Com. v. Sturgis, T. ( 2023 )

J-A12024-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYEEM STURGIS :
:
Appellant : No. 1453 EDA 2022
Appeal from the Judgment of Sentence Entered January 12, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002697-2020
BEFORE: OLSON, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED SEPTEMBER 12, 2023
Appellant Tyeem Sturgis appeals from the judgment of sentence entered
following his convictions for aggravated assault and related offenses.
Appellant contends that the trial court abused its discretion and imposed an
excessive sentence without adequate consideration of relevant sentencing
factors. After review, we affirm.
The trial court summarized the facts of this case as follows:
On May 12, 2020 around 10:37 a.m., corner store owner Juan
Collado observed two to three males arguing outside of his
supermarket located at 5351 Chestnut Street in Philadelphia. Mr.
Collado testified that around 10:40 a.m., he observed Appellant
shoot complainant K.D., who was inside of his store located at
54th and Chestnut.
Philadelphia Police Officer Matthew Stahl arrived at the store
minutes after the shooting in response to a radio call. In viewing
the surveillance system, Officer Stahl observed Appellant reach
into his waistband, retrieve a gun, and point the gun at the
complainant K.D. K.D. and another male[, K.D.’s brother]
attempted to take the gun but were unsuccessful. They fled into
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the . . . supermarket. Appellant followed the two men into the
store and proceeded to shoot K.D. before fleeing in a blue Chevy
Impala. Security footage also depicted Appellant coming back
around the block in the blue Chevy Impala and pointing the gun
at K.D. and [K.D.’s] brother while the car was still moving, after
the shooting. Officer Stahl gave a description of Appellant based
on the surveillance and Mr. Collado’s statements.
Police stopped Appellant a short time later, a mere two blocks
from the shooting at the grocery store. Mr. Collado positively
identified Appellant as the person who shot K.D. Officer Stahl also
testified that Appellant is the person he saw on the video
surveillance system. Police arrested Appellant shortly after the
shooting. Police Officer Nowell recovered a revolver wrapped in a
jacket being held by a passenger in the car.
K.D. was [transported] to Mercy Hospital after being shot by
Appellant. K.D. was transferred to Penn Presbyterian Medical
Center due to one gunshot wound to his right abdomen area.
After arriving at the hospital, K.D. underwent [an] emergent
exploratory laparotomy, which revealed that he had a perforated
right colon and a nondisplaced iliac wing fracture.
Trial Ct. Op., 9/9/22, at 2-3 (citations and footnote omitted and some
formatting altered).
The matter proceeded to a non-jury trial on January 12, 2022.
Ultimately, the trial court found Appellant guilty of aggravated assault,
firearms not to be carried without a license, carrying firearms in public in
Philadelphia, possessing an instrument of crime, simple assault, and recklessly
endangering another person.1 That same day, the trial court sentenced
Appellant to a term of four and one-half to eleven years of incarceration for
aggravated assault, a consecutive term of five years’ probation for firearms
____________________________________________
1 18 Pa.C.S. §§ 2702(a)(1), 6106(a)(1), 6108, 907(a), 2701(a), and 2705,
respectively.
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not to be carried without a license, and no further penalty on the remaining
counts. See N.T., 1/12/22, at 12.
On January 19, 2022, Appellant filed a timely post-sentence motion for
reconsideration of his sentence. Appellant’s motion was denied by operation
of law on May 19, 2022, and on May 26, 2022, Appellant filed a timely appeal.
Both the trial court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following issue challenging the
discretionary aspects of his sentence:
Did the [trial] court abuse its discretion when the court stated only
that it reviewed [pre-sentence investigation (PSI)] reports and the
sentencing guidelines but gave no reasons for the sentence
imposed and the court failed to consider Appellant’s rehabilitative
needs?
Appellant’s Brief at 4.
Appellant argues that the trial court failed to consider relevant
sentencing factors and failed to state on the record its reasons for the
sentence imposed. Id. at 13. Appellant also argues that Appellant cites the
trial court’s consideration of the PSI report was not a substitute for providing
a statement of the reasons for the sentence imposed. Id. at 13-15 (citing
Commonwealth v. Weldon, 466 A.2d 1082 (Pa. Super. 1983)).
The Commonwealth responds that the decision in Weldon is no longer
the law in Pennsylvania. Commonwealth’s Brief at 10. The Commonwealth
asserts that when a trial court states that it considered a PSI report, it is
presumed that the court was aware of the relevant information and properly
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weighed those considerations. See id. Moreover, the Commonwealth notes
that the trial court is not obligated to provide a lengthy dissertation of reasons
for the sentence imposed, and that the trial court may satisfy the requirement
of placing on the record its reasons for the sentence imposed by stating it
considered the PSI report. See id. at 10-11.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
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“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, Appellant filed a timely post-sentence motion, a timely appeal,
and included a Rule 2119(f) statement in his brief. Additionally, Appellant has
raised a substantial question for review. See Commonwealth v. Flowers,
149 A.3d 867, 871 (Pa. Super. 2016) (holding that a claim that the trial court
failed to set forth adequate reasons for the sentence imposed raises a
substantial question); Commonwealth v. Derrickson, 242 A.3d 667, 680
(Pa. Super. 2020) (citation omitted) (concluding that an assertion that the
trial court failed to consider the sentencing factors set forth in 42 Pa.C.S. §
9721(b) raises a substantial question). Accordingly, we will review the merits
of Appellant’s challenge to the discretionary aspects of his sentence.
