J-S18021-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARNELL BASON
Appellant No. 3718 EDA 2015
Appeal from the Judgment of Sentence dated November 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006896-2010
CP-51-CR-0006898-2010
CP-51-CR-0006947-2010
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 24, 2017
Appellant, Darnell Bason, appeals from the judgment of sentence
entered on November 6, 2015, in the Philadelphia County Court of Common
Pleas, following this Court’s remand to the trial court to re-sentence
Appellant for his trial convictions for one count each of robbery – threat of
immediate serious injury, possession of an instrument of crime with intent,
escape, and robbery of a motor vehicle, and for two counts of criminal
conspiracy relating to each of the robbery charges.1 We affirm.
The facts of this case are as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3701(a)(1)(ii), 907(a), 5121(a), 3702(a), 903(a)(1),
respectively.
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Complainant Steven Evans testified that at approximately 1:00
in the morning on April 29, 2010 he was “hacking”, i.e. working
as an unlicensed taxicab driver, near 52nd and Market Streets in
Philadelphia. Mr. Evans’s vehicle was a green Chevrolet Blazer
(Blazer). Mr. Evans was hailed by two males and he drove them
to the intersection of 57th and Haverford. One of the men was
[Appellant], who sat in the back seat while the other man sat in
the front seat. After parking the car, the man in the front seat
pulled out a knife and told Mr. Evans: “get out, I'm taking the
car.” [Appellant] pulled out a gun and also told Mr. Evans to
“get out.” Mr. Evans got out and Defendant and the other man
drove away in the vehicle.
Philadelphia police officer Andre Howard testified that he and his
partner Officer Nick Louis were the first to arrive at the location
of the carjacking and meet with Mr. Evans, at which point they
put out a “flash” describing the stolen vehicle. Philadelphia
police detective Matthew Farley testified that at 9:00 that
morning he showed Mr. Evans a photo spread, and Mr. Evans
picked out a photo of [Appellant] from the array.
Complainant Edward Burse testified that at approximately 6:30
on the morning of April 29, 2010 he was walking to work at the
Mercy Medical Center Hospital on 53rd Street and Cedar Avenue
in Philadelphia when he suddenly heard a “loud screeching” and
saw a green Blazer run a light and pull up quickly to the side of
the curb. A man ran up behind him, saying “give me your
money.” A struggled ensued, during which the assailant poked
at Mr. Burse with a knife, until [Appellant] appeared and pointed
a gun at him and said “You're taking too long, give me the
money, give me the money.” Mr. Burse surrendered his wallet
and the two drove away in the Blazer.
After the attack Mr. Burse proceeded to the Hospital and called
the police, who arrived shortly after and took his statement.
When the officers learned that potential suspects had been
apprehended Mr. Burse was driven to the scene and asked to
identify the men. Mr. Burse testified that he recognized the two
men as his assailants, and when shown a picture of [Appellant]
(Commonwealth Exhibit 8) at trial he identified him as being one
of the attackers.
Philadelphia police officer Malik Abdulhadi testified that on April
29, 2010 he was called to the area of the Mercy Medical Center
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Hospital to interview the complainant Edward Burse. Officer
Abdulhadi relayed the information he collected from Mr. Burse
over the radio and shortly after he received information that a
suspect had been apprehended. Officer Abdulhadi transported
Mr. Burse to the scene. Officer Abdulhadi testified that upon
arriving Mr. Burse identified [Appellant] as one of the individuals
who robbed him.
Philadelphia police officer Anthony Washington testified that on
April 29, 2010 he was working a midnight to 8:00 a.m. shift in
the 18th District of Philadelphia. Officer Washington was on patrol
in a marked police car with his partner Officer Denia Starks when
at approximately 6:15 a.m[.] he received a robbery in progress
call “for 54th and Cedar involving two black makes inside of a
green Chevy Blazer SUV.” Approximately fifteen minutes later
the officers observed a green Blazer and turned on their
overhead lights in order to get the vehicle to stop. At this point
the Blazer backed into a parking spot and the driver fled on foot.
Officer Washington pursued the driver, [Appellant], who pulled a
black handgun from his waistband and threw it under a parked
car. Because there was a young girl on the street Officer
Washington retrieved the gun before continuing his chase.
[Appellant] ran down an alleyway which Officer Washington
knew to have only one other exit, at which time [Appellant] was
taken into custody by other police officers. Officer Washington
was shown a photograph of [Appellant] at trial and identified him
as the driver of the Blazer he had pursued.
Sergeant Kenneth Flaville testified that after the two suspects
who had been driving the Blazer were taken into custody he
conducted a search of the vehicle and found in its interior a
wallet belonging to Edward Burse. Officer Starks testified that
while Officer Washington was chasing [Appellant] she detained
the passenger of the Blazer. The passenger had not attempted
to flee. Officer Starks later conducted an investigation on the
vehicle and determined that neither [Appellant] nor the
passenger was the owner of the Blazer.
Philadelphia police officer Ronald Browne testified that he
transported [Appellant] to police headquarters, but prior to
entering the building, [Appellant] “made kind of a motion and a
noise like he was injured.” Officer Browne asked [Appellant]
what was wrong and as he opened the door [Appellant], whose
left arm was free from his handcuffs, began to run. He was
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chased by Officer Browne and other officers in the vicinity.
Officer Browne tackled [Appellant], who fell on Officer Browne’s
hand and broke it. [Appellant] struggled with the officers after
he was tackled, “flailing around” and kicking at the officers
before he could be put in handcuffs again. . . . [Appellant] was
released from custody and placed on house arrest on January 3,
2012. . . .
Philadelphia police officer Yvette Rawls-Guyton testified that she
worked for the pretrial unit of the First Judicial District and that
that on Friday, May 11, 2012 she was notified by the “Warrant
Unit” that [Appellant’s] electronic monitoring strap had been
tampered with. In response Officer Rawls-Guyton placed a
phone call to the address where [Appellant] had been living, but
the person who answered the call was unable to provide
information regarding [Appellant’s] whereabouts. Officer Rawls-
Guyton testified that she was notified by Sergeant Michael Roth
of the “Warrant Unit”, who had gone to [Appellant’s] home to
investigate, that [Appellant] was missing and that his electronic
monitoring equipment had been recovered.
Trial Ct. Op., 11/20/13, at 3-8 (footnote omitted) (citations to the record
omitted).
On January 9, 2013 [Appellant] was sentenced to consecutive
periods of confinement at a State Correctional Institution of 5 to
10 years on the charge of Robbery - Threatens Serious Bodily
Injury and 1 to 5 years on the charge of Conspiracy at CP-51-
CR-0006896-2010, 1 to 2 years on the charge of Escape at CP-
51-CR-0006898-2010, 5 to 10 years on the charge of Robbery of
Motor Vehicle and 1 to 5 years on the charge of Conspiracy at
CP-51-CR-0006947-2010, for a total period of confinement of 13
to 32 years.
Id. at 2. “The [trial] court imposed the mandatory minimum sentence for
the robbery [– threat of immediate serious injury] conviction and the
robbery of a motor vehicle conviction pursuant to 42 Pa.C.S. § 9712.”
Commonwealth v. Bason, No. 344 EDA 2013, at 2, 2014 WL 10753721, at
*1 (Pa. Super., Dec. 11, 2014) (unpublished memorandum).
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In Appellant’s direct appeal, this Court “vacate[d] the judgment of
sentence and remand[ed] for resentencing without consideration of any
mandatory minimum sentence as provided by section 9712.” Bason, No.
344 EDA 2013, at 6, 2014 WL 10753721, at *3 (citing Alleyne v. United
States, 133 S.Ct. 2151 (2013); Commonwealth v. Newman, 99 A.3d 86
(Pa.Super. 2014) (en banc) (holding 42 Pa.C.S. § 9712 unconstitutional),
appeal denied, 121 A.3d 496 (Pa. 2015)).
On November 6, 2015, [Appellant] was resentenced, in
accordance with the order of the Superior Court, to the same
period of confinement without considering mandatory minimums,
[Appellant] was sentenced to consecutive periods of confinement
at a State Correctional Institution of 5 to 10 years on the charge
of Robbery and 1 to 5 years on the related charge of Conspiracy,
1 to 2 years on the charge of Escape, 5 to 10 years on the
charge of Robbery of Motor Vehicle and 1 to 5 years on the
related charge of Conspiracy, for a total period of confinement of
13 to 32 years.
