Com. v. Veal, S. ( 2022 )

J-A17011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAMSUDDIN VEAL :
:
Appellant : No. 2353 EDA 2020
Appeal from the Judgment of Sentence Entered January 28, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007809-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY PANELLA, P.J.: FILED AUGUST 26, 2022
Shamsuddin Veal appeals nunc pro tunc from the judgment of sentence
entered in the Philadelphia Court of Common Pleas on January 28, 2019,
following his open guilty plea in connection with a 2008 robbery and sexual
assault of a female victim in Philadelphia. On appeal, Veal challenges the
discretionary aspects of his sentence. After careful review, we affirm.
On October 29, 2018, Veal entered an open guilty plea to involuntary
deviate sexual intercourse (“ISDI”), rape, robbery, conspiracy, possessing an
instrument of crime (“PIC”), unlawful restraint, and false imprisonment. All
other charges were nolle prossed. The factual basis for the plea was read into
the record at the guilty plea hearing as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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[O]n November 26th of 2008, at the location of 6554 Lebanon
Avenue in the city and county of Philadelphia, at approximately,
2:00 a.m., the complainant, [], was leaving her bartending job at
Visions Bar on 56th and Lebanon Street.
When she left the bar, two men approached her - [Veal] and co-
defendant, Dwayne Isaac, who was prosecuted [in 2009 for his
case]. [Veal] produced a firearm and he said to the complainant,
"You know what time it is." He led her in the opposite direction.
[Veal] said, "Give me all your money." And the complainant turned
over the $90 that she made bartending that night.
The two defendants led the complainant back to an abandoned
house. [Veal] said, "Bitch take off your clothes." [Veal] licked her
left breast, and [Veal] and the co-defendant took turns orally and
vaginally raping the complainant.
[Veal] attempted to put his penis in the complainant's vagina, got
frustrated, put the gun to her head, and [told her to] get inside
the bathtub. He took her identification from her and said, "You
better not go to the police." After they left, the complainant
attempted to leave the property and both co-defendants came
back in the house, racked the gun, and said, "You better not go to
the police."
Dwayne Isaacs was identified shortly after that incident. [Veal]
was never apprehended or identified. On January 11th of 2017, a
CODIS report indicated that [Veal] was the male of two DNA
mixtures obtained from the swab of [the] left breast of [the
complainant] that was taken during a rape kit application.
There was a follow up by the laboratory dated June 13th of 2017
describing the comparison between the oral swab reference
sample taken from [Veal] and the DNA mixture detected in the
swab of [the complainant]’s left breast, [which] indicates that
[Veal] was the male profile detected in the swab of the left breast
of [the complainant].
N.T., Guilty Plea, 10/29/2018, at 10-13. After reviewing both a written and
oral guilty plea colloquy, the trial court accepted the plea. Sentencing was
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deferred for preparation of a pre-sentence investigation (“PSI”) report and a
mental health evaluation.
On January 29, 2019, the trial court sentenced Veal to an aggregate
term of thirteen to twenty-six years’ incarceration. Veal filed a timely post-
sentence motion for reconsideration of his sentence, which was denied by
operation of law on June 4, 2019.
On February 27, 2020, Veal filed a timely, counseled petition under the
Post Conviction Relief Act1 (“PCRA”), seeking reinstatement of his appeal
rights. The trial court granted relief, reinstating Veal’s direct appeal rights
nunc pro tunc. This timely appeal followed.
In his sole issue on appeal, Veal argues the sentence imposed is unduly
harsh and excessive under the circumstances of this case. See Appellant's
Brief, at 5. Veal concedes this claim challenges the discretionary aspects of
his sentence. See id. at 21. We review discretionary sentencing challenges
with great deference to the sentencing court:
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.
____________________________________________
1 42 Pa. C.S.A. §§ 9541-9546.
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Commonwealth v. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)
(citations and quotation marks omitted). However, “[a] challenge to the
discretionary aspects of a sentence must be considered a petition for
permission to appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted).
To invoke this Court’s jurisdiction over this issue, Veal must satisfy 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, 42. Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Here, Veal preserved his issue through a timely post-sentence motion
to modify his sentence, and filed a timely appeal. Further, counsel has included
the required Rule 2119(f) statement. We therefore review the Rule 2119(f)
statement to determine if Veal has raised a substantial question.
We must examine Veal’s Rule 2119(f) statement to determine whether
a substantial question exists. See Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for which the
appeal is sought, in contrast to the facts underlying the appeal, which are
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necessary only to decide the appeal on the merits.” Id. (citation and emphasis
omitted); see also Pa.R.A.P. 2119(f).
Veal “must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at
274 (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado, 870
A.2d at 365. “Additionally, we cannot look beyond the statement of questions
presented and the prefatory 2119(f) statement to determine whether a
substantial question exists.” Commonwealth v. Provenzano, 50 A.3d 148,
154 (Pa. Super. 2012).
Preliminarily, we note Rule 2119(f) requires only a concise statement of
the reasons an appellant believes entitle him to allowance of appeal. See
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). Veal’s
thirteen page 2119(f) statement is clearly anything but “concise.” It takes
over 10 pages before Veal indicates a claim that he believes raises a
substantial question under the specific facts of his case. Notably, the 2119(f)
statement is a page longer than the section devoted to the actual merits of
his appeal. However, while lengthy, Veal’s concise statement eventually
identifies the reasons for which the appeal is sought. Accordingly, we will
address those claims to determine if a substantial question is raised.
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In Veal’s Rule 2119(f) statement, Veal argues that the imposition of
three consecutive standard range sentences is excessive under the
circumstances. Specifically, he contends there were numerous mitigating
factors that warranted imposition of a sentence commensurate with, or below,
the sentence imposed on his co-defendant. Veal also contends the sentencing
court abused its discretion by failing to provide an explanation or justification
for the disparity between his sentence and that of his co-defendant.
