Com. v. Fowler, J. ( 2024 )


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  • J-S37023-24
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JOHNNY LOUIS FOWLER                          :
    :
    Appellant               :   No. 1391 EDA 2023
    Appeal from the Judgment of Sentence Entered January 3, 2023
    In the Court of Common Pleas of Montgomery County Criminal Division
    at No(s): CP-46-CR-0000676-2022
    BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.
    MEMORANDUM BY MURRAY, J.:                          FILED NOVEMBER 12, 2024
    Johnny Louis Fowler (Appellant) appeals from the judgment of sentence
    imposed following his guilty pleas to sixteen counts of selling firearms to an
    ineligible transferee (prohibited gun sale); two counts of dealing in proceeds
    of unlawful activities; and one count each of firearms not to be carried without
    a license, corrupt organizations, and conspiracy to commit prohibited gun
    sale.1 Appellant solely challenges the discretionary aspects of his sentence.
    We affirm.
    The trial court detailed the factual history in its Pa.R.A.P. 1925(a)
    opinion:
    The … affidavit of probable cause supporting the complaint
    initiating this case, admitted into the record at [the time of
    Appellant’s] guilty plea, [N.T. (Open Guilty Plea), 8/18/22, at] 8,
    ____________________________________________
    1 See 18 Pa.C.S.A. §§ 6111(g), 5111(a)(1), 6106(a)(1), 911(b)(3), 903(a).
    J-S37023-24
    10 & Ex. C-1 …, depicts a course of conduct starting in August of
    2014 and continuing into April of 2019[,] in which [Appellant]
    purchased eighteen handguns on separate occasions at three
    different gun stores in counties neighboring [Montgomery County,
    sixteen of which are relevant to the instant appeal (collectively,
    the “16 guns” or “16 firearms”)]. [Appellant], who was able to
    complete the purchases because he had no criminal history,
    falsely verified forms required to buy the guns by stating he was
    purchasing them for himself and no others. Id.
    Three of the … [16 guns] ultimately turned up at the scenes
    of arrests or crimes in far-flung locales. 2 …
    ____________________________________________
    2 The trial court elaborated:
    Police in New York City, in May 2018, found one [of the 16
    guns], along with another stolen gun, in a car stopped in Brooklyn,
    New York, occupied by four individuals too young to possess a
    handgun there[. Police] trac[ed this gun] to a shooting and
    wounding of a person in Brooklyn in October 2017, and, after
    restoring [the gun’s] obliterated serial number, back to
    [Appellant] as the registered owner through his gun-store
    purchase in June 2016; [Appellant] had not previously reported
    the gun stolen. Aff. Probable Cause[, 12/9/21, at] 7-8….
    In November 2019, police in Pleasantville, New Jersey,
    recovered a second of the [16] guns … [from the victim of a
    shooting] at a high[ ]school football game…. Id. at 10-11. Again,
    law[ ]enforcement officials restored [the gun’s] effaced serial
    number, and identified [Appellant] as the registered owner via [a]
    gun-store purchase, made in November 2018; [Appellant] had
    never reported the gun stolen. Id.
    In August 2021, Philadelphia Police stopped a vehicle and
    found the driver, who was [legally] prohibited … from having a
    gun due to a prior conviction, in possession of [one of the 16
    guns]…. Id. at 12-13. [Appellant] was the registered owner by
    virtue of his gun-store purchase made in January 2019, and had
    never reported the gun stolen. Id.
    Trial Court Opinion, 2/11/24, at 2.
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    J-S37023-24
    While [Appellant] was [making] … these gun [purchases] …,
    agents of the federal Bureau of Alcohol, Tobacco, and Firearms
    (ATF) had taken notice[. I]n April 2019[, ATF agents] met with
    [Appellant] at his Montgomery County home to ask about the
    multiple [gun] purchases. Id. at 15. [Appellant] first tried to
    legitimize [his purchases], but also distance himself from them,
    claiming the guns were recently stolen from his residence…. Id.
    at 15-16.
    But [Appellant] then recanted the story of a theft; he
    admitted to purchasing all of the firearms but one illegally, and to
    lying on the paperwork[, to the extent he represented that the
    firearms] were for him. Id. at 16. [Appellant] also told the [ATF]
    agents he still had one of the guns, at his place of employment.
    Id.
