J. A12038/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TERELL HALE, : No. 2580 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, March 23, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007307-2010
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 10, 2018
Terell Hale appeals from the March 23, 2016 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
resentencing on convictions of one count each of firearms not to be carried
without a license, receiving stolen property, persons not to possess firearms,
and carrying firearms on public streets in Philadelphia.1 The resentencing
court imposed an aggregate sentence of 8 to 16 years of incarceration. We
affirm.
A previous panel of this court set forth the following:
The facts giving rise to [a]ppellant’s convictions
involved a home invasion on April 10, 2010. At
approximately 1:45 a.m., [a]ppellant entered the
home of five-month pregnant Shyeta Brown and her
five-year-old son. Appellant pointed a handgun at the
1 18 Pa.C.S.A. §§ 6106(a)(1), 3925(a), 6105(a)(1), and 6108, respectively.
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victim’s face, told her and her child to shut up and
ordered them to place their heads underneath a
pillow. After the victim informed [a]ppellant that she
did not have any money, he retrieved her keys and
allowed two other men into the apartment. Appellant
also placed the covers of the victim’s bed over her and
her son’s head. The men asked Ms. Brown where she
kept her money before taking her television and
fleeing.
A neighbor heard the screams of Ms. Brown and her
son and telephoned police. She observed two men
standing outside the front door of the apartment, and
later identified [a]ppellant’s co-defendant,
Andre Bassett. The neighbor witnessed the two men
enter Ms. Brown’s apartment after the door was
opened. One of the men knocked on her door, and
she informed them that police were on the way.
Police responded to the scene quickly and drove the
victim around the neighborhood in an attempt to find
the perpetrators. In addition, after learning of the
report of the home invasion, Officer Rosario Capaccio
saw a television located inside a fence in a front lawn
approximately two blocks from the victim’s residence.
The victim identified the television as hers. Police set
up surveillance in the area and witnessed a minivan
approach. Despite it being near 3:00 a.m., the van’s
lights were not illuminated. Appellant and Andre
Bassett exited the vehicle, and [a]ppellant attempted
to retrieve the television. As police approached,
[a]ppellant and Bassett began to walk away before
running. Appellant attempted unsuccessfully to evade
police by hiding between two cars. Upon opening the
sliding door to the van, Detective Andrew Danks saw
a black handgun on the floor of the vehicle. He later
obtained a search warrant for the van and police
recovered the weapon.
Commonwealth v. Hale, 85 A.3d 570, 572 (Pa.Super. 2014), affirmed,
Commonwealth v. Hale, 128 A.3d 781 (Pa. 2015).
The resentencing court set forth the following procedural history:
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On April 4, 2010, [appellant] was arrested and
charged with numerous counts of Robbery, Burglary,
Receiving Stolen Property and various Weapons
charges arising out of [the] armed home invasion. At
the conclusion of his jury trial on October 3, 2011,
before the Honorable Chris R. Wogan, [appellant] was
convicted on the Weapons charges and the charge [of]
Receiving Stolen Property. The jury was unable to
reach a verdict on the remaining Burglary and
Robbery charges, which were subsequently
nolle prossed by the Commonwealth. On
December 19, 2011, Judge Wogan imposed an
aggregate sentence of incarceration of 12 years
4 months to 26 years 8 months. On March 12, 2012,
Judge Wogan denied [appellant’s] post[-]sentence
motion for reconsideration of his sentence.
On April 3, 2012[, appellant] appealed his conviction
and sentence to the Superior Court of Pennsylvania at
947 EDA 2012 . . . . On February 6, 2014 the Superior
Court issued an order affirming [appellant’s]
conviction. [Hale, 85 A.3d 570.] However, the
matter was remanded for resentencing, holding that a
juvenile adjudication is not the equivalent of being
convicted of a crime and, therefore, grading
[appellant’s] conviction for Possession of a Firearm by
a Person Prohibited as an F1, instead of an M1, was
improper. On March 10, 2014, the Commonwealth
filed a petition for allowance of appeal with the
Supreme Court of Pennsylvania, . . . which by order
dated December 21, 2015, affirmed the Superior
Court’s Order. [Hale, 128 A.3d 781.]
On March 23, 2016, the [trial] court[Footnote 1], on
remand, sentenced [appellant] to consecutive periods
of confinement in a state correctional facility of
3 years 6 months to 7 years on the charge of Carrying
a Firearm Without a License pursuant to 18 Pa.C.S.A.
