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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RAPHAEL SPEARMAN, :
:
Appellant : No. 79 EDA 2015
Appeal from the Judgment of Sentence July 5, 2012,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0015911-2010
BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 30, 2015
Raphael Spearman (“Spearman”) appeals from the July 5, 2012
judgment of sentence entered by the Philadelphia County Court of Common
Pleas following his open guilty plea to carrying a firearm without a license
(“6106”) and carrying a firearm on the public streets in Philadelphia
(“6108”).1 The trial court sentenced Spearman to two and a half to six years
of incarceration for the 6106 conviction and two to five years of incarceration
for the 6108 conviction, with the sentences running consecutive to each
other and consecutive to any other sentence Spearman was then serving.
On appeal, Spearman challenges the trial court’s exercise of discretion in
fashioning his sentence. For the reasons that follow, we affirm.
1
18 Pa.C.S.A. §§ 6106, 6108.
*Retired Senior Judge assigned to the Superior Court.
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As Spearman addresses the sole issue raised on appeal to his
sentence, a full recitation of the factual and procedural history of the case is
unnecessary. Spearman pled guilty to the two crimes with which the
Commonwealth charged him on June 5, 2012. On July 5, 2012, the trial
court held a sentencing hearing. The trial court stated on the record that it
reviewed the Commonwealth’s sentencing memorandum, Spearman’s
mental health evaluation, the presentence investigation report, and the
sentencing guideline report.2 N.T., 7/5/12, at 5. Counsel for Spearman
detailed the history of Spearman’s childhood, which included being born
addicted to crack cocaine; placement in the dependency system at age nine
because of physical and emotional abuse; the death of his grandmother
(who was the only stable parental figure he had) when he was twelve;
severe mental health problems (including seven documented suicide
attempts) beginning at or around age thirteen; and an adjudication of
delinquency when he was seventeen. Id. at 7-11. Following his discharge
from a state facility and successful completion of probation, Spearman “was
no longer under the purview of the [f]amily [c]ourt and no longer receiving
any medication or [mental health] treatment,” and shortly thereafter, began
his involvement in the adult criminal justice system. Id. at 11.
Counsel for Spearman also informed the court that while incarcerated,
Spearman has been stabbed four times and “continues daily to find himself
2
None of these documents appears in the certified record on appeal.
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defending his life.” Id. at 17. Counsel believed this stemmed from
Spearman giving the Commonwealth an August 2010 statement (which he
later recanted) regarding an open homicide investigation. Id. at 17-18.
Spearman’s mother testified on his behalf as well, confirming her history of
addiction, and seeking mercy for her son by the trial court. Id. at 15-16.
In its presentation at sentencing, the Commonwealth painted a
different picture of Spearman. The prosecutor stated that Spearman was
arrested three times as a juvenile, failed on probation, and required
placement in four different facilities because of his aggressive and
threatening behavior towards staff. Id. at 22, 24. He was ultimately placed
in a state facility for delinquent juveniles and was arrested for the instant
firearms violations within a year of the conclusion of supervision by the
juvenile court. Id. at 22, 24-25. In 2011, he assaulted staff in a treatment
facility and brought a weapon into a correctional facility. Id. at 25-26.
Furthermore, the firearm Spearman possessed in this case was used to
commit the murder he witnessed. Initially, Spearman told police that the
perpetrator of the murder gave the gun to him to hide. Id. at 26. While
incarcerated, however, Spearman sent an affidavit to the prosecutor trying
the murder case stating that he was responsible for the murder.3 Id. at 27.
3
The Commonwealth stated that no one in the District Attorney’s Office
believes that Spearman was the one who committed the murder. N.T.,
7/5/12, at 27.
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The Commonwealth presented testimony from Officer Anthony
Solomon of the Philadelphia Police Department. Officer Solomon testified
that over the past six years, he has become familiar with Spearman through
contacts he has had with him on the street. Id. at 32. Officer Solomon
knew Spearman to associate with gang members and to frequent an area
known for gang activity. Id. at 32-33. He testified to his training and
experience, which largely concentrated on street gangs and organized crime,
and his knowledge about the formation and background of a particular sect
of the Bloods, 252, the gang to which, in his belief, Spearman belonged. Id.
at 36-40. He further explained that if a person claimed to be a Blood, but
the person was not in fact a member of the gang, the Bloods “will issue an
order to have [that person] killed.” Id. at 38-39.
Using pictures he previously took of Spearman’s tattoos,4 Officer
Solomon explained the meaning behind each tattoo and its significance in
terms of the Bloods’ culture:
A tattoo over Spearman’s eyebrows that says “sex $ murder,”
which Officer Solomon stated is a marking of the Bloods (id. at
38, 42);
A bullseye with crosshairs in the center filled in red (the Bloods’
color) and a teardrop filled in red, which Officer Solomon
understood to mean either the individual took a life or lost
someone close to them (id. at 39, 42-43);
A tattoo on one eyelid that says “2$2,” which Officer Solomon
said stands for 252 (id. at 37, 45);
4
The pictures were not included in the certified record on appeal.
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A tattoo on his other eyelid that says “LIE,” which Spearman told
Officer Solomon means “loyalty is everything” (id. at 45);
On his right hand, a spider web with “brazy boy,” which Officer
Solomon believed meant “crazy boy,” but Bloods use the letter
“b” instead of “c” in words to show disrespect for the Crips, their
rival gang (id. at 38, 45-46);
A five-pointed star, which Officer Solomon stated is indicative of
Blood membership (id. at 39, 47);
The name “Mark Tart,” a member of the Bloods who was killed
by an off-duty police officer during an attempted robbery of the
officer (id.);
“Live by the trigger” and “die by the trigger” on the inside of
Spearman’s fingers (id.);
“One Hunt Down” (for Huntington Street), “S block” (for Stanley
Street), “19132” (the zip code), and “NP” (for North
Philadelphia) on Spearman’s left arm and “29 Street” on his
thumb, all of which refer to the area the 252 Bloods congregate
(id. at 48);
“NP gunman” and “Blood, money” (id.);
“Homey boys” on Spearman’s fingers, which Spearman told
Officer Solomon stands for “homicide boys” (id. at 48, 52).
Officer Solomon testified that the night he spoke with Spearman and
took the above pictures, the tattoos on Spearman appeared to be fresh. Id.
at 50. Spearman reportedly told Officer Solomon that he was upset that
people with whom he was affiliated, another gang known as “Team A,” had
killed his friend, Anwar Ashmore (“Ashmore”), and he and others decided to
break from Team A to form a gang of their own. Id. at 50-51. Spearman
explained to Officer Solomon that he covered up several Team A-related
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tattoos to turn them into Blood tattoos – e.g., the spider web previously only
had an “A” in the middle, which he changed to say “brazy boy,” and the
teardrop tattoo that he filled in red – and added new tattoos to distance
himself from Team A. Id. at 51, 53-54. Officer Solomon had pictures of
Spearman prior to Ashmore’s murder that corroborated this explanation. He
also had pictures of Spearman with Ashmore (prior to his murder) and
others, one of whom allegedly killed Ashmore. Id. at 54-55.
The Commonwealth also showed a music video posted on YouTube,
the internet address for which was not stated on the record at sentencing.
See id. at 58-61; 76. The trial court summarized the video as having been
put together by another artist and depicting Spearman and others who were
mentioned during the sentencing hearing “dealing with guns, drugs and
other activities[.]” Id. at 76-77.
Spearman exercised his right to allocution and apologized for his
actions that brought him into court. Id. at 65. He asked the trial court not
to judge him by the actions taken by his neighbors or by his tattoos. Id. He
explained that he is a tattoo artist and in an urban rap group, not a gang,
and that the gang-related tattoos are “just a costume,” likening himself to
rapper Lil Wayne. Id. at 65-66, 72-74. The trial court questioned him
about the possibility of being killed for impersonating a gang member, to
which Spearman replied that he “let them know” that he’s not a gang
member and “didn’t think it would be this, like, very important.” Id. at 67-
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68. The trial court further questioned him about being in possession of the
firearm used to kill Ashmore, but Spearman stated that although he wanted
to respond, he did not want to respond that day. Id. at 68-70.
The trial court then handed down Spearman’s sentence. In so doing,
it stated the following:
I’ve heard the extensive testimony at the
sentencing hearing. I’ve considered the presentence
mental health reports. I’ve considered the
Commonwealth’s sentencing memorandum.
Considered the presentation made by counsel [for
Spearman], as well as the testimony of
[Spearman]’s mother, and all the background
information that’s been provided regarding
[Spearman]’s history both as a juvenile, the
commitments, incarceration, as well as an adult.
* * *
Mr. Spearman, I understand you were damaged
from what has happened to you in your life. But
there also comes a time when the dangers to the
community has to be strongly considered. In your
case, I hope that you’ll use the time in state prison
to do what you’re saying you want to do, to
fundamentally deal with whatever problems you
have and make whatever changes you need to.
Otherwise, you’re going to come back to state prison
for the rest of your life from having killed someone
or be dead yourself.
What you’ve gotten involved in, what you’ve been
doing may be a product of what happened to you
from the time of birth being crack addicted and
everything else that occurred. I don’t think the
Commonwealth disputes that. But what you’ve
done, both in juvenile facilities and as an adult[,]
make you very dangerous on the street right now.
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You’re a relatively young man. The sentence is
not going to get you out in the near term, but it will
get you out where you will be able to have a lot of
your life left. What you make of your life will really
be yours; none of us, your mother, your attorney,
myself, nobody else.
* * *
I appreciate your taking programs. There’s a lot
of programs in the state prison that can help you. I
hope you’ll take advantage of every one. Learn a
trade, further education, counseling, whatever it is
that you need to deal with anger that’s in you, and
everything else that occurred that brought you to
where you’re at.
Id. at 81-85.
Spearman filed a timely motion to reconsider his sentence, arguing
that his sentence was excessive based on its consecutive nature and the trial
court’s failure to properly consider mitigating factors. The trial court denied
the motion by operation of law on November 20, 2012.
On January 4, 2013, Spearman filed a pro se petition pursuant to the
Post Conviction Relief Act (“PCRA”). The PCRA court appointed counsel, who
filed an amended petition. On December 29, 2014, the PCRA court
reinstated Spearman’s direct appeal rights. Thereafter, Spearman filed a
timely notice of appeal and a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On May 7, 2015, the trial court filed
a responsive opinion pursuant to Pa.R.A.P. 1925(a).
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On appeal, Spearman raises one issue for our review: “Does
[Spearman]’s [] 6108 sentence constitute an abuse of discretion and should
the matter be remanded for resentencing?” Spearman’s Brief at 4. This
issue raises a challenge to discretionary aspects of Spearman’s sentence.
Before we reach the merits of this issue, we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief
includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the
sentencing code. The third and fourth of these
requirements arise because Appellant’s attack on his
sentence is not an appeal as of right. Rather, he
must petition this Court, in his concise statement of
reasons, to grant consideration of his appeal on the
grounds that there is a substantial question. Finally,
if the appeal satisfies each of these four
requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)
(citations omitted), appeal denied, 109 A.3d 678 (Pa. 2015).
As stated above, Spearman filed a timely notice of appeal following the
reinstatement of his direct appeal rights and filed a timely motion to
reconsider his sentence. He includes in his brief on appeal a concise
statement pursuant to Pa.R.A.P. 2119(f) wherein he purports to raise two
substantial questions. First, he points to his sentence of two to five years of
incarceration for 6108, which is double the aggravated guideline sentence,
and the trial court’s decision to run the sentence consecutively to his
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sentence for 6106. Spearman’s Brief at 9. He asserts that “[t]his sentence
is inconsistent with 4[2] Pa.C.S.A. 9721(b) and contrary to the fundamental
norms which underlie the sentencing process generally[, as t]he sentencing
court did not properly explain how the sentence imposed was consistent with
the protection of the public or how the sentence would serve [Spearman]’s
rehabilitative needs. Id. Our review of the record reveals that Spearman
failed to preserve this issue in his post-sentence motion to reconsider his
sentence, and thus has waived it for purposes of appeal. See
Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015),
appeal denied, 119 A.3d 351 (Pa. 2015).
Second, Spearman asserts that the length of his sentence for 6108,
coupled with its consecutive nature, results in a manifestly excessive
sentence, as Spearman pled guilty and accepted responsibility for his
actions. Spearman’s Brief at 9. Although preserved in his post-sentence
motion, we nonetheless deny review, as Spearman fails to raise a
substantial question for our review. As stated by our Supreme Court,
[O]nly where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the
sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the
sentencing process, will such a statement be deemed
adequate to raise a substantial question so as to
permit a grant of allowance of appeal of the
discretionary aspects of the sentence.
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Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). In his 2119(f)
statement, Spearman fails to state with any specificity which section of the
Sentencing Code or the fundamental norm the trial court violated by issuing
this allegedly excessive sentence. See Spearman’s Brief at 9.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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