Com. v. Chamberlain, T.

J-S21040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TYRONE CHAMBERLAIN,
Appellant No. 561 EDA 2015
Appeal from the Judgment of Sentence January 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002370-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 23, 2016
Appellant Tyrone Chamberlain appeals the judgment of sentence
entered by the Honorable Giovanni Campbell on January 13, 2015, in the
Court of Common Pleas of Philadelphia County. Following our review of the
record, we affirm.
The relevant facts and procedural history are as follows: Officer James
Craig was patrolling the Philadelphia Housing Authority in the area of 1516
Judson Way with his partner Officer Matthew Smyth at approximately 8:15
p.m. on December 6, 2013. Officer Craig had patrolled that area frequently
throughout the prior eighteen months during which time he recovered
firearms approximately eight times. Officers specifically targeted the 7th, 9th,
16th, and 18th floors of the Judson Building as they were known for drug
sales, and Officer Craig had made narcotics arrests and recovered drugs
from those floors in the past. N.T., 11/7/14, at 5-8.
*Former Justice specially assigned to the Superior Court.
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On December 6, 2013, Officers Craig and Smyth entered the Judson
Building and proceeded to opposite ends of the 7th floor where they observed
Appellant standing in the hallway. As Appellant turned his body away from
Officer Craig, the latter noticed a black and silver semi-automatic firearm
protruding from the right side of Appellant’s waistband. Id. at 12, 20.
Officer Craig ordered Appellant to stop and put his hands on the wall.
Appellant complied, but when Officer Craig approached him, Appellant
quickly turned back towards the officer, pushed him and ran south down the
hallway toward Officer Smyth who was near an elevator. Id. at 14-15, 20-
21. As he did so, Appellant pulled the firearm from his waistband. Officers
took him to the ground and handcuffed him which caused the gