Com. v. Webb, D.

J-A12026-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEVIN DERAN WEBB :
:
Appellant : No. 1496 WDA 2019

Appeal from the Judgment of Sentence Entered August 19, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005530-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
:
DEVIN WEBB :
:
Appellant : No. 1498 WDA 2019

Appeal from the Judgment of Sentence Entered August 19, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007730-2016

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J. FILED MAY 29, 2020

Appellant, Devin Deran Webb, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his open

guilty pleas to two counts of possession of a controlled substance, five counts

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* Retired Senior Judge assigned to the Superior Court.
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of possession of a controlled substance with the intent to deliver (“PWID”),

and one count of persons not to possess firearms.1 We affirm.

In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

These appeals arise out of two separate arrests of
[Appellant] for which he entered guilty pleas on March 19,
2019. At the plea hearing[,] summaries of the evidence
were presented by the Commonwealth which included the
following:

CC 201607730

[Appellant’s] arrest at CC201607730 followed a controlled
purchase of narcotics on September 10, 2015. Officers from
the Ross Township Police Department conducted a
controlled buy, through a confidential informant, of
narcotics from [Appellant]. The informant contacted
[Appellant] via a cell phone and they agreed to meet outside
of a residence located in the City of Pittsburgh. The
controlled buy was done by a hand-to-hand transaction
between the informant and [Appellant] during which
[Appellant] sold 49 stamp bags which proved to contain
heroin and fentanyl. [Appellant] pled guilty to four counts
of [PWID] and two counts of Possession.

CC 201705530

On March 10, 2017[, Appellant] was the driver of a vehicle
that was stopped for speeding and making an illegal left turn
on East 8th Avenue in Homestead, Pa. by Officer Meals of
the Homestead Police Department. When [Appellant]
stopped his vehicle, he was blocking the driveway of an auto
repair service station. [Appellant] informed Officer Meals
that he did not have a driver’s license as it was suspended.
Officer Meals also confirmed that [Appellant] had an
outstanding warrant from the state of Georgia, although
Georgia was not requesting extradition. As the vehicle was
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1 35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. 6105, respectively.

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blocking a driveway and [Appellant] could not drive the
vehicle, [Appellant] was informed the vehicle would be
towed and an inventory search was performed. During the
search a loaded .45 caliber firearm was found in a black
nylon case behind the driver’s seat along with 550 stamp
bags of suspected heroin, rubber bands, unused sandwich
bags and a digital scale with white powder on it. [Appellant]
was also searched and found to have 10 stamp bags of
heroin in his hoodie pocket. After being given Miranda[2]
warnings[, Appellant] admitted to the officer that the heroin
was his and he was selling it to support himself and to pay
his rent. Testimony from an expert in the field of narcotics
would also testify that [Appellant] possessed the heroin with
the intent to deliver it. [Appellant pled] guilty to Possession
of Firearm Prohibited and one count of [PWID]. Charges on
seven additional counts were withdrawn. [Appellant] made
no corrections to the summary of the evidence in either of
the cases and after an appropriate colloquy, [Appellant’s]
pleas were accepted and a presentence report was ordered.

The presentence report indicated that [Appellant’s] criminal
history included a firearm conviction in October 2000 for
which he was sentenced to 1½ to 6 years; a conviction for
possession and [PWID] in June 2001 for which he was
sentenced to 2 to 4 years; that he was paroled in April of
2004 until January 2006; that he was again convicted of
possession and [PWID] in January of 2011 for which he was
sentenced to 2½ to 5 years; that he pled nolo contendere
to simple battery—family violence and disorderly conduct in
Georgia in February 2008; that he was convicted of
possession and [PWID] in July of 2010 for which he was
sentenced to 18 to 36 months; and various summary
offenses in 2012 and 2017.

At the time of sentencing [Appellant] presented testimony
from his fiancée, London Porter, who testified that
[Appellant] had turned his life around and had a positive
effect on her and her children. In his allocution statement
[Appellant] acknowledged that he had been before the court
a “few times” and also stated that he was not the same
person as before and that he made progress in his life
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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through his education, employment and mental health
treatment in order to avoid continued involvement with
drugs and he requested leniency.

