]. At that

time McGovern noticed a wound on Waite’s chest and took off his

shirt to apply pressure. However, he was unable to tell exactly

where the blood was coming from, so he put his shirt back on and

waited for the ambulance, which arrived five to ten minutes later.

Medics performed CPR on Waite and transported him to the

hospital where he was pronounced dead, having suffered a fatal

stab wound to the chest.

City of Pittsburgh Police officers responded to the apartment

building and investigated the scene confirming a blood trail

leading from Waite’s body to the building’s elevator. A

corresponding blood trail was found on the third floor ultimately

leading officers to apartment 302, occupied by Rhonda Robinson.

As they approached there was an overwhelming smell of bleach

emanating outside that apartment. Officers knocked on the door

and made contact with Robinson who was detained while they

performed a protective sweep of the interior of the apartment.

When officers entered the apartment they noticed blood on the

floor and walls, and the same strong bleach smell they had noticed

upon approach.

Officers observed blood spatter on the entry doorway of the

apartment, a pool of blood outside the doorway, blood on the

threshold of the door, blood, beer cans, and overturned furniture

throughout the apartment. Waite’s pants were on the living room

floor and covered in blood. Further investigation revealed a steak

knife wrapped in a shirt in a trash room located on a lower floor

of the apartment building, and three additional knives located on

the carpet in the apartment, under the bathroom sink, and on top

of a pile of clothes in the apartment.
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Robinson was interviewed and stated that she had been in the

apartment with Cassandra Locke (Appellant) and Locke’s

paramour, Daryl Waite. The three started drinking around

2:00 p.m., eventually becoming intoxicated. Approximately five

to six hours after they starting drinking, when Locke was not in

the room, Waite exposed himself to Robinson asking her to have

intercourse with him and Locke. Robinson declined but apparently

communicated the advance to Locke. Locke and Waite then had

an argument in the kitchen, and Waite eventually ran out of the

apartment with the stab wound inflicted by Locke. Robinson

followed Waite to the lobby where he collapsed. Robinson tried to

revive Waite, but he was unresponsive. She returned to her

apartment and attempted to question Locke about what had

happened, but Locke only indicated she was “sick of him.”

Robinson conceded to trying to clean up the apartment with

bleach after the incident knowing the police were going to arrive.

Locke fled the apartment prior to the arrival of the police.

The following day, the City of Pittsburgh police located Locke

walking down 21st Street toward Joseph Street. Upon approach,

Locke raised her hands in the air and indicated she was the person

they were looking for. She was placed in handcuffs and made an

unsolicited statement indicating she was being abused by her

boyfriend and she had “cut” him.

Locke was transported to homicide headquarters where she made

spontaneous inculpatory statements to detectives confessing that

she had stabbed him because she was tired of Waite “beating”

her. She was then taken to an interrogation room, read her preinterrogation warnings which included her Miranda warnings,

wherein she invoked her right to counsel and the interview ceased.

Officers were subsequently notified by an individual that Locke

had given him a knife to discard which he placed in a sewer at the

intersection of Harcum Way and 29th Street. The knife was

subsequently retrieved by law enforcement at that location. It

was later determined that Waite’s DNA was found from the blood

swab taken off the handle.

Trial Court Opinion, dated December 12, 2019, at 3-7 (citations omitted to

the record omitted).
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On December 5, 2018, following a bench trial, the Honorable

Donna Jo McDaniel convicted Appellant of voluntary manslaughter. On

January 24, 2019, Judge McDaniel held a sentencing hearing. According to

the Guideline Sentence Form and the trial court’s statement during the

hearing, the sentencing guidelines were 48 months in the mitigated range, 60

to 78 months in the standard range, and 90 months in the aggravated range.

N.T., 1/24/2019, at 2. The Guideline Sentence Form also stated that the

statutory maximum sentence was 120 months to 240 months. At the

conclusion of the hearing, Judge McDaniel stated:

I think the testimony in this case stands on its own. Once again,

I find two families that have been irreparably hurt by the action

of their family members. One is the victim’s family, the other is

[Appellant]’s family. I would think that the remorse that

[Appellant] showed in court today does stand for something, and

I am going to sentence within the guidelines. I’m going to place

the costs on Allegheny County, order [Appellant] to serve seven

and a half to 20 years with credit for time served.

