Opinion
J-S67039-17 No. 1570 EDA 2016
11-02-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. AMEEN MCNAIR Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013671-2014 BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Ameen McNair, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial conviction for robbery. We affirm.
18 Pa.C.S.A. § 3701(a)(1)(ii).
In its opinion, the trial court accurately set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
We add that Appellant timely filed post-sentence motions on January 12, 2016, which were denied by operation of law on May 12, 2016.
Appellant raises two issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF ROBBERY, 18 PA.C.S.A. §
3701(A)(1)(H)?(Appellant's Brief at 7).
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ISSUED AN EXCESSIVELY PUNITIVE SENTENCE OF TEN (10) TO TWENTY (20) YEARS' INCARCERATION FOR ROBBERY, 18 PA.C.S.A. § 3701(A)(1)(II)?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Sandy L.V. Byrd, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed March 28, 2017, at 2-9) (finding: (1) following robbery, Victim described perpetrators to police and items stolen; Victim told police he saw perpetrators flee in Crown Victoria vehicle; police stopped Crown Victoria vehicle less than one mile from crime scene and found Appellant and co-defendant in backseat with female driver; Victim immediately identified Appellant and co-defendant as perpetrators; Victim also identified his assailants in written statement given later at police station; from vehicle, police recovered Victim's cell phone case (which had distinct white Punisher face on back) and Victim's white Soul headphones, which Victim had described to police as stolen immediately following robbery; jury was free to reject co-defendant's testimony that he acted alone and Appellant was mere innocent bystander; fact that jury acquitted Appellant of other charges does not require setting aside robbery conviction; Appellant took Victim's cell phone and demanded pass code while co- defendant held Victim at gunpoint; Victim's identification testimony coupled with additional circumstantial evidence was sufficient to prove Appellant's guilt beyond reasonable doubt; (2) record demonstrates court considered all pertinent factors before imposing sentence; court reviewed Appellant's mental health evaluation and pre-sentence investigation report; court heard argument from both parties before imposing sentence; court considered manner in which crime was committed, its impact on Victim, societal need for protection, sentencing guidelines, as well as Appellant's age, mental aptitude, educational attainment, employment history, prior criminal record, and rehabilitative needs; court did not consider impermissible factors). Accordingly, we affirm on the basis of the trial court's opinion.
Appellant has complied with the requirements for review of his sentencing claim. See Commonwealth v. Evans , 901 A.2d 528 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (explaining challenge to discretionary aspects of sentencing is not automatically reviewable as matter of right; prior to reaching merits of claim, we conduct four-part test to determine whether appellant has filed timely notice of appeal, preserved issue at sentencing or in timely filed post-sentence motion, complied with Pa.R.A.P. 2119(f), and raised substantial question). Nevertheless, Appellant did not preserve in his post-sentence motion his argument that his sentence constituted "cruel and unusual punishment" because it triggered an additional consecutive sentence for a violation of parole in another case. Thus, this particular claim is waived. See id.
In detailing its reasons for the sentence imposed, the court emphasized the current conviction is Appellant's fourth robbery offense. ( See N.T. Sentencing, 1/8/16, at 18-23.) --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/2/2017
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