Com. v. Smith, T.

J-S10034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TERRANCE SMITH

Appellant No. 3064 EDA 2015

Appeal from the Judgment of Sentence dated September 22, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008093-2013

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.: FILED MAY 18, 2017

Appellant, Terrance Smith, appeals from his judgment of sentence of

an aggregate of five and one-half to fourteen years’ incarceration, followed

by eight years’ probation. We affirm.

The underlying facts, as recounted by the trial court, are as follows:

[O]n November 18, 2011, . . . police observed [Appellant]
hand small objects to another person, Will Pryor, in front of 1673
Orthodox Street, in the city and county of Philadelphia. As police
arrived, Will Pryor immediately discarded packets containing
cocaine, which is a prohibited narcotic controlled substance
pursuant [to] Schedule II of [] 28 Pa. Code § 25.72(c)(2)(xi).

As the uniformed officers approached, [Appellant] also
immediately fled and removed a .45 caliber handgun from his
waistband and threw it over a fence during the pursuit.
[Appellant] physically fought with the responding officers until
eventually subdued and placed under arrest. This discarded
semi-automatic firearm was recovered by the officers and
determined to be operable, loaded and ready to fire with ten
rounds in the magazine and one in the chamber. Also, the sum
of $250.00 was . . . recovered from [Appellant’s] clothing when
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arrested. [Appellant] possessed no license to possess or carry
the confiscated firearm.

Trial Ct. Op., 6/10/16, at 5.

On April 6, 2015, Appellant entered an open guilty plea for the crimes

of carrying a firearm without a license, possession with intent to deliver a

controlled substance, and carrying a firearm on public streets in Philadelphia.

Trial Ct. Op. at 2.1 The sentencing court ordered a presentence investigation

report (“PSI”) and mental health evaluation of Appellant. Id. at 3.

On September 22, 2105, following a sentencing hearing, the court

sentenced Appellant to three to seven years’ incarceration for carrying a

firearm without a license, one and one-half to five years’ incarceration

followed by five years’ probation for possession with intent to deliver a

controlled substance, and one to two years’ incarceration followed by three

years’ probation for carrying a firearm on public streets in Philadelphia. Trial

Ct. Op. at 3. The court ordered that all three sentences be run consecutively,

resulting in an aggregate sentence of five and one-half to 14 years’

incarceration and eight years’ probation. Id. at 4.

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1
18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §
6108, respectively. In exchange for Appellant’s guilty plea, the
Commonwealth agreed to dismiss Appellant’s three other charges, including
a charge of possession of a firearm by a prohibited person (18 Pa.C.S. §
6105(a)(1)), a second-degree felony. Trial Ct. Op. at 2; see also Phila. Cty.
Criminal Docket, 6/14/16. No agreement was made regarding Appellant’s
sentence. Trial Ct. Op. at 2.

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Appellant filed (1) a timely post-sentence motion, which was denied,

(2) a timely notice of appeal, and (3) a timely Pa.R.A.P. 1925(b) statement.

Trial Ct. Op. at 4. Appellant raises the following issues:

I. Petitioner’s sentence was an abuse of discretion as he was
sentenced to 5.5-14 years followed by 8 years of reporting
probation which did not follow the dictates of 42 Pa.C.S. §
9721(b) that requires the court to at least consider the
particular circumstances of the offense and the character
of the defendant.

II. The trial court abused its discretion when it impermissibly
took into account defendant’s prior arrests, as if they were
convictions.

Appellant’s Brief at 6.2

A defendant who enters an open guilty plea may appeal the

discretionary aspects of his sentence. Commonwealth v. Dalberto, 648

A.2d 16, 20 (Pa. Super. 1994) (citation omitted), appeal denied, 655 A.2d

983 (Pa.), cert. denied, 516 U.S. 818 (1995). Pursuant to Pa.R.A.P.

2119(f), Appellant must include with his brief “a concise statement of the

reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence.” Appellant has done so. See Appellant’s Brief at 7.

Before we reach the merits of Appellant’s issues however, we must

determine whether Appellant’s Rule 2119(f) statement sets forth a question

that Appellant’s sentence is inappropriate under the sentencing code, and

whether this question is substantial enough to warrant our discretionary
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2
Appellant preserved his first issue in his post-sentence motion, and his
second issue by objection on the record at the sentencing hearing.

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review. Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super.

