Com. v. Austin, H. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
v.
HASSAN AUSTIN
Appellant No. 3751 EDA 2015
Appeal from the Judgment of Sentence November 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010116-2014
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 13, 2017
Appellant, Hassan Austin, appeals from the judgment of sentence
entered on November 5, 2015, in the Court of Common Pleas of Philadelphia
County. Appellant only challenges the discretionary aspects of his sentence.
Finding his standard range sentence presumptively reasonable, we affirm.
Raheed Roten, his girlfriend, Phelicia Lewis, and their five-month-old
child lived in an apartment in the Fairmount neighborhood of Philadelphia. The
reason violence visited this particular family late on the night of May 26, 2015,
remains unclear. But the motivation behind Appellant’s and his co-defendant’s
attack on this particular family is of no consequence; it is their actions that
brought all that followed.
The pair attempted to utilize a ploy to gain entry into the apartment.
But once that failed, they used force. And once inside, they held the family at
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gunpoint; each taking turns holding the handgun. The pair scoured the unit
for valuables. Finding little, they informed the couple that if they did not get
$2,000 in cash they would kill the baby.
Roten called his mother, asking her to bring $2,000 in cash to his home.
Immediately suspecting foul play, Roten’s mother called the police. Officers
arrived promptly. And one observed Appellant’s co-defendant rifling through
Roten’s pockets and then leading Lewis into another room. The police gained
entry into the home and arrested the pair.
Appellant entered an open guilty plea to two counts of robbery, 18
Pa.C.S.A. § 3701(a)(1)(ii), one count of burglary, 18 Pa.C.S.A. § 3502(a)(1),
one count of conspiracy, 18 Pa.C.S.A. § 903, and one count of person not to
possess a firearm, 18 Pa.C.S.A. § 6105(a)(1). The trial court later sentenced
Appellant to an aggregate term of imprisonment of six to fifteen years.1
Appellant filed a post-sentence motion, which the sentencing court denied.
This timely appeal followed.
On appeal, Appellant raises challenges to the discretionary aspects of
his sentence. Essentially, he argues the sentencing court imposed an
excessive sentence. Curiously, in his appellate brief, Appellant notes that his
sentence of 72 months is in “the middle of the standard range of the deadly
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1 The sentences of confinement for the convictions break down as follows: six
to fifteen years for each robbery conviction, with the second count ordered to
run concurrent to the first; and six to fifteen years for the burglary conviction,
ordered to run concurrent to the robbery sentence.
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weapon used enhancement” to his robbery sentence. Appellant’s Brief, at 22.
That is true. And it results in a straightforward disposition of this appeal.
With Appellant’s prior record score of four, see N.T., Sentencing,
11/5/15, at 4, the offense gravity score of the robbery statute at issue here
being ten, see 204 Pa. Code § 303.15, and the sentencing court’s use of the
Deadly Weapon Enhancement/Used Matrix of the sentencing guidelines, see
204 Pa. Code § 303.17(b), the standard range sentence is 66 to 78 months.
The sentencing court imposed a minimum sentence of 72 months—a sentence,
as Appellant concedes, squarely within the standard range of the guidelines.2
The standard range of the guidelines “is presumptively where a
defendant should be sentenced.” Commonwealth v. Fowler, 893 A.2d 758,
767 (Pa. Super. 2006) (citation omitted). As the sentence was within the
standard range, to succeed on this claim Appellant has to show that “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply not the
case here. Appellant invaded an apartment, held the occupants at gunpoint,
searched the home for valuables, demanded money, and threatened to shoot
a baby.
Even putting aside the presumptive reasonableness of the standard
range sentence Appellant received and assuming for the purposes of this
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2“Pennsylvania utilizes an indeterminate sentencing scheme with presumptive
guidelines which limit the judge’s discretion only concerning the minimum
sentence.” Commonwealth v. Smith, 863 A.2d 1172, 1178 (Pa. Super.
2004) (citations omitted).
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appeal that Appellant raises substantial questions for our review, an
examination of the sentencing transcript reveals his contentions have no
merit.
“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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012)
(citation omitted).
