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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MONE PARKER, : No. 1428 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, July 30, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0003487-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND SHOGAN, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016
Mone Parker appeals from the judgment of sentence entered by the
Court of Common Pleas of Allegheny County as a result of her conviction for
aggravated assault -- serious bodily injury, 18 Pa.C.S.A. § 2702(a)(1).
Matthew Rabinowitz, Esq., the Commonwealth’s attorney, summarized
the facts at appellant’s guilty plea hearing:
This occurred on February 22, 2013, at the
[appellant’s] residence . . . in McKees Rocks. The
victim, Jonesha Huggins, would have testified that
she was the daughter of the [appellant]. She would
testify that she received a phone call from the
[appellant], her mother, asking her to come over to
the mother’s residence . . . .
She would testify that when she got there she went
up the stairs and her mother basically pushed her
into a bedroom and pulled out a gun and put her
against . . . had her up against a wall on her knees,
more or less up against a wall, and she would testify
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that at some point her mother pulled out a gun and
held it to her head and began threatening her
regarding some money that she believed
Ms. Huggins [had] stolen from her. She would
testify that she moved her head and just as she
moved her head a shot was fired. It grazed her ear
and she then ran out of the house. That is the sum
of the facts.
The McKees Rocks police would testify that they
found a firearm, a bullet and a shell casing in the
room where this occurred. That is the sum and
substance of the case.
Notes of testimony, 1/15/14 at 5-6.1
On January 15, 2014, appellant pled guilty to aggravated assault. The
Commonwealth withdrew the other charges. The trial court accepted the
plea. Sentencing was deferred pending the preparation of a pre-sentence
investigative report (“PSI”).
At the sentencing hearing, Courtney Michele Blackwell (“Blackwell”),
whose godson was appellant’s grandchild, testified in support of appellant
and stated that when her mother left when she was 16 years old, appellant
“stepped up and became that motherly figure that I needed. She’s guided
me back to school and to keep my life on track.” (Notes of testimony,
4/8/14 at 5.) Kennie Shantel Bryant, appellant’s 21-year-old daughter,
1
In addition to aggravated assault, appellant was charged with criminal
attempt at criminal homicide, 18 Pa.C.S.A. § 901(a); discharging a firearm
into an occupied structure, 18 Pa.C.S.A. § 2707.1(a); unlawful restraint,
18 Pa.C.S.A. § 2902(a)(1); two counts of endangering the welfare of
children, 18 Pa.C.S.A. § 4304(a)(1); and three counts of recklessly
endangering another person, 18 Pa.C.S.A. § 2705.
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testified on her mother’s behalf. Appellant testified that she was “adamantly
remorseful about the situation that transpired.” (Id. at 8.) Appellant
explained that she made a bad decision but since then had completed
domestic violence counseling. She also saw a therapist and attended anger
management. (Id. at 8.)
Jonesha Huggins (“Huggins”), the victim, testified on behalf of the
Commonwealth that as a result of the incident, she entered a state of
depression where she started drinking and that she did not believe the trial
court should show appellant any mercy. (Id. at 12.)
The trial court sentenced appellant to a term of four to eight years’
incarceration followed by five years of probation.
Appellant moved for reconsideration of the sentence. At the hearing
on the post-sentencing motion, Blackwell again testified in support of
appellant. Also testifying on appellant’s behalf were Richard O’Shea, the
brother of a disabled individual for whom appellant provided care;
Gary Walker, a neighbor of the disabled individual; and Jacqueline Freeman
and Melissa Ann Caldwell, friends of appellant.
The trial court denied the motion. The trial court explained its
reasoning for the sentence:
The record reflects that the Court reviewed the
presentence report and the sentencing guidelines as
well as defense counsel’s request that the Court
deviate from the guidelines. The Court noted that
while the victim did not sustain a permanent injury,
she had been put in fear of serious bodily injury and
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could be expected to suffer from post-traumatic
stress from having a gun placed to her head. The
Court then imposed a sentence within the standard
range of the guidelines. At the hearing on the
motion for reconsideration on July 28, 2014, the
Court again noted: “She put a gun to somebody’s
head.” (Post-Sentence Transcript at page 3). The
Court further stated: “A loaded gun . . . and shot
her in the ear. An inch the other way, you got a
dead person.” (Post-Sentence Transcript at page 4).
....
The Court sentenced Parker in the standard range of
the Sentencing Guidelines. The sentence is not
clearly unreasonable and is based upon the facts of
this particular case. Parker called her own child to
her house, accused her of stealing money, placed a
gun to her head and pulled the trigger. Only by the
grace of God did the victim not die or suffer serious
bodily injury. Had the Commonwealth pursued it,
Parker would have been facing a mandatory
minimum sentence of incarceration of five (5) years
for a crime committed with a firearm. A sentence
that is less than the mandatory minimum that could
have been applied in this case is clearly a reasonable
sentence.
The Court considered all relevant factors in the
presentence report, the testimony presented on
Parker’s behalf, the fact that Parker had no prior
record as well as the facts of the case in fashioning
an appropriate sentence. No abuse of discretion
exists in this matter and the judgment of sentence
imposed upon Parker should be affirmed.
