J-S50016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL STEPHENS :
:
Appellant : No. 3141 EDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002782-2019
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED: FEBRUARY 26, 2021
Appellant, Michael Stephens, appeals from the judgment of sentence
entered on October 1, 2019,1 in the Philadelphia County Court of Common
Pleas. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the October 29, 2019 order denying his
post-sentence motion. “In a criminal action, appeal properly lies from the
judgment of sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have corrected the appeal paragraph to reflect that Appellant
appeals from the October 1, 2019 judgment of sentence. The confusion herein
appears to stem from the fact that in its Pa.R.A.P. 1925(a) opinion, the trial
court states that at the hearing on Appellant’s post-sentence motion, the
motion was denied and sentence was “reimposed.” Trial Court Opinion,
06/25/20, at 1. After review, however, we note that at the October 29, 2019
hearing, the trial court denied Appellant’s post-sentence motion and informed
Appellant that he had thirty days in which to file an appeal to this Court, and
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The trial court aptly summarized the relevant facts of this case as
follows:
The incidents in this case took place on March 18, 2019.
Hearing Volume 1, page 6. If called[,] Natasha Bailey (hereinafter
“Complainant”), would have testified to the below facts at trial.
Id.
On the date in question, Appellant was inside his apartment,
which is located in the city and county of Philadelphia. Id.
Appellant and Complainant engaged in a verbal argument. Id.
Appellant proceeded to grab Complainant by the legs and pull her
off the bed, causing her to hit her head on the floor. Id. Appellant
then dragged Complainant across the floor and threw her out of
the apartment while she was naked. Id[.] at 7. When
Complainant reentered the apartment to retrieve clothing,
Appellant hit Complainant with a vodka bottle and then punched,
dragged, and pulled Complainant by her hair for the remainder of
the day. Id. At one point later that day, Appellant stated to
Complainant that she should jump out of the window if she wanted
him to stop beating her. Id. Appellant, to prove his point,
proceeded to open the window and then closed it. Id. Appellant
did eventually stop hitting Complainant. Id. The next morning,
Appellant saw how badly Complainant was beaten and took her to
the hospital. Id. At the hospital Complainant was treated for
bruises to her eyes, arms, and legs and also had a fractured bone.
Id.
Trial Court Opinion, 6/25/20, at 2-3.
On April 23, 2019, the Commonwealth charged Appellant with one count
each of aggravated assault, possessing an instrument of crime, simple assault,
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“the original sentence shall remain as is.” N.T., 10/29/19, at 7. Therefore,
we are satisfied that the date of the imposition of sentence remained
October 1, 2019. Nevertheless, because Appellant timely filed his post-
sentence motion and timely filed his appeal following the order denying his
post-sentence motion, the confusion regarding the dates does not impact
Appellant’s appeal, and we proceed with our discussion.
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and recklessly endangering another person.2 Criminal Information, 4/23/19,
at 1. The trial court summarized the procedural history as follows:
On July 23, 2019, [Appellant] waived his right to a jury trial
and entered into an open guilty plea before this court. During the
guilty plea, Appellant plead guilty to aggravated assault.[3] On
that date sentencing was deferred for the court to have a
presentence investigation report and mental health evaluation
done.
On October 1, 2019, Appellant returned to this court for
sentencing on the [aggravated assault charge] for which he
entered into an open guilty plea. This court accepted the plea and
Appellant was sentenced [to] one and a half (1½) to three (3)
years of incarceration followed by five (5) years of reporting
probation for aggravated assault. Additionally, there is an
absolute stay away order f[ro]m the Complainant. The probation
is consecutive to the incarceration. Further, Appellant was
ineligible for [recidivism risk reduction incentive (“RRRI”), 61
Pa.C.S. §§ 4501-4512]. On October 8, 2019, Appellant filed a
post-sentence motion to reconsider sentence. On October 29,
2019, at the motion for reconsideration of sentence hearing
Appellant’s motion was denied ….
On November 1, 2019, Appellant filed a timely notice of
appeal …. On December 3, 2019, this [c]ourt ordered Appellant to
file a concise Statement of Errors Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) on or before January 7, 2020. On
January 7, 2020, counsel filed the Statement of Matters
Complained of on Appeal.
Trial Court Opinion, 6/25/20, at 1-2. The trial court filed its Pa.R.A.P. 1925(a)
opinion on June 25, 2020.
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2 18 Pa.C.S §§ 2702(a), 907(a), 2701(a), and 2705, respectively.
3 The charges of possessing an instrument of crime, simple assault, and
recklessly endangering another person were nol prossed. Guilty Plea,
7/23/19, at 1.
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On appeal, Appellant presents one issue for our consideration:
Did not the lower court fail to give consideration for Appellant’s
substantial need for mental health treatment in its imposition of
sentence, and thereby violate a specific provision of the
Sentencing Code, 42 Pa. C.S. §9721(b) which requires in part that
a sentencing court consider a defendant’s rehabilitative needs?
Appellant’s Brief at 3.
Appellant’s issue presents a challenge to the discretionary aspects of his
sentence. We note that “[t]he right to appellate review of the discretionary
aspects of a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d
127, 132 (Pa. Super. 2014). Rather, where an appellant challenges the
discretionary aspects of a sentence, the appeal should be considered a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.
Super. 2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)):
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 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).
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Id. at 170. Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001).