Appellant spends a considerable portion of his brief arguing the
sentencing court failed to consider mitigating factors. Curiously, he does this
by providing numerous citations to the sentencing transcript to show the
mitigating factors were extensively discussed at sentencing. See Appellant’s
Brief, at 20-23. Given this extensive citation to the sentencing transcript, it is
not surprising to learn that the record belies his claim.
Indeed, a review of the sentencing transcript indicates that Appellant’s
counsel exhaustively discussed the mitigating factors, see N.T., Sentencing,
11/5/15, at 12-18, and even Appellant himself addressed the court, see id.,
at 18, discussing some of them. There is no question the sentencing court was
well aware of the mitigating factors and considered them, explaining “[i]n
fashioning its sentence, the [c]ourt has considered the presentence
investigation [report] … [and] argument from both counsel…. The [c]ourt has
considered defendant’s allocution.” Id., at 19.
Perhaps most importantly in this regard, as the sentencing court had
the benefit of a pre-sentence investigation report, we must
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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.
… 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. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
Appellant also argues “that the presentation by the Commonwealth
about two prior arrests for robbery offenses may have been improperly
considered by the court.” Appellant’s Brief, at 23. “[A] court, in imposing
sentence[,] may consider prior arrests and concurrent charges as long as the
court realizes that the defendant had not been convicted on those prior
charges[.]” Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super.
1982) (citations omitted). The sentencing court had that very knowledge in
this case.
Here, the Commonwealth specifically informed the sentencing court that
the two prior robbery cases had both been “withdrawn.” N.T., Sentencing,
11/5/15, at 5-6. That the Commonwealth informed the sentencing court it had
not obtained convictions in these two matters is a fact Appellant acknowledges
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in his brief. See Appellant’s Brief, at 24. Again, this claim has no support in
the record.
Lastly, Appellant claims the sentencing court abused its discretion by
imposing on his co-defendant a less severe sentence without providing
support in the record. The co-defendant pled guilty to the same offenses as
Appellant. But the sentencing court sentenced the co-defendant six weeks
after imposing sentence on Appellant. And the co-defendant received an
aggregate sentence of 5½ to 11 years.3
“[C]o-defendants are not required to receive identical sentences,” but
“when there is a disparity between co-defendants' sentences, a sentencing
court must give reasons particular to each defendant explaining why they
received their individual sentences.” Commonwealth v. Mastromarino, 2
A.3d 581, 589 (Pa. Super. 2010) (citations omitted).
Appellant’s contention fails for a couple reasons. First, this claim was
never raised in the trial court. See Commonwealth v. Shugars, 895 A.2d
1270, 1273-1274 (Pa. Super. 2006) (explaining need to preserve
discretionary aspects of sentencing claims in the sentencing court); Pa.R.A.P.
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3 There is no information in the certified record about the co-defendant’s
sentence. The parties and trial court, however, are in agreement as to the
length of the sentence imposed.
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302(a).4 Its inclusion in his Rule 1925(b) statement does not act to preserve
it. See Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (holding that
inclusion of an issue in a Rule 1925(b) statement that has not been previously
preserved does not entitle litigant to appellate review of the unpreserved
claim). Thus, the claim is waived.
Second, the claim is unreviewable as the certified record is devoid of
anything concerning co-defendant’s sentencing. See Commonwealth v.
Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (“When a claim is dependent
on materials not provided in the certified record, that claim is considered
waived.”) In its Rule 1925(a) opinion, the sentencing court thoughtfully
explains its reasoning as to the minor difference in the two sentences. See
Rule 1925(a) Opinion, 7/19/16, at 6-7. But “[t]his Court does not rely on items
dehors the record, such as assertions in … a trial court opinion.”
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citation
omitted). Accordingly, the claim is waived for this additional reason.
The sentencing court in this case carefully considered the appropriate
factors, see 42 Pa.C.S.A. § 9721(b), and imposed a sentence firmly in the
standard range of the sentencing guidelines. In doing so, the court committed
no abuse of discretion.
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4 The proper course to have preserved this issue given the date of co-
defendant’s sentence was to file a petition for remand in this Court to seek
redress in the lower court.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
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