§ 6106, 1 to 2 years on the charge [of] Receiving
Stolen Property pursuant to 18 Pa.C.S.A. § 3925(a),
2 years 6 months to 5 years on the charge of
Possession of a Firearm by a Person Prohibited
pursuant to 18 Pa.C.S.A. § 6105(a)(1) and 1 to
2 years on the charge [of] Carrying Firearms on Public
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Streets of Philadelphia pursuant to 18 Pa.C.S.A.
§ 6108. [Appellant] was thus sentenced on remand
to an aggregate period of confinement of 8 to
16 years. On April 4, 2016, [appellant] timely filed a
post[-]sentence motion seeking reconsideration of his
sentence, which the [trial c]ourt denied on July 13,
2016, after a hearing.
[Footnote 1] Judge Wogan has since
retired. Accordingly, this matter was
reassigned for re-sentencing by another
Judge.
On August 5, 2016, [appellant] timely filed [a] Notice
of Appeal to the Superior Court of Pennsylvania. On
August 16, 2016, the [trial c]ourt filed and served on
[appellant] and counsel an Order pursuant to
[Pennsylvania Rule of Appellate Procedure 1925(b)],
directing [appellant] to file and serve a [concise]
statement of Errors Complained of on Appeal, within
twenty-one days of the court’s order. On
September 6, 2016, [appellant] filed his Statement of
Errors . . . .
Resentencing court opinion, 5/4/17 at 1-3.
Appellant raises the following issues for our review:
1. Was not the total sentence of eight to sixteen
years [of] incarceration manifestly
unreasonable and excessive, insofar as the
sentence was disproportionate to [appellant’s]
conduct[;] the court did not properly consider
[appellant’s] character, background, and
capacity for rehabilitation[;] and the court
unreasonably imposed three consecutive
sentences for a single act of possessing a single
gun?
2. Did not the sentencing court err and abuse its
discretion in exceeding the Sentencing
Guidelines without stating sufficient reasons on
the record?
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Appellant’s brief at 3.
Appellant challenges the discretionary aspects of his sentence.
[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; brackets in original).
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
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
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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; brackets in original).
Here, appellant filed a timely notice of appeal, properly preserved his
sentencing challenge in a post-sentence motion seeking reconsideration of
sentence, and included in his brief the requisite Rule 2119(f) statement.
Consequently, we must now determine whether appellant raises a substantial
question.
We determine whether an appellant raises a substantial question on a
case-by-case basis. Commonwealth v. Swope, 123 A.3d 333, 338
(Pa.Super. 2015) (citation omitted). “A substantial question exists only when
an 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.” Id. (citation omitted).
In determining whether a substantial question exists,
this Court does not examine the merits of whether the
sentence is actually excessive. 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.
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Id. at 340 (citation omitted).
At the outset, we note that a previous panel of this court vacated
appellant’s judgment of sentence and remanded for resentencing after finding
that the original sentencing court “erred in using [a]ppellant’s juvenile
adjudication to grade his person not to possess a firearm offense as a
second-degree felony under [Section] 6105(a.1)(1).” Hale, 85 A.3d at 585.
In so finding, this court noted that the resentencing court “may sentence
[a]ppellant more harshly due to his prior juvenile record, but it must do so
within the confines of a misdemeanor of the first-degree offense.” Id. A
first-degree misdemeanor is punishable by a term of incarceration up to
5 years. 18 Pa.C.S.A. § 1104. When the resentencing court resentenced
appellant on the Section 6105(a)(1) conviction, it did so within the confines
of a first-degree misdemeanor as directed by this court and imposed a term
of incarceration of 2½ to 5 years. Therefore, the sentence on that conviction
was statutorily permitted. We further note that the resentencing court
reduced the periods of incarceration originally imposed on appellant’s
convictions under Sections 3925(a) and 6108 which reduced his original
aggregate sentence of 12 years and 4 months to 26 years and 8 months to
8 to 16 years.
Appellant now complains that his aggregate sentence was manifestly
unreasonable and excessive because it was disproportionate to his conduct;
the resentencing court failed to properly consider appellant’s character,
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background, and capacity for rehabilitation; and because the resentencing
court unreasonably imposed three consecutive sentences for a single act of
possessing a firearm.
With respect to his disproportionality claim, appellant contends that his
aggregate sentence of 8 to 16 years of incarceration is disproportionate to his
conduct because he merely “possessed a handgun illegally, as well as a
television that he knew or should have known was stolen.” (Appellant’s brief
at 21.) Appellant’s attempt to understate the facts giving rise to his
convictions and resulting sentence fails to raise a substantial question for our
review.
