J-S75036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NORMAN BOWEN, :
:
Appellant : No. 3445 EDA 2017
Appeal from the Judgment of Sentence October 2, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009387-2016,
CP-51-CR-0009389-2016, CP-51-CR-0009391-2016,
CP-51-CR-0009396-2016, CP-51-CR-0009404-2016,
CP-51-CR-0009406-2016, CP-51-CR-0009408-2016,
CP-51-CR-0009414-2016, CP-51-CR-0010116-2016
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED MARCH 15, 2019
Norman Bowen (“Bowen”) appeals from the judgment of sentence
imposed, at seven separate docket numbers1 following his open guilty plea to
robbery, burglary, and related offenses. We affirm.
During his guilty plea hearing, Bowen agreed to the following recitation
of facts:
[Regarding CP-51-CR-0009387-2016,] on June 29, 2016,
[Bowen] conspired with codefendant, Anthony Campbell
[(“Campbell”)], and another … to commit a home invasion robbery
at 4226 Lancaster Avenue. This property houses a Chinese
restaurant on the first floor and a residence on the second.
[Bowen and Campbell], each armed with a small black firearm,
pointed their weapons at Ertai Lan … and Zhining Chang, … both
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1 The charges at docket numbers CP-51-CR-0009389-2016 and CP-51-
0009391-2016 were nolle prossed before Bowen entered a guilty plea.
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who [sic] lived in the home, demanding money. [Bowen and
Campbell] tied Mr. Lan’s and Mr. Chang’s hands with belts, [and]
forcibly took money, [a] computer, and an iPhone.[FN]
[FN] The Commonwealth also submitted that Bowen had
previously been convicted for possession with intent to
deliver, rendering him ineligible to possess a firearm.
…
[Regarding CP-51-CR-0009396-2016,] [o]n August 1, 2016,
[Bowen] conspired with [] Campbell to commit a home-invasion
robbery at 724 South 52nd Street. The property houses a Chinese
restaurant on the first floor and a residence on the second.
[Bowen and Campbell], each armed with a firearm, bound Xiuzhen
Wang … and her 13-year-old son, Vinny Zhang[,] … while
threatening them at gunpoint. They were tied with an extension
cord and phone wire. [Bowen and Campbell] took jewelry, an
Xbox, cigarettes, cash, and a jar of coins. …
…
[Regarding CP-51-CR-0009404-2016,] [] on June 6, 2016,
[Bowen] conspired with … Campbell[] to commit a home-invasion
robbery at 6200 Vine Street. The property houses a Chinese
restaurant on the first floor and a residence on the second.
[Bowen and Campbell] forcibly entered the restaurant, taking
money, cigarettes, cigars, [and] other items from the store.
[Bowen and Campbell] attempted to make entry into the
residence where the complainants were sleeping but failed to
force[] open the door. Police were called and ultimately arrived
at that location after [Bowen and Campbell] left.
…
[Regarding CP-51-CR-0009406-2016,] [] on July 28, 2016, Bowen
and … Campbell[] conspired to commit a home-invasion robbery
at 6000 Master Street. This property houses a Chinese restaurant
on the first floor and a residence on the second. The two forcibly
entered through a rear security door[,] causing damage to the
premises while wearing masks and gloves. Once inside, they
forcibly entered the residence where the victims, Shuisang Huang
[(“Huang”)], … Neng Lin [(“Lin”)], … and their nine-year-old
daughter … were sleeping. [Bowen and Campbell], both armed
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with firearms, woke [up Lin and Huang]. … [Bowen and Campbell]
demanded money. [] Huang and [] Lin were both pistol-whipped
about the head. [] Huang was struck three times. [Bowen and
Campbell] demanded money[,] and bounded [sic] and gagged []
Huang, tying her about the hands and feet[,] and placing a pair of
pants in her mouth. The two initially brought [] Lin downstairs
with them in order to direct him where to find the money, then
ultimately returned [Lin] upstairs and tied him by the hands and
feet. [Bowen and Campbell] ransacked the entire home, including
the businesses and bedrooms of [] Huang and [] Lin[,] and the
bedroom of their … daughter [], who did wake up during that
incident and [saw] an armed man ransacking her room. [Bowen
and Campbell] took[] approximately[] $3,000 in cash, numerous
pieces of jewelry that were taken from [] Huang’s person as well
as her bedroom[,] and the video security system that had been
installed in the restaurant. [] Lin and [] Huang suffered injuries
to their heads as a result of being struck with the firearms….
