Opinion
J-S79008-18 No. 848 MDA 2018
04-15-2019
COMMONWEALTH OF PENNSYLVANIA v. ANDRE BRICE WALKER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 6, 2018
In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002884-2017 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY SHOGAN, J.:
Appellant, Andre Brice Walker, appeals from the judgment of sentence entered following his convictions of various firearms, narcotics, and motor vehicle violations related to a traffic stop. Appellate counsel has filed a petition seeking to withdraw his representation and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), which govern a withdrawal from representation on direct appeal. We grant counsel's petition for leave to withdraw and affirm.
The trial court set forth a detailed factual history of this case as follows:
On Friday, May 26, 2017, Appellant lent his vehicle ("Appellant's Vehicle") to his friend, Alexis Woods10 ("Ms. Woods"), to run some errands while her car was in the shop. N.T. at 94-96, 107. On that date, Ms. Woods was the registered owner of a 9 millimeter Ruger firearm ("the Firearm"). N.T. at 95. Ms. Woods placed the Firearm inside of Appellant's Vehicle. N.T. at 95, 108. Ms. Woods put the Firearm's loaded magazine inside of the glove box and put the Firearm inside of a bag located in the
trunk. N.T. at 97, 108. The Firearm was not scratched and the serial number was able to be read when Ms. Woods put the Firearm into Appellant's Vehicle. N.T. at 101-102, 105. Ms. Woods intended to go to a range to shoot the Firearm but, due to an incident with her son, did not get to the range and returned Appellant's Vehicle to Appellant. N.T. at 95-97, 112-113. When Ms. Woods returned Appellant's Vehicle, Appellant and his associates entered Appellant's Vehicle and Appellant transported Ms. Woods to get cigarettes and then to her residence. N.T. at 96, 97-98, 109-117, 152. Ms. Woods did not remove the Firearm from Appellant's Vehicle. N.T. at 96, 114. At no time did Ms. Woods drive Appellant's Vehicle to Panera Bread or the Boscov's Outlet Center in Exeter Township, Reading, Pennsylvania. N.T. at 98.
10 Alexis Woods is also known by her married name, Alexis Lockett. N.T. at 93, 151.
On Saturday, May 27, 2017, at 3:24 a.m., Officer Christopher Miller of the Exeter Township Police Department ("Officer Miller") was travelling ... west on Route 422 in Exeter Township, Berks County, Pennsylvania. N.T. at 120, 122. Officer Miller was operating a marked police car and dressed in full uniform displaying a badge of authority. N.T. at 120. Officer Miller observed a gray Ford, later determined to be Appellant's Vehicle, travelling at a high rate of speed in the area of Shelbourne Road. N.T. at 120. There were not many cars on the road. N.T. at 120. Officer Miller pulled behind Appellant's Vehicle and timed the vehicle for 4 or 5 blocks. N.T. at 120. After determining the speed of the vehicle and observing very dark window tint, Officer Miller initiated a traffic stop in the parking lot of the Giant grocery store in the Exeter Commons Mall. N.T. at 121, 137. The Giant grocery store was open at that time. N.T. at 137. The vehicle came to a stop on its own in the parking lot. N.T. at 121. Officer Miller pulled up to the side of Appellant's Vehicle so as to form a T-shape with his white takedown lights shining onto the vehicle. N.T. at 121-122. Officer Miller did not activate his overhead lights. N.T. at 121. Officer Miller came into contact with Appellant, the operator of Appellant's Vehicle. N.T. at 122. He identified himself and asked Appellant where he was coming from. N.T. at 122, 123. Appellant stated that he was picking up a car at a repair shop in Pottstown. N.T. at 122-123. At Officer Miller's request, Appellant provided him with his vehicle registration and a Pennsylvania identification card but did not produce a driver's
license. N.T. at 123. Officer Miller subsequently learned that Appellant's driver's license was suspended. N.T. at 299. Appellant appeared nervous when interacting with Officer Miller. N.T. at 123. The vehicle was registered to Appellant and nobody else was present inside of the vehicle. N.T. at 123, 216, 225.
