J-A30022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID TATE
Appellant No. 2725 EDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006069-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 17, 2014
Appellant, David Tate, appeals from the September 13, 2013
aggregate judgment of sentence of eight and one-half to 17 years’
imprisonment, after he entered an open guilty plea to one count each of
firearms not to be carried without a license, carrying firearms in public in
Philadelphia, and possession of firearm prohibited.1 After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
On January 8, 2011, in the City and County of
Philadelphia, [Appellant] was stopped in his
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 6105(a)(1), respectively.
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automobile on 11th and Thompson Street.
[Appellant] was observed attempting to hide a .40
caliber Glock handgun between the console and the
front passenger seat. The handgun was loaded with
15 live rounds and a ballistics test determined the
weapon to be operable. As a result of a prior murder
conviction, [Appellant] was ineligible to possess a
firearm.
Testimony elicited during the sentencing
hearing provided th[e trial] court with a sufficient
understanding of [Appellant], his crimes, and his
personal background, so that a proper sentence
could be fashioned, one which is consistent with the
protection of the public, the gravity of the offense as
it relates to the impact on the life of the victim, and
the community, and the rehabilitative needs of
[Appellant].
Trial Court Opinion, 2/25/14, at 2.
On June 9, 2011, the Commonwealth filed an information charging
Appellant with the above-mentioned offenses. On September 5, 2012,
Appellant entered an open guilty plea to all charges. On February 6, 2013,
the trial court imposed an aggregate sentence of eight and one-half to 17
years’ imprisonment. Specifically, the trial court sentenced Appellant to
three and one-half to seven years’ imprisonment for firearms not to be
carried without a license and five to ten years’ imprisonment for possession
of a firearm prohibited, with both sentences to run consecutively to each
other. The trial court imposed no further penalty for carrying firearms in
public in Philadelphia. On February 15, 2013, Appellant filed a timely post-
sentence motion. On February 19, 2013, Appellant filed an untimely
supplemental post-sentence motion. On March 19, 2013, the trial court
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entered an order vacating Appellant’s sentence and scheduling a hearing.2
The trial court conducted a resentencing hearing on September 13, 2013, at
the conclusion of which the trial court re-sentenced Appellant to the same
sentence it had imposed on February 6, 2013. On September 20, 2013,
Appellant filed a timely notice of appeal.3
On appeal, Appellant presents the following issue for our review.
Did the [trial] court abuse its discretion in sentencing
[Appellant] in the aggravated range of the
sentencing guidelines by improperly emphasizing
conduct for which [Appellant] had been acquitted
and conduct for which [Appellant] had been charged
but not yet convicted, while not giving proper weight
to [Appellant]’s positive conduct, background, work
history and family support, resulting in a manifestly
excessive sentence for the crime of gun possession?
Appellant’s Brief at 4.
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2
We note the language of the trial court’s order is confusing. The trial
court’s order states the following.
AND NOW, this 19th day of March, 2013, after
consideration of the Order Vacating Denial of Motion
for Reconsideration of Sentence by the Attorney for
the Defendant it is ORDERED that the Order Vacating
Denial of Motion For Reconsideration of Sentence is
GRANTED.
Listed for status on 5/17/13 in courtroom 608. …
Trial Court Order, 3/19/13, at 1. Given the procedural posture of this case,
after the trial court filed this order, we believe the trial court meant to
vacate Appellant’s sentence pending a hearing on his post-sentence motion.
3
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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We first note that Appellant’s sole issue on appeal pertains to the
discretionary aspects of his sentence. See Appellant’s Brief at 7. It is
axiomatic that in this Commonwealth “[t]here is no absolute right to appeal
when challenging the discretionary aspect of a sentence.” Commonwealth
v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an
appellant forwards an argument pertaining to the discretionary aspects of
the sentence, this Court considers such an argument to be a petition for
permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. Super. 2014) (en banc) (citation omitted). In order to reach the
merits of a discretionary sentencing issue, this Court is required to conduct a
four-part analysis to determine whether a petition for permission to appeal
should be granted.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a [post-
sentence motion], 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. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(citation omitted).
