Com. v. Powell, D. ( 2019 )

J-S75042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DERRICK POWELL, :
:
Appellant : No. 546 EDA 2018
Appeal from the Judgment of Sentence January 26, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005015-2017,
CP-51-CR-0005016-2017
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 12, 2019
Derrick Powell (“Powell”) appeals from the judgment of sentence
imposed following his open guilty plea to aggravated assault, robbery, and
firearms not to be carried without a license at CP-51-CR-0005015-2017
(“5015-2017”) and CP-51-CR-0005016-2017 (“5016-2017”).1 We affirm.
The trial court set forth the relevant underlying factual and procedural
history as follows:
[O]n December 10, 2016, [Powell] entered the Double
Deli[,] located at 4944 Rosehill Street in Philadelphia, pulled out
a gun[,] and pointed it at Seung Kim, the proprietor of the store.
[Powell] then went behind the store’s counter and shot Mr. Kim in
the leg. [Powell] attempted to open the cash register[,] but was
unable to do so. He then took money and lottery tickets before
fleeing the store. Mr. Kim was transported to a nearby hospital[,]
where he remained for several days while being treated for
gunshot injuries to his leg and hip.
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1 18 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(ii), 6106(a)(1).
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The following day, [Powell] entered the San Rafael Mini
[M]arket[,] situated at 5000 Gransback Street[,] and announced
a robbery while brandishing a firearm. He ordered the four
employees to lie down on the floor. One of the employees, Arsenio
Rodriguez [(“Rodriguez”)], refused to do so[,] and [Powell] shot
him in the leg. The owner of the store then put money on the
counter[,] which [Powell] took before fleeing. [] Rodriguez was
treated at a nearby hospital over the course of several days for
gunshot injuries incurred during the incident.
An examination of fired cartridge cases recovered at both
scenes indicated that they had been fired from the same handgun.
On November 16, 2017, [Powell] appeared before [the trial
court] and entered an open guilty plea to [the above crimes].
[The trial court deferred sentencing and ordered a pre-sentence
investigation report (“PSI”).] On January 26, 2018, [the trial
court] imposed concurrent sentences of seven and one-half to
fifteen years’ incarceration on the [r]obbery and [a]ggravated
[a]ssault charges[,] followed by an aggregate term of five years’
probation. Concurrent sentences of seven years’ probation were
imposed on the weapons charges, which were ordered to be
served consecutive to the sentences of incarceration imposed on
the [r]obbery and [a]ggravated [a]ssault charges.
Following the imposition of sentence, [Powell] filed a timely
[M]otion to vacate the sentence, which [the trial court] denied on
January 29, 2018. [Powell] thereafter filed a timely [N]otice of
[A]ppeal and a court ordered Pa.R.A.P. 1925(b) [Concise
S]tatement.
Trial Court Opinion, 6/20/18, at 1-2 (paragraphs reordered; citations to record
omitted).
On appeal, Powell raises the following claim for our review:
Did [] the [trial] court abuse its discretion by imposing a
manifestly excessive and unreasonable sentence of 7½ to 15
years upon a youthful defendant with a prior record score of 0 and
substantial mitigation, where the court double-counted factors
already accounted for by the offense gravity score and did not
adequately state its reasons for departing from the Sentencing
Guidelines?
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Brief for Appellant at 3.
Powell challenges the discretionary aspects of his sentence. “Challenges
to the discretionary aspects of sentencing do not entitle an appellant to review
as of right.” Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] 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).
***
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.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Powell filed a timely Notice of Appeal, raised his sentencing claim
in a post-sentence [M]otion, and included a Rule 2119(f) Statement in his
brief. Further, Powell’s claim that the sentencing court departed from the
sentencing guidelines, without stating on the record the reasons therefor,
raises a substantial question. See Commonwealth v. McNabb, 819 A.2d
54, 56 (Pa. Super. 2003) (stating that the appellant “raise[d] a substantial
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question by alleging that the sentencing court did not sufficiently state its
reasons for the sentence.”).2 Thus, we will review Powell’s claim.
Our standard of review is as follows:
Sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias, or
ill will. It is more than just an error in judgment.
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
The sentencing court is given broad discretion in
determining whether a sentence is manifestly excessive because
the sentencing judge is in the best position to measure factors
such as the nature of the crime, the defendant’s character and the
defendant’s display of remorse, defiance, or indifference. In order
to find that a trial court imposed an unreasonable sentence, we
must determine that the sentencing court imposed the sentence
irrationally and that the court was not guided by sound judgment.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted).
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
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2 Powell’s claim that the sentencing court imposed a sentence that is contrary
to the fundamental norms that underlie the sentencing process also raises a
substantial question. See McNabb, 819 A.2d at 56 (stating that “a
substantial question exists where the statement sets forth a plausible
argument that the sentence … is contrary to the fundamental norms
underlying the sentencing scheme.”).
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sentencing guidelines. Additionally, the court must impose a
sentence which 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 the community, and the rehabilitative needs of the
defendant.
Id. at 712 (quotation marks and citations omitted); see also 42 Pa.C.S.A. §
9721(b). Further, “where the trial court is informed by a [PSI], it is presumed
that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Downing, 990 A.2d at 794 (quotation marks and
citations omitted).
Here, the record reflects that the trial court considered the sentencing
guidelines, the severity of Powell’s crimes, and Powell’s age, family
background, and rehabilitative needs. See N.T., 1/26/18, at 5, 26-27; Trial
Court Opinion, 6/20/17, at 6-7. Thus, the trial court properly considered all
the statutory factors before sentencing Powell. See McClendon, supra.
Moreover, because the trial court had the benefit of a PSI, it is presumed
that the court was aware of relevant information regarding Powell’s character,
and weighed those considerations along with any mitigating factors. See
Downing, supra. Accordingly, Powell’s discretionary sentencing challenge
fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/19
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