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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JULIO A. TORRES, : No. 3496 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, August 9, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004877-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2014
Julio A. Torres appeals from the judgment of sentence of August 9,
2013. After careful review, we affirm.
At trial, the Commonwealth presented the
testimony of Stephanie Muller and Philadelphia Police
Officers James Reilly, Theresa Brooks,
Richard Lynch, Derrick Jones, Mark Wolf, and
Daniel Wright. Viewed in the light most favorable to
the Commonwealth as the verdict winner, their
testimony established the following.
At approximately 6:30 p.m. on February 18,
2012, Philadelphia Police Officer James Reilly was
performing narcotics surveillance on the 300 block of
East Somerset Street in Philadelphia. From his
unmarked police vehicle, Officer Reilly observed
[appellant] standing in front of a bodega on the
corner of Somerset Street and Rosehill Street. As
Officer Reilly watched, a man later identified as
Daniel Contreras approached [appellant].
[Appellant] handed Contreras an unknown amount of
money and Contreras handed [appellant] objects.
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[Appellant] then went into an alley behind the store,
where he stayed for approximately ten seconds.
[Appellant] then returned to the corner, where he
began yelling, “dope, powder.”[Footnote 1]
[Footnote 1] “Dope” is a street term for
heroin and “powder” is a street term for
powder cocaine.
After a few minutes, a man, later identified as
Ryan Mastriana, approached [appellant]. Mastriana
handed [appellant] money, and [appellant] returned
to the alley in which he had been earlier. [Appellant]
stayed in the alley for approximately ten seconds,
emerged, and handed Mastriana a small object.
Officer Reilly relayed a description of Mastriana to his
backup team, who stopped Mastriana a few blocks
away. Police searched Mastriana and recovered two
blue-tinted packets of cocaine.
A few minutes later, a woman, later identified
as Tracy Gowronski, approached [appellant]. She
handed [appellant] money and [appellant] went back
to the alley. [Appellant] again stayed in the alley for
approximately ten seconds, emerged, and handed
Gowronski a small object. Officer Reilly relayed a
description of Gowronski to his backup team, who
stopped Gowronski a few blocks away. Police
searched Gowronski and recovered one blue-tinted
packet containing cocaine.
As Officer Reilly was observing these drug
sales, Daniel Contreras was walking around the area
of the corner on which [appellant] stood. When it
appeared to Officer Reilly that Contreras was leaving
the area, he called for backup to converge on the
corner. Police stopped Contreras and recovered $50
in cash. Police arrested [appellant] and recovered
$170 in cash and one clear packet with a blue
glassine insert stamped with the logo “Ace,”
containing heroin.
Police then searched the alleyway in which
[appellant] had been after his transaction with
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Contreras and his subsequent transactions with
Mastriana and Gowronski. From the alley, police
recovered a Newport cigarette pack that contained
three clear packets with peach glassine inserts. The
three packets were each stamped with the logo
“Ace,” and contained heroin. Police also recovered
from the Newport box two clear plastic baggies that
contained 26 additional packets of heroin. Each of
these packets was stamped with the logo “808.”
Trial court opinion, 3/14/14 at 1-3 (citations to the record omitted).
On May 8, 2013, following a jury trial, appellant was found guilty of
possession with intent to deliver (“PWID”) -- heroin, and PWID -- cocaine.
On August 9, 2013, appellant was sentenced to 5 to 15 years’ imprisonment.
Post-sentence motions were denied, and this timely appeal followed.
Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial
court has filed an opinion.
On appeal, appellant raises a single question for our review,
challenging the discretionary aspects of sentencing:
Did not the lower court err and abuse its discretion
by sentencing [appellant] to an unreasonable and
excessive sentence that was more severe than the
top of the aggravated range of the Sentencing
Guidelines, gave a disproportionate amount of
weight to improper aggravating factors and
discounted significant and substantial mitigating
factors, resulting in an unbalanced and
disproportionate weighing process leading to an
unreasonable and excessive sentence?
Appellant’s brief at 3.
“A challenge to the discretionary aspects of a sentence requires the
claimant to set forth in his brief a separate, concise statement of the reasons
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relied upon for the allowance of appeal as to that challenge.”
Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),
citing Commonwealth v. Eby, 784 A.2d 204, 206 n.2 (Pa.Super. 2001), in
turn citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 522 A.2d
17 (Pa. 1987). Appellant has complied with this requirement. (Appellant’s
brief at 5-7.)
This Court may reach the merits of an appeal
challenging the discretionary aspects of a sentence
only if it appears that a substantial question exists as
to whether the sentence imposed is not appropriate
under the Sentencing Code. “A substantial question
will be found where the defendant advances a
colorable argument that the sentence imposed is
either inconsistent with a specific provision of the
code or is contrary to the fundamental norms which
underlie the sentencing process. A claim that the
sentencing court imposed an unreasonable sentence
by sentencing outside the guideline ranges presents
a ‘substantial question’ for our review.”
Griffin, supra, quoting Eby, supra.
The matter of sentencing is vested within the sound
discretion of the trial court; we only reverse the
court’s determination upon an abuse of discretion.
To demonstrate that the trial court has abused its
discretion, 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.
Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
trial court must disclose, on the record, its reasons
for imposing the sentence.
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Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)
(citations and internal quotation marks omitted). “[T]he sentencing judge
must state of record the factual basis and specific reasons which compelled
him or her to deviate from the guideline ranges. When evaluating a claim of
this type, it is necessary to remember that the sentencing guidelines are
advisory only.” Griffin, supra at 8, citing Eby, supra.
Here, PWID carried an offense gravity score (“OGS”) of 7; appellant’s
prior record score (“PRS”) was 5. (Notes of testimony, 8/9/13 at 4.) The
statutory maximum was 30 years. (Id.) The standard range was 24 to
30 months, plus or minus 6 months. (Id.) Therefore, appellant’s sentence
of 5 to 15 years was outside the aggravated range of the sentencing
guidelines.
At sentencing, the trial court gave several reasons for going beyond
the guidelines. Appellant’s PRS of 5 did not fully reflect his criminal history,
which included juvenile adjudications for robbery and PWID. (Id. at 15.) In
2003, at age 16, appellant pled guilty in adult court to aggravated assault
and possession of an instrument of a crime. As the trial court observed, a
defendant’s PRS is capped at 5 but appellant had actually accumulated more
than 5 points. (Id.) Therefore, the trial court did not “double count”
appellant’s PRS as appellant claims on appeal.
In addition, the trial court noted that appellant had repeatedly failed to
comply with conditions of supervision. (Id.) Despite serving state time,
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appellant had failed to rehabilitate. In fact, appellant was on probation for
PWID when he committed the instant offense. (Id. at 15-16.) In 2011,
appellant received a lenient sentence of time served to 23 months plus
3 years’ probation for PWID, and obviously did not “get the message.” (Id.)
Appellant had failed to demonstrate that he could turn his life around. (Id.
at 16.)
The trial court was well aware of mitigating evidence including
appellant’s difficult upbringing. (Id. at 14.) The trial court also had the
benefit of a pre-sentence investigation report. (Id.) “Where the sentencing
judge had the benefit of a pre-sentence report, it will be presumed that he
was aware of relevant information regarding appellant’s character and
weighed those considerations along with the mitigating statutory factors.”
Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006),
quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001). The
trial court put ample reasons on the record for its upward deviation from the
guidelines. Appellant’s discretionary aspects of sentencing claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2014
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