In the case sub judice, Appellant has filed a timely notice of appeal
and has included a Rule 2119(f) statement in which he raises two distinct
sub-issues. First, Appellant argues that the trial court abused its discretion
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by “fail[ing] to give proper consideration to the mitigating evidence of
[Appellant]’s work and family history.” Appellant’s Brief at 7. Second,
Appellant avers the trial court abused its discretion by improperly
considering conduct for which he had been charged but not convicted and
conduct for which he had been acquitted. Id.
Appellant’s first argument regarding the trial court’s failure to consider
certain mitigating circumstances was not presented to the trial court at
either sentencing proceeding or in any of the post-sentence motions he
filed.4 Therefore, we deem this argument waived on appeal for failure to
preserve it below. See Trinidad, supra. Appellant’s remaining issues
concerning the trial court’s alleged consideration of acquitted and charged
conduct were raised at one of the sentencing proceedings below. See N.T.,
2/6/13, at 6, 40-45; N.T., 9/13/13, at 16. As a result, we proceed to
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4
We disagree with the Commonwealth’s assertion that Appellant was
required to file another post-sentence motion within ten days of being
resentenced. See Commonwealth’s Brief at 7, 7 n.6. As Appellant was
given the exact same sentence, his arguments on appeal necessarily
complain about the discretionary aspects of that same sentence. Therefore,
we may consider any argument raised on the record at either sentencing
proceeding or in Appellant’s first timely post-sentence motion. See, e.g.,
Pa.R.Crim.P. 720, cmt. (stating, “[o]nce a sentence has been modified or
reimposed pursuant to a motion to modify sentence under paragraph
(B)(1)(a)(v) … a party wishing to challenge the decision on the motion does
not have to file an additional motion to modify sentence in order to preserve
an issue for appeal, as long as the issue was properly preserved at the time
sentence was modified or reimposed[]”).
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determine whether Appellant has raised a substantial question for our
review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d
75 (Pa. 2013). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citations omitted). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).
In the case sub judice, Appellant avers that the trial court improperly
considered conduct for which Appellant had been acquitted, and conduct for
which Appellant had been accused but not convicted. Appellant’s Brief at 7.
We conclude that these allegations of the trial court considering improper
factors raise a substantial question for our review. See Commonwealth v.
Dowling, 990 A.2d 788, 792 (Pa. Super. 2010) (stating, “[a]ppellant’s claim
the trial court relied on an improper factor raises a substantial question
permitting review[]”) (citation omitted). We will therefore proceed to review
the merits of Appellant’s two remaining sub-issues.
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We begin by noting our well-settled standard of review.
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. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the 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.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted).
In this case, Appellant alleges that the trial court improperly took into
account conduct of Appellant for which he was never convicted.
Here, at sentencing, the [trial] court overemphasized
two separate instances of unproven criminal conduct
on the part of [Appellant] that should not have been
at issue in this case. First the [trial] court weighed
heavily the evidence of an arrest for [Appellant]’s
alleged assistance in a straw purchase of a firearm.
However, the charges against [Appellant] were
dismissed by a judge at a preliminary hearing, as the
evidence against him was so incredibly lacking.
Second, the [trial] court considered a pending case
against [Appellant] for an alleged stabbing.
[Appellant] had not been convicted of any offense
related to that incident at the time of sentencing.
Appellant’s Brief at 8-9 (internal citations omitted). As a general matter,
this Court has explained that “[a] judge may consider unadjudicated arrests
in sentencing a defendant, so long as the arrests are not regarded as
establishing criminal conduct, and even arrests that result in acquittals, if
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the judge is aware of the acquittal.” Commonwealth v. Bowers, 25 A.3d
349, 356 (Pa. Super. 2011), appeal denied, 51 A.3d 837 (Pa. 2012).
At the first sentencing hearing, Appellant objected to the trial court
considering a video surveillance tape showing his presence in a gun store.
N.T., 2/6/13, at 25. The video shows Appellant assisting someone in making
a straw purchase of a gun. Id. According to the Commonwealth, “[t]hree
days later … [the gun was] found on the bathroom floor at the Beaumont
Lounge … [a]nd [Appellant] is outside that door.” Id. Also, the
Commonwealth pointed to an incident involving a stabbing, and showed a
photograph of the complainant “patched up and hooked up to tubes[.]” Id.
at 41. Appellant argues it is the consideration of this evidence that entitles
him to resentencing. Appellant’s Brief at 8-9.