Due to the dark window tint, Officer Miller contacted Officer Scott of the Exeter Township Police Department ("Officer Scott") to use his tint meter. N.T. at 124. Officer Scott arrived on scene while Officer Miller was seated in his patrol vehicle checking the validity of Appellant's photo identification and the vehicle's registration. N.T. at 124, 215. Officer Scott approached the vehicle and engaged Appellant in conversation. N.T. at 124, 216, 225. He was in full uniform and wearing a badge of authority. N.T. at 214. Officer Scott then went back to talk with Officer Miller before re-engaging Appellant a second time and asking him to exit his vehicle. N.T. at 216, 230. As Officer Miller was still in possession of Appellant's paperwork, Officer Scott yelled that Appellant was running. N.T. at 125, 149, 150, 218-219. Appellant shifted Appellant's Vehicle into drive and began traveling at a high rate of speed through the parking lot. N.T. at 125, 126, 217-219, 230. Appellant continued through the parking lot at a high rate of speed with both officers in pursuit. N.T. at 126, 219. 220. Officer Miller did not activate his lights and siren. N.T. at 126. As Appellant was fleeing the officers, his vehicle struck a steep embankment on his way to the upper parking lot near Panera Bread and the Boscov's Outlet. N.T. at 126, 220. The officers briefly lost sight of Appellant for 2 to 5 seconds as they proceeded to the upper parking lot. N.T. at 127, 155, 220-221. When the officers arrived at the upper parking lot they observed Appellant running west from the vehicle in the parking lot.11 N.T. at 128, 221, 222. Appellant was an estimated 30 to 45 feet (10 to 15 yards) from the vehicle when the officers observed him. N.T. at 128, 221. The officers continued to pursue Appellant in their patrol vehicles until Appellant ran out of space and complied with Officer Miller's command to stop. N.T. at 128, 129, 223. Appellant was then taken into custody. N.T. at 129, 130. 223. At no time did Officer Miller tell Appellant he was free to leave. N.T. at 124, 150.
11 The Boscov's Outlet was not open when Appellant drove his vehicle into the parking lot. However, the business is generally open and this area is not closed up or typically empty. Id. The Boscov's Outlet is a
retail establishment where people can come and go. Id.
After Appellant was taken into custody, law enforcement officers located the Firearm12 an estimated 30 to 60 feet (10 to 20 yards) west of the path Appellant was traveling when he ran from his vehicle in the upper lot. N.T. at 132, 133, 139, 142, 143, 147, 167, 175, 224. A fully loaded magazine containing 15 bullets was inside of the Firearm. N.T. at 157-158, 169, 176, 178. Nobody saw the Firearm fly out of the car or trunk or saw Appellant throw or hold the Firearm. N.T. at 133, 155-156, 183-184, 223, 224. The serial number on the Firearm was obliterated but law enforcement was able to obtain the number to identify the owner of the Firearm, Ms. Woods. N.T. at 139, 147, 163-164, 180, 184, 185-188. Officer Miller learned from the Pennsylvania State Police that Appellant did not have a license to carry a firearm. N.T. at 147. The Firearm was determined to be operable. N.T. at 199. A search warrant was obtained for the vehicle and the officers located a clear plastic bag containing fentanyl and methamphetamine inside of the glove box of Appellant's Vehicle. N.T. at 140, 142, 145, 195.
Trial Court Opinion, 8/14/18, at 3-6.12 Officer Miller determined that the length of the firearm was less than 26 inches and the barrel length was less than 15 inches. N.T. at 148.