First, we have stated that a challenge to the imposition of consecutive
rather than concurrent sentences generally does not present a substantial
question. See Commonwealth v. Lloyd, 878 A.2d 867, 873 (Pa. Super.
2005). However, we have recognized that an aggregate sentence can be so
excessive that it may create a substantial question. See Commonwealth v.
Moury, 992 A.2d 162, 171-172 (Pa. Super. 2010). In determining whether a
substantial question has been raised, our focus is on “whether the decision to
sentence consecutively raises the aggregate sentence to, what appears upon
its face to be, an excessive level in light of the criminal conduct at issue in the
case.” Commonwealth v. Mastromarino, 2 A.3d 581, 585-586 (Pa. Super.
2010) (citation omitted).
Veal pleaded guilty to ISDI, rape, robbery, conspiracy, PIC, unlawful
restraint, and false imprisonment. The trial court imposed standard range
sentences for each charge, adding up to an aggregate sentence of thirteen to
twenty-six years’ imprisonment. We cannot conclude the aggregate sentence
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was excessive considering the number of charges Veal pleaded guilty to, and
the criminal conduct involved. The sentencing court was permitted to consider
the sexual assaults combined with further threats of violence required a
substantial sentence of incarceration to protect the public from Veal. Under
these circumstances, Veal’s challenge to the consecutive nature of his
sentence does not raise a substantial question. See Commonwealth v.
Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super. 2010).
In as far as Veal claims the sentencing court failed to adequately
consider mitigating factors in sentencing, “[t]his Court has held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v. Disalvo,
70 A.3d 900, 903 (Pa. Super. 2013) (citation omitted). Therefore, Veal’s
argument that the sentencing court failed to adequately consider his remorse,
his rehabilitation, and his decision to plead guilty as mitigating factors does
not raise a substantial question. See Commonwealth v. Downing, 990 A.2d
788, 794 (Pa. Super. 2010).
Even if we were to find this claim raised a substantial question, we find
that Veal’s claim is belied by the record. The trial court specifically noted on
the record its consideration of numerous factors in entering the above
sentence. See N.T., Sentencing Hearing, 1/25/2019, at 18-22 (Trial court
indicating it considered the sentencing guidelines, PSI and mental health
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reports, arguments of counsel, statement from Appellant, the sentencing
code, and defendant’s prior record).
Further, the trial court reviewed a PSI report. Where the trial court had
the benefit of reviewing a pre-sentence report, we must
presume[] 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. 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. Akhmedov, 216 A.3d 307, 329 (Pa. Super. 2019),
appeal denied, 224 A.3d 364 (Pa. 2020) (en banc) (citation omitted).
Based on our review of the record, the trial court’s findings set forth
during the sentencing hearing, and our standard of review, we conclude the
trial court did not abuse its discretion in sentencing Veal. The court clearly
considered the facts surrounding the offense, as well as evidence presented
as to Veal’s character, acceptance of responsibility, and stated remorse. Based
on its consideration of these factors, the court concluded the sentence was
reasonable.
Finally, Veal contends the trial court abused its discretion by failing to
provide an explanation or justification for the disparity between his sentence
and that of his co-defendant. We have previously held that such a claim raises
a substantial question. See Commonwealth v. Myers, 536 A.2d 428, 430
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(Pa. Super. 1988) (finding appellant raised a substantial question by arguing
the sentencing court abused its discretion by failing to set forth adequate
reasons to justify the disparity between his sentence and that of his co-
defendant). However, while such a claim raises a substantial question, we find
the issue is without merit under the circumstances of this case.
This Court has previously determined:
A sentencing court is not required to impose the same sentence
on all participants in a crime. Moreover, when a defendant's
accomplice is tried, or pleads guilty, in a separate proceeding, and
is sentenced by a different judge, the sentencing court is not
required to explain a disparity between the defendant's sentence
and that of the accomplice.
Myers, 536 A.2d at 430 (citations omitted).
Here, Veal pleaded guilty, and was sentenced to thirteen to twenty-six
years’ imprisonment. Veal’s co-defendant did not plead guilty, instead
choosing to go to trial, and was sentenced to twelve to twenty-four years’
imprisonment. There is no dispute that Veal and his co-defendant appeared
before different judges for their respective plea and trial, and were sentenced
before different judges. Accordingly, the trial court was not required to explain
any disparity between their sentences. Further, the disparity between
sentences was minimal, with only a one year difference between the minimum
term and a two year difference between the maximum term.
Moreover, even if the disparity was so great that reasons should have
been given, a review of the sentencing transcript reveals the court articulated
factors that were sufficient to support Veal’s sentence. The court noted that
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Veal’s co-defendant, unlike Veal, was sentenced after a full trial, years before
Veal was found to be involved in the underlying crime due to new DNA
technology. In addition, the sentencing court had the benefit of a PSI report.
Finally, the court below provided ample justification for the sentence imposed:
the court was aware of the co-defendant's sentence, Veal’s background and
circumstances, his behavior since the crime, as well as Veal’s acceptance of
responsibility of apology. In light of all of these factors, the court then
sentenced Veal to standard range sentences. On this record, we cannot
conclude that the sentence imposed constituted an abuse of discretion.
As the trial court in this case had the benefit of a PSI report, combined
with the trial court’s explicit consideration of the testimony, the sentencing
guidelines, and the seriousness of the offense, we conclude it considered all
relevant sentencing factors. Veal has failed to establish the 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. As we find
Veal’s claim merits no relief, we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2022
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