Com. v. Young, R.

J-A19042-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHMEER YOUNG :
:
Appellant : No. 2098 EDA 2020
Appeal from the Order Entered October 27, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003398-2019
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED JANUARY 28, 2022
This is an appeal from the judgment of sentence entered in the Court of
Common Pleas of Philadelphia County Criminal Division following a non-
negotiated guilty plea by Rahmeer Young (Appellant) to robbery (for
threatening or intentionally putting the victim in fear of immediate serious
bodily injury) and terroristic threats.1 Appellant asserts that the trial court
abused its discretion by imposing an excessive aggregate 12 ½ to 25 years’
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa. C.S. §§ 3701(a)(1)(ii) and 2706 (a)(1). Appellant was also charged
with simple assault, recklessly endangering another person (REAP), theft-
receiving stolen property, and theft by unlawful taking; the Commonwealth
nolle prossed these charges.
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sentence outside the sentencing guidelines2 and the Commonwealth’s
sentencing recommendation.3 The Commonwealth has filed a brief, further
asserting that Appellant’s sentence is illegal because the trial court imposed
separate sentences for robbery and terroristic threats, and the two sentences
should have merged for sentencing purposes. The Commonwealth also
asserts that the trial court abused its discretion by imposing the statutory
maximum sentence, far in excess of the sentencing guidelines. After careful
consideration, we affirm the convictions for both robbery and terroristic
threats, but vacate the judgment of sentence for terroristic threats, as it
merges with robbery.
The factual history presented by the trial court in its 1925(a) opinion is
as follows:
On March 13, 2019, at approximately 2:00 a.m., Appellant,
Rahmeer Young, robbed [Victim], on the 3200 block of Pearl
Street in Philadelphia, as she was walking home from the Drexel
University library. According to [Victim], Appellant approached
her and told her “give me everything you have or it’ll get really
violent.” Appellant then put his hand on a bulge on his left side,
which led [Victim] to assume he was armed. Appellant then took
a $50 American Express gift card and [Victim]’s student ID. He
then grabbed [Victim]’s arm and attempted to drag her to a
secondary location. [Victim] was able to break free, and she fled
to her home, where she contacted police. Philadelphia Police
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2 Appellant’s offense gravity score was 10, and his prior record score was 1;
the Pennsylvania sentencing guidelines for robbery provide a standard
sentencing range of 2 ½ to 3 ½ years, with an aggravated range of plus 12
months. N.T., 9/5/19 at 15.
3 The Commonwealth requested an aggregate sentence of 2 ½ to 5 years’
incarceration. N.T., 9/5/19 at 16.
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Officers apprehended Appellant based on [Victim]’s description.
Appellant was in possession of [Victim]’s stolen belongings, and
[Victim] positively identified Appellant as the man who robbed
her.
Trial Court Opinion (TCO), 2/16/2021 at 1.
Following a sentencing hearing on September 5, 2019, Appellant was
sentenced to consecutive terms of ten to twenty years’ confinement for
robbery and two and one-half to five years of confinement for terroristic
threats. He filed a motion for reconsideration of sentence, which was denied
on October 27, 2020. This appeal followed.4
Although Appellant has not raised this issue, a claim that crimes should
have merged for sentencing purposes raises a challenge to the legality of a
sentence. Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa. Super.
2016). The issue of whether a sentence is illegal is not subject to waiver and
may be raised by this Court, even if its illegality has not been raised by the
appellant. Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 889 (Pa.
Super. 2019); Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super.
2013). “The legality of a criminal sentence is non-waivable, and this Court
may ‘raise and review an illegal sentence sua sponte.’” Pi Delta Psi, Inc.,
211 A.3d at 889 (quoting Commonwealth v. Muhammed, 992 A.2d 897(Pa. Super. 2010)). In a challenge to the legality of a sentence, our standard
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4 The trial court ordered Appellant to file a concise statement of matters
complained of on appeal on December 3, 2020, and Appellant filed a concise
statement on December 10, 2020. The trial court issued its 1925(a) opinion
on February 16, 2021.
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of review is de novo and the scope of review is plenary. Martinez, 153 A.3d
at 1030 (Pa. Super. 2016).
The crime of terroristic threats is committed when an individual
“communicates, either directly or indirectly, a threat to commit any crime of
violence with intent to terrorize another.” 18 Pa.C.S. § 2706(a)(1). The
robbery charge to which Appellant pled guilty was section 3701(a)(2) of the
Crimes Code, which provides that an individual is guilty of robbery if, in the
course of committing a theft, he or she “threatens another with or intentionally
puts [her] in fear of immediate serious bodily injury[;].” 18 Pa.C.S. §
3701(a)(2).
“No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
18 Pa.C.S. § 9765. The offense of robbery under section 3701(a)(2) includes
all of the statutory elements of terroristic threats. Where a defendant’s
convictions for terroristic threats and robbery both rely on the same
threatening statement - “give me everything you have or it’ll get really violent”
– the convictions merge and the sentence is illegal. See Martinez, 153 A.2d
at 1032.
Appellant’s claim of a manifestly excessive sentence implicates the
discretionary aspects of his sentence, and such challenge does not guarantee
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a petitioner’s right to our review. Instead, in order to invoke our Court’s
jurisdiction, he must satisfy a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (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. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation
omitted.) Here, Appellant filed a timely notice of appeal, and his brief included
a statement of reasons relied upon for allowance of appeal, as is required by
Pa.R.A.P. 2119(f). See Appellant’s Brief at 9. He also preserved the issue in
a timely post-sentence motion to reconsider, filed on September 16, 2019.
