Com. v. Noel, F. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FLOYD NOEL,
Appellant No. 459 WDA 2016
Appeal from the Judgment of Sentence of January 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008001-2015
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J: FILED MARCH 17, 2017
Appellant, Floyd Noel, appeals from the judgment of sentence entered
on January 12, 2016, following his bench trial convictions for one count each
of escape,1 fleeing or attempting to elude police officers,2 obstructing
administration of law,3 resisting arrest,4 three counts of recklessly
endangering another person (REAP),5 and thirteen summary traffic offenses.
We affirm.
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1
18 Pa.C.S.A. § 5121.
2
75 Pa.C.S.A. § 3733.
3
18 Pa.C.S.A. § 5101.
4
18 Pa.C.S.A. § 5104.
5
18 Pa.C.S.A. § 2705.
*Former Justice specially assigned to the Superior Court.
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We briefly summarize the facts and procedural history of this case as
follows. On May 30, 2015, at approximately 2:00 a.m., officers of the
McKeesport Police Department observed Appellant fail to stop at a stop sign
and then turn into a shopping center without signaling. Police instituted a
traffic stop, activating their emergency lights and sirens. The officer
possessed personal knowledge that Appellant had prior arrests for firearms
and observed Appellant lowering his left shoulder towards the floor of the
vehicle. The officer told Appellant the reason for the traffic stop, obtained
Appellant’s license and a rental agreement for the vehicle, and asked
Appellant if he had any weapons on him. When Appellant queried why the
officer inquired about weapons, the officer asked Appellant to step out of the
vehicle. Appellant sped off at a high rate of speed, leaving his credentials
with the police. The original police officers, as well as a back-up unit,
engaged in the pursuit of Appellant through the streets of McKeesport.
Officers estimated that Appellant reached speeds of 90 miles per hour. At
one point, Appellant almost collided head-on with one of the police vehicles.
Appellant eventually outran the police and they called off the chase.
Appellant turned himself over to authorities shortly thereafter.
On October 22, 2015, the trial court held a bench trial and found
Appellant guilty of the aforementioned charges. On January 12, 2016, the
trial court, with the benefit of a pre-sentence investigation report, sentenced
Appellant to an aggregate term of 51 to 102 months of imprisonment. More
specifically, the trial court sentenced Appellant to consecutive
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standard-range sentences for escape, fleeing or attempting to elude police
officers, and the three counts of REAP, with no further penalties on the
remaining offenses. Appellant filed a timely post-sentence motion on
January 14, 2015, arguing that his sentence was excessive. Following a
hearing on Appellant’s post-sentence motion, the trial court denied relief by
order entered on March 17, 2016. This timely appeal resulted.6
On appeal, Appellant presents the following issue7 for our review:
I. Did the sentencing court abuse its sentencing
discretion by imposing an excessive and clearly
unreasonable aggregate sentence, without sufficiently
considering and addressing appropriate sentencing
factors?
Appellant’s Brief at 7 (complete capitalization and suggested answer
omitted).
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6
Appellant filed a notice of appeal on March 31, 2016. On August 8, 2016,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
November 2, 2016.
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Appellant presented another issue in his Rule 1925(b) statement,
contending that the Commonwealth failed to present sufficient evidence to
support his escape conviction. He abandons the claim on appeal by failing to
present any argument on this issue, which results in waiver. The failure to
properly develop a claim or cite to legal authority in an appellate brief
renders an issue waived. Commonwealth v. Roche, 2017 WL 34931, at *9
(Pa. Super. 2017). Moreover, we note that in challenging the discretionary
aspects of sentencing before the trial court, Appellant also argued that it was
error for the trial court to have imposed consecutive sentences. Appellant,
however, has abandoned this aspect of his claim on appeal and we find it
waived, as well.
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In sum, Appellant avers:
The sentence here was clearly unreasonable since the [trial]
court imposed its aggregate sentence without adequately
addressing [Appellant’s] rehabilitative needs. It is unclear
from the sentencing transcript how the [trial] court felt that
this sentence would further [Appellant’s] rehabilitative
needs. [Appellant] took responsibility for his actions and
turned himself into police. Further, he apologized to the
court and the police for his behavior during this incident.
Additionally, [Appellant] has a family with four children who
need him. While he is incarcerated, his children will grow
without their father to provide for them and support them.
These factors individual to [Appellant] were not adequately
addressed or considered by the [trial] court.
Also, even though [Appellant’s] actions were reckless, the
community was not seriously impacted. This incident
occurred late at night and [Appellant] was nervous for his
safety. Fortunately, no one was injured during this brief
late night chase. There were no car accidents, no property
damage occurred, and no physical injuries were reported as
a result of this brief chase. These factors were important
for the court to consider; however, the sentencing court
focused on the danger this chase could have had on the
community.
Id. at 18-19 (record citation omitted).
When considering a challenge to the discretionary aspects of a
sentence on appeal, this Court's standard of review is limited:
[s]entencing 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.
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Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)
(internal citation omitted). It is well-established that a criminal defendant
does not have an absolute right to challenge the discretionary aspects of his
sentence on appeal. See Commonwealth v. Bishop, 831 A.2d 656, 660
(Pa. Super. 2003). Before this Court will consider such a claim, two
preliminary requirements must be met:
First, the appellant must set forth in his brief a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of his
sentence. Second, he must show that there is a substantial
question that the sentence imposed is not appropriate under
the Sentencing Code.
Id. (citations omitted).
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has
explained that: “[a] substantial question exists where an 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.Finally, we note that issues challenging the discretionary aspects of sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Commonwealth v. Watson,
835 A.2d 786, 791 (Pa. Super. 2003).
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Here, Appellant filed a post-sentence motion challenging the
discretionary aspects of his sentence and has included a concise statement
pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Thus, we turn to
whether Appellant has raised a substantial question for review.
“An allegation that the sentencing court ‘failed to consider’ or ‘did not
adequately consider’ various factors does not raise a substantial question
that the sentence was inappropriate.” Commonwealth v. Dunphy, 20
A.3d 1215, 1222 (Pa. Super. 2011) (citation omitted); see also
Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013) (same);
see also Commonwealth v. Dalberto, 648 A.2d 16, 22 (Pa. Super. 1994)
(“the mere assertion that the trial court failed to give adequate weight to
sentencing factors will not rise to the level of a ‘substantial question’” where
an appellant “simply ask[s] this [C]ourt to reweigh the mitigating
circumstances presented at sentencing and in the pre-sentence report”).
Here, Appellant challenges the trial court’s failure to consider: (1) his
remorse, acceptance of responsibility, and apology; (2) his role as caregiver,
and; (3) the lack of physical injuries or property damage. Appellant’s
argument solely challenges the weight the trial court afforded the mitigating
circumstances he presented. As such, he has not presented a substantial
question for our review and he is not entitled to relief. Accordingly, we deny
Appellant permission to appeal and affirm his judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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