Com. v. Leggett, J. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERONE LEGGETT
Appellant No. 221 EDA 2015
Appeal from the Judgment of Sentence October 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011320-2013
BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 03, 2016
Jerone Leggett appeals from the judgment of sentence imposed in the
Court of Common Pleas of Philadelphia County after the court, in a non-jury
trial, found him guilty of one count each of possession of firearm prohibited,1
firearms not to be carried without a license2 and carrying firearms on the
public streets in Philadelphia.3 After careful review, we affirm.
The Honorable Daniel J. Anders set forth the facts of this case as
follows:
On August 23, 2013, at 6:00 p.m., Police Officer Jeffrey
Thompson responded to an anonymous radio call for a report of
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1
18 Pa.C.S.A. § 6105(a)(1).
2
18 Pa.C.S.A. § 6101(a)(1).
3
18 Pa.C.S.A. § 6108.
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a bald, black male with a beard who was wearing a black shirt
and camouflage shorts and was in possession of a firearm at
Baynton and Walnut Streets. Officer Thompson arrived at that
intersection within minutes of the radio call, but did not see
anyone. As he traveled one block from that intersection, he
observed [Leggett,] who was standing in the middle of the
street. Officer Thompson believed [Leggett] matched the flash
information because, inter alia, he was wearing camouflage
shorts. As he got closer to [Leggett], Officer Thompson
observed the handle of a black semiautomatic handgun showing
from the right pocket of [Leggett’s] shorts. Officer Thompson
immediately recognized the handle as a handle of a firearm
based upon his training and experience with firearms.
Upon seeing the firearm, Officer Thompson ordered [Leggett] to
stop. In response, [Leggett] walked around a vehicle. As
[Leggett] was walking around the vehicle, Officer Thompson
heard the sound of metal or plastic hitting the ground, which was
– based upon his prior experience with people who have thrown
firearms to the ground – consistent with a firearm hitting the
ground. After [Leggett] was secured in the patrol car, Officer
Thompson recovered from behind the vehicle a black
semiautomatic handgun that was loaded with ten live rounds and
two magazines that were each loaded with ten live rounds.
Trial Court Opinion, 4/13/15, at 1-2.
A non-jury trial was held on April 11, 2014, at which time the trial
court found Leggett guilty of the above-enumerated offenses. On October
10, 2014, the court sentenced Leggett to concurrent terms of 5 to 10 years’
incarceration for possession of a firearm prohibited, 4 to 8 years’
incarceration for firearms not to be carried without a license, and 16 to 32
months’ incarceration for carrying firearms on the public streets in
Philadelphia. Leggett filed a timely notice of appeal to this court on January
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7, 2015, followed by a court-ordered statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).4 Leggett raises a single issue for our
review: Whether the sentencing court erred by imposing a manifestly
excessive sentence which overemphasized the protection of the public and
did not consider the rehabilitative needs of Leggett, who suffers from Post-
Traumatic Stress Disorder (“PTSD”). See Brief of Appellant, at 3.
Leggett challenges the discretionary aspects of his sentence. Such a
claim does not entitle an appellant to review as a matter of right.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,
before this Court can address such a discretionary challenge, an appellant
must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (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.
Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.
2011).
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4
Leggett failed to file his Rule 1925(b) statement within the time frame
specified by the trial court in its Rule 1925(b) order. However, where, as
here, the trial court has addressed the issues raised in an untimely Rule
1925(b) statement, we may address the issues on their merits.
Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015).
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Here, Leggett filed a post-sentence motion raising his sentencing
claim, followed by a timely notice of appeal to this Court. He has also
included in his brief a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of his sentence pursuant
Pa.R.A.P. 2119(f). We must now determine whether he has raised a
substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.
In his Rule 2119(f) statement, Leggett claims that his sentence was
manifestly excessive and the sentencing court did not assign the appropriate
weight to the rehabilitative needs of the defendant, the seriousness of the
offense, and the protection of the public. Leggett claims the court did not
consider his PTSD and that treatment would have been a more effective way
to rehabilitate him and protect the public. This Court has previously found
that the failure of a sentencing court to consider the defendant’s
rehabilitation and the nature and circumstances of the offense in handing
down its sentence presents a substantial question for our review.
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013).
Accordingly, we will review the substance of Leggett’s claim.
We begin by noting:
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,
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exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015).
“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 the defendant. And, of course, the court must
consider the sentencing guidelines.” Id. at 768, quoting Commonwealth
v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006). Finally, when the
sentencing court possesses and considers a presentence report, we presume
that the sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988).
Here, Leggett claims that he suffers from PTSD as a result of a prior
gunshot wound to the head, and has exhibited symptoms of the disorder for
an unusually long period of time. He asserts that the trauma he experienced
after being shot led directly to the commission of the instant crimes, as “he
did not want to be caught by either another assassin or be caught unarmed
in his dangerous neighborhood.” Brief of Appellant, at 9. Leggett asserts
that incarceration will not lessen the trauma he feels and will not serve any
rehabilitative purpose. Thus, the court should have sentenced him to
treatment, followed by a period of close supervision by the Probation
Department. Leggett is entitled to no relief.
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We begin by noting that the trial court sentenced Leggett to a
standard-range sentence under the sentencing guidelines. In imposing its
sentence, the trial court took note of numerous mitigating factors, including
Leggett’s family and community support, employment history and prior
gunshot injury. The court also was informed by a presentence report, as
well as a mental health evaluation.
However, the court also noted Leggett’s statement to police that “he’d
rather be arrested [carrying a gun] than [get] shot again,” suggesting that
he would reoffend in the future. N.T. Sentencing, 10/10/14, at 29. The
court further noted that Leggett had been under juvenile supervision, “which
was ultimately unsuccessful given the fact that he was convicted of other
offenses,” id., that the instant offense was Leggett’s third for unlawful
possession of a firearm, and that this offense occurred while Leggett was
under probationary supervision for a firearms violation. Finally, the court
noted that, when Leggett was arrested for the instant offense, he not only
possessed a firearm loaded with ten rounds of ammunition, but also carried
two additional ammunition clips that were fully loaded with an additional ten
rounds each.
In sum, prior to imposing sentence, the court considered the
protection of the public, the nature and gravity of the offense as it relates to
the impact on the community, and Leggett’s rehabilitative needs, as well as
the arguments of counsel, the statement Leggett made to the court at
sentencing and Leggett’s demeanor before the sentencing court. See id. at
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29-30; Trial Court Opinion, 4/13/15, at 5-6. In light of Leggett’s extensive
juvenile history, his adult record of multiple firearms offenses and his
repeated failure to take advantage of past opportunities for rehabilitation,
we can discern no abuse of discretion on the part of the trial court in
imposing an aggregate sentence of 5 to 10 years’ incarceration for the
instant convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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