2014), appeal denied, 109 A.3d 678 (Pa. 2015); see also 42 Pa.C.S. §

9781(b) (providing that this Court has discretion to allow an appeal of the

discretionary aspects of a sentence only if the appeal presents a substantial

question as to the sentence’s propriety).

Here, Appellant’s Rule 2119(f) statement raises several interrelated

issues. Appellant claims that his aggregate sentence of a minimum of five

and one-half years’ incarceration was manifestly excessive because the

sentences he received on the three separate counts were imposed to run

consecutively. Appellant’s Brief at 7-8. As evidence of excessiveness,

Appellant asserts that the aggregate sentence was “well over double what

the guidelines of 30-42 +/- 12 months called for,” and that it was in excess

of the Commonwealth’s recommended sentence. Id.3 Finally, Appellant

complains that the court did not take into account the sentencing factors

required under 42 Pa.C.S. § 9721(b), such as “Appellant’s background,

remorse, acceptance of responsibility, and whether Appellant could be

rehabilitated,” and that the court improperly considered Appellant’s “prior

acts, many of which were not convictions.” Id. at 7-9.

“A claim that the sentencing court imposed an unreasonable sentence

by sentencing outside the guidelines presents a substantial question.”

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3
The Commonwealth requested an aggregate sentence of five to ten years’
incarceration, followed by five years’ probation. N.T. at 9.

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Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. 2005). Appellant’s

claim that his sentence is excessive as “well over double” the guidelines

ranges, therefore appears, at first blush, to present a substantial question,

warranting our review of whether Appellant’s sentence constituted an abuse

of discretion. Appellant’s Rule 2119(f) statement, however, does not state

what the guideline sentence ranges were for each of his three counts, and

the specific sentences he received for each of those counts. See

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000)

(requiring that the Rule 2119(f) statement specify where the sentence falls

in relation to the sentencing guidelines).

Upon further investigation, we discern that each of Appellant’s three

sentences actually falls within the recommended sentencing guidelines. 4 The

imposition of these sentences as consecutive does not, alone, render the

aggregate sentence outside the guidelines. See 42 Pa.C.S. § 9721(a)

(permitting a court to impose sentences to run consecutively).

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4
For carrying a firearm without a license, Appellant received a sentence of a
minimum of 36 months’ incarceration; the standard guidelines range
spanned a minimum of 30 to 42 months’ incarceration. See N.T., 9/22/15,
at 6. For possession with intent to deliver, Appellant received a sentence of a
minimum of 18 months’ incarceration; the standard guidelines range called
for a minimum of 12 to 18 months’ incarceration. Id. Finally, for carrying a
firearm on the public streets of Philadelphia, Appellant was sentenced to a
minimum of 12 months’ incarceration; the standard guidelines range for this
count ranged from a minimum of six to sixteen months’ incarceration. See
Basic Sentencing Matrix, 204 Pa. Code § 303.16(a); Offense Listing, 204 Pa.
Code § 303.15 (listing an offense gravity score of 5); N.T. at 6 (Appellant
has a prior record score of 3).

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When a sentence falls within the guidelines, as does Appellant’s, we

determine whether a substantial question as to excessiveness exists not by

examining the merits of whether the sentence is actually excessive, but

through examination of “whether the appellant has forwarded a plausible

argument that the sentence . . . is clearly unreasonable.” Commonwealth

v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal denied, 91 A.3d

161 (Pa. 2014).

Appellant complains that his aggregate sentence is excessive due to

the imposition of consecutive sentences. “The imposition of consecutive,

rather than concurrent, sentences may raise a substantial question in only

the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.” Dodge, 77 A.3d at 1270. To determine whether the

imposition of consecutive sentences presents a substantial question, then,

we decide “whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct at issue in the case.” Id. at 1269.

Here, Appellant was dealing drugs, carrying a loaded and unlicensed

firearm, and fought with his arresting officers until he was subdued. In light

of these facts, we cannot say that, on its face, the sentencing court’s

decision to run Appellant’s one year and one and one-half year minimum

sentences consecutively to each other and to his three year minimum

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sentence (resulting in an aggregate five and one-half years’ minimum

incarceration, rather than three years’ minimum incarceration), is clearly

excessive or unreasonable.