Here, the first three requirements of the four-part test are met:
Appellant filed a timely appeal; Appellant preserved the issue in his post-
sentence motion; and Appellant included a statement raising the issues in his
brief pursuant to Rule 2119(f). Moury, 992 A.2d at 170. Therefore, we
address whether Appellant has raised a substantial question requiring us to
review the discretionary aspects of the sentence imposed by the sentencing
court.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-887 (Pa. Super. 2008). Allowance of appeal will be permitted
only when the appellate court determines that there is a substantial question
that the sentence is not appropriate under the Sentencing Code.
Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa. Super. 2006). A
substantial question exists where an appellant sets forth a plausible argument
that the sentence violates a particular provision of the Sentencing Code or is
contrary to the fundamental norms underlying the sentencing process. Id.
In his Pa.R.A.P. 2119(f) statement, Appellant contends the trial court
failed to consider Appellant’s rehabilitative needs pursuant to 42 Pa.C.S.
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§ 9721(b), namely his mental health requirements, failed to consider
Appellant’s pre-sentence mental health evaluation, and instead focused on
Appellant’s failure to take responsibility and lack of remorse in his allocution.
Appellant’s Brief at 10-11. We conclude that Appellant has raised a substantial
question. See Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super.
2012) (finding a claim that the trial court failed to consider relevant sentencing
criteria, including the rehabilitative needs of the appellant, as 42 Pa.C.S.
§ 9721(b) requires, and instead focused on the injuries suffered by the
complaining victims raised a substantial question). Thus, we proceed with our
analysis.
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. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of defendant, and
it must impose an individualized sentence. The sentence should
be based on the minimum confinement consistent with the gravity
of the offense, the need for public protection, and the defendant’s
needs for rehabilitation.
Commonwealth v. Ferguson, 893 A.2d 735, 739 (Pa. Super. 2006).
Further, whereas here, the trial court had the benefit of a pre-sentence
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investigation (“PSI”) report, “we presume that the [trial] court was aware of
all relevant sentencing factors.” Commonwealth v. Knox, 219 A.3d 186,
199 (Pa. Super. 2019) (citation omitted).
Appellant baldly asserts “Although the lower court stated that it
considered [Appellant’s] need for mental health treatment, the sentence
imposed belies the lower court’s protestations.” Appellant’s Brief at 14.
However, Appellant fails to support this accusation. Appellant merely argues
that the trial court failed to consider that Appellant was “in dire need of mental
health treatment.” Id. at 15. Contrary to Appellant’s argument, the record
reflects that the trial court specifically addressed this issue and imposed a
sentence in a State Correctional Institution because a state facility would
provide better mental health treatment. The trial court stated:
I think you need more treatment. I think that a state incarceration
has more assets that they can properly help you. It’s not
vindictive. I’m just trying to take into your -- take into account
the need for treatment here and I think the state has much better
facilities for this type of treatment. I know you don’t like my
sentence, but you understand it.
N.T. (Sentencing), 10/1/19, at 18. Additionally, the record reflects that the
trial court had the benefit of a PSI report. Id. at 5.
In its opinion, the trial court addressed this issue as follows:
In anticipation of sentencing this court reviewed the presentence
investigation report and mental health evaluation. The Appellant
was [a repeat first and second degree felony offender (“RFEL”)]
with a guideline [minimum] sentence [of] forty (40) to fifty-two
(52) months of incarceration. Appellant was made aware at the
time of the open guilty plea that his guidelines were high and,
ultimately, this court’s sentence was mitigated far below the
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guidelines. The reason for mitigation was that this court did in
fact recognize Appellant’s need for treatment. However, this court
on record stated it believed that the best way for Appellant to
receive the necessary treatment was to receive it from state
custody where more resources would be available, a decision this
court does not take lightly. For Appellant to assert that his
sentence was excessive and unreasonable is in fact absurd and
the argument holds no merit.
Additionally, Appellant does not assert the other conditions
required to examine in sentencing under 42 Pa.C.S.A. § 9721(b)
which include the protection of the public and the gravity of the
offense and how it relates to the impact on the victim in the case.
In light of the facts in this case and evidence presented, this court
found that incarceration would serve not only Appellant but also
the public and Complainant best. During sentencing this court
was made aware that even though a restraining order was in
effect[,] Appellant continued to contact Complainant.
Additionally, during Appellant’s allocution he showed no remorse
for the beating that hospitalized Complainant for five (5) days with
bruising and fractured bones but instead chose to blame
Complainant. This court believes any lesser sentence would not
only be a dereliction of our duty to the safety of the general public
but also depreciate the seriousness of the crime and safety of the
Complainant. In this case, it is clear that this court did not give
an excessive and unreasonable sentence but in fact an extremely
mitigated one. Further this court did consider Appellant’s
rehabilitative needs and therefore Appellant’s claim is unfounded.
Trial Court Opinion, 6/25/20, at 3-4.
After review, we cannot accept Appellant’s contention that the trial court
paid only “lip service” to considering the relevant sentencing factors.
Appellant’s Brief at 12. Rather, the record reveals that the trial court had the
benefit of a PSI report, addressed the Sentencing Guidelines, considered the
factors from Section 9721(b), and fashioned an individualized sentence
wherein Appellant could receive the mental health treatment he needed in a
State Correctional Institution. Appellant’s contention that the trial court failed
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to consider or address Appellant’s mental health issues is unsupported and
meritless.
For the reasons set forth above, we conclude that Appellant’s challenge
to the discretionary aspects of his sentence is without merit and no relief is
due. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/21
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