Appellant was charged with the following crimes: two counts of possession of a controlled substance; and one count each of persons not to possess, use, manufacture, control, sell or transfer firearms; possession of firearm with altered manufacturer's number, firearms not to be carried without a license; escape; reckless driving; driving while operating privilege is suspended or revoked; windshield obstructions and wipers; and driving vehicle at safe speed. On February 6, 2018, a jury convicted Appellant of all counts, and the trial court found Appellant guilty of each summary offense charged. On February 6, 2018, the trial court sentenced Appellant to serve an aggregate term of incarceration of seven to fifteen years, with credit for time served. Appellant filed a timely pro se motion for reconsideration of sentence, which the trial court denied on May 8, 2018. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
35 P.S. § 780-113(a)(16); 18 Pa.C.S. §§ 6105(a)(1), 6110.2(a), 6106(a)(1), 5121(a); 75 Pa.C.S. §§ 3736(a), 1543(b)(1), 4524(e)(1), and 3361, respectively.
We note that the trial court's docket indicates Appellant's notice of appeal was filed on May 23, 2018, which was more than thirty days after the judgment of sentence entered on February 6, 2018. See Pa.R.A.P. 903 (setting forth thirty-day period in which to timely file appeal). However, Pa.R.Crim.P. 720 provides that a party may file post-sentence motions no later than ten days after imposition of the judgment of sentence. A timely filed post-sentence motion tolls the appeal period, and an untimely post-sentence motion does not toll the appeal period. Commonwealth v. Dreves , 839 A.2d 1122 (Pa. Super. 2003) (en banc); Commonwealth v . Felmlee , 828 A.2d 1105 (Pa. Super. 2003) (en banc). The record reflects that Appellant's pro se post-sentence motion for reconsideration of sentence was received by the trial court on February 22, 2018, which appears to be beyond the ten-day filing period and would not serve to toll the appeal period. Consequently, on June 13, 2018, this Court entered an order directing Appellant to show cause why his appeal should not be quashed as untimely filed.
Counsel for Appellant has responded to the rule to show cause indicating that Appellant, who is incarcerated within the Berks County Jail System at a facility in Leesport, PA, timely filed his pro se post-sentence motion on Friday, February 16, 2018, when he placed the document in the hands of prison authorities for mailing. Thus, Appellant has employed the prisoner mailbox rule. See Commonwealth v. Wilson , 911 A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the "prisoner mailbox rule," a document is deemed filed when placed in the hands of prison authorities for mailing). Under that rule, "we are inclined to accept any reasonably verifiable evidence of the date that the prisoner deposits the appeal with the prison authorities. . . ." Commonwealth v. Perez , 799 A.2d 848, 851 (Pa. Super. 2002) (quoting Commonwealth v. Jones , 700 A.2d 423, 426 (Pa. 1997)). We observe that counsel for Appellant has referred this Court to the mailing envelope that contained the post-sentence motions and is included in the certified record. The envelope was addressed to the "Clerk of Courts" and postmarked in Harrisburg by the United States Postal Service on Tuesday, February 20, 2018. We further observe that Monday, February 19, 2018, was President's Day, a national holiday. Accordingly, we conclude that, pursuant to the prisoner mailbox rule, Appellant timely filed his pro se post-sentence motion, thereby tolling the appeal period. Hence, it is our determination that this appeal is timely.
As noted, counsel has filed a petition to withdraw from representation. Before we address any questions raised on appeal, we must resolve appellate counsel's request to withdraw. Commonwealth v. Cartrette , 83 A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing requirements imposed upon an attorney who seeks to withdraw on direct appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.Id. at 1032 (citation omitted).
In this case, those directives have been satisfied. Within the petition to withdraw, counsel averred that she conducted a conscientious review of the record and pertinent legal research. Following that review, counsel concluded that the present appeal is frivolous. Counsel sent Appellant a copy of the Anders brief and petition to withdraw, as well as a letter, a copy of which is attached to the petition to withdraw. In the letter, counsel advised Appellant that he could represent himself or that he could retain private counsel. Appellant has not filed any additional documents with this Court.
We now examine whether the Anders brief satisfies the Supreme Court's dictates in Santiago , which provide that:
in the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.Cartrette , 83 A.3d at 1032 (quoting Santiago , 978 A.2d at 361).
