Com. v. Smith, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STANLEY SMITH
Appellant No. 3702 EDA 2015
Appeal from the Judgment of Sentence Entered November 20, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0013743-2013
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2017
Appellant, Stanley Smith, appeals from the November 20, 2015
judgment of sentence imposing an aggregate seven to fifteen years of
incarceration followed by five years of probation for robbery, conspiracy,
four violations of the Uniform Firearms Act, theft by receiving stolen
property, theft by unlawful taking, terroristic threats, simple assault,
recklessly endangering another person, and unauthorized use of an
automobile.1 We affirm.
The record reveals that, on June 23, 2013 at 10:10 p.m., victim
Jasmine Rone and a friend were sitting in a car when Appellant and his
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1
18 Pa.C.S.A. §§ 3701, 903, 6105, 6106, 6108, 6110.2, 3925, 3921, 2706,
2701, 2705, and 3928, respectively.
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friend, Lamar, approached and asked Rone and her friend where they could
buy marijuana. N.T. Trial, 6/3/15, at 37-38, 40. Rone told them about a
location where they could obtain marijuana, after which the two men
approached a friend of Rone’s. Id. at 38, 41, 57. Concerned about their
intentions, Rone followed them. Id. Moments after Rone’s friend entered a
club, Lamar pulled a gun, pointed it at Rone, and threatened to kill her. Id.
With Lamar holding Rone at gunpoint, Appellant searched her pockets and
removed $90.00 and car keys. Id. Both men were within two feet of Rone
during the robbery. Id. at 42. Appellant and Lamar departed from the
scene in the vehicle Rone had been driving. Id. at 38-39.
Shortly after the incident, police apprehended Appellant and Lamar,
and Rone identified them. Id. at 43-44, 60. While the case was pending,
Rone received a phone call from Appellant apologizing for the incident and
asking her not to appear in court to testify against him. Id. at 45-46.
Appellant also sent letters to Rone. Id. at 46-47. In addition, Rone
received a letter from Lamar, apparently by accident, in which Lamar wrote,
“them bitches is not coming to court.” Id. at 48.
Appellant proceeded to a June 3, 2015 bench trial. The trial court
found Appellant guilty of the aforementioned offenses. Appellant filed a
timely motion for reconsideration of his sentence. The trial court denied that
motion on December 3, 2015. This timely appeal followed. Appellant
presents two questions for our review:
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A. Did not the trial court err by applying the deadly weapons
enhancement at sentencing where there was no evidence that
Appellant used or possessed a firearm during the robbery for
which he was convicted?
B. Did not the trial court err and abuse its discretion when it
imposed a manifestly excessive and clearly unreasonable
sentence of seven to fifteen years of incarceration following
trial, aggravating the sentence where Appellant presented
significant mitigation, without making a contemporaneous
statement of reasons on the record?
Appellant’s Brief at 4.
Appellant first challenges the trial court’s application of the deadly
weapon enhancement (“DWE”), 204 Pa. Code § 303.10 and 303.17, because
Lamar, not Appellant, was holding the gun during the offense. This issue
implicates the discretionary aspects of the trial court’s sentence.
Commonwealth v. Solomon, 151 A.3d 672, 676 (Pa. Super. 2016).
Appellant preserved this issue in a post-sentence motion and in his Pa.R.A.P.
2119(f) statement in his brief. Appellant’s Brief at 15-17. A challenge to
the trial court’s application of the DWE raises a substantial question.
Solomon, 151 A.3d at 676. We will therefore turn to the merits of
Appellant’s argument.
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,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Id. at 677.
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The trial court applied the DWE based on Appellant’s possession (as
opposed to use) of a deadly weapon, in accord with § 303.10(a)(1). N.T.
Sentencing, 11/20/15, at 9.2 Possession, for purposes of the sentencing
guidelines, means “[o]n a defendant’s person or within the defendant’s
immediate control.” 42 Pa.C.S.A. § 2154(b).
Appellant argues that the DWE does not apply because his co-
conspirator held the gun, and the gun was never in Appellant’s possession or
within his immediate control. In several cases, we have held that a gun
used by a defendant’s co-conspirator was within the defendant’s immediate
control. In Commonwealth v. Bowen, 612 A.2d 512 (Pa. Super. 1992),
appeal denied, 621 A.2d 577 (Pa. 1993), the defendant was one of six
persons who assaulted the victims. Some, possibly all of the assailants had
guns. Id. at 513-14. We held that the sentencing court erred in failing to
apply the DWE for possession of a weapon, because the defendant either
possessed a gun or was “inches away” from one of the gunmen who
participated in the crime. Id. at 515-16. Likewise, in Commonwealth v.