Our well-settled standard of review is as follows:
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
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judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted). “In conducting appellate review, we may not reweigh the
sentencing factors and impose our own judgment in place of that of the trial
court.” Commonwealth v. Snyder, 289 A.3d 1121, 1126-27 (Pa. Super.
2023) (citation omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
Additionally, the trial court “must consider the sentencing guidelines.” Id. at
848 (citation omitted).
Where the court has the benefit of a PSI report, we presume the court
was aware of all appropriate sentencing factors and considerations, and we
deem the requirement that the trial court place its reasoning on the record to
be satisfied. Snyder, 289 A.3d at 1126; see also Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (stating that “[t]he
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 [PSI] report; thus properly considering and weighing all
relevant factors” (citation omitted)). This Court may only disturb a standard-
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range sentence if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2).
As noted previously, Appellant cites Weldon as support for his
argument that the trial court must do more than indicate that it had the benefit
of a PSI report. Appellant’s Brief at 15-16. The Weldon Court stated:
[T]he fact that the sentencing court ordered a [PSI] report [does
not] absolve it of the responsibility to state on the record its
reasons for sentence. . . . [O]ne of the advantages of requiring
the sentencing court to state on the record its reasons for
sentence is that such a statement will minimize the risk of reliance
upon inaccurate information contained in the [PSI] report.
In Commonwealth v. Wicks, 401 A.2d 1223, 1227 (Pa. Super.
1979) we said, “Having received the testimony and [PSI] report,
the court must evaluate them; the testimony may well be in
conflict, or not be credible, or otherwise not acceptable to the
court, and the same may be so of the contents of the [PSI]
report.” See Wicks generally as to the need to explain the
reasons for sentence.
Weldon, 466 A.2d at 1084 (some citations omitted and formatting altered).
As reflected in this quote, the Weldon Court specifically relied on the
Wicks decision. However, our Supreme Court expressly overruled Wicks and
its progeny in Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). The
Devers Court addressed this Court’s holding in Wicks and stated:
We emphatically reject, therefore, interpretations of our law in this
area which call for separate, written opinions embodying
exegetical thought. Where [a PSI] report[] exist[s], we shall
continue to 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 [PSI] report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
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sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment procedure.
Having been fully informed by the [PSI] 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. For that reason,
Wicks and its voluminous progeny represent an intolerable
deviation from our original intent on this issue.
Devers, 546 A.2d at 18. Given the clear pronouncement in Devers, and the
more recent decisions in Snyder and Ventura, we discern no merit to
Appellant’s argument that when the trial court has indicated that it was
informed by a PSI report, it is also required to state additional considerations
and reasons for the sentence imposed.
Here, at sentencing, the trial court stated that it had considered the PSI
report. See N.T., 1/12/22, at 4. The trial court also stated its awareness of
the applicable sentencing guidelines and noted that the sentencing guidelines
provided for a minimum sentence of between four and one-half to six years.
See id. at 5. Further, the trial court ordered a mental health evaluation of
Appellant in addition to the PSI for the sentencing hearing. See N.T.,
10/20/21, at 73. At sentencing, the trial court explicitly referenced that the
court reviewed all reports that were ordered. See N.T., 1/12/22, at 4. In
addition, the trial court heard testimony of Appellant’s good character from
Appellant’s mother and stepfather before imposing sentence. See Trial Ct.
Op. at 5-6; N.T., 1/12/22, at 7-10. The Commonwealth recommended a
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minimum sentence of five and one-half years to a maximum sentence of
eleven years, which was in the middle of the standard range. See N.T.,
1/12/22, at 10. The trial court reiterated its consideration of the sentencing
guidelines, and it imposed a sentence of four and one-half to eleven years of
incarceration for aggravated assault, which was at the lowest end of the
standard-range. See id. at 11-12. The trial court then imposed a consecutive
mitigated-range sentence of five years’ probation for firearms not to be carried
without a license. Id. Our review of the record concludes that the trial court
thoroughly reviewed the PSI and mental health evaluation reports and heard
witness testimony as well as the arguments of counsel at the sentencing
hearing. Accordingly, the trial court fully considered Appellant’s background,
character, and rehabilitative needs in imposing Appellant’s sentence and no
relief is due.
Therefore, we discern no abuse of discretion by the trial court. See
Raven, 97 A.3d at 1253. The record reflects that the trial court considered
the PSI report, and therefore, we may presume that the trial court considered
all appropriate sentencing factors and balanced those considerations with
applicable mitigating factors. See Snyder, 289 A.3d at 1126. Contrary to
Appellant’s argument, the trial court satisfied the requirement of placing on
the record its reasons for the sentence imposed by indicating it was informed
by the PSI report. See id.; Ventura, 975 A.2d at 1135.
On this record, we have no basis to conclude that the trial court failed
to consider the applicable sentencing factors, nor that it failed to state its
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reasons for the sentence imposed. See Snyder, 289 A.3d at 1126. For these
reasons, we conclude that Appellant is not entitled to relief. Accordingly, we
affirm.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2023
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