Counsel's brief is compliant with Santiago. The brief sets forth the procedural history of this case, outlines pertinent case authority, and discusses counsel's conclusion that the appeal is frivolous. We thus conclude that the procedural and briefing requirements for withdrawal have been met.
Counsel has identified the following issues that Appellant believes entitle him to relief, which we set forth verbatim:
1. WHETHER THE EVIDENCE ADDUCED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE VERDICT IN THAT THE COMMONWEALTH FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THE ELEMENTS OF PERSONS NOT TO POSSESS, USE,
MANUFACTURE, CONTROL, SELL OR TRANSFER FIREARMS, POSSESSION OF FIREARM WITH ALTERED MANUFACTURER'S NUMBERS, FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE, ESCAPE, TWO COUNTS OF POSSESSION OF A CONTROLLED SUBSTANCE, RECKLESS DRIVING, DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKES, WINDSHIELD OBSTRUCTIONS AND WIPERS AND DRIVING VEHICLE AT A SAFE SPEED ?Anders Brief at 8.
2. WHETHER THE VERDICTS OF GUILT OF PERSONS NOT TO POSSESS, USE, MANUFACTURE, CONTROL, SELL OR TRANSFER FIREARMS, POSSESSION OF FIREARM WITH ALTERED MANUFACTURER'S NUMBERS, FIREARMS NOT TO BE CARRIED WITHOUT A LICENSE, ESCAPE, TWO COUNTS OF POSSESSION OF A CONTROLLED SUBSTANCE, RECKLESS DRIVING, DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKES, WINDSHIELD OBSTRUCTIONS AND WIPERS AND DRIVING VEHICLE AT A SAFE SPEED WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL?
3. WHETHER THE SENTENCING COURT ABUSED ITS DISCRETION WHEN IT SENTENCED APPELLANT TO A CONSECUTIVE SENTENCES RESULTING IN A CUMULATIVE SENTENCE OF INCARCERATION OF SEVEN (7) TO FIFTEEN (15) YEARS THAT IS SO MANIFESTLY EXCESSIVE AS TO CONSTITUTE TOO SEVERE A PUNISHMENT WHERE THE FACTORS ENUMERATED IN THE SENTENCING CODE, SPECIFICALLY THE PROTECTION OF THE PUBLIC, THE GRAVITY OF THE OFFENSE AS IT RELATES TO THE IMPACT ON THE COMMUNITY, AND APPELLANT'S INDIVIDUAL REHABILITATIVE NEEDS AND MITIGATING CIRCUMSTANCES DO NOT MILITATE IN FAVOR OF TOTAL CONFINEMENT OF THE LENGTH IMPOSED UPON APPELLANT CAUSING THE SENTENCE TO BE CLEARLY UNREASONABLE?
Appellant first argues that the evidence was insufficient to support his convictions. Anders Brief at 15-23. Specifically, Appellant contends that the evidence did not show beyond a reasonable doubt that Appellant committed the firearm violations, Anders Brief at 16-19, the controlled substance crimes, id. at 19-20, the crime of escape, id. at 20-22, and the driving offenses of operating without a license, driving at an unsafe speed, and reckless driving. Id. at 22.
Our standard of review is well established:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder['s]. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Estepp , 17 A.3d 939, 943-944 (Pa. Super. 2011).
We have reviewed the briefs of the parties, the certified record before us on appeal, and the trial court opinion entered August 14, 2018. It is our conclusion that the trial court's opinion adequately and accurately addresses each of the challenges to the sufficiency of the evidence presented by Appellant. Specifically: Appellant's convictions of various firearms violations at pages seven through nine, Appellant's convictions of controlled substance violations at pages nine through ten, Appellant's convictions of escape at pages ten through twelve, and Appellant's convictions of motor vehicle violations at pages twelve through fourteen. Under the totality of the circumstances, the evidence presented at the trial, viewed in the light most favorable to the Commonwealth, is sufficient to sustain Appellant's convictions. Consequently, Appellant's contrary claim lacks merit. Accordingly, we affirm based on the trial court's opinion and adopt its analysis as our own.
