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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTY PERRI, : No. 926 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, March 3, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0010832-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 21, 2016
Christy Perri appeals from the March 3, 2015 aggregate judgment of
sentence of four to eight years’ imprisonment, followed by two years’
probation, imposed after she pled guilty to possession of a firearm, carrying
a firearm without a license, and the summary offense of driving under
suspension.1 After careful review, we affirm.
The trial court set forth the relevant facts of this case, as gleaned from
the guilty plea hearing, as follows:
[O]n or about Friday, [August 1, 2014], at
approximately 2130 hours, City of Pittsburgh Police
were on patrol in a marked unit in full uniform in the
Uptown area of Pittsburgh. They observed a white
Dodge Charger with Pennsylvania registration
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6105, 6106 and 75 Pa.C.S.A. § 1543, respectively.
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HWV2753 traveling inbound on Fifth Avenue. When
it came to the intersection of Washington Place, they
observed that none of the brake lights were
functioning on the vehicle. They effectuated a traffic
stop and approached [appellant], who was the driver
of the vehicle. They detected a faint odor of burnt
marijuana coming from the vehicle’s compartment.
[Appellant] stated that she did not have a valid
driver’s license. The officers asked [appellant] and
the occupants, based on their nervous behavior, to
remove themselves from the vehicle for the officer’s
safety. A pat–down of the occupants was completed,
and during that time an unnatural bulge in
[appellant’s] waistband was noticed by the officers.
[Appellant] appeared to be attempting to cover the
bulge by folding her hands over top. Officer McGee
recovered a Rossi .38 Special revolver, Serial
No. D656556 with five live rounds from [appellant’s]
waistband, concealed beneath her clothing. The
Commonwealth would have submitted Laboratory
Case No. 1407301 to show that this was a
.38 Special caliber revolver that was in good
operating condition. [Appellant’s driver’s] license
had been suspended, and [appellant] stated that she
had recently been the victim of a home invasion
where she suffered a gunshot wound, that she had
taken her aunt’s firearm to use for protection.
Trial court opinion, 1/4/16 at 2 (citation to notes of testimony omitted).
Appellant was subsequently arrested and charged with the
aforementioned offenses, as well as receiving stolen property, prohibited
offensive weapons, and the summary offense of general lighting
requirements.2 On November 18, 2014, appellant pled guilty to possession
of a firearm, carrying a firearm without a license, and the summary offense
of driving under suspension. The Commonwealth withdrew the remaining
2
18 Pa.C.S.A. §§ 3925, 908, and 75 Pa.C.S.A. § 4303, respectively.
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charges. Following the completion of a pre-sentence investigation (“PSI”)
report, the trial court sentenced appellant to four to eight years’
imprisonment, followed by two years’ probation, on March 3, 2015.3 On
March 10, 2015, appellant filed a motion for reconsideration of sentence,
which was denied by the trial court on March 13, 2015. On April 8, 2015,
appellant filed, inter alia, a motion for leave to file supplemental post-
sentence motions nunc pro tunc.4 The trial court granted said motions on
April 13, 2015. Thereafter, on May 4, 2015, appellant filed a supplemental
post-sentence motion, which was denied by the trial court on May 12, 2015.
This timely appeal followed.5
On appeal, appellant raises the following issue for our review:
I. Did the trial court err in imposing a sentence
that was manifestly excessive, unreasonable,
and an abuse of discretion when the trial court
overlooked and/or failed to carefully consider
relevant factors when sentencing [appellant],
including the unique facts and circumstances of
the crime, and her background and
rehabilitative needs; and the [trial] court relied
on erroneous, improper and impermissible
factors; and failed to impose an individualized
sentence?
3
Appellant’s sentence fell within the mitigated range of the Pennsylvania
Sentencing Guidelines, 42 Pa.C.S.A. § 9701, et seq.
4
The record reflects that this motion was filed by appellant’s newly
appointed counsel, William E. Brennan, Esq., and the trial court granted said
motion on April 13, 2015, the last day for filing an appeal from the denial of
the March 13, 2015 order.
5
Appellant and the trial court have complied with Pa.R.A.P. 1925.
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Appellant’s brief at 5.
Generally, our standard of review in assessing whether a trial court
has erred in fashioning a sentence is well settled.
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. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal
denied, 117 A.3d 297 (Pa. 2015) (citation omitted).
Where an appellant challenges the discretionary aspects of her
sentence, as is the case here, the right to appellate review is not absolute.
See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).
Rather, an appellant challenging the discretionary aspects of her sentence
must invoke this court’s jurisdiction by satisfying the following four-part
test:
(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.
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Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).
Instantly, the record reveals that appellant has filed a timely notice of
appeal and has preserved her issue in her supplemental post-sentence
motion. Appellant has also included a statement in her brief that comports
with the requirements of Pa.R.A.P. 2119(f). Accordingly, we must determine
whether appellant has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Griffin, 65 A.3d
932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)
(citation omitted). “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),
appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted). “At a minimum,
the Rule 2119(f) statement must articulate what particular provision of the
code is violated, what fundamental norms the sentence violates, and the
manner in which it violates that norm.” Commonwealth v. Davis, 2016
WL 1625810, at *15 (Pa.Super. 2016) (citation omitted).
In her Rule 2119(f) statement, appellant argues that her sentence
“was manifestly excessive, unreasonable, and an abuse of discretion[.]”
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(Appellant’s brief at 12.) In support of this claim, appellant contends that
the trial court “failed to consider all relevant factors, particularly the unique
circumstances of the crime[] and [her] background and rehabilitative
needs[,]” as required by 42 Pa.C.S.A. § 9721(b). (Id. at 12-13.)