Trial Ct. Op., 9/1/16, at 2-3 (footnote omitted). Appellant’s new sentence
thus had the same length of incarceration as the original sentence that we
vacated in 2014. Appellant appeals from that sentence.
Appellant now raises one issue for our review:
Did not the trial court err as a matter of law and violate the
principles of discretionary sentencing when, at [A]ppellant’s re-
sentencing, it merely re-imposed [A]ppellant’s manifestly
excessive original sentence of 13 to 32 years incarceration
without giving any individualized consideration to [A]ppellant’s
personal history, rehabilitative needs and background, and which
was in excess of what was necessary to address the gravity of
the offense, the protection of the community, and [A]ppellant’s
rehabilitative needs?
Appellant’s Brief at 3.
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When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Pa. R.A.P. 2119(f).[ 2]
. . . The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Commonwealth v. Glass, 50 A.3d 720, 726-27 (Pa. Super. 2012)
(citations and internal quotation marks omitted), appeal denied, 63 A.3d
774 (Pa. 2013).
Appellant included a Rule 2119(f) statement in a separate section of
his brief, as required by the Appellate Rules. See Appellant’s Brief at 7-9.
There, Appellant stated that the trial court “reimposed [A]ppellant’s original
sentence of 13 to 32 years of confinement, without any explanation for
imposition of the same manifestly excessive sentence in the absence of the
applicability of any mandatory minimum sentences” and “failed to conduct
any semblance of an individualized consideration of [A]ppellant’s personal
history, rehabilitative needs and background in fashioning his sentence.” Id.
at 7. Appellant continued that “[t]his Court should grant allowance of appeal
____________________________________________
2
It is also necessary for Appellant to have preserved the issue in the trial
court and to have filed a timely appeal. Commonwealth v. Colon, 102
A.3d 1033, 1042-43 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.
2015). Appellant’s appeal was timely filed, and he preserved his challenge
to the discretionary aspects of sentencing in his post-sentence motion and in
his Pa.R.A.P. 1925(b) statement.
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from the discretionary aspects of sentence because the trial court violated
the express provisions of the Sentencing Code and imposed an excessive
sentence, contrary to the fundamental norms which underlie the sentencing
process.” Id. (citing Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.
2002)). He added:
the sentencing court failed to carefully consider all relevant
factors as set forth in Section 9721(b) of the Sentencing Code
(Title 42).[3] Specifically, the sentence imposed far surpassed
that required to protect the public, the community’s interests,
and failed to address [A]ppellant’s personal history and
rehabilitative needs.
Id. at 8.
Appellant’s argument raises a substantial question. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super.) (en
banc) (“[a]rguments that the sentencing court failed to consider the factors
proffered in 42 Pa.C.S. § 9721 . . . present a substantial question”
(quotations and citation omitted)), appeal denied, 104 A.3d 1 (Pa. 2014).
Hence, we will consider the substantive merits of his sentencing claim.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
____________________________________________
3
42 Pa.C.S. § 9721(b) states, in relevant part:
[T]he 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.
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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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation
omitted), appeal denied, 117 A.3d 297 (Pa. 2015). “A sentencing court
need not undertake a lengthy discourse for its reasons for imposing a
sentence or specifically reference the statute in question, but the record as a
whole must reflect the sentencing court’s consideration of the facts of the
crime and character of the offender.” Commonwealth v. Schutzues, 54
A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).
In addition:
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. A pre-
sentence report constitutes the record and speaks for itself. In
order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers 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
report, the sentencing court’s discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, “[w]here
the sentencing judge had the benefit of a pre-sentence report, it will be
presumed that he was aware of relevant information regarding appellant’s
character and weighed those considerations along with the mitigating
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statutory factors.” Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa.
Super. 2006).