The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.
Appellant next argues that the guilty verdicts were against the weight of the evidence. Anders Brief at 23-25. Appellant contends that the evidence establishes that he possessed neither a gun nor controlled substances on the date in question. Id. at 24. Appellant also claims that the evidence proves that the police did not officially detain him; therefore, he could not have escaped. Id. In addition, he asserts that the evidence did not support guilty verdicts of the motor vehicle violations. Id. Essentially, Appellant claims that the verdicts of guilty rendered by the jury are so contrary to the weight of the evidence that they shock one's sense of justice such that his convictions should be reversed and a new trial ordered.
In Commonwealth v. Clay , 64 A.3d 1049 (Pa. 2013), our Supreme Court set forth the following standards to be employed in addressing challenges to the weight of the evidence:
A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Widmer , 560 Pa. 308, 319, 744 A.2d 745, 751-[7]52 (2000); Commonwealth v. Brown , 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer , 560 A.2d at 319-[3]20, 744 A.2d at 752. Rather, "the role of the trial judge is to determine that 'notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.'" Id. at 320, 744 A.2d at 752 (citation omitted). It has often been stated that "a new trial should be awarded when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Brown , 538 Pa. at 435, 648 A.2d at 1189.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Brown , 648 A.2d at 1189. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. Commonwealth v. Farquharson , 467 Pa. 50, 354 A.2d 545 (Pa. 1976). One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Widmer , 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on
a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained:
The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Clay , 64 A.3d at 1054-1055. "Thus, the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs , 949 A.2d 873, 879-880 (Pa. 2008).
Widmer , 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-[11]85 (1993)).
The trial court addressed the challenge to the weight of the evidence as follows:
In the case at bar, Appellant claims that the verdicts were against the weight of the evidence. However, as set forth above in this court's analysis of the sufficiency of the evidence, the verdict was not contrary to the evidence as the jury and this court were presented with a case upon which to convict the Appellant. The verdicts indicate that the jury and this court evaluated the evidence, determined the credibility of witnesses and, when assessing the weight of the evidence, believed the evidence presented by the prosecution and rendered a guilty verdict. Therefore, the verdicts were consistent with the evidence presented and did not shock anyone's sense of justice.Trial Court Opinion, 11/8/17, at 3-5.
Based upon our complete review of the record, we are compelled to agree with the trial court. Here, the jury and the trial court, sitting as the finders of fact, were free to believe all, part, or none of the evidence against Appellant. The jury and the trial court weighed the evidence and concluded Appellant perpetrated the firearms violations, the narcotics violations, the crime of escape, and the motor vehicle violations. We agree that these determinations are not so contrary to the evidence as to shock one's sense of justice. We decline Appellant's invitation to assume the role of fact-finder and to reweigh the evidence. Accordingly, we conclude that the trial court did not abuse its discretion in refusing to grant relief on Appellant's challenge to the weight of the evidence.
Appellant last argues that the trial court abused its discretion in fashioning his sentence. Anders Brief at 25-28. Appellant claims that the trial court did not properly consider the statutory sentencing factors in imposing Appellant's sentence. Id. at 26. Appellant further asserts that the trial court imposed an excessive sentence when it ordered that several of Appellant's sentences should run consecutively. Id. at 27.
"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) (citation omitted). An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
[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. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (citation omitted; brackets in original).
Whether a particular issue constitutes a substantial question about the appropriateness of sentence is a question to be evaluated on a case-by-case basis. Commonwealth v. Kenner , 784 A.2d 808, 811 (Pa. Super. 2001). As to what constitutes a substantial question, this Court does not accept bald assertions of sentencing errors. Commonwealth v. Malovich , 903 A.2d 1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the sentencing court's actions violated the sentencing code. Id.