    The ATF agents came back [to Appellant’s residence] the
    next day, and accompanied [him to his] workplace. Id. There[,
    Appellant] produced [a] gun, which he had purchased … less than
    a month earlier; the agents seized it, [as they were] concerned
    [that Appellant] might try to transfer it illegally to someone else.
    Id. at 14, 16. “During this interaction, [Appellant] admitted he
    believed the ‘straw purchased’ firearms went to New York and that
    he personally transported one of the firearms to New York.” Id.
    at 16.
    Still, the very next day, [Appellant] went to his local police
    department and reported seven of the [16 guns] stolen from the
    trunk of his vehicle, where he claimed to have placed them “in late
    March or early April 2019,” id., before noticing them missing “on
    April 22, 2019,” id., the day before the ATF agents had first come
    to [Appellant’s] house to ask about the gun purchases. The local
    police entered the [serial numbers of the] seven specific firearms
    [Appellant] reported [as stolen] (which were among those he had
    bought at one of the local gun stores beginning in August 2014
    through July 2017) into the National Crime Information Center
    (NCIC) as stolen. See id. at 17. …
    … In November 2021, Montgomery County Detectives
    interviewed [Appellant] at a local police department to ask about
    his multiple gun purchases, his contacts with the ATF in April
    2019, and his report to police immediately thereafter that seven
    of the guns had been stolen. Id. at 17-18. Detectives confronted
    [Appellant] with copies of the paperwork he had completed to
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    J-S37023-24
    purchase the firearms, and he admitted to falsifying [the
    documents] as to the intended transferee(s), and that he had
    “straw purchased” all but two of the guns for other individuals.
    Id. at 18. … [Appellant] also admitted at that time that seven of
    the firearms had not been stolen from his vehicle, and his contrary
    report to police after meeting with the ATF agents in April 2019
    was false. See id. at 18.
    On December 9, 2021, the … [Commonwealth charged
    Appellant with] multiple counts each of [prohibited gun sale],
    conspiracy, dealing in proceeds of unlawful activities, falsification
    to authorities, corrupt organizations, and criminal use of facilities
    of communication, totaling 234 counts in all.          [Complaint,
    12/9/21,] at 2-8; [see also N.T., 1/21/22, at] 3-23….
    Trial Court Opinion, 2/11/24, at 1-4 (footnote added).
    Following proceedings not relevant to the instant appeal, on July 8,
    2022, the Commonwealth filed notice of its intent to seek mandatory minimum
    sentences on the charges of prohibited gun sale, if Appellant was convicted of
    any of those charges. The Commonwealth stated,
    in the event [that Appellant] is convicted of more than one count
    charging a violation of [18 Pa.C.S.A.] § 6111, the Commonwealth
    [] gives notice of its intention to seek the imposition of the
    mandatory [minimum] five[-]year prison sentence(s) on each
    count that reflects a second or subsequent violation of § 6111.
    Notice of Intent to Seek Mandatory Sentences, 7/8/22, at 2.                   The
    Commonwealth pointed out that 18 Pa.C.S.A. § 6111(h)(1) provides, in
    relevant part, as follows:
    A person who at the time of sentencing has been convicted of
    another offense under this section shall be sentenced to a
    mandatory minimum sentence of imprisonment of five years.
    Id.; see also Notice of Intent to Seek Mandatory Sentences, 7/8/22, at 1-2.
    Section 6111 further provides, in subsection (h)(5), as follows:
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    For the purposes of this subsection, a person shall be deemed to
    have been convicted of another offense under this section whether
    or not judgment of sentence has been imposed for that violation.
    18 Pa.C.S.A. § 6111(h)(5); see also Commonwealth v. Dawson, 
    132 A.3d 996
    , 1004 (Pa. Super. 2015) (“Section 6111(h) requires that the trial court
    determine whether a previous conviction exists at the time of sentencing,
    without giving consideration to when the conviction occurred.” (some citations
    and quotation marks omitted)).
    The matter proceeded to a guilty plea hearing on August 18, 2022.
    Appellant entered an open guilty plea to the above-mentioned offenses. 3
    N.T., 8/18/22, at 3.        Following oral and written guilty plea colloquies of
    Appellant, the trial court accepted his pleas as knowingly, intelligently, and
    voluntarily tendered. Id. at 15; see also id. at 4-15 (oral colloquy);4 id. Ex.
    ____________________________________________
    3  Appellant pled guilty to, inter alia, sixteen counts of prohibited gun sale,
    fifteen of which required a mandatory minimum sentence under 18 Pa.C.S.A.