Here, the trial court explained:
In reimposing [Appellant]’s sentence on November 6, 2015, the
[c]ourt fully reviewed the record from the January 9, 2013
sentencing, including the presentence investigation report,
arguments of counsel, as well as testimony from both the
[Appellant] and [Appellant]’s grandmother. In 2013, arguing
that [Appellant] cut his electronic monitor when he was released
on house arrest and failed to appear for trial, the Commonwealth
recommended a sentence of 26 to 52 years. The
Commonwealth also noted that [Appellant] had been on juvenile
probation numerous times, and that the nature of his current
offenses were particularly harmful due to the multiple victims
and a police officer who broke his hand while apprehending
[Appellant]. On reimposing [Appellant]’s sentence and referring
to its decision in 2013, the court noted, “I gave him a break. I
gave him -- a 13-year minimum was a break. It was in
consideration of his age...” “Because of his youth and his lack of
prior record for violent crime.” In resentencing [Appellant], the
Court has properly considered the factors of [Appellant]’s
history, rehabilitative needs, and background.
...
[A]ll sentences imposed by the [trial c]ourt were well within the
range of the sentencing guidelines. The guidelines
recommended a minimum sentence of 54 to 66 months plus or
minus 12 for each robbery count, a maximum penalty the same
as robbery for each conspiracy count, and a maximum penalty of
7 years for escape. The sentences imposed for each individual
conviction were all within the guidelines, but the [trial c]ourt ran
them consecutively, totaling a period of confinement of 13 to 32
years.
...
[T]he [trial c]ourt had the original PSI report from [Appellant]’s
January 9, 2013 sentencing. This report, in addition to
arguments of counsel and testimony of [Appellant]’s witnesses
made at the 2013 sentencing, sufficiently apprised the [trial
c]ourt of the circumstances surrounding [Appellant]’s
convictions. [Appellant]’s counsel was also able to make
argument to the [c]ourt in 2015 that during his time in state
custody he had exhibited good behavior. The [c]ourt was
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sufficiently aware of [Appellant]’s personal history and because
the circumstances of the [Appellant]’s crime had not changed
during the period of his confinement, there was no need for an
updated presentence investigation report.
Trial Ct. Op., 9/1/16, at 5-6, 8-9 (citing N.T., 1/9/13, at 3, 20-23, 25; N.T.,
11/6/15, at 9, 12, 16).
We conclude that by considering the PSI, testimony from Appellant’s
first sentencing hearing, and counsel’s arguments from both sentencing
hearings, the trial court created a proper record and rendered its sentence
fully informed by it. See Devers, 546 A.2d at 18; Fullin, 892 A.2d at 849–
50. Thus, the trial court considered Appellant’s character – including his
youth, his prior criminal history, and good behavior while incarcerated; his
rehabilitative needs, including his earlier actions while on house arrest and
his failure to reform while on juvenile probation; and the impact of his
actions on his victims and on the community and public, including his lack of
violent behavior. See 42 Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 99.
The trial court also had reviewed the sentencing guidelines, which take into
account the gravity of the offenses. N.T., 1/9/13, at 3; see 42 Pa.C.S. §
9721(b). Accordingly, the trial court properly reviewed all of the requisite
factors required by the Sentencing Code. Having done so, we conclude that
the trial court did not abuse its discretion in imposing the sentence that it
selected.
The record does not support the conclusion that “the sentencing court
ignored or misapplied the law, exercised its judgment for reasons of
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partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Zirkle, 107 A.3d at 132. Appellant argues that “[t]he trial court
did not take the re-sentencing hearing seriously in the slightest, stating
during the call of the list, ‘So you’re here for me to say [that] I [can] impose
the same sentence, but I’m not doing it on the basis of a mandatory
minimum?’” Appellant’s Brief at 14 (quoting N.T., 11/6/15, at 4). We
acknowledge that the trial court’s comment was flippant, but that does not
make the sentence improper so long as the trial court considered all of the
appropriate factors and applied them in a correct way to reach an
appropriate sentence. As we have held, the trial court properly considered
Appellant’s character, his rehabilitative needs, the gravity of his offenses,
and the impact of his actions on his victims and on the community and
public. We therefore discern no basis upon which to conclude that the trial
court did not take the re-sentencing hearing seriously.
Judgment of sentence affirmed.
Judge Panella joins the memorandum.
Judge Fitzgerald concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
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Com. v. Bason, D.
Combined Opinion