Herein, the first three requirements of the four-part test are met. Appellant brought an appropriate appeal, raised the challenge in a post-sentence motion, and included in his appellate brief the necessary concise statement of the reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a substantial question requiring us to review the discretionary aspects of the sentence imposed by the trial court.
In his Rule 2119(f) statement, Appellant first argues that the trial court abused its discretion by failing to consider the sentencing factors enumerated at 42 Pa.C.S. § 9721(b). Anders Brief at 13. Appellant claims that the trial court failed to consider his rehabilitative needs, the gravity of the offenses, the impact of the crimes on the victims and the community at large. Id. This Court has found a substantial question exists where there is an allegation that the sentencing court failed to consider the factors set forth in 42 Pa.C.S. § 9721(b). See Commonwealth v. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant raised a substantial question where it was alleged that the trial court failed to properly consider the factors set forth in 42 Pa.C.S. § 9721(b)). Therefore, Appellant has raised a substantial question. As such, we will review the merits of Appellant's first sentencing claim.
In his Rule 2119(f) statement, Appellant also claims that the trial court abused its discretion by imposing consecutive sentences that caused the total length of this sentence to be manifestly excessive. Anders Brief at 13. Appellant "argues that the aggregate sentence imposed by the trial court was not individualized to the facts and circumstances surrounding his case." Id.
To the extent Appellant challenges the consecutive nature of his sentences, we note that "42 Pa.C.S.A. [§] 9721 affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question." Commonwealth v. Pass , 914 A.2d 442, 446-447 (Pa. Super. 2006).
"Generally, Pennsylvania law 'affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.'" Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa. Super. 2011) (quoting Pass , 914 A.2d at 446-447). See also Commonwealth v. Hoag , 665 A.2d 1212, 1214 (Pa. Super. 1995) (stating appellant is not entitled to "volume discount" for his crimes by having all sentences run concurrently). But see Commonwealth v. Dodge , 77 A.3d 1263, 1273 (Pa. Super. 2013) (a claim that an aggregate sentence resulting from the imposition of consecutive sentences is excessive raises a substantial question if the "decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case").
"Thus, in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in the case." Prisk , 13 A.3d at 533 (quoting Commonwealth v. Mastromarino , 2 A.3d 581, 587 (Pa. Super. 2010)). But see Commonwealth v. Austin , 66 A.3d 798 (Pa. Super. 2013) (holding that challenge to imposition of consecutive sentences, which yields extensive aggregate sentence, does not necessarily present substantial question as to discretionary aspects of sentencing, unless court's exercise of discretion led to sentence that is grossly incongruent with criminal conduct at issue and patently unreasonable).
While a substantial question "appears" to exist on the ground alleged, we must emphasize that Appellant's diverse convictions stem from an incident that began with a simple traffic stop for improperly tinted windows, which turned into a high-speed chase in the middle of the night. Further, the sentencing court did not impose consecutive sentences for every conviction. Rather, the sentencing court imposed concurrent sentences on multiple crimes. In fact, the aggregate sentence imposed was significantly lower than the sentence of fourteen to twenty-eight years requested by the Commonwealth at the time of sentencing. In seeking review of his sentences, Appellant is not entitled to any further "volume discount" for his multiple offenses. Hoag , 665 A.2d at 1214. Based upon the foregoing, we will not deem the aggregate sentence excessive in light of the ample amount of criminal conduct at issue in this case. Prisk , 13 A.3d at 533. Accordingly, we conclude that Appellant has not presented a substantial question for our review in this regard. Hence, we limit our review of this issue to Appellant's claim that the trial court abused its discretion in failing to consider the factors set forth at 42 Pa.C.S. § 9721(b).
It is undisputed that 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. Fullin , 892 A.2d 843, 847 (Pa. Super. 2006). In this context, an abuse of discretion is not shown merely by an error in judgment. Id. Rather, an appellant 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. Id.
