Com. v. Leggett, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THEODORE LEGGETT :
:
Appellant : No. 1984 EDA 2022
Appeal from the Judgment of Sentence Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0010053-2017
BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2023
Theodore Leggett (Appellant) appeals nunc pro tunc from the judgment
of sentence entered after a jury convicted him of possession of a firearm by a
person prohibited.1 We affirm.
The trial court summarized the following testimony presented at trial:
[] Philadelphia Police Officer Brian Gable
The first witness for the Commonwealth was Philadelphia Police
Officer Gable, who testified as follows. On July 16, 2017, while on
patrol in a marked police vehicle, Officer Gable received a radio
call that a man was being beaten up inside a home by two (2)
black males armed with guns. He arrived at the scene shortly
thereafter and observed Appellant, who matched the description
of one of the males from the radio call, walking down the street.
At the same time, Officer Gable observed a man with a torn shirt
who yelled, screamed, pointed toward Appellant and said, “that’s
the male that robbed me.” Officer Gable made a U-turn to catch
up with Appellant, then observed him reach into his waistband,
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1 18 Pa.C.S.A. § 6105(a)(1).
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remove a firearm, point it downward at his side, and drop it onto
the street. Officer Gable caught up to Appellant and subsequently
arrested him. Officer Gable also recovered the firearm, a black
Jimenez .380 semiautomatic handgun, from the street where
Appellant had just discarded it moments before he was stopped.
Officer Gable checked the firearm to ensure that it was safe and
found that there was no ammunition inside it. N.T. 1/16/2019, at
30-48.
[] Leticia Buchanan
The second and final witness for the Commonwealth was Leticia
Buchanan …. The Commonwealth and trial counsel for Appellant
stipulated that Ms. Buchanan was an expert in the areas of
firearms identification and operability. Ms. Buchanan testified that
she was a firearms examiner with the Philadelphia Police
Department and was responsible for testing firearms. In this case,
she was asked to examine and test the firearm that was recovered
from the street after it was discarded by Appellant just prior to his
arrest. Ms. Buchanan testified her testing of the firearm revealed
that it was fully operational. Id. at 71-77.
[] Stipulations
The Commonwealth and trial counsel for Appellant stipulated that
Appellant was previously convicted of a criminal offense in 1995
which made him ineligible to possess any firearm pursuant to
6105 of the Uniform Firearms Act. Id at 77.
Trial Court Opinion, 11/28/22, at 3-4.
After a two-day trial, the jury convicted Appellant of possession of a
firearm by a person prohibited. The trial court, with the benefit of a pre-
sentence investigation (PSI) report, sentenced Appellant to 7½ - 15 years in
prison.2 Counsel for Appellant “attempted to file a post-sentence motion for
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2 Appellant’s sentence is below the mitigated range of the sentencing
guidelines and the Commonwealth’s requested sentence of 9 - 18 years.
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reconsideration of sentence but failed to pay for it, resulting in the motion not
being entered.” Trial Court Opinion, 11/28/22, at 5. Nonetheless, the trial
court considered the motion, which it denied on May 14, 2019. Appellant
timely appealed.
On appeal, Appellant claimed the trial court considered inappropriate
sentencing factors. Commonwealth v. Leggett, 248 A.3d 941 (Pa. Super.
2021) (unpublished memorandum at 2). This Court found Appellant waived
the issue by not including it in his Pa.R.A.P. 1925(b) concise statement. Id.(unpublished memorandum at 4). Accordingly, we affirmed Appellant’s
judgment of sentence. Id.On January 20, 2022, Appellant timely filed a pro se Post Conviction
Relief Act (PCRA)3 petition followed by a counseled petition. Appellant claimed
his trial counsel was ineffective for failing to preserve Appellant’s sentencing
issue. The Commonwealth did not oppose the reinstatement of Appellant’s
direct appeal rights. On July 18, 2022, the PCRA court granted the requested
relief.4 Appellant filed a notice of appeal on August 2, 2022. On October 6,
2022, the PCRA court entered an order expressly reinstating Appellant’s direct
appeal rights. PCRA Court Order, 10/6/22. Thus, the appeal is properly before
us. See Pa.R.A.P. 905(a) (providing that notice of appeal filed after
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3 See 42 Pa.C.S.A. §§ 9541-9546.
4 Although this Court requested a copy of the order from the trial court, a copy
has not been located.
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announcement of a ruling, but before entry of the order, “shall be treated as
filed after such entry and on the day thereof.”). Appellant and the PCRA court
have complied with Pa.R.A.P. 1925.
Appellant presents two questions for review:
1. Did the trial court err, abuse its discretion, and/or make a
mistake of law in considering the uncharged crime of robbery
when sentencing Appellant?