…
[Regarding CP-51-CR-0009408-2016,] [o]n July 31[], 2016,
[Bowen and Campbell], along with Sharif Mogley [(“Mogley”)],
conspired to commit a home-invasion robbery at 6047 Market
Street. The property houses a laundromat on the first floor and a
residence on the second. [Bowen], along with [] Campbell,
forcibly entered the business and ultimately the second floor
residence[,] where Meiuy Chen [(“Chen”)] … and her children, Xia
Lin [(“Xia”)] … and Rung Lin [(“Rung”),] … were asleep. [] Chen
and [Xia] were sleeping in the same room. [Rung] was sleeping
in another room. The complainants were awoken and had guns
pointed to their head[s]. [Xia] and [] Chen were both bound by
their hands and feet[,] face[] down[,] while [Bowen and
Campbell] took jewelry, $2,000, two computers, a box of tokens,
[and] a large amount of change.
…
[Regarding CP-51-CR-0009419-2016,] on July 20, 2016, [Bowen]
conspired with [] Campbell and Mogley to commit a home-
invasion robbery at 5150 North 5th Street. [Bowen], along with []
Campbell, selected that location prior to that incident and labeled
that as a property they thought would be easy and successful for
a home-invasion gunpoint robbery. On that date, [] Bowen was
not physically present, but during all of these incidents, a vehicle
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owned by [] Bowen was used by [] Campbell. Additionally, phone
records of [] Campbell indicated multiple calls surrounding this
incident from a phone number that belonged to [] Bowen’s
girlfriend before, during and after this incident. [] Mogley and []
Campbell entered that house, which is a property that houses a
Chinese restaurant on the first floor and a residence on the
second. … And on the date of this incident, [Bowen], along with
[] Mogley, forcibly entered the property. The complainant, Xin Wu
… hid within the house with his wife, watching on the camera as
… Mogley and [] Campbell took[] approximately[] $9,000 in cash
as well as cigarettes and jewelry from the complainant’s home.
…
[Regarding CP-51-CR-0010116-2016,] [o]n June 9, 2016,
[Bowen] and … Campbell[] conspired to commit a home-invasion
gunpoint robbery at 1023 West Ruscomb Street. This property
houses a Chinese restaurant on the first floor and a residence on
the second floor. [Bowen and Campbell], each armed with
firearms, forcibly entered the property where the complainants,
Yong Zhenyu, … Bizhong Liu, … and their ten-year-old daughter …
were sleeping. [Bowen and Campbell] pointed the guns at the
complainants and demanded property, taking[] approximately[]
$10,000, jewelry, cigarettes, a computer, cell phones, iPads and
frozen shrimp.
N.T., 7/12/17, at 12-29 (footnote added; some paragraph breaks omitted).
On July 12, 2017, Bowen pled guilty, on separate dockets, to twelve
counts of robbery, eight counts of conspiracy, five counts each of burglary,
false imprisonment and possession of an instrument of crime (“PIC”), four
counts of possession of firearms prohibited, and one count each of theft by
unlawful taking, aggravated assault, criminal attempt, and firearms not to be
carried without a license.2 The trial court deferred sentencing and ordered a
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218 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3502(a)(1), 907, 2903, 6105, 3921(a),
2702, 901, 6106.
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pre-sentence investigation report (“PSI”). The trial court sentenced Bowen to
an aggregate term of 34 to 68 years in prison.
Bowen filed a timely Motion to Reconsider, which the trial court denied.
Bowen thereafter filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
On appeal, Bowen raises the following question for our review:
Is the sentence imposed unduly harsh and greater than that which
would be consistent with protection of the public, the gravity of
[Bowen’s] conduct as it relates to the impact on the life of others
in the community, and the rehabilitative needs of [Bowen], and
did the trial court [fail] to take into account all mitigating and
relevant and necessary factors to be considered by a sentencing
court (including [Bowen’s] age[,] rehabilitative needs, mental
illness, drug addiction, acceptance of responsibility, remorse, and
his allocution); that is, is confinement in a state correctional
facility for the term imposed [] not the least restrictive sentence
necessary to effectuate the aims of the Pennsylvania’s [sic]
sentencing laws?