    § 6111(h)(1).
    4 During the oral plea colloquy, Appellant confirmed his understanding that,
    with respect to his guilty pleas to prohibited gun sale, “these charges [require]
    a mandatory minimum of five to ten years” in prison. N.T., 8/18/22, at 7;
    see also 18 Pa.C.S.A. § 6111(h)(1). Notably, Appellant further confirmed his
    understanding that the sentencing court “has the option, because [Appellant
    pled guilty to] multiple counts involving mandatory minimum [sentences], to
    run [the sentences imposed on any those counts] either concurrently or
    consecutively at the time of [] sentencing….” N.T., 8/18/22, at 7; see also
    id. at 9 (prosecutor informing Appellant, “[I]t’s up to His Honor whether or
    not he will impose [the separate sentences for the prohibited gun sale counts]
    consecutive or concurrent. But on these counts alone, [Appellant] could face
    75 to 150 years [in prison] if th[e trial c]ourt is inclined to run the[ sentences]
    all consecutive.”).
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    J-S37023-24
    D-1 (written colloquy). In connection with the plea, the remaining charges
    against Appellant were nolle prossed.            Id. at 4.   The trial court deferred
    sentencing for the preparation of a presentence investigation (PSI) report and
    a risk assessment report. Id. at 15.
    Sentencing occurred on January 3, 2023. Before the trial court imposed
    sentence, Appellant acknowledged the mandatory minimum sentences
    applicable to fifteen of his sixteen convictions of prohibited gun sale, pursuant
    to 18 Pa.C.S.A. § 6111(h)(1). N.T., 1/3/23, at 6. Appellant argued that based
    on the circumstances of the case, his youth, and lack of any prior criminal
    record, the sentencing court should order all the mandatory terms to run
    concurrently, as opposed to consecutively; thus, he sought an aggregate
    sentence of five to ten years in prison. See id. at 6-10.5 The prosecutor
    countered the Commonwealth was “asking for a 30- to 60-year [aggregate]
    sentence on this case.”         Id. at 15; see also id. at 16-17 (emphasizing
    Appellant’s “straw purchases” of the 16 guns and the criminal purposes for
    which some of those weapons were employed). The Commonwealth argued
    that to impose an aggregate sentence of five to ten years in prison would
    constitute “a slap in the face to what these mandator[y sentences] are for”
    under subsection 6111(h)(1). Id. at 19. Prior to the imposition of sentence,
    ____________________________________________
    5 Appellant also presented character witnesses, who testified to his good
    character and requested leniency. See N.T., 1/3/23, at 12-14.
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    the trial court also considered Appellant’s allocution and apology, as well as
    the PSI. Id. at 22, 27.
    The trial court imposed an aggregate sentence of 20 to 40 years in
    prison. See id. at 28-30. Specifically, on fifteen of Appellant’s convictions of
    prohibited gun sale, the court imposed mandatory sentences of five to ten
    years in prison pursuant to 18 Pa.C.S.A. § 6111(h)(1). N.T., 1/3/23, at 28-
    30. Importantly to this appeal, the court ordered four of those mandatory
    sentences to run consecutively, with the remaining mandatory sentences
    running concurrently. Id. The trial court imposed no further penalty on
    Appellant’s remaining convictions. Id.
    On January 6, 2023, Appellant filed a timely post-sentence motion for
    reconsideration of sentence.   Appellant claimed the trial court erred in (a)
    failing to consider mitigating factors and Appellant’s rehabilitative needs; and
    (b) sentencing Appellant above “the aggravated range of the sentencing
    guidelines without stating the reasons [] on the record” for the sentence.
    Post-Sentence Motion, 1/6/23, ¶¶ 8-9; see also id. ¶ 10 (Appellant stating
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    he “has gainful employment waiting for him should the [trial c]ourt re[-
    ]sentence [him] to a county sentence6 with work release[.]” (footnote
    added)). The trial court denied the post-sentence motion by operation of law
    on May 9, 2023.7
    Appellant timely filed a notice of appeal on May 26, 2023. Appellant and
    the trial court have complied with Pa.R.A.P. 1925.
    Appellant presents two issues for our review:
    I.   Did the trial court abuse its discretion by sentencing Appellant
    to an aggregate of 20 to 40 years’ incarceration, because such
    a sentence was fashioned only to punish Appellant as it was
    primarily based upon the “seriousness of the offenses,”
    speculation and speculative facts about where the firearms
    ended up?