Hatcher, 746 A.2d 1142 (Pa. Super. 2000), the defendant and two co-
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During sentencing, the trial court stated expressly that it would apply the
DWE matrix for possession of a weapon rather than the more severe DWE
for use of a deadly weapon. Id. An apparently erroneous footnote in the
trial court’s June 2, 2016 opinion indicates that the trial court applied the
matrix for use of a deadly weapon. Trial Court Opinion, 6/2/16, at 8 n.2.
The trial court’s opinion analyzes Appellant’s possession, not use, of the
weapon. Id. at 8-10.
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conspirators approached the victim and started punching him. During the
assault, one of the co-conspirators pulled a handgun and beat the victim
with the butt of the gun. Id. at 1143. Though the defendant never held the
weapon, he was in “close physical proximity” to the co-conspirator who used
the gun. Id. at 1145. That was sufficient to demonstrate possession within
the meaning of § 2154(b). Id. In Commonwealth v. Pennington, 751
A.2d 212 (Pa. Super. 2000), appeal denied, 766 A.2d 1246 (Pa. 2000), the
defendant was one of five co-conspirators involved in a robbery. One man
held the victim at gunpoint while the others kicked him, punched him, and
searched his pockets. Id. at 214-15. This Court, citing Bowen and
Hatcher, concluded the trial court properly applied the DWE because the
gun was within the defendant’s immediate control. Id. at 216-17.
In contrast, the DWE did not apply to a defendant who was waiting in
a getaway car several blocks from a jewelry store in which his co-conspirator
conducted an armed robbery. Commonwealth v. Greene, 702 A.2d 547,
552-53 (Pa. Super. 1997).
Instantly, the record reveals that Appellant’s co-conspirator, Lamar,
held Rone at gunpoint while Appellant searched her pockets, removing cash
and car keys. Both men were within two feet of Rone. N.T. Trial, 6/3/15, at
42. We therefore conclude the trial court correctly applied the DWE,
because Appellant was in close physical proximity to an armed co-
conspirator. Appellant’s first argument does not merit relief.
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Next, Appellant argues that the trial court erred in imposing a
sentence within the aggravated guidelines range because the trial court
focused solely on aggravating circumstances and ignored mitigating
circumstances. This argument presents a substantial question.
Commonwealth v. Hyland, 875 A.2d 1175, 1183-84 (Pa. super. 2005),
appeal denied, 890 A.2d 1057 (Pa. 2005). As noted above, Appellant
received a minimum sentence of 84 months of incarceration3. The guideline
range, considering the DWE for possession of a weapon, was 69 to 81
months, plus or minus 12 months for the aggravated or mitigated ranges.
N.T Sentencing, 11/20/15, at 4-5. Appellant’s 84-month minimum sentence
falls within the lower end of the DWE aggravated range.4 Since Appellant’s
sentence falls within the guideline range, we may vacate only if we find the
sentence clearly unreasonable. 42 Pa.C.S.A. § 9781(c)(2). In addition, we
observe the following:
In imposing sentence, the trial court is required to consider
the particular circumstances of the offense and the character of
the defendant. The trial court should refer to the defendant’s
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3
The trial court imposed concurrent 84-month minimum for robbery and
conspiracy to commit robbery, with other lesser sentences running
concurrently.
4
Without the DWE, the applicable guideline range would have been 60 to
72 months, plus or minus 12. N.T. Sentencing, 11/20/15, at 5. Appellant
argues that the trial court abused its discretion in imposing a minimum
sentence at the top of the aggravated range. Appellant’s Brief at 31, 33.
Appellant’s argument, premised on his contention that the DWE did not
apply, is incorrect.
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prior criminal record, age, personal characteristics, and potential
for rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations
along with mitigating statutory factors. Additionally, the
sentencing court must state its reasons for the sentence on the
record. 42 Pa.C.S.A. § 9721(b). The sentencing judge can
satisfy the requirement that reasons for imposing sentence be
placed on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (some
citation omitted), affirmed, 891 A.2d 1265 (Pa. 2006)
Here, the sentencing court was aware of Appellant’s background, per a
presentence investigation report, and the sentencing court heard testimony
from Appellant’s social service advocate. N.T. Sentencing, 11/20/15, at 4,
15-17. In accord with defense counsel’s request, the trial court
recommended that Appellant serve his sentence at SCI Chester, which has
programs available to address Appellant’s mental health needs. Id. at 12,
22. The record does not support Appellant’s argument that the trial court
failed to consider pertinent mitigating circumstances.
In summary, we have concluded that neither of Appellant’s arguments
merits relief. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/2017
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