N.T., 1/24/2019, at 31-32. This sentence equals 90 to 240 months and, ergo,

has a minimum at the top of the aggravated range and a maximum at the

statutory maximum. The above-quoted statement is the entirety of Judge

McDaniel’s explanation in the certified record for imposing said sentence.

Appellant timely filed post-sentence motions, which were denied on

May 6, 2019. On May 29, 2019, Appellant filed this timely direct appeal.2

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2 Appellant filed her statement of errors complained of on appeal on June 21,

2019.
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Judge McDaniel retired without filing an opinion. The case was

reassigned to the Honorable Edward J. Borkowski, who filed a Pa.R.A.P.

1925(a) opinion on December 12, 2019, in which he acknowledged that Judge

McDaniel’s reasons for imposing Appellant’s sentence were not “specifically

stated on the record[.]” Trial Court Opinion, dated December 12, 2019, at

11.

Appellant now presents the following issue for our review:

Whether the sentencing court abused its discretion when the

sentencing court sentenced Appellant in the aggravated range of

the sentencing guidelines without presenting reasons for such a

sentence?

Appellant’s Brief at 4.

“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.” Commonwealth v. Lekka, 210 A.3d 343, 350 (Pa. Super.

2019).

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to an appeal as of right. Prior to reaching the

merits of a discretionary sentencing issue[, w]e conduct a four- part analysis to determine: (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, 42

Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018). In the current case, Appellant filed a timely notice of appeal and
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preserved her issue in a post-sentence motion, and her brief includes a

statement pursuant to Pa.R.A.P. 2119(f) (“Rule 2119(f) Statement”).

Appellant’s Brief at 12-13.

The final requirement, whether the question raised by Appellant is a

substantial question meriting our discretionary review, “must be evaluated on

a case-by-case basis.” Manivannan, 186 A.3d at 489. In her Rule 2119(f)

Statement, Appellant contends that “the sentencing court abused its discretion

when it sentenced Appellant within the aggravated range without ever

explaining why the circumstances of Appellant’s case were atypical or why a

sentence in the aggregate range was necessary.” Appellant’s Brief at 13. This

Court has determined that, when an appellant raises a claim that the

sentencing court failed to state reasons for an aggravated range sentence, a

substantial question exists. Commonwealth v. Fullin, 892 A.2d 589, 592- 593 (Pa. Super. 2005). Consequently, Appellant’s Rule 2119(f) Statement

raises a substantial question.

Appellant contends that the trial court “abused its discretion when it

sentenced [her] in the aggravated range of the sentencing guidelines without

presenting reasons for such a sentence[,]” including “without ever explaining

why the circumstances of [her] case were atypical or why a sentence in the

aggravate[d] range was necessary.” Appellant’s Brief at 14. By “atypical”

circumstances, Appellant gave examples “like ‘extreme indifference for the

consequences’ or ‘extreme nature of the harm to the victim’ which this Court

has found to justify a sentence within the aggravated range.” Id. at 19

(quoting Fullin, 892 A.2d at 849).
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[A] sentencing court abuses its discretion when it considers the

criminal act, but not the criminal himself. The Sentencing Code

prescribes individualized sentencing by requiring the sentencing

court to consider the protection of the public, the gravity of the

offense in relation to its impact on the victim and the community,

and the rehabilitative needs of the defendant, Commonwealth

v. Swope, 123 A.3d 333, 338 (Pa. Super. 2015) (citing 42 Pa.C.S.

§ 9721), and prohibiting a sentence of total confinement without

consideration of “the nature and circumstances of the crime[,] and

the history, character, and condition of the defendant,” 42 Pa.C.S.

§ 9725. Commonwealth v. Luketic, 162 A.3d 1149, 1160-61 (Pa. Super. 2017)

(some internal citations and quotation marks omitted).