    II. Did the trial court fail to adequately explain the reasons for its
    sentence?
    Appellant’s Brief at 2 (issues enumerated).
    ____________________________________________
    6  The trial court had no authority to impose a sentence of county
    imprisonment, given the five-year mandatory minimum sentences applicable
    under 18 Pa.C.S.A. § 6111(h)(1). See 42 Pa.C.S.A. § 9762(b)(3) (providing
    a sentence of incarceration in a county prison is only available where the
    “[m]aximum term[] [is] less than two years.”); see also 18 Pa.C.S.A. §
    6111(h)(3) (“There shall be no authority for a court to impose on a defendant
    to which this subsection is applicable a lesser sentence than provided for in
    paragraph [(h)](1)….”).
    7 The trial court observed in its opinion that Appellant’s counsel “didn’t
    properly serve [the post-sentence motion] on the [trial court, which] remained
    unaware of it.” Trial Court Opinion, 2/11/24, at 31; see also id. at 32
    (observing the Clerk of Courts “provided no copy or notice of the [May 9,
    2023,] order to [the trial court.]”).
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    Appellant’s interrelated issues challenge the discretionary aspects of his
    sentence, from which there is no absolute right to appeal. 8                See
    Commonwealth v. Lawrence, 
    313 A.3d 265
    , 286 (Pa. Super. 2024)
    (“Challenges to the discretionary aspects of sentencing do not entitle an
    appellant to review as of right.” (citation and brackets omitted)).      Rather,
    where, as here, the appellant preserved his sentencing challenge in a timely
    post-sentence motion, he must (a) include in his appellate brief a Pa.R.A.P.
    2119(f) concise statement of the reasons relied upon for allowance of appeal;
    and (b) show that there is a substantial question that the sentence imposed
    is not appropriate under the Sentencing Code.              Commonwealth v.
    Summers, 
    245 A.3d 686
    , 691 (Pa. Super. 2021).
    Here, Appellant’s brief includes a Rule 2119(f) statement.           See
    Appellant’s Brief at 6-9 (asserting the trial court abused its discretion in (a)
    imposing an excessive aggregate sentence that was improperly based solely
    on the seriousness of Appellant’s crimes; and (b) failing to state adequate
    reasons for the sentence on the record).         Further, his claims present a
    substantial question. See Commonwealth v. Macias, 
    968 A.2d 773
    , 776
    ____________________________________________
    8  The “open” guilty plea Appellant entered permits him to challenge the
    discretionary aspects of his sentence. See Commonwealth v. Tirado, 
    870 A.2d 362
    , 365 n.5 (Pa. Super. 2005) (citing Commonwealth v. Dalberto,
    
    648 A.2d 16
    , 20 (Pa. Super. 1994) (explaining that, when the plea agreement
    is open, containing no bargain for a specific or stated term of sentence, the
    defendant will not be precluded from appealing the discretionary aspects of
    his sentence)).
    -9-
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    (Pa. Super. 2009) (“[A]n averment that the court sentenced based solely on
    the seriousness of the offense and failed to consider all relevant factors raises
    a   substantial      question”     (internal       citations     omitted));   see   also
    Commonwealth v. Knox, 
    165 A.3d 925
    , 929-30 (Pa. Super. 2017) (same).9
    Likewise, “[t]he failure to set forth adequate reasons for the sentence imposed
    has been held to raise a substantial question.”                Macias, 968 A.2d at 776.
    Accordingly, we review the merits of Appellant’s challenge to his sentence.
    Our standard of review of a discretionary sentencing challenge is well
    settled:
    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
    ____________________________________________
    9 However, a sentencing court’s
    exercise of discretion in imposing a sentence concurrently or
    consecutively does not ordinarily raise a substantial question.
    Rather, the imposition of consecutive rather than
    concurrent sentences will present a substantial question in
    only the most extreme circumstances, such as where the
    aggregate sentence is unduly harsh, considering the nature of the
    crimes and the length of imprisonment.
    Commonwealth v. Swope, 
    123 A.3d 333
    , 338 (Pa. Super. 2015) (emphasis
    added; internal citations and quotation marks omitted)).                    Cf.
    Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770 (Pa. Super. 2015) (en
    banc) (“an excessive sentence claim—in conjunction with an assertion that
    the [trial] court failed to consider mitigating factors—raises a substantial
    question.”). Instantly, Appellant abandoned on appeal his post-sentence
    motion claim that the sentencing court failed to adequately consider mitigating
    factors. See Appellant’s Brief at 6-14.
    - 10 -
    J-S37023-24
    judgment for reasons of partiality, prejudice, bias or ill will, or
    arrived at a manifestly unreasonable decision.
    Commonwealth v. Reid, __ A.3d __, 
    2024 PA Super 200
    , at *6 (Pa. Super.
    2024) (citation omitted).
    The Pennsylvania Supreme Court has explained:
    The reason for this broad discretion and deferential standard of
    appellate review is that the sentencing court is in the best position
    to measure various factors and determine the proper penalty for
    a particular offense based upon an evaluation of the individual
    circumstances before it. Simply stated, the sentencing court
    sentences flesh-and-blood defendants and the nuances of
    sentencing decisions are difficult to gauge from the cold transcript
    used upon appellate review. Moreover, the sentencing court
    enjoys an institutional advantage to appellate review, bringing to
    its decisions an expertise, experience, and judgment that should
    not be lightly disturbed.
    Commonwealth v. Pasture, 
    107 A.3d 21
    , 27 (Pa. 2014) (citations and
    quotation marks omitted).
    The balancing of the sentencing factors is the sole province
    of the sentencing court, which has the opportunity to observe the
    defendant and all witnesses firsthand. In conducting appellate
    review, this Court cannot reweigh sentencing factors and impose
    judgment in place of the sentencing court where the lower court
    was fully aware of all [] factors.
    Lawrence, 313 A.3d at 286 (internal citations, quotation marks, and brackets
    omitted). Further, a “sentencing court has broad discretion in choosing the
    range of permissible confinements that best suits a particular defendant and
    the circumstances surrounding his crime.” Commonwealth v. Hill, 
    66 A.3d 365
    , 370 (Pa. Super. 2013) (citation omitted); see also Commonwealth v.
    Celestin, 
    825 A.2d 670
    , 676 (Pa. Super. 2003) (same).
    - 11 -
    J-S37023-24
    The Sentencing Code directs a trial court to follow the general principle
    that “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); see also Commonwealth
    v. McClendon, 
    589 A.2d 706
    , 713 (Pa. Super. 1991) (en banc) (stating a
    sentencing court “should refer to the defendant’s prior criminal record, age,
    personal characteristics and potential for rehabilitation.”). A sentencing court
    must also consider the sentencing guidelines. 10 See 42 Pa.C.S.A. § 9721(b);
    see also Commonwealth v. Sheller, 
    961 A.2d 187
    , 190 (Pa. Super. 2008).
    A sentencing court is statutorily required to disclose in open court the
    reasons for the sentence imposed. See 42 Pa.C.S.A. § 9721(b); see also
    Commonwealth v. Egan, 
    679 A.2d 237
    , 239 (Pa. Super. 1996) (“The failure
    to provide such a statement of reasons for the sentence imposed is reversible
    error requiring resentencing.” (citation omitted)). However, a
    sentencing court need not undertake a lengthy discourse for its
    reasons for imposing a sentence or specifically reference the
    statute in question, but the record as a whole must reflect the
    ____________________________________________
    10 In its opinion, the trial court correctly pointed out, “[t]he recommended
    ranges of the Sentencing Guidelines, 
    204 Pa. Code § 303.16
    (a), had no
    bearing on the sentence[,]” “in light of the mandatory minimum sentences the
    [trial c]ourt was obligated to, and did, impose under … 18 Pa.C.S.A. §
    6111(h)….” Trial Court Opinion, 2/11/24, at 59 (citations modified); see also
    18 Pa.C.S.A. § 6111(h)(3) (providing, inter alia, the “[s]entencing guidelines
    promulgated by the Pennsylvania Commission on Sentencing shall not
    supersede the mandatory sentences provided in this section.”).
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    sentencing court’s consideration of the facts of the crime and
    character of the offender.
    Commonwealth v. Schutzues, 
    54 A.3d 86
    , 99 (Pa. Super. 2012) (citation
    omitted); see also Commonwealth v. Coulverson, 
    34 A.3d 135
    , 145 (Pa.