Therefore, we consider whether Appellant has raised a substantial question.
“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 () contrary to
the fundamental norms which underlie the sentencing process.”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (internal
citations omitted). A claim that a sentence was based on an improper factor
raises a substantial question, see Commonwealth v. Downing, 990 A.2d
788, 792 (Pa. Super. 2010), and an allegation that a sentence was
unreasonable because it was outside the sentencing guidelines similarly raises
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a substantial question, see Commonwealth v. Lawrence, 960 A.2d 473,
478 (Pa. Super. 2008). Appellant claims that the trial court focused solely on
the harm caused to the victim and failed to take into account mitigating
factors, and the imposition of the statutory maximum sentence was far in
excess of the sentencing guidelines, which provide for a minimum sentence of
two and one-half years. Here, we conclude that the challenges present a
substantial question, and we proceed to the merits of the sentencing
challenge.
Our Supreme Court has enunciated the proper standard of appellate
review of a sentencing court’s imposition of a sentence:
Our Court has stated that the proper standard of review
when considering whether to affirm the sentencing court’s
determination is the abuse of discretion. Commonwealth
v. Smith, 673 A.2d 893, 895 ((1996) (“Imposition of a
sentence is vested in the discretion of the sentencing court
and will not be disturbed absent a manifest abuse of
discretion.”). As stated in Smith, an abuse of discretion is
more than a mere error of judgment; thus, a sentencing
court will not have abused its discretion unless “the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or
ill-will.” Id. In more expansive terms, our Court recently
offered: “An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support
so as to be clearly erroneous.” Grady v. Frito-Lay, Inc.,
839 A.2d 1038, 1046 (2003).
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations and
footnotes omitted). The Sentencing Code offers general standards with
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respect to the imposition of sentence which require the sentencing court to
impose a sentence 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.” Walls,
926 A.2d at 962; 42 Pa.C.S.A. § 9721(b). Where, as here, a sentence imposed
is outside the sentencing guidelines, we must remand if the sentence is
“unreasonable.” 42 Pa.C.S.A. § 9781(c). “In making this “unreasonableness”
inquiry, the General Assembly has set forth four factors that an appellate court
is to consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Walls, 926 A.2d at 963; 42 Pa. C.S. § 9781(d).
Before the trial court, the victim testified that since the robbery, she has
been unable to sleep in her own room, and that it took her months before she
could sleep alone in her apartment. N.T., 9/5/19 at 7. She stated that she
can no longer spend nights in the library studying past midnight in what was
formerly a safe and comfortable routine for her; her daily panic attacks have
become less frequent through therapy, but she is an amputee living in the
City, and she is left feeling vulnerable. Id. She stated that she remains at
work for hours after she clocks out, just to avoid walking home alone, and she
will never feel as safe again. Id. at 7-8. The Commonwealth apprised the
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trial court that the victim believed that Appellant was armed when he put his
hand on a bulge on his left side, and that after he took her belongings, he
grabbed her arm and attempted to pull her from the area, but she pulled free.
Id. at 8-9.
Prior to its imposition of the sentence, the trial court acknowledged that
Appellant was “self-medicating” with Xanax. Id. at 24. Appellant’s mother
alluded to Appellant’s presentence investigation report, noting that it reveals
that Appellant lost one of his friends to an accidental shooting, and that his
father had died under mysterious circumstances. Id. at 14. The trial court
acknowledged that Appellant had no violent history
but noted that his probation had been revoked on both of the DUI’s with which
he was formerly convicted. Id. at 15. The trial court found that Appellant
was lurking on the Drexel University campus at 2:00 a.m., and that he preyed
upon the victim. Id. The trial court indicated that the sentencing guidelines
had been considered, but that the court believed that “this crime is so
egregious that the guidelines have to be superseded,” and stated that
Appellant was being sentenced for “punishment, protection of the public,
rehabilitation.” Id. at 25. In its opinion, the trial court explained that it had
considered the presentence report and the arguments of counsel, as well as
Appellant’s mother’s testimony, and that it took into consideration that the
victim did not suffer any serious physical injury as a result of the robbery.
Trial Court Opinion at 3-4. The trial court noted its particular concern with the
aggravating factors in this matter, specifically the fact that Appellant robbed
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an amputee, in a neighborhood where many students reside who can be found
by themselves and easily preyed upon. Id. at 4. It was extremely
troublesome to the trial court that Appellant tried to drag Appellant away even
after he had stolen her belongings, which indicated that Appellant “was in fact
prepared to follow through on his threats to “get really violent.” Id. The trial
court voiced its belief that Appellant is in need of drug treatment, and poses
extreme danger to the public without the treatment and rehabilitative services
he will receive while incarcerated. Id. Upon review, we cannot find that the
trial court failed to satisfy the requirements set forth by the General Assembly
in the Sentencing Code here, where it enunciated substantial reasons for the
imposition of its sentence. We are prohibited from finding an abuse of
discretion merely because we might have reached a different conclusion,
Grady, 829 A.2d at 1046, and our review of the record reveals no “manifest
unreasonableness.” Accordingly, we vacate the judgment of sentence for
terroristic threats, and we affirm Appellant’s robbery sentence.
Judgment of sentence for terroristic threats vacated. Judgment of
sentence for robbery affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2022
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