The sentencing judge has broad discretion in determining the proper penalty, and this Court accords the sentencing court great deference, as it is the sentencing court that is in the best position to view a defendant's character, displays of remorse, defiance, or indifference and the overall effect and nature of the crime. Commonwealth v. Walls , 926 A.2d 957, 961 (Pa. 2007) (quotations and citations omitted). When imposing a sentence, the sentencing court must consider "the protection of the public, the gravity of 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). As we have stated, "[A] court is required to consider the particular circumstances of the offense and the character of the defendant." Commonwealth v. Griffin , 804 A.2d 1, 10 (Pa. Super. 2002). "In particular, the court should refer to the defendant's prior criminal record, his age, personal characteristics and his potential for rehabilitation." Id.
The Walls Court instructed the following:
In making this "unreasonableness" inquiry, the General Assembly has set forth four factors that an appellate court is to consider:
(d) Review of the record—In reviewing the record the appellate court shall have regard for:
(1) The nature of the 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 pre-sentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Walls , 926 A.2d at 963.
42 Pa.C.S.A. § 9781(d).
Moreover, the Pennsylvania Supreme Court reiterated "the guidelines have no binding effect, create no presumption in sentencing, and do not predominate over other sentencing factors—they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence." Commonwealth v. Perry , 32 A.3d 232, 240 (Pa. 2011) (citation omitted).
Simply put, the sentencing judge must state his or her reasons for the sentence imposed, a discourse on the court's sentencing philosophy . . . is not required. The sentencing judge must explain its deviation from the guidelines if he or she chooses to sentence outside the guidelines. . . . The sentencing court is not required to state its reasons for sentencing within one guideline range over another.Commonwealth v. Hill , 629 A.2d 949, 953 (Pa. Super. 1993) (citations and quotations omitted, emphases in original).
Further, "[t]he guidelines only include a prior conviction score and do not take into account whether an offense is committed while the offender was on probation, parole or some other form or type of supervised release." Commonwealth v. Simpson , 829 A.2d 334, 339 (Pa. Super. 2003). "This is an extraneous factor that can be separately considered by the sentencing court." Id. In addition, "[o]ur Supreme Court has determined that where the trial court is informed by a pre-sentence report, it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed." Commonwealth v. Ventura , 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing Commonwealth v. Devers , 546 A.2d 12 (Pa. 1988)).
Our review of the record reflects that, at the time of Appellant's sentencing, the trial court had received and reviewed a presentence report. N.T., 2/5-6/18, at 306-307, 309-310. Further, the trial court heard argument from Appellant's counsel, which focused upon Appellant's youth and included a request for vocational training. Id. at 307-308. The trial court then heard Appellant's allocution. Id. at 308. Immediately following Appellant's allocution and prior to announcing the judgment of sentence, the trial court gave a detailed account of Appellant's personal and criminal history, the instant crimes and their impact upon the community, and Appellant's rehabilitative needs. Id. at 309-312.
The trial court further elaborated its reasoning for imposition of the specific sentence upon Appellant in its written opinion, as follows:
In the case at bar, Appellant has failed to raise a substantial question regarding this court's decision to impose consecutive sentences. The cumulative sentence is not excessive when considering Appellant's criminal conduct. Appellant committed multiple offenses and is not entitled to a volume discount for his conduct. However, this court ran multiple counts of Appellant's sentences concurrent with each other to arrive at a sentence of 7 to 15 years. If all of Appellant's sentences would have run consecutive to each other, Appellant would have received a cumulative sentence of 16 ½ - 35 years. This court did not abuse its discretion when it sentenced Appellant to serve consecutive sentences on some of the offenses.
