Com. v. Thomas, S. ( 2016 )

J-S63038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SHELTON A. THOMAS
Appellant No. 2445 EDA 2015
Appeal from the Judgment of Sentence June 22, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0002707-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 30, 2016
Appellant, Shelton A. Thomas, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas. 1 Appellant
challenges the discretionary aspects of his sentence. We affirm.
The trial court summarized the facts of this case as follows:
*
Former Justice specially assigned to the Superior Court.
1
On September 9, 2015, this Court issued a rule to show cause as to why
this appeal should not be quashed as untimely filed based upon the Court of
Common Pleas of Philadelphia County Docket, which indicated that post-
sentence motions were untimely filed on July 6, 2015, from the judgment of
sentence imposed on June 22, 2015. Appellant filed a pro se motion for
reconsideration of sentence and a motion to proceed in forma pauperis. The
motion to proceed in forma pauperis was dated June 23, 2015, and attached
to the motion for reconsideration of sentence, which was undated. Under
the “prisoner mailbox rule,” a pro se prisoner’s document is deemed filed on
the date he delivers it to prison authorities for mailing. See generally,
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006).
Instantly, there is no indication of when Appellant delivered the document to
the prison authorities. In an abundance of caution, we will not find the
motion for reconsideration of sentence untimely. See id.J-S63038-16
Over a period of several years, beginning June 2011,
and ending some time in February or March of 2014,
[Appellant] defrauded the Victim, Raymond Campbell, of
his life’s savings of at least $95,000. [Appellant] first
approached the 93 year-old Victim as a stranger with an
offer to mow the Victim’s lawn. This happened several
times before one occasion in which [Appellant] insisted on
disposing of the lawn trimmings in a dumpster across the
street from the Victim’s home in West Philadelphia, instead
of allowing the Victim to leave the trimmings on the curb
on their designated pick-up date. . . .[2]
[Appellant] also impersonated Seth Williams, the
Philadelphia District Attorney, over 100 times as a part of
his scheme to deceive the Victim into paying fabricated
legal fees stemming from the ostensible dumping. He
repeatedly called the Victim and identified himself as Mr.
Williams. At sentencing, Mr. Williams confirmed that he
had never called the Victim.
Trial Ct. Op., 9/30/15, at 1-2 (citations to the record omitted).
On February 12, 2015, Appellant entered a non-negotiated guilty plea
to criminal trespass,3 theft by deception,4 theft by extortion,5 identity theft,6
2
The trial court stated that Appellant “subsequently told the Victim that both
of them were facing criminal charges for improperly disposing of the
trimmings.” Trial Ct. Op., 9/30/15, at 1, citing N.T. Sentencing Hr’g,
6/22/15, at 12-13. A review of the record reveals that Victim testified that
Appellant was charged “with putting stuff in the dumpster.” Id. at 12.
3
18 Pa.C.S. § 3503(a)(1)(ii).
4
18 Pa.C.S. § 3922(a)(1).
5
18 Pa.C.S. § 3923(a)(1).
6
18 Pa.C.S. § 4120(a).
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and impersonating a public servant.7 Sentencing was deferred for a
presentence investigation mental health report. See Docket at 7.
Victim testified at the sentencing hearing:
[The Commonwealth]: And I am going to ask you to tell
His Honor very briefly the impact that this crime has had
on you, not just financially, but how it’s affected you in
every way.
* * *
[Victim]: Well, Your Honor, [Appellant], when he came to
me and wanted to cut my lawn, that’s how this whole thing
started. Anyways, he kept coming back to me time and
time again early, in the morning, saying that he needed
this money for court fees. It was always at least $600 or
more. And he always said he had to be in court at an early
time. So I would have to get up maybe around 5:30 in the
morning to get in town and get to the ATM and get the
money.
But before that, I had to go to my portfolio and sell
shares to obtain this money. And after that was
exhausted, then I had to go to my credit cards and get
cash and I exhausted that. So, like I said, this money that
I had in my portfolio, my intention was to leave that to my
immediate relatives. So that─that’s all gone, now. And I
can’t leave them anything. So─
The [c]ourt: How much was the total amount that you
exhausted?
[Victim]: It was in access [sic] of $95,000.
* * *
The [c]ourt: So he cut your grass and then he’d say, “I
need $600 to go to court.”
7
18 Pa.C.S. § 4912.
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[Victim]: No, no.
That’s not how this all started. He─one time he cut the
grass and I told him, “Leave the bag and I’ll put it at the
curb on my pickup date.” He said, “No, don’t worry. I’ll
take care of it.” He takes this bag of leaves and grass and
goes across the street and puts it in a dumpster and he
was─so he told me he was caught on camera putting this
bag in the dumpster and he was picked up and taken to─I
think the dumpster was from Montgomery County, some
firm there. And they charged him with putting stuff in the
dumpster. That’s how this all started.
* * *
[The Commonwealth]: [T]his occurred over approximately
how long a period of time?