Brief for Appellant at 4.
Bowen’s claim challenges the discretionary aspects of his sentence.3
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
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3Bowen’s open guilty plea does not preclude a challenge to the discretionary
aspects of his sentence. See Commonwealth v. Brown, 982 A.2d 1017,
1019 (Pa. Super. 2009).
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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 (quotation marks and some citations omitted).
Here, Bowen filed a timely Notice of Appeal and raised his sentencing
claim in a timely Motion to Reconsider. Bowen also included a separate Rule
2119(f) Statement in his brief. Accordingly, we will review Bowen’s Rule
2119(f) Statement to determine whether he has raised a substantial question.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations 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.” Id. (citations omitted).
In his Rule 2119(f) Statement, Bowen argues that the trial court’s
imposition of consecutive sentences resulted in an excessive aggregate
sentence. Brief for Appellant at 35. Bowen points out that all seven robberies
and attempted robberies were part of one ongoing scheme. Id. Bowen also
claims that the trial court failed to consider certain mitigating factors, including
his history of mental illness and an expensive drug addiction (which, according
to Bowen, was the impetus for his involvement in the robberies). See id. at
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35-36. Bowen additionally argues that he “accepted responsibility for his
actions, expressed remorse, and apologized to the victims.” Id.
This Court has held that a “challenge to the imposition of [] consecutive
sentences as unduly excessive, together with [a] claim that the court failed to
consider [the appellant’s] rehabilitative needs and mitigating factors upon
fashioning its sentence, presents a substantial question.” Commonwealth
v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015). Additionally,
[i]n 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.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Because
Bowen’s argument raises a substantial question, we will consider the merits
of his claim.
Our standard of review of a challenge to the discretionary aspects of 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. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).
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The Sentencing Code provides that “the [trial] 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.A. § 9721(b). The trial court
must also consider the Sentencing Guidelines. See id.; see also
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating
that “[w]hen imposing a sentence, the [trial] court is required to consider the
sentence ranges set forth in the Sentencing Guidelines….”).
Initially, we note that the sentencing transcripts are not included in the
certified record, nor is there any indication on the docket that Bowen filed a
request for transcripts. Pennsylvania Rule of Appellate Procedure 1911(a)
requires an appellant to request and pay for any transcript necessary to permit
resolution of the issues raised on appeal. Pa.R.A.P. 1911(a). “[A]ny claims
that cannot be resolved in the absence of the necessary transcript … must be
deemed waived for the purpose of appellate review. It is not proper for [] the
… Superior Court to order transcripts[,] nor is it the responsibility of the
appellate courts to obtain the necessary transcripts.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citations omitted).
We will nevertheless consider the merits of Bowen’s claim. Here, the
record reflects that the trial court had the benefit of a PSI, which the trial court
stated it had considered, in addition to Bowen’s mental health records and his
rehabilitative needs, prior to imposing its sentence. Trial Court Opinion,
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12/21/17, at 7; see also Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009) (stating that “where the trial court is informed by a [PSI],
it is presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.”). Moreover, in its Opinion, the trial court indicated
that it had reviewed Bowen’s “upbringing, educational background, and
criminal history, the latter of which revealed that [Bowen] had, as an adult,
fifteen prior convictions and eight commitments. [The trial c]ourt also
considered [Bowen’s] age and long history of violations, which included nine
violations of probation or parole.” Trial Court Opinion, 12/21/17, at 7-8. The
trial court also specifically pointed to testimony by Bowen and his co-
conspirator that they “specifically target[ed] and preyed on Chinese-American
business owners, believing that Asians kept money at home instead of a bank,
and that Asians would be less likely to report the crimes.” Id. at 9.
Additionally, the trial court reviewed the applicable Sentencing Guidelines for
each offense. See id. at 8-9, 10. Upon review, we discern no abuse of the
trial court’s discretion, nor do we find Bowen’s aggregate sentence excessive
under the circumstances.4
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4 The consecutive nature of Bowen’s sentences, without more, does not
necessitate the conclusion that Bowen’s aggregate sentence is manifestly
excessive. See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011) (stating that “[g]enerally, Pennsylvania law 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.”)
(citation omitted).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/19
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