This Court sentenced the Appellant within the parameters of the sentencing guidelines13 and, therefore, the Appellant must demonstrate that the application of those guidelines would be clearly unreasonable. 42 Pa.C.S.A. §9781(c)(2). Upon review of the factors as set forth in 42 Pa.C.S. §9781(d), this [c]ourt's application of the sentencing guidelines was clearly reasonable. Appellant was found guilty after a jury trial of various offenses regarding the possession of a firearm as well as drug possession and escape. Appellant has a considerable prior record consisting of both felony and misdemeanor offenses, many of which occurred while under supervision for prior offenses. N.T. at 310-311. This court had the benefit of a presentence investigation and reviewed this document at sentencing. N.T. at 302, 306-307, 309-310.
This court considered the sentencing factors set forth in 42 Pa.C.S.A. §9721(b), the nature of the offense, arguments from the Commonwealth and Appellant, Appellant's risk of recidivism, and the rehabilitative needs of Appellant. N.T. at 309. This court also considered the factors in favor of probation and total confinement, the trial testimony and Appellant's statements. N.T. at 309. In consideration of these factors, this Court imposed standard range sentences on Appellant for all charges which was reasonable under the circumstances.
13 At sentencing, Appellant had a prior record score of 5. N.T. at 302. The offense gravity score for Count 1, Persons not to Possess, Use Manufacture, Control, Sell or Transfer Firearms, 18 Pa.C.S.A. §6105(a)(1). is 10 resulting in a standard range of 60-72 months, plus or minus 12 months. N.T. at 303; 204 PA ADC §303.15; 204 PA ADC §303.16(a). Appellant was sentenced to serve 5 years to 10 years in a State Correctional Facility. N.T. at 311. The offense gravity score for Count 2, Possession of Firearm with Altered Manufacturer's Number, 18 Pa.C.S.A. §6110.2(a), is also 10 resulting in a standard range of 60-72 months, plus or minus 12 months. Appellant was sentenced to serve 5 to 10 years in a State Correctional Facility concurrent with Count 1. N.T. at 312. The offense gravity score for Count 3, Firearms not to be carried without a License, 18 Pa.C.S.A. §6106(a)(1), is 9 resulting in a standard range of 48-60 months, plus or minus 12 months. N.T. at 303. Appellant was sentenced to serve 3 1/2-7 years in a State Correctional Facility concurrent with Count 1. N.T. at 312. The offense gravity score for Count 4, Escape, 18 Pa.C.S.A. §5121(a) is 3 resulting in a standard range of 6-16, plus or minus 3. N.T. at 303. Appellant was sentenced to serve 1-2 years in a State Correctional Facility consecutive to Count 1. N.T. at 313. The offense gravity score for Counts 5 and 6, Possession of a Controlled Substance, 35 P.S. §780-113(a)(16), is 3 resulting in a standard range of 6-16, plus or minus 3. N.T. at 303. Appellant was sentenced to serve 1-3 years in a State Correctional Facility on both counts consecutive to Count 4 and concurrent with each other. N.T. at 313.
Appellant claims that this court failed to consider the sentencing factors and mitigating circumstances when sentencing Appellant. As set forth above, this court had the benefit of a presentence investigation. ... Additionally, this court stated that it considered the factors set forth in 42 Pa.C.S.A. §9721(b) as well as other additional information set forth above. Therefore, Appellant's claim must fail as it is contradicted by the record.Trial Court Opinion, 8/14/18, at 18-19.
We conclude that the reasons the trial judge offered for the sentence imposed were more than sufficient to conclude that the trial court properly considered all relevant factors in fashioning Appellant's sentence. Also, because the trial court had been fully informed and relied upon the presentence report, we conclude that the trial court did not abuse its discretion in creating the instant sentence. Accordingly, Appellant's claim that the trial court failed to consider the appropriate factors in imposing the sentence lacks merit.
Finally, we have independently reviewed the record in order to determine whether there are any non-frivolous issues present in this case that Appellant may raise. Commonwealth v. Yorgey , 188 A.3d 1190, 1198-1199 (Pa. Super. 2018) (en banc). Having concluded that there are no meritorious issues, we grant Appellant's counsel permission to withdraw, and we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 04/15/2019
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