However, the trial court noted that it did not consider any of the
above-mentioned evidence as criminal conduct. Trial Court Opinion,
2/25/14, at 5-6. Specifically, the trial court explained the rationale for its
sentence as follows.
[T]his court clearly indicated–on the record–after a
lengthy sentencing hearing what was and was not
consider[ed] when fashioning a sentence for
[Appellant]. Specifically, in reference to the video
from the firearms dealer and [the] open aggravated
assault case, this court stated:
THE COURT: It’s not a question of criminal
violation; he’s on bail for having a .40 [c]aliber
gun illegally, because he can’t have a gun. So
he goes into the gun shop and he helps
somebody purchase it. It’s not a question of if
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he violated the law per se by going in there.
But, perhaps, that somebody–and you are
arguing it’s only for protection, and he’s a good
person, I’m hearing all that. There is a
dichotomy here, and we will deal with that at
the end. But, he goes into the gun shop and
helps somebody purchase a gun.
MR. HETZNECKER (Defense Counsel): Bad
judgment. I agree.
THE COURT: Well, that goes to the issue of
sentencing and character. And you are asking
me to take into account, which I should, all the
good things he’s done. All the help he has
done. I heard from the stepfather and mother,
all the thing he does for the family. I can also
take into account that an individual with a prior
murder conviction for shooting somebody, and
[who] is facing a very serious gun possession
case, while on bail in that case, went into a
gun shop with somebody.
MR. HETZNECKER: If that is the extent of it
without the other background information.
Now you do have the background information.
What I did not appreciate was that the
Commonwealth presenting a snapshot which
was an inaccurate portray [sic] on the case
presented at trial, including the fact that the
motion to suppress, outside the Beaumont
Lounge was granted.
THE COURT: I’m not interested in the
Beaumont Lounge issue. What was relevant is
that he was in a gun shop and assisting
somebody in purchasing a gun, which is not a
violation of the law and is not here to be
considered a criminal act, but as an issue of
character and behavior and conduct while on
bail.
[…]
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THE COURT: I don’t know what drives you, I
don’t know what happened to you in the past.
I read the mental health, read the presentence
report, all of this is a tragedy. Tragedy for
you, your family and the community. But the
gun violence is also a tragedy for people. I
don’t know why you didn’t learn from the
murder conviction, I don’t know why, despite
other incidents before my case you didn’t
learn. I hope that you will learn from this, but
really it’s up to you, and I hope that when you
come out, you will understand that you got to
walk away from criminal behavior. If someone
angers you, you have to walk away. You can’t
have anything else to do with guns. In your
car, in a house, on the street, in the gun shop,
or anything else. Because of your background
and because of what occurred, guns are toxic
to you, radioactive. And you cannot be around
guns. Mr. Hetznecker made a very eloquent
argument on your behalf. The problem is that
your history is the problem. And I think you
understand that. And that’s the basis of my
sentence. I considered the presentence,
mental health, prior record score, arguments
of counsel, letters that were presented and the
appropriate and relevant evidence about what
occurred before. I did not consider the
Beaumont Lounge, that was a not guilty, and
that’s not the issue and the car incident is only
for the fact that the parole board did violate
you, and you were in a car with guns. And, in
terms of your current case, that’s only an issue
regarding your being on bail at the time,
getting arrested.
Trial Court Opinion, 2/25/14, at 5-6, quoting N.T., 2/6/13, 35-36, 57-58
(emphasis in original).
After careful review, we conclude Appellant is not entitled to relief.
Our review of the sentencing hearing reveals that the trial court did not
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consider either incident “as establishing criminal conduct[.]” Bowers,
supra. Furthermore, consistent with Bowers, the trial court was made
aware of, and acknowledged, Appellant’s acquittal. Furthermore, as to
Appellant’s pending case, the trial court stated that it was only considering
its existence to show that Appellant was arrested while he was released on
bail for the case at bar. Trial Court Opinion, 2/25/14, at 6. There is no
indication that the trial court based the instant sentence on any actual
acquitted charge or uncharged criminal conduct. As a result, we conclude
the trial court did not abuse its discretion in sentencing Appellant in this
case. See Raven, supra.
Based on the foregoing, we conclude Appellant’s sole issue on appeal
does not entitle him to relief. Accordingly, the trial court’s September 13,
2013 judgment of sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
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