The court shall also consider any guidelines for sentencing and

resentencing adopted by the Pennsylvania Commission on

Sentencing . . . In every case in which the court imposes a

sentence for a felony or misdemeanor, . . . the court shall make

as a part of the record, and disclose in open court at the time of

sentencing, a statement of the reason or reasons for the sentence

imposed. . . . Failure to comply shall be grounds for vacating the

sentence or resentence and resentencing the defendant. 42 Pa.C.S. § 9721(b). Additionally,

in any case where the trial court fails to prepare an opinion that

addresses the issues upon which it passed and which are raised

by a party on appeal, the net result is the same: the appellate

court is deprived of explication and guidance on those issues from

the judicial entity most familiar with the matter. Moreover, the

parties may be left without a meaningful context within which to

make their arguments on appeal, particularly as to

discretionary matters. Commonwealth v. DeJesus, 868 A.2d 379, 383 (Pa. 2005) (emphasis

added).

In the current action, we are unable to determine whether Judge

McDaniel properly considered the various statutory sentencing factors. Judge

McDaniel did remark on the record, “I find two families that have been
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irreparably hurt by the action of their family members. One is the victim’s

family, the other is [Appellant]’s family.” N.T., 1/24/2019, at 31. Arguably,

this comment could be interpreted as consideration of the “impact on the

victim and the community,” but it is not an explicit reference. Luketic, 162

A.3d at 1161 (citing 42 Pa.C.S. § 9721). Also, it is a generic finding, as every

crime – but particularly homicide – impacts the victim’s and the perpetrator’s

families; nothing about this reason is individualized to Appellant. See id.

(“[t]he Sentencing Code prescribes individualized sentencing”). Furthermore, this one statement still fails to demonstrate that Judge McDaniel deliberated

on any of the other statutory sentencing factors. See id. (listing statutory

sentencing factors).

Further, we agree with Appellant that Judge McDaniel failed to state

adequate reasons in support of its imposition of an aggravated-range

sentence. See Appellant’s Brief at 14, 19; see also Commonwealth v. Hill, 210 A.3d 1104 (Pa. Super. 2019) (where sentence is in the standard range

of the Sentencing Guidelines, Pennsylvania law views the sentence as

appropriate). Judge McDaniel failed to provide a sufficient contemporaneous

statement of reasons in support of an aggravated-range sentence on the

record in open court and, later, did not prepare an opinion addressing the

reasons for imposing that sentence; we are thereby concerned that Judge

McDaniel failed to acknowledge or to consider Appellant’s character,

rehabilitative needs, and mitigating evidence, resulting in a lack of
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individualized sentencing and a deviation from the norms of sentencing.3

Compare N.T., 1/24/2019, at 31-32 with 42 Pa.C.S. § 9721(b); Luketic, 162 A.3d at 1160-61; DeJesus, 868 A.2d at 383.

Where a court has “departed from . . . sentencing norms and violated

[an a]ppellant’s constitutional right to due process, . . . these errors require

remand for resentencing.” Commonwealth v. McCauley, 199 A.3d 947,

953 (Pa. Super. 2018); see also 42 Pa.C.S. § 9721(b) (“the court shall make

as a part of the record, and disclose in open court at the time of sentencing,

a statement of the reason or reasons for the sentence imposed”; “[f]ailure to

comply shall be grounds for vacating the sentence or resentence and

resentencing the defendant). Consequently, we are constrained to vacate the

judgment of sentence and to remand for resentencing. In light of our

disposition, Judge McDaniel’s retirement from the bench will require the

President Judge of the Court of Common Pleas of Allegheny County to reassign

this case to a new judge for purposes of resentencing.4

Conviction affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

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3 This Court has previously expressed concern about Judge McDaniel’s failure

to impose individualized sentences and deviation from the norms of

sentencing, in part due to the absence of a statement on the record of her

reasons in support of the sentence imposed. See Commonwealth v.

McCauley, 199 A.3d 947, 953 (Pa. Super. 2018); Commonwealth v.

Bernal, No. 138 WDA 2016, unpublished memorandum at 8-17 (Pa. Super.

filed December 19, 2016).

4

It may be assigned to Judge Borkowski, who wrote the Rule 1925(a) opinion.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/16/2020