A: Well, it first started in June of 2011.
Q: And when did it stop?
A: I think it was around maybe February or March of 2014.
N.T. Sentencing Hr’g at 8-9, 11-12, 14. Victim testified that he received
calls from someone purporting to be District Attorney Seth Williams. Id. at
16.
The Commonwealth asked Seth Williams to give his “impact in this
case involving [Appellant] as it relates to you, specifically, the charge of
impersonating a public servant.” Id. at 19. Mr. Williams testified:
The Witness: Your Honor, I grew up in Cobbs Creek. I
grew up on Cobbs Creek Parkway just a few blocks down
from [Victim] and my father worked at the Cobbs Creek
Recreation Center from 1972 until he retired in 1985. I
knew [Appellant] almost that entire time. And his
brother─
The Court: You knew [Appellant]?
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The Witness: Yes.
[ ]:8 So we used to play ping-pong, basketball. I used to
see him all of the time. My father showed movies on
Monday nights. My father was very kind to [Appellant]
and his brother and his whole family. And so at some
point I received a telephone call from the Major Crimes
Unit of the Philly Police Department, Detective Moreno Nix
and she asked me if I knew [Victim].
The Witness: And I said, no, Your Honor; I did not know
him. And she let me know that it was a person that I
knew when I played basketball for the Cobbs Creek
Commons and where my father ran the Recreation Center,
had been impersonating me, calling [Victim] over 100
times claiming to be me, and that as a result of work that
[Appellant] had done for him, he owed fines. And he kept
calling him to get money and that [Victim]─and it broke
my heart because, what, he was a World War II veteran.
He served in the European Theatre and the South Pacific,
he was in his 90’s and had given over $95,000 to
[Appellant].
The Court: He’s a World War II veteran?
The Witness: Yes, sir.
And he worked for the government. He’s not a rich
man. He just saved his money. . . . I never made a
telephone call to this gentleman and so [the detective]
then set up a surveillance and it was during one of those
that [Appellant] came and they arrested him at the home
of [Victim].
Id. at 19-21.
The court stated that Appellant “wrecked [Victim’s] life. You know, it’s
okay if you want to wreck your own life, but don’t go around wrecking the
8
We note that the transcript misidentifies the court as the speaker.
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lives of other people.” Id. at 40. The court opined: “[i]n the society that we
have, we must look out for our seniors.” Id. The court noted that this was
not Appellant’s “first experience with the law. Your background indicates
that you have had previous experience and run-ins with the law.” Id. at 41.
The Court explained that it “will be going outside of the guidelines because
of the crime that was committed, because of the victim of the crime, . . . to
protect the public, to punish, and to rehabilitate.” Id. at 48.
Appellant was sentenced to consecutive terms of five to ten years’
imprisonment for criminal trespass, three-and-a-half to seven years’
imprisonment for theft by deception, three-and-a-half to seven years’
imprisonment for theft by extortion, three-and-a-half to seven years’
imprisonment for identity theft, and one to two years’ imprisonment for
impersonating a public servant. Following a hearing, Appellant’s motion for
reconsideration of sentence was denied. This timely appeal followed.
Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors
complained of on appeal, and the trial court filed a responsive opinion.
Appellant raises the following issue for our review: “Whether the trial
court abused its discretion when it sentenced Appellant to an aggregate
sentence of 161/2 to 33 years[’] incarceration?” 9
Appellant’s Brief at 4. In
his Pa.R.A.P. 2119(f) statement, Appellant claims
9
“Where a defendant pleads guilty without any agreement as to sentence,
the defendant retains the right to petition this Court for allowance of appeal
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1. The trial court abused its discretion when it sentenced
Appellant to an aggregate sentence of 161/2 to 33 years[’]
incarceration, which did not follow the dictates of 42
Pa.C.S. § 9721(b) that requires the court to at least
consider the particular circumstances of the offense and
the character of the defendant.
* * *
In imposing such a harsh sentence, the court based it [sic]
sentence on the age of the victim, the length of the
deception, which squarely focuses on the serious nature of
the crime without taking into account the other section
9721(b) factors.
* * *
[T]his sentencing court failed to take adequate
consideration of [Appellant’s10] background, non-violent
nature, remorse, and whether [he11] could be
rehabilitated. While [Appellant’s] crime cannot be
trivialized, the sentence imposed in [sic] unreasonable and
excessively, [sic] and should be vacated.
Id. at 6-7.
This Court has stated,
discretionary aspects of [an appellant’s] sentence [ ] are
not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
with respect to the discretionary aspects of sentencing.” Commonwealth
v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation omitted).
10
We note that Appellant mistakenly refers to himself as “Mr. Cobb”
Appellant’s Brief at 6.
11
Again, Appellant refers to himself as “Mr. Cobb.” Id. at 7.
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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).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely filed his appeal, preserved the issue of an
excessive sentence in his post-sentence motion for reconsideration of
sentence, and included a statement in his brief that conforms with Pa.R.A.P.