However, Appellant also claims that the court did not consider the

sentencing factors listed in 42 Pa.C.S. § 9721(b), including “Appellant’s

background, remorse, acceptance of responsibility, and whether Appellant

could be rehabilitated.” As we have previously noted, “a challenge to the

imposition of consecutive sentences as unduly excessive, together with a

claim that the trial court failed to consider the defendant’s rehabilitative

needs upon fashioning its sentence, presents a substantial question.”

Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super.) (quotation

marks, brackets, and citation omitted), appeal denied, 145 A.3d 161 (Pa.

2016).5 Moreover, Appellant contends that the court improperly based its

sentence on Appellant’s prior arrests. Reliance on impermissible sentencing

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5
We acknowledge that where a sentence falls within the guidelines, an
argument that the sentencing court failed to consider or did not accord
appropriate weight to various sentencing factors does not necessarily raise a
substantial question. In Dodge, 77 A.3d at 1272 n.8, we observed:

[T]his Court’s determination of whether an appellant has
presented a substantial question in various cases has been less
than a model of clarity and consistency, even in matters not
involving excessive sentence claims. . . . Careful litigants should
note that arguments that the sentencing court failed to consider
the factors proffered in 42 Pa.C.S. § 9721 does present a
substantial question whereas a statement that the court failed to
consider facts of record, though necessarily encompassing the
factors of § 9721, has been rejected.

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factors can raise a substantial question. Dodge, 77 A.3d at 1273 (citing

Commonwealth v. Roden, 730 A.2d 995 (Pa. Super. 1999)). Appellant,

therefore, has raised a substantial question to the extent that he challenges

whether the court properly considered the sentencing factors or

impermissibly considered other factors when determining whether to run his

sentences consecutively. We turn to the merits of these issues.

Upon appeal from an imposed sentence, we consider the following:

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. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006). Additionally, our review of the discretionary aspects of a
sentence is confined by the statutory mandates of 42 Pa.C.S. §§
9781(c) and (d). Subsection 9781(c) provides:

The appellate court shall vacate the sentence and
remand the case to the sentencing court with
instructions if it finds:

(1) the sentencing court purported to sentence
within the sentencing guidelines but applied
the guidelines erroneously;

(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the
guidelines would be clearly unreasonable; or

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(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is
unreasonable.

In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and
the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to
observe the defendant, including any presentence
investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

Commonwealth v. Raven, 97 A.3d 1244, 1253-54 (Pa. Super.), appeal

denied, 105 A.3d 736 (Pa. 2014). Furthermore,

the court shall follow the general principle that the sentence
imposed should call for confinement that 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 on the community, and
the rehabilitative needs of the defendant.

42 Pa.C.S. § 9721(b). The court shall not impose a sentence of total

confinement without “regard to the nature and circumstances of the crime

and the history, character, and condition of the defendant.” 42 Pa.C.S. §

9725.

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Here, Appellant claims that the court abused its discretion when it

failed to take into account the family support he had and his lack of felony

convictions. Appellant’s Brief at 11. However, the record reflects that the

court took into consideration Appellant’s family background and the

sentencing guidelines, which are based on Appellant’s prior record score.

See N.T. at 19-20. Appellant also complains that the court did not consider

his exercise of allocution to be mitigating. Appellant’s Brief at 14. 6 However,

a sentencing court is not required to address each mitigating factor on the

record, but only to generally state its reasons for the sentence imposed.

Commonwealth v. Samuel, 102 A.3d 1001, 1007–08 (Pa. Super. 2014),

appeal denied, 134 A.3d 56 (Pa. 2016).

Moreover, the court had the benefit of a PSI. We therefore presume

that the court was fully apprised of all mitigating information contained

therein. See Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)

(“Where pre-sentence reports exist, we shall continue to presume that the

sentencing judge was aware of relevant information regarding the

defendant's character and weighed those considerations along with

mitigating statutory factors. . . . [S]entencers are under no compulsion to

employ checklists or any extended or systematic definitions of their

punishment procedure. Having been fully informed by the pre-sentence

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6
During his brief allocution, Appellant expressed remorse, his ability to
reform, and his desire to return to caring for his daughter. N.T. at 18-19.

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report, the sentencing court's discretion should not be disturbed”); accord

Commonwealth v. Johnson, 125 A.3d 822, 827 (Pa. Super. 2015).

Appellant’s claims related to this issue are therefore belied by the record.