The Commonwealth’s position was that [Appellant] “stands
before the [c]ourt having been convicted now of his fourth
[PWID] charge and, at least a [s]econd Carrying a Firearm
Illegally.” Counsel also noted that the standard range
sentence [for the firearms offense] called for a sentence
[between] 72 and 84 months based on [Appellant’s]
previous record. In addition, the Commonwealth noted that
the narcotics [Appellant] admitted selling tested positive for
not only heroin but fentanyl. The Commonwealth requested
that a sentence be imposed that would “impress upon
[Appellant] the need to reform himself with the dictates of
a civilized society.”

In response [Appellant’s] counsel noted that during the
pendency of the cases [Appellant] had obtained and was
working three jobs and he attempted drug treatment at
Gateway Rehabilitation and Butler Family Services. Counsel
also reviewed [Appellant’s] exposure to and use of drugs
and alcohol beginning as early as age 12 and, that despite
the absence of a father in his life, he was an active father in
his children’s lives. He also noted [Appellant] had obtained
his GED. Finally, counsel argued that the sentencing
guidelines were high based on convictions in 1999, 2000,
2006 and 2008, but that these convictions were “stale and
maybe should be given less consideration [than] if those
convictions were from 2011, 2012.” Counsel argued that
based on [Appellant’s] positive achievements since his
latest arrest that consideration be given to “rejecting the
guideline” and the imposition of a county sentence. In
response, the Commonwealth again stated that its position
was that “a county sentence, with alternative housing,
would [not] effectively impress upon [Appellant] the
severity of the crimes.” After consideration of the
presentence report, the testimony and the argument of
counsel[,] an aggregated mitigated range sentence was
imposed[.]

(Trial Court Opinion, filed January 6, 2020, at 2-5) (internal citations omitted).

At the conclusion of the sentencing hearing on August 19, 2019, the

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court imposed an aggregate term of 5 to 10 years’ imprisonment, plus 3 years’

probation.3 On August 28, 2019, Appellant timely filed a post-sentence

motion, which the court denied on September 4, 2019. Appellant timely filed

separate notices of appeal at each underlying docket (listing only one docket

number on each notice of appeal) on October 3, 2019. On October 21, 2019,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on

October 23, 2019. This Court subsequently consolidated the appeals sua

sponte.

Appellant raises one issue for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
IMPOSING A SENTENCE THAT WAS MANIFESTLY
EXCESSIVE, UNREASONABLE, AND CONTRARY TO THE
DICTATES OF THE SENTENCING CODE WHEN THE TRIAL
COURT OVERLOOKED AND/OR FAILED TO CAREFULLY
CONSIDER RELEVANT FACTORS WHEN SENTENCING
[APPELLANT], INCLUDING THE UNIQUE FACTS AND
CIRCUMSTANCES OF THE CRIMES, AND HIS BACKGROUND
AND REHABILITATIVE NEEDS?

(Appellant’s Brief at 4).

Appellant argues the circumstances of his case did not justify imposing

____________________________________________

3 Specifically, at docket CP-02-CR-0007730-2016, the court imposed a term
of 2 to 4 years’ imprisonment on Count 4 (PWID), a concurrent term of 1 to 2
years’ imprisonment on Count 5 (PWID), and no further penalty for the
remaining offenses. At docket CP-02-CR-0005530-2017, the court sentenced
Appellant to 5 to 10 years’ imprisonment, plus 3 years’ probation, for the
firearms conviction, and a concurrent term of 3 to 6 years’ imprisonment for
the PWID conviction. The court imposed the sentences at each docket
concurrent to each other.

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a term of imprisonment. Appellant asserts the sentence imposed does not

reflect the court’s consideration of Appellant’s background and characteristics,

his efforts to rehabilitate, and the remoteness of his prior convictions.