Appellant’s assertion that the trial court failed to consider her background
and rehabilitative needs raises a substantial question. See Commonwealth
v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013), appeal denied, 91 A.3d
161 (Pa. 2014) (finding “[a]ppellant’s claim that the sentencing court
disregarded rehabilitation and the nature and circumstances of the offense in
handing down its sentence presents a substantial question for our review.”);
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013), appeal
denied, 86 A.3d 231 (Pa. 2014) (finding, inter alia, an assertion that the
trial court failed to account for appellant’s rehabilitative needs was a
substantial question suitable for review).
Appellant further avers that the trial court considered “erroneous,
improper and impermissible factors” in sentencing her and “failed to impose
an individualized sentence tailored to her and the attendant facts of her
case.” (Appellant’s brief at 13.) We have recognized that “a claim that a
sentence is excessive because the trial court relied on an impermissible
factor raises a substantial question.” Allen, 24 A.3d at 1064-1065 (citation
omitted). Likewise, in Commonwealth v. Ahmad, a panel of this court
concluded that a claim that the sentencing court failed to consider an
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appellant’s individualized circumstances in its imposition of sentence raised a
substantial question. Ahmad, 961 A.2d 884, 887 (Pa.Super. 2008).
Accordingly, we proceed to consider the merits of appellant’s discretionary
sentencing claims.
Appellant first argues that the trial court abused its discretion in failing
to consider “the unique circumstances of the crime” and her “background
and rehabilitative needs” when it imposed sentence. (Appellant’s brief at
18.) Appellant contends her sentence was not individually “tailored to her
and the attendant facts of her case.” (Id. at 18-19.) We disagree.
This court will not disturb a trial court’s sentence absent a finding the
court failed to weigh the sentencing considerations in a meaningful fashion.
“When reviewing sentencing matters, this Court must accord the sentencing
court great weight as it is in [the] best position to view the defendant’s
character, displays of remorse, defiance or indifference, and the overall
effect and nature of the crime.” Commonwealth v. Ventura, 975 A.2d
1128, 1134 (Pa.Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)
(citation omitted).
Herein, the record reveals that the trial court considered and weighed
numerous factors in fashioning appellant’s sentence, including the
sentencing guidelines, the gravity of the offense, her prior criminal history,
and the fact that her “adjustment to supervision has been poor.” (Notes of
testimony, 3/3/15 at 6, 15-16; see also trial court opinion, 1/4/16 at 5-6.)
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At the sentencing hearing, the trial court heard evidence from appellant’s
counsel on her background and the underlying violent crime that led her to
possess the firearm in question. (Notes of testimony, 3/3/15 at 3-4, 6-7.)
The trial court also heard testimony on appellant’s background from
appellant’s niece, Lucianna Perri, who stated she would like appellant to “go
through some kind of drug and alcohol rehabilitation,” as well as from
appellant herself. (Id. at 10-12, 14-15.)
Although the record reflects that the trial court did not specifically
state at the sentencing hearing that it considered appellant’s rehabilitative
needs, the trial court was in possession of a PSI report. Where the trial
court has the benefit of a PSI report, as is the case here, “we shall . . .
presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d
736, 761 (Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014)
(citation omitted).6 The record further reflects that the trial court heard
6
We note that appellant has failed to ensure that the PSI report was made a
part of the certified record. Generally,
[i]t is the obligation of the appellant to make sure
that the record forwarded to an appellate court
contains those documents necessary to allow a
complete and judicious assessment of the issues
raised on appeal . . . A failure by appellant to insure
that the original record certified for appeal contains
sufficient information to conduct a proper review
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testimony from a number of witnesses regarding appellant’s rehabilitative
needs. Specifically, both Tomilyn Ward, a master in professional counseling
who had been working with appellant, and Kristen George, who developed
an outpatient service plan for appellant in conjunction with Justice Related
Services, testified at the March 3, 2015 hearing. (Notes of testimony,
3/3/15 at 8-10, 12-13; see also trial court opinion, 1/4/16 at 6.)
Appellant also claims that the trial court considered impermissible
factors in fashioning her sentence; specifically, the effect imposing a
sentence of probation or home confinement would have on the trial judge’s
reputation. (Appellant’s brief at 18, 20.) This claim is belied by the record.
The record reveals that the trial court’s statement at the sentencing hearing
that, “if something goes wrong it’s my name that goes in the paper, not
yours[,]” albeit inappropriate, was not a factor the trial court considered in
imposing sentence. (See notes of testimony, 3/3/15 at 13.) Rather, this
statement was made in direct response to the following statement by
appellant’s counsel:
[Counsel]: Your Honor, just in closing, I understand
the Court’s position with respect to my client and its
intention with respect to the sentence. I’ve gotten to
know this young lady very well over the last
constitutes waiver of the issue sought to be
examined.
Commonwealth v. Manley, 985 A.2d 256, 263 (Pa.Super. 2009), appeal
denied, 996 A.2d 491 (Pa. 2010) (citations and brackets omitted). As our
review was not impeded, however, we decline to find waiver in this instance.
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7 months, and if Your Honor would consider an
electronic monitoring program or some such program
that doesn’t involve the state prison, and if it does
involve electronic monitoring my client – I don’t
doubt that my client will not disappoint this Court,
Your Honor. And if she did I would be just as equally
disappointed.
Id. Accordingly, for all the foregoing reasons, appellant’s challenge to the
discretionary aspects of her sentence must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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