Com. v. Ekunfeo, O. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ORILANA EKUNFEO :
:
Appellant : No. 479 WDA 2019
Appeal from the Judgment of Sentence Entered February 13, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008269-2018
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 20, 2020
Appellant, Orilana Ekunfeo, appeals from the judgment of sentence
entered on February 13, 2019, as made final by the denial of his post-sentence
motion on February 26, 2019, following his bench trial convictions for
possession of marijuana, possession with intent to deliver marijuana, and
possession of drug paraphernalia.1 We affirm.
The trial court summarized the facts of this case as follows:
On May 18, 2018, detectives from the City of Pittsburgh Bureau
of Police executed a search warrant at [a residence] on Walter
Street in the City of Pittsburgh. Detectives entered the residence
and began conducting a search. Detectives determined that
[Appellant] resided [in a] second floor [bedroom] of that
residence[.] While searching [Appellant’s] bedroom, detectives
recovered marijuana, a digital scale, and plastic baggie[s, known
colloquially as “diapers” or sandwich bags with the corners
removed]. The marijuana was packaged in [the removed corners
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1 35 P.S. §§ 780-113(a)(16), 780-113(a)(30), and 780-113(a)(32),
respectively.
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of baggies]. Detectives also recovered a holster for a firearm in
that bedroom. They additionally recovered a firearm, ammunition
for the firearm and empty [] bags from a duffel bag concealed in
a cubbyhole in the hallway outside of the bedroom. [Appellant]
admitted that all of the items, except the firearm, belonged to
him. He told detectives that he was not aware that a firearm was
in the residence. Detective William Churilla testified as an expert
in this case. He opined that, based on the evidence recovered
from [Appellant’s] bedroom, [Appellant] possessed the marijuana
with the intent to deliver it.
Trial Court Opinion, 8/16/2019, at 1-2 (footnote incorporated).
The Commonwealth charged Appellant with the aforementioned crimes,
as well as persons not to possess a firearm and receiving stolen property.
Following a bench trial on February 13, 2019, the trial court found Appellant
guilty of the narcotics related crimes, but acquitted him of the firearm offense
and receiving stolen property. The trial court sentenced Appellant to 16 to 60
months of imprisonment for possession with intent to deliver marijuana. The
simple possession conviction merged for sentencing purposes. The trial court
imposed no further penalty on the paraphernalia conviction. On February 22,
2019, Appellant filed a timely post-sentence motion asking the trial court to
reconsider his sentence. By order entered on February 26, 2019, the trial
court denied relief. This timely appeal resulted.2
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2 Appellant filed a timely notice of appeal on March 28, 2019. On the same
day, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 18, 2019. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on August 16, 2019.
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On appeal, Appellant presents the following issue3 for our review:
I. Is the sentence imposed of [16] to [60] months of
incarceration in this case manifestly excessive,
unreasonable, contrary to the dictates of the Sentencing
Code and an abuse of the sentencing court’s discretion?
Specifically, did the sentencing court fail to put adequate
reasons on the record for imposing a five-year state
sentence which involved possession of less than a pound of
marijuana? Further, when a court fails to mention at all any
rehabilitative needs of the defendant, as well as other
factors under 42 Pa.C.S.A. § 9721(b), is the sentence
imposed not an abuse of that court’s discretion? Finally,
even if the minimum sentence is within the sentencing
guidelines, is not the imposition of the maximum sentence
that is almost four times more than the minimum too great
a punishment under the circumstances of this case?
Appellant’s Brief at 6.
Appellant claims that “his sentence is manifestly unreasonable because,
while the minimum sentence imposed is within the standard range of the
sentencing guidelines, the maximum sentence imposed is almost four times
as long and the circumstances of this case do not justify such a harsh
sentence.” Id. at 13. In sum, Appellant states:
The sentence imposed by a court with an intense focus on the fact
that [Appellant] is a big, strong guy who shouldn’t need to be a
drug dealer. This is the single fact underpinning [Appellant’s]
sentence as a whole. The court makes absolutely no mention of
[Appellant’s] current family situation. Nor did the court discuss
[Appellant’s] work history, health needs, or periodic
homelessness. The sentencing court also did not mention any of
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3 Appellant also presented a challenge to the sufficiency of the evidence in
his Rule 1925(b) concise statement, but does not raise that issue on appeal.