Appellant’s claim that the resentencing court failed to properly consider
appellant’s character, background, and capacity for rehabilitation is equally
unavailing. The record reflects that the resentencing court had the benefit of
a PSI report and that appellant acknowledged that the information contained
in the PSI was correct. (Notes of testimony, 3/23/16 at 19.) “Our Supreme
Court has ruled that where pre-sentence reports exist, the presumption will
stand that the sentencing judge was both aware of and appropriately weighed
all relevant information contained therein.” Commonwealth v. Griffin, 804
A.2d 1, 8 (Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert.
denied, 545 U.S. 1148 (2005), citing Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988). In addition to the PSI, the resentencing court heard
appellant’s mitigating evidence, including his plans to work in community
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service upon his release, his significant family support, his enrollment in GED
classes while in prison, his completion of pre-vocational training, and his
current mental health stability. (Id. at 19-26.)
Appellant next complains that the resentencing court abused its
discretion when it imposed consecutive sentences on his convictions under the
Uniform Firearms Act2 “due to the fact that [appellant] was given sentences
for a single criminal act (in this case, possession of a firearm),” despite
appellant’s recognition that his conduct “violated three different subsections
of the Uniform Firearms Act.” (Appellant’s brief at 23-24.) It is well settled
that “[i]n imposing a sentence, the trial judge may determine whether, given
the facts of a particular case, a sentence should run consecutive to or
concurrent with another sentence being imposed.” Commonwealth v.
Perry, 883 A.2d 599, 603 (Pa.Super. 2005) (citations omitted).
Long standing precedent of this Court recognizes that
42 Pa.C.S.A. section 9721 affords the sentencing
court discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at the
same time or to sentences already imposed.
Commonwealth v. Graham, 541 Pa. 173, 184, 661
A.2d 1367, 1373 (1995). . . . Any challenge to the
exercise of this discretion ordinarily does not raise a
substantial question. Commonwealth v. Johnson,
873 A.2d 704, 709 n.2 (Pa.Super. 2005); see also
Commonwealth v. Hoag, 445 Pa.Super. 455, 665
A.2d 1212, 1214 (Pa.Super. 1995) (explaining that a
defendant is not entitled to a “volume discount” for his
or her crimes).
2 18 Pa.C.S.A. §§ 6101-6127.
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Commonwealth v. Mastromarino, 2 A.3d 581, 586-587 (Pa.Super. 2010),
appeal denied, 14 A.3d 825 (Pa. 2011), quoting Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa.Super. 2010). “[T]he key to
resolving the preliminary substantial question inquiry is 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 587, quoting Gonzalez-Dejusus, supra.
The aggregate sentence of 8 to 16 years’ imprisonment is neither
grossly disparate to appellant’s conduct nor does it “viscerally appear as
patently ‘unreasonable.’” Id. at 589, quoting Gonzalez-Dejusus, supra.
Given the serious nature of appellant’s crimes, consecutive sentences were
warranted. There is nothing to review here.
Appellant finally complains that the resentencing court erred and abused
its discretion in exceeding the sentencing guidelines on the persons not to
possess firearms conviction without stating sufficient reasons on the record.
The resentencing court, however, complied with this court’s instructions on
remand and resentenced appellant on that conviction within the confines of a
misdemeanor of the first-degree offense, which is punishable by a term of
incarceration up to 5 years. In imposing sentence, the resentencing court also
stated that it considered the notes of testimony from the transcript of the
original sentence, as well as the evidence that was presented at the
resentencing hearing, which was mitigating evidence presented by appellant,
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to impose a sentence “not as severe” as the original sentence and, in the
aggregate, within the guidelines. (Notes of testimony, 3/23/16 at 28-29.)
The resentencing court also stated that appellant continued to show no
remorse for his actions or his crimes. (Resentencing court opinion, 5/4/17 at
6.) Appellant has already served 6 years of his sentence. Appellant has failed
to raise a substantial question for our review.
In closing, we note that the Commonwealth does not oppose a remand
for placement of additional reasons on the record for the above-guidelines-
range sentence for persons not to possess firearms. While we do not agree
with the Commonwealth’s suggestion, we further note that the
Commonwealth would also expect the trial court to impose the same sentence
that it originally imposed. We find this to be unnecessary.
Judgment of sentence affirmed.
Ott, J. joins this memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/18
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