Finally, Appellant claims that the sentencing court improperly

considered his prior arrests. Appellant’s Brief at 15. He complains that the

court “reiterated this information . . . before it even mentioned his

convictions” and asserts that the court based his sentence on “red flags,” “a

fairly large number of arrests,” “guns and drugs,” and “combative behavior.”

Id. Appellant cites Commonwealth v. Johnson, 481 A.2d 1212 (Pa. Super.

1984), for the proposition that “[t]hough it is proper for a court to consider

previous arrests, [it] must recognize that the defendant has not been

convicted of the charges, which is different from [the sentencing judge’s]

sentencing rationale.” Appellant’s Brief at 15.

As we noted in Johnson, a sentencing court is permitted to consider a

defendant’s prior arrests that did not result in convictions:

A sentencing court must examine the circumstances of the crime
and the individual background of the defendant since the
sentence imposed must be the minimum punishment consistent
with the protection of the public, the gravity of the offense and
the rehabilitative needs of the defendant. The court may also
consider a defendant's prior arrests which did not result in
convictions, as long as the court recognizes that the defendant
had not been convicted of the charges. Broad discretion is
reposed in the sentencing judge to receive relevant information.
Generally, the imposition of a sentence is within the discretion of
the trial court and is left undisturbed on appeal because the trial
court is in a better position to weigh factors involved in its
determination; however, this discretion must be exercised within

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certain procedural limits, including consideration of sufficient and
accurate information.

Johnson, 481 A.2d at 1214 (citations omitted).

Here, as explained by the sentencing court:

In the instant case, this Court, [ ] cautioned the prosecutor and
directed her to cease speaking about the Defendant’s arrests and
limit her sentencing arguments to adjudicated matters. Hence,
on the record, this trial court voiced unequivocal comprehension
of the limited basis for which the arrests that did not result in
adjudications or convictions may be measured. These arrests
were not to be unduly weighed or considered as showing
criminal conduct . . . . This Court exercised sound judgment
when reviewing the Defendant’s prior arrests along with all of
the other documented relevant sentencing factors. The
sentences as imposed were reasonable after appropriately
examining the need for public protection, the gravity of the
crimes at issue, and the Defendant’s rehabilitative needs
consistently with the requirements of 42 Pa.[C.S.] § 9721.

Trial Ct. Op. at 11 (citation to the record omitted). The record supports that

the sentencing court sustained Appellant’s objection to the Commonwealth’s

recounting of Appellant’s prior arrests. See N.T. at 14-15. The court

therefore complied with Johnson, by recognizing on the record that

Appellant’s prior arrests did not result in convictions.

Moreover, it does not appear from the record that the sentencing court

gave undue weight to Appellant’s prior arrests. Before announcing sentence,

and amidst recounting other considerations of Appellant’s character, history,

and mitigating factors, the sentencing court stated:

I have taken into consideration the red flags, as they say, that I
see within your background that point to someone who is

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potentially dangerous to law enforcement as well as to folks
within the Community.

Your combative behavior keeps surfacing in one form or another.
That is most troublesome to the Court because, at the end of the
day, I have the safety of the community to think about.

* * *

But I keep seeing drugs and guns and combative behavior, and
that is very troublesome with respect to you. This is not your
first time up at bat, obviously.

With respect to your background, a considerably fairly large
number of arrests, some convictions, and that progressed
through time. It started as a juvenile.

N.T. at 19-20. Rather than a “reiteration” of Appellant’s prior arrests, as

asserted by Appellant, the sentencing court was responding to Appellant’s

convictions. As recounted during sentencing by the Commonwealth,

Appellant’s convictions include:

The defendant was convicted twice for simple assault as a
juvenile. Those are not part of his prior record score but can be
considered by the Court.

The defendant was convicted of simple assault, resisting arrest,
for struggling with two police officers and actively resisting back
in 2006.

The defendant was convicted of possession of an instrument of
crime and recklessly endangering another person for discharging
a loaded weapon in a residential housing area.

The defendant pleaded guilty in this case to carrying a loaded
weapon once again on the streets while he was conducting drug
sales.

N.T. at 15. Although the instant case is Appellant’s first conviction for a drug

charge, the sentencing court did not err by stating that Appellant’s history

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included “drugs and guns and combative behavior.” We therefore find no

reason in the record to conclude that Appellant’s sentence was a result of an

abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2017

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