We will not address it. See Commonwealth v. Heggins, 809 A.2d 908, 912
n.2 (Pa. Super. 2002) (“[A]n issue identified on appeal but not developed in
the appellant’s brief is abandoned and, therefore, waived.”).
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[Appellant’s] rehabilitative needs. Instead, the court focused only
upon the fact that [Appellant] made life choices that the judge did
not understand.
While [Appellant] admits the serious impact on society due to
illegal drugs, the reasons listed by the trial court show an
excessive emphasis on retribution which is disfavored[.] It
appears that the trial court determined that it would wash its
hands of [Appellant], who should now be supervised by state
authorities. Most troubling is the lack of any consideration for
[Appellant’s] rehabilitative needs. Therefore, while the sentence
is technically a standard range sentence based upon the minimum
sentence, it is nonetheless clearly unreasonable due to the court’s
abject failure to consider [] mitigating factors.
Id. at 23-24.
We have held that “sentencing is a matter vested in the sound discretion
of the sentencing judge, whose judgment will not be disturbed absent an
abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.
Super. 2001). Moreover, pursuant to statute, Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal. Id. As this Court has explained:
[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal, Pa.R.A.P. 902, 903; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, Pa.R.Crim.P. [708(E)];
(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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
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In this case, Appellant complied with the first three requirements as set
forth above. Appellant filed a motion for reconsideration, a timely notice of
appeal, and included a statement pursuant to Pa.R.A.P. 2119(f) in his
appellate brief. Moreover, Appellant presents a substantial question for our
review. See Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (“this Court has held that an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question”).
We previously stated:
the 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, when sentencing a
defendant, the trial court is required to consider the sentencing
guidelines. See Commonwealth v. Tobin, 89 A.3d 663, 669 n.
4 (Pa. Super. 2014) (citation omitted). In [a] case [where a
defendant] was sentenced within the sentencing guidelines[,] we
may only vacate his sentence if [the] “case involves circumstances
where the application of the guidelines would be clearly
unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2).
Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super. 2016).
Moreover, we note “[t]he [sentencing] court is not required to parrot the
words of the Sentencing Code, stating every factor that must be considered
under Section 9721(b), [however,] the record as a whole must reflect due
consideration by the court of the statutory considerations at the time of
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sentencing.” Commonwealth v. Johnson–Daniels, 167 A.3d 17, 26 (Pa.
Super. 2017) (internal citation and quotations omitted).
A close examination of the sentencing transcript reveals that the trial
court addressed Appellant’s rehabilitative needs at sentencing. Although the
trial court did not use the phrase “rehabilitative needs,” there is no
requirement that it must. Instead, the trial court discussed Appellant’s
criminal history and opined that less restrictive alternatives to incarceration
had proven unsuccessful and, as a result, a term of incarceration at a state
correctional facility was warranted. First, the trial court noted that Appellant
was on probation for criminal trespass at the time he was arrested in this
matter. N.T., 2/13/2019, at 69-70. The trial court judge presided over the
prior criminal trespass case and was aware of it when sentencing Appellant in
this matter. Id. at 70. Next, before sentencing in this case, Appellant’s
probation officer told the trial court that Appellant did not make himself
available for supervision and, as a result, they were unable to determine if
Appellant complied with the terms of his probation. Id. Thereafter, when
sentencing Appellant, the trial court specified:
[Appellant] has not cooperated with County probation. He
commits felonies while on probation for a felony while he’s making
himself unavailable to [the] [P]robation [Department]. Therefore,
he has a prior [record] score of five and it is [the trial court’s] view
that trying to supervise the defendant on County probation
simply does not work, so we’re issuing a state sentence.
Id. at 73-74 (emphasis added). Finally, the trial court also stated on the
record:
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I'm sorry to do this to you, sir but you just can't keep doing
this. You can't keep committing felonies and not
responding to probation. We can't accept it anymore.
Id. at 75.
Based upon all of the foregoing, we conclude that the trial court
considered Appellant’s rehabilitative needs to conclude that less restrictive
alternatives to incarceration were ineffective in rehabilitating Appellant and,
thus, a term of incarceration was justified. The trial court sentenced Appellant
within the standard range of the sentencing guidelines, which was not “clearly
unreasonable” under 42 Pa.C.S.A. § 9781(c)(2). Thus, we discern no abuse
of discretion in sentencing Appellant. Accordingly, there is no merit to
Appellant’s sole appellate issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/2020
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