2. Did the trial court err, abuse its discretion, and/or make a
mistake of law in the situation where Appellant was sentenced
as a repeat violent offender5 and the [c]ourt considered as an
additional sentencing factor his past convictions?
Appellant’s Brief at 6 (questions reordered, footnote added).
Appellant’s issues implicate the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence is not appealable as of
right, and is more properly considered a request for permission to appeal:
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage in a four
part analysis to determine: (1) whether the appeal is timely; (2)
whether Appellant preserved his issue; (3) whether Appellant’s
brief includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code.... [I]f the appeal satisfies
each of these four requirements we will then proceed to decide
the substantive merits of the case.
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5
“Repeat Violent Offender Category [REVOC]” is the Prior Record Score
category set forth at 204 Pa. Code § 303.4(a)(1).
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Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014) (citation
omitted, brackets in original).
Appellant has satisfied the above requirements. He (1) timely filed his
nunc pro tunc appeal; (2) preserved his claims in his post-sentence motion;
and (3) included in his brief a Rule 2119(f) statement. Appellant also presents
a substantial question. See Commonwealth v. Ali, 197 A.3d 742, 760 (Pa.
Super. 2018) (recognizing claim that sentencing court relied on impermissible
factors raises a substantial question). We therefore address the merits of
Appellant’s issues.
Preliminarily, we recognize that sentencing is “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. Barnes,
167 A.3d 110, 122 n.9 (Pa. Super. 2017) (en banc) (citation omitted).
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 trial 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.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation
omitted).
Appellant first argues the trial court improperly considered an uncharged
robbery at sentencing. Appellant’s Brief at 11-12. Appellant references the
trial testimony of Officer Gable, who stated:
I observed [Appellant]. I’m still driving. I noticed something but
I’m still driving to 1908 East Cambria Street. But as I was going
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through the intersection, a witness was on the corner of
Kensington and Cambria on the east side of the corner. He was
very excited, jumping up and down, pointing at the male,
yelling, “That’s the male who robbed me, that’s the male
who robbed me.” At that point I proceeded to make a U-turn
because [Appellant] was already past my car and being that the
flash [radio report] that we had was two black males with both
having firearms, I tried to keep my eye on him right away. As I’m
making the U-turn, I can see him pulling from his waistband area
with his right hand. He had a black firearm…
Id. at 11 (emphasis added) (quoting N.T., 1/16/19, at 34-35). According to
Appellant, the trial court considered the aforementioned uncharged robbery
at sentencing. Id. at 12. Appellant bases his assertion on the following
statement by the trial court:
So I believe this [sentence] is appropriate under the specific facts
and circumstances of this case which is why I’m going below the
guidelines. Although this was a robbery, I think allegedly in the
beginning, there was no robbery testimony presented, and the
Commonwealth did not move on robbery, even if they could have
… under [the] excited utterance [hearsay exception] or the police
testimony, and therefore, I believe that the guidelines call for a
lesser sentence than the standard, which would be 10 to 20 [years
in prison], and that’s why I’m going to 7½ to 15. Credit for time
served.
Id. at 12-13 (quoting N.T., 4/29/19, at 19).
In considering Appellant’s argument, we are mindful that
[w]hile sentencing discretion is broad, the trial court’s discretion
is not unfettered. When imposing sentence, a court is required to
consider the particular circumstances of the offense and the
character of the defendant. In considering these factors, the court
should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. And, of course, the
court must consider the sentencing guidelines. The sentence
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
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on the life of the victim and on the community, and the
rehabilitative needs of the defendant.
Commonwealth v. Bowens, 265 A.3d 730, 764 (Pa. Super. 2021) (citations
and quotation marks omitted).
“To determine an appropriate penalty, the sentencing court may
consider any evidence it deems relevant.” Commonwealth v. King, 182
A.3d 449, 455 (Pa. Super. 2018). However,
the court violates the defendant’s right to due process if, in
deciding upon the sentence, it considers unreliable information, or
information affecting the court’s impartiality, or information that
it is otherwise unfair to hold against the defendant. Information
outside of the record, not subject to review and dispute by the
parties, is not properly considered.
Id. (citations and quotation marks omitted).
Instantly, the record does not support Appellant’s claim. The trial court
explained it “only referenced the uncharged crime of Robbery when sentencing
Appellant to explain its downward departure from the sentencing guidelines.”
Trial Court Opinion, 11/20/22, at 11 (emphasis added). The court also pointed
out that evidence of the robbery was presented at trial:
Philadelphia Police Officer Brian Gable’s testimony during trial
provided necessary evidentiary proof to link Appellant to the
conduct. Officer Gable testified that on July 16, 2017, while on
patrol in a marked police vehicle, he received a radio call that a
man was being beaten up inside a home by two (2) black males
armed with guns.