    Super. 2011) (stating a 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 enunciated in that
    section.” (citations and brackets omitted)). The sentencing court “can satisfy
    this disclosure requirement by indicating, on the record, that [the court] has
    been informed by a [PSI].” Egan, 
    679 A.2d at
    239 (citing Commonwealth
    v. Devers, 
    546 A.2d 12
     (Pa. 1988)).
    “It is well settled that ‘imposition of consecutive rather than concurrent
    sentences rests within the trial court’s discretion.’”     Commonwealth v.
    Foust, 
    180 A.3d 416
    , 434 (Pa. Super. 2018) (quoting Commonwealth v.
    Harvard, 
    64 A.3d 690
    , 703 (Pa. Super. 2013)); see also Hill, 
    66 A.3d at 370
    .
    Although Pennsylvania’s system stands for individualized
    sentencing, the court is not required to impose the
    “minimum possible” confinement. Generally, Pennsylvania
    law affords the sentencing court discretion to impose its sentence
    concurrently or consecutively to other sentences being imposed at
    the same time or to sentences already imposed.
    Commonwealth v. Brown, 
    249 A.3d 1206
    , 1216 (Pa. Super. 2021) (citation
    omitted) (emphasis added)). “An appellant is not entitled to a ‘volume
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    discount’ on his multiple convictions by the imposition of concurrent
    sentences.”    Lawrence, 313 A.3d at 286 (emphasis added; citation and
    brackets omitted); see also Foust, 
    180 A.3d at 434-35
     (collecting cases and
    stating, “extensive case law in this jurisdiction holds that defendants convicted
    of multiple offenses are not entitled to a ‘volume discount’ on their aggregate
    sentence.”).
    Instantly, Appellant claims the trial court abused its discretion in
    imposing an excessive aggregate sentence of 20 to 40 years in prison. See
    Appellant’s Brief at 9-14. Appellant contends the trial court improperly “based
    its reasoning for its sentence on seemingly speculative facts and unknown but
    presumed harm” “involving the ‘unrecovered firearms’ put into the stream of
    commerce by Appellant.” Id. at 11. According to Appellant, the trial court
    based the excessive sentence solely on the seriousness of his crimes:
    [T]he trial court reasons that the seriousness of the offense[s]
    here dictates that a sentence cannot and must not be less than 20
    to 40 years’ incarceration solely for the seriousness of the offense.
    The trial court gave no explanation and reasons as to how this
    sentence effectuates the other purposes of sentencing found in 42
    Pa.C.S.A. § 9721(b).
    Id. at 12 (citation modified).
    Appellant further contends “this sentencing lacked the individualized
    treatment at sentencing which is constitutionally and statutorily due to
    Appellant….” Id. at 14; see also id. (“Appellant [] deserves his own tailored
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    sentence, based upon him and his life, his offenses and the facts of his case,
    not the speculation about the future.”). Specifically, Appellant avers the trial
    court, in its 1925(a) opinion,
    compared this case to that of Commonwealth v. Michael
    Henry, [
    321 A.3d 943
    ,] 2315 EDA 2023 … [(Pa. Super. 2024)
    (unpublished] memorandum[)], wherein this Court affirmed the
    appellant’s [aggregate] sentence of 20 to 66 years [of]
    incarceration for 9 illegal [firearm] straw purchase[] transfers,
    multiple of which [appellant sold] to Police Officer Brad Fox’s
    murderer.
    Appellant’s Brief at 13 (some capitalization modified); 11 see also Trial Court
    Opinion, 2/11/24, at 53-56 (discussing Henry).
    The Commonwealth counters the trial court did not abuse its discretion,
    where it (a) stated adequate reasons on the record for the non-excessive
    sentence; and (b) considered Appellant’s individual circumstances and all
    relevant sentencing factors.          See Commonwealth Brief at 11-15.      The
    Commonwealth observes Appellant had 15 convictions of prohibited gun sale,
    each of which required a five-year mandatory minimum sentence under 18
    ____________________________________________
    11 Contrary to Appellant’s claim, Henry did not implicate the discretionary
    aspects of the appellant’s sentence.        Rather, the appellant in Henry
    challenged the dismissal of his petition filed pursuant to the Post Conviction
    Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See generally Henry, 
    321 A.3d 943
    . But see Commonwealth v. Henry, 
    122 A.3d 446
    , 3559 EDA
    2013 (Pa. Super. 2015) (unpublished memorandum at 7-10) (affirming
    appellant’s judgment of sentence, i.e., an aggregate term of 20 to 66 years’
    incarceration, imposed on appellant’s numerous violations of 18 Pa.C.S.A. §
    6111, and rejecting appellant’s challenge to the discretionary aspects of his
    sentence). This Court affirmed the PCRA court’s ruling, holding appellant’s
    “PCRA petition is patently untimely and meets no exception to the PCRA’s one-
    year time-bar.” Henry, 
    321 A.3d 943
     (unpublished memorandum at 11).