2119(f). See Appellant’s Brief at 6-7. Accordingly, we ascertain whether
Appellant has raised a substantial question. See Leatherby, 116 A.3d at
83.
“We conduct a case-by-case analysis to determine what allegations
constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d
1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. §
9781(b). “[A]n averment that the court sentenced based solely on the
seriousness of the offense and failed to consider all relevant factors raises a
substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.
Super. 2012) (citation omitted).
We find that Appellant’s Rule 2119(f) statement presents a substantial
question. See id.Our standard of review is as follows:
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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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he 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.
42 Pa.C.S.A. § 9721(b).
Furthermore,
Section 9781(c) specifically defines three instances
in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court
applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly
unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the
guidelines and is “unreasonable.” 42 Pa.C.S. §
9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
courts must review the record and consider the
nature and circumstances of the offense, the
sentencing court’s observations of the defendant, the
findings that formed the basis of the sentence, and
the sentencing guidelines. The weighing of factors
under 42 Pa.C.S. § 9721(b) is exclusively for the
sentencing court, and an appellate court could not
substitute its own weighing of those factors. The
primary consideration, therefore, is whether the
court imposed an individualized sentence, and
whether the sentence was nonetheless unreasonable
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for sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Bricker, 41 A.3d at 875-76 (some citations omitted).
Our Supreme Court has stated:
We emphatically reject, therefore, interpretations of our
law in this area which call for separate, written opinions
embodying exegetical thought. 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. This is particularly true, we repeat, in those
circumstances where it can be demonstrated that the
judge had any degree of awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. It
would be foolish, indeed, to take the position that if a court
is in possession of the facts, it will fail to apply them to the
case at hand.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
The instant trial court opined:
Criminal Trespass is a felony of the second degree and is
punishable by up to ten (10) years[’] imprisonment. Theft
by deception is a felony of the third degree and is
punishable by up to seven (7) years[’] imprisonment.
Theft by Extortion is a felony of the third degree and is
punishable by up to seven (7) years[’] imprisonment.
Identity theft is a felony of the third degree and is
punishable by up to seven (7) years[’] imprisonment.
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Impersonating a Public Servant is misdemeanor of the
second degree and is punishable by up to two (2) years
imprisonment. None of the sentences imposed by this
court exceed the statutory maximum sentences.
* * *
This [c]ourt did, in fact, consider the guidelines in
sentencing [Appellant], but deviated from them based on
the “(nature of) the crime committed, because of the
victim of the crime, to protect the public, and to punish
and to rehabilitate [Appellant]” N.T. [sentencing Hr’g at]
48. This [c]ourt specifically stated that “the guidelines are
not written to cover such incidences as those [in the
instant case].” Id. at 47-48.
More specifically, the Standard Sentencing guidelines
for the relevant section of Criminal Trespass, in light of
[Appellant’s] Prior Record Score of three (3) and the
Offense Gravity Score (OGS) of seven (7), call for fifteen
to twenty-one (15-21) months[’] imprisonment. Id. at 26.
However, this [c]ourt chose to deviate from the guidelines
and impose a sentence of five to ten (5-10) years on this
charge because of . . . Victim’s age, as well as the scale
and prolonged nature of the crime. Id. at 48. The
charges of theft by Deception and Theft by Extortion both
carry an OGS of seven (7), which would ordinarily place
the Sentencing Guidelines between fifteen and twenty-one
(15-21) months for each offense. This [c]ourt chose to
deviate from the guidelines and impose a sentence of
three and a half to seven (3.5-7) years on each charge
because of the added need to protect senior citizens from
this type of predation, as well as the scale and prolonged
nature of the thefts. Id. at 48. Identity Theft under this
subsection carries an OGS of five (5), resulting in a
guideline sentence of six to sixteen (6-16) months[’]
imprisonment. This [c]ourt chose to deviate from the
guidelines and impose a sentence of three and one half to
seven (3.5-7) years because the identity stolen belonged
to the District Attorney of Philadelphia and the guise was
used over a hundred times to manipulate a lifelong
government employee and veteran. Id. at 20-21, 48.
Impersonating a Public Servant carries a OGS of 2, which
would typically recommend a sentence of probation to nine
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(9) months[’] imprisonment under the Guidelines.
However, this [c]ourt chose to deviate from the guidelines
and impose a sentence of one to two (1-2) years[’]
imprisonment because of the hundred-plus incidents and
the elderly victim of the deception. Id. at 20, 48.
Trial Ct. Op. at 4-6 (some citations omitted).
The record belies Appellant’s argument that the trial court focused
solely on the serious nature of the crime without taking into consideration
other factors. The court considered the Section 9721(b) factors. See
Bricker, 41 A.3d at 875-76. Furthermore, the court considered the
presentence investigation report. See Devers, 546 A.2d at 18.
Accordingly, after examining the record as a whole, we discern no abuse of
discretion. See Bricker, 41 A.3d at 875-76.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
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