He arrived at the scene shortly thereafter and observed Appellant,
who matched the description of one of the males from the radio
call, walking down the street. At that same time, Officer Gable
observed a man with a torn shirt who yelled, screamed, pointed
toward Appellant and said, “that’s the male that robbed me.”
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Officer Gable then made a U-turn to catch up with Appellant at
which time he observed Appellant reach into his waistband,
remove a firearm, point it downward at his side, and drop it onto
the street. Officer Gable then caught up to Appellant and
subsequently arrested him.
Not only did Officer Gable testify that the assault victim pointed
to Appellant and stated he was the person who assaulted and
robbed him, but there was also a video presented during trial to
corroborate his statements. There was therefore testimony which
provided evidentiary proof linking Appellant to the uncharged
crime of Robbery. [The trial court] properly could have considered
the conduct as a factor in sentencing.
Trial Court Opinion, 11/20/22, at 11-12. We agree. Thus, Appellant’s first
lacks merit.
In his second issue, Appellant asserts the trial court improperly
sentenced him as a repeat offender, and “considered as an additional
sentencing factor his past convictions[.]” Appellant’s Brief at 14. Appellant
argues his criminal history was factored into the sentencing guidelines and,
therefore, the trial court erred in sentencing under the REVOC. Id. According
to Appellant, the trial court double-counted factors already taken into account
by the guidelines. Id. Appellant quotes the trial court stating:
I don’t think [] that is necessarily appropriate here when doing
individual sentencing. You do have a bad record and especially
from [the] 1996 incident and some other things cited by the
Commonwealth. I find it hard to believe that you didn’t know that
you couldn’t possess a gun because I’m sure state parole told you
…. [T]he problem with the guns is they get used[;] even though
there were no bullets in this [gun], they can easily be gotten.
Id. at 15 (quoting N.T., 4/29/19, at 19).
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Appellant argues, “In fashioning its sentence, the court relied on
[Appellant’s] ‘bad’ record, as well as a 1996 conviction, as factors upon which
it imposed the sentence.” Id. at 15-16. Appellant claims this “double
counting is not permitted as a matter of Pennsylvania law.” Id. at 16.
To the contrary, the trial court explained:
Appellant was appropriately identified under the Prior Record
Score Categories in 204 Pa. Stat. Ann. 303.4 as a REVOC and this
[c]ourt was well within the confines of the law when it considered
during sentencing Appellant’s prior convictions as outlined in
Appellant’s presentence investigation ….
For Appellant to be properly categorized as a REVOC, he first
needed to have two (2) or more previous four-point convictions or
adjudications. Here, Appellant had a juvenile adjudication of
delinquency to Rape, a felony of the first degree, and a conviction
of Aggravated Assault, a felony of the first degree, both of which
were four-point offenses. Additionally, Appellant’s current
conviction needed to carry an Offensive Gravity Score of nine (9)
or higher. As Appellant’s conviction of Persons Not to Possess,
Use, Manufacture, Control, Sell or Transfer Firearms carried an
Offense Gravity Score of eleven (11), Appellant was appropriately
categorized as a REVOC.
Trial Court Opinion, 11/20/22, at 9-10. The court further stated:
During Appellant’s sentencing, [the court] considered several
different factors in fashioning Appellant’s sentence:
I’ve considered the presentence [investigation report],
mental health reports, prior record score, the facts, and
circumstances of this case as well as the sentencing
guidelines, the [S]entencing [C]ode, what the attorneys
have had to say as well as what [Appellant] has had to say.
And what I’m going to do is … I’m going to give a sentence
of 7½ to 15 years, which is below the guidelines, and I’m
taking into account the facts and circumstances of this case
and what occurred.
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N.T. 4/29/2019, at 17-18. … [The c]ourt explained that a
guidelines sentence was not “necessarily appropriate” despite
Appellant’s “bad record,” which included a 1996 incident in which
Appellant was convicted of Aggravated Assault and other related
charges.
Id. at 10. Finally, the trial court recognized Appellant’s prior convictions were
factored into his prior record score:
As [the c]ourt previously explained, Appellant’s prior record score
was properly calculated as a REVOC. The record thus reflects that
[the c]ourt properly considered Appellant’s prior convictions in
conjunction with Appellant’s mental health report, the facts and
circumstances of the case the sentencing guidelines, the purposes
of the sentencing code, arguments from counsel, and what
Appellant said to the [c]ourt….
Id. at 10-11.
Upon review, we discern no error or abuse of discretion by the trial
court’s consideration of Appellant’s criminal record. Appellant’s second issue
does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2023
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