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    J-S37023-24
    Pa.C.S.A. § 6111(h)(1).    Commonwealth Brief at 11.       The Commonwealth
    emphasizes that “[w]hile [Appellant] pleaded guilty to 15 counts [of prohibited
    gun sale] that carried a mandatory minimum sentence, the [trial] court
    imposed [sentence on] only four of those [counts] to run consecutive.” Id.
    at 14-15 (emphasis added); see also id. at 11 (“[Appellant] is not entitled to
    a volume discount.”).
    The Commonwealth further contends “[Appellant’s] claim that the
    [sentencing] court focuse[d] solely on the severity of the crime[s] is belied by
    the record.” Id. at 12. According to the Commonwealth,
    [t]he record makes clear that the trial court considered
    [Appellant’s] youth, family history, his words in allocution and his
    potential for rehabilitation. The court fashioned a sentence
    commensurate with the seriousness of the offense, its impact on
    the community, and the rehabilitative needs of [Appellant].
    Id. at 15.
    At Appellant’s sentencing hearing, the trial court explained the reasons
    for its sentence:
    THE COURT: I read this file…. I read the letter from [Appellant’s]
    coach [written on Appellant’s behalf]. I read the letter from
    [Appellant’s] pastor. I read [the letter] from a magistrate judge.
    And in total, all were very supportive of [Appellant].
    ….
    And then I read the police reports that flowed from the[ 16]
    firearms. You have a total of 16 firearms that were placed in the
    hands of people who should not have possession of a firearm.
    That this … purchasing of firearms started soon after [Appellant’s]
    21st birthday.
    ….
    - 16 -
    J-S37023-24
    [Appellant] purchased 16 firearms for … individuals
    [ineligible to possess firearms]. [One of the 16 firearms was] …
    recovered in New York with four people who were too young to
    possess a firearm.
    [Another of the 16 guns was] used in a shooting in New
    York. … [Another gun was found] … on a victim at a shooting at
    a high school in [New Jersey]. [Another gun] was found during a
    police [traffic] stop on January 9th of 2019. And when [Appellant]
    had [an] opportunity to talk to the police about this, he [falsely]
    said that seven of [the 16] guns were stolen.
    So what do I do with all this information? … You have this
    young man[, Appellant,] who has a tremendous family support,
    tremendous support from [his high] school, [and] from coaches.
    And this same person knowingly put[] these deadly weapons into
    the hands of people who shouldn’t have them.
    You have [defense counsel] here who’s asking the court to
    impose a five- to 10-year sentence because of [Appellant’s]
    background.
    We have the [prosecutor,] who … says, Judge, we’ve only
    got three of the[ 16] guns accounted for. There’s another 13 guns
    out [in the community] that could be used right now to kill
    people….
    We have [Appellant’s] mother here whose heart is breaking
    for her son.
    On the other hand, we are faced with the wors[t] pandemic
    of gun violence this region has ever seen.
    So [sentencing] falls in my lap. What is just? What is right?
    ….
    I just want each and every one of you to know that this is
    the toughest responsibility of a judge…. I have the community[,
    which] put their trust in me to do what is right. And you have
    [Appellant] here who is also putting his trust in me to not sentence
    him to a day longer than what is just.
    - 17 -
    J-S37023-24
    ….
    I read the [PSI] report. And this report lays out the
    mandatory minimum[ sentences] … [implicated] in this case.
    ….
    I have reviewed the [sentencing] guidelines as well [] in this
    case…. It’s a mandatory minimum [sentence on 15 of Appellant’s
    16 convictions of prohibited gun sale].
    I’ve read [Appellant’s] family history and the background of
    each of [his] family members. [The court also] considered
    [Appellant’s] physical and mental condition[,] where he has no
    history of problems…. He … was not a heavy drinker. He
    graduated from Pottsgrove High School, [was a] star athlete, and
    so forth.
    So, these are all the things that I considered in deciding
    what I believe is an appropriate sentence in this matter.