Appellant maintains the sentence imposed is grossly disproportionate to the

circumstances of the offenses and contrary to the norms of the sentencing

process. Appellant concedes the court imposed a sentence within the

statutory limits and below the standard range. Nevertheless, Appellant insists

the court did not impose an individualized sentence, tailored to him and the

facts of his case. Appellant contends the court also failed to set forth adequate

reasons on the record for the sentence imposed. Appellant suggests the court

ignored Appellant’s acceptance of responsibility by pleading guilty and his

expressions of remorse. Appellant avers the court disregarded that Appellant

obtained a high school diploma, had three jobs, and sought treatment for his

addiction since the time his offenses occurred. Appellant concludes the court

abused its discretion by imposing a sentence of imprisonment, where a

sentence of alternative housing was more appropriate given Appellant’s

progress.

As presented, Appellant’s challenges implicate the discretionary aspects

of his sentence. See, e.g., Commonwealth v. Cartrette, 83 A.3d 1031

(Pa.Super. 2013) (en banc) (explaining claim that sentencing court failed to

consider Section 9721(b) factors pertains to discretionary sentencing

matters); Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),

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appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court

focused solely on serious nature of crime without adequately considering

protection of public and defendant’s rehabilitative needs concerns court’s

sentencing discretion); Commonwealth v. Cruz-Centeno, 668 A.2d 536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating

allegation that court overemphasized seriousness of crime without considering

mitigating factors challenges discretionary aspects of sentencing).

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

We 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 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).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Significantly, objections to the discretionary aspects of a sentence are

waived if they are not raised at the sentencing hearing or in a timely filed

post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot

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be cured by submitting the challenge in a Rule 1925(b) statement.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal

denied, 580 Pa. 695, 860 A.2d 122 (2004).

Instantly, Appellant filed a timely post-sentence motion on August 28,

2019. Nevertheless, Appellant did not preserve any of the claims he raises on

appeal in that motion. Instead, Appellant merely requested the court permit

him the opportunity to enroll in motivational boot camp. Appellant mentioned

nothing about the court’s alleged failure to consider mitigating factors, lack of

sufficient reasons on the record for the sentence, or any of the other

arguments Appellant now advances on appeal. Appellant’s failure to preserve

his current claims in the post-sentence motion constitutes waiver of his

sentencing issue on appeal. See Griffin, supra; McAfee, supra.

Even if Appellant had preserved his claims on appeal, this Court will not

disturb the judgment of the sentencing court absent an abuse of discretion.

Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).

[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, …: 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

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the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
guidelines merely inform the sentencing decision.

Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62

(2007) (internal quotation marks, footnotes, and citations omitted).

Pursuant to Section 9721(b), “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.A. § 9721(b). See also Commonwealth

v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit

of pre-sentence investigation report, we can presume it was aware of relevant

information regarding defendant’s character and weighed those

considerations along with mitigating statutory factors).

Here, the trial court analyzed Appellant’s sentencing claim as follows:

In this case[,] the presentence report established that
[Appellant] has a very long history of offenses related to
selling narcotics and illegal possession of a firearm. Also,
as noted by [Appellant], he has previously been before this
[c]ourt and he was sentenced for [PWID]. In addition, the
latest offenses, as noted at the time of sentencing, included

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selling heroin containing fentanyl, which is widely known to
be a very dangerous mixture. While it was noted that some
of [Appellant’s] offenses were years before, it was also clear
that [Appellant] had repeatedly offended in 2016 and 2017,
and those repeat offenses were certainly not “stale.” In
addition, despite shorter periods of incarceration for
previous offenses, [Appellant] continued selling dangerous
narcotics. While [Appellant’s] efforts at rehabilitation were
noted and considered, it was also considered, as argued by
the Commonwealth, that a sentence that reflected the
seriousness of the offenses would be appropriate. After
considering the sentencing code, the sentencing guidelines,
the presentence report and the evidence presented at the
sentencing hearing, [Appellant] was sentenced to a
mitigated range sentence and all other sentences imposed
were made concurrent to that sentence. Consequently,
there was no abuse of discretion in the sentence imposed.

(Trial Court Opinion at 7). We see no abuse of the court’s broad sentencing

discretion. See Walls, supra; Fullin, supra. Therefore, even if Appellant

had properly preserved his claim and raised a substantial question, it would

merit no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/29/2020

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