Trial court opinion, 5/29/15 at 2-4.
Appellant raises the following issue for this Court’s review:
I. Did the trial court fail to adequately consider
and apply all of the relevant sentencing
criteria, including [appellant’s] character and
rehabilitative needs, the gravity of the offense
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as it relates to Huggins and the community,
and the protection of the public, as required
under 42 Pa.C.S.A. § 9721(b) (sentencing
generally)?
Appellant’s brief at 5 (capitalization omitted).
[T]he proper standard of review when
considering whether to affirm the sentencing court’s
determination is an abuse of discretion. . . .[A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court
recently offered: An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate
review is that the sentencing court is in the best
position to determine the proper penalty for a
particular offense based upon an evaluation of the
individual circumstances before it.
Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)
(citation omitted).
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. 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
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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).
Moury, 992 A.2d at 170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging her sentence.
First, appellant timely filed her notice of appeal pursuant to Pa.R.A.P. 902
and 903. Second, she properly preserved the issue in a motion for
modification of sentence which was filed on April 10, 2014. The trial court
denied appellant’s motion on July 30, 2014.
Third, appellant included a Rule 2119(f) statement in her brief, in
which she avers that “the Trial Court did not consider Ms. Parker’s
rehabilitative needs, the protection of the public, or the gravity of the
offense in relation to the impact on the community. Rather, the Trial Court
considered only the offense’s impact on Huggins.” (Appellant’s brief at 20.)
A substantial question is only raised on a sentence within the
guidelines when there are circumstances in which “the application of the
sentencing guidelines would be clearly unreasonable.” Commonwealth v.
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Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013), appeal denied, 91 A.3d 161
(Pa. 2014), quoting 42 Pa.C.S.A. § 9781(c)(2).
In determining whether a substantial question exists,
this Court does not examine the merits of whether
the sentence is actually excessive. Commonwealth
v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).
Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence,
when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial
question determination does not require the court to
decide the merits of whether the sentence is clearly
unreasonable.
Dodge, 77 A.3d at 1270. Here, appellant alleges that the trial court failed
to consider her rehabilitative needs when crafting its sentence. Appellant
also alleges that the sentence did not take into account the protection of the
public or the gravity of the offense in relation to the impact on the
community. This court has held that such a combination constitutes a
substantial question. Commonwealth v. Riggs, 63 A.3d 780 (Pa.Super.
2012). We, therefore, find that appellant has raised a substantial question,
and will consider her appeal on its merits.
Where the sentencing court had the benefit of a
presentence investigation report (“PSI”), we can
assume the sentencing court “was aware of relevant
information regarding the defendant’s character and
weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
Commonwealth v. Tirado, 870 A.2d 362, 368
(Pa.Super. 2005) (stating if sentencing court has
benefit of PSI, law expects court was aware of
relevant information regarding defendant’s character
and weighed those considerations along with any
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mitigating factors). Further, where a sentence is
within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate
under the Sentencing Code. See Commonwealth
v. Cruz-Centeno, 447 Pa.Super. 98, 668 A.2d 536
(1995), appeal denied, 544 Pa. 653, 676 A.2d
1195 (1996) (stating combination of PSI and
standard range sentence, absent more, cannot be
considered excessive or unreasonable).
Moury, 992 A.2d at 171.
[W]hile a sentence may be found unreasonable after
review of Section 9781(d)’s four statutory factors, in
addition a sentence may also be unreasonable if the
appellate court finds that the sentence was imposed
without express or implicit consideration of the
general standards applicable to sentencing found in
Section 9721, i.e., the protection of the public; the
gravity of the offense in relation to the impact on the
victim and the community; and the rehabilitative
needs of the defendant.
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
Appellant argues that the mitigating evidence here was extensive and
compelling such as to render the sentence unreasonable. She also argues
that the trial court disregarded the force of the evidence when it relied on
Huggins’s testimony which was in stark contrast to the testimony of the
other witnesses and which focused in part on events of the past which
indicated past problems between appellant and Huggins.
Here, the trial court indicated on the record that it read appellant’s
PSI. (Notes of testimony, 4/8/14 at 17.) Because the trial court reviewed
appellant’s PSI, it is presumed that the trial court was aware of appellant’s
rehabilitative needs as well as any other mitigating factors. Devers. The
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trial court further stated that it reviewed all of the factors in the case before
it and sentenced appellant to a term of four to eight years’ incarceration.
(Id. at 17-18.) The trial court did not indicate that it relied on Huggins’s
testimony concerning the alleged treatment of her by appellant when
Huggins was a child. At the post-sentencing hearing, appellant’s counsel
acknowledged that the sentence was within the standard range of the
sentencing guidelines. (Notes of testimony, 7/28/14 at 5.) Because the trial
court sentenced appellant within the standard range and stated on the
record that it reviewed the PSI, the guidelines, and all of the factors with
respect to sentencing before it, this court, therefore, finds that the sentence
imposed is appropriate under the Sentencing Code, and appellant’s
contentions are without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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