    N.T., 1/3/23, at 23-28 (emphasis added; some capitalization modified); see
    also id. at 28-30 (imposition of sentence).
    The foregoing demonstrates that there is no merit to Appellant’s claim
    the sentencing court failed to state adequate reasons on the record for its
    sentence.   See id. at 23-28; see also Egan, 
    679 A.2d at 239
     (stating a
    sentencing court can satisfy the requirement that it place adequate reasons
    for the sentence on the record “by indicating, on the record, that [the court]
    has been informed by a [PSI].”); Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1135 (Pa. Super. 2009) (where a sentencing court is informed by a PSI,
    “it is presumed that the court is aware of all appropriate sentencing factors
    and considerations, and that where the court has been so informed, its
    discretion should not be disturbed.” (citing Devers, 546 A.2d at 18)).
    - 18 -
    J-S37023-24
    Moreover, the record belies Appellant’s claim that the trial court
    improperly based its sentence solely upon the seriousness of Appellant’s
    crimes. See, e.g., Commonwealth v. Knox, 
    219 A.3d 186
    , 199 (Pa. Super.
    2019) (rejecting appellant’s claim that the trial court abused its sentencing
    discretion in focusing solely on the seriousness of the offense, where the court
    expressly considered appellant’s PSI as well as other evidence at sentencing).
    In its Rule 1925(a) opinion, the trial court concluded it
    did not abuse [its] discretion in sentencing []Appellant to an
    aggregate term of imprisonment of twenty to forty years,12
    consisting of fifteen separate mandatory minimum terms of five
    to ten years’ imprisonment as required by [18 Pa.C.S.A. §
    6111(h)(1)], only four of which the [c]ourt in its discretion ran
    consecutively, as appropriate punishment for [Appellant’s] five-
    year-long course of conduct in which he put more than fifteen
    illegally-purchased firearms into circulation among the criminal
    element, and later tried to cover his tracks by making false reports
    to police about some of the guns[] being stolen[,] when
    authorities finally began to piece together his illegal gun-
    trafficking activities.
    Trial Court Opinion, 2/11/24, at 61-62 (footnote added); see also id. at 61
    (trial court opining it “adequately justified the four consecutive mandatory
    minimum five- to ten-year terms it imposed by reference to the repeated
    offenses [Appellant] committed over a protracted period of time[, and where
    he] lied about [the firearm purchases] when they were discovered….”); id. at
    ____________________________________________
    12 We reiterate that this sentence was significantly less than the sentence
    requested by the Commonwealth. See N.T., 1/3/23, at 15 (Commonwealth
    stating it was “asking for a 30- to 60-year [aggregate] sentence on this
    case.”).
    - 19 -
    J-S37023-24
    56 (pointing out that “the vast majority of the straw-purchased weapons have
    never been found.”).
    The trial court further stated:
    [T]he alleged excessiveness of the four consecutive mandatory
    minimum sentences of five to ten years the [c]ourt imposed [on]
    four [convictions of prohibited gun sale] … cannot be judged in
    isolation from the other sentences [Appellant] received, and did
    not receive, for crimes associated with those transfers as well as
    the other dozen or more weapons he illegally put into circulation.
    Especially given the aggregate sentence [Appellant] could have
    [received, his aggregate sentence of] twenty to forty years[’
    imprisonment] was not excessive.
    Id. at 58-59; see also id. at 57 (“[A]side from the cumulative punishment
    reflected in the [] consecutive sentences [imposed on four prohibited gun sale
    convictions, Appellant] received no [further] punishment for any” of his
    remaining convictions).
    Finally, there is no merit to Appellant’s claim of the trial court’s improper
    consideration of our prior decision in Henry, supra. Although the trial court
    mentioned Henry in its Rule 1925(a) opinion, the record clearly reflects the
    court imposed an individualized sentence upon Appellant, and nothing
    precluded the court from considering Henry.
    Based on the foregoing, Appellant failed to establish the trial court
    abused its ample discretion in imposing his sentence. Neither of his issues
    merits relief.
    Judgment of sentence affirmed.
    - 20 -
    J-S37023-24
    Date: 11/12/2024
    - 21 -
    

Document Info

Docket Number: 1391 EDA 2023

Judges: Murray

Filed Date: 11/12/2024

Precedential Status: Non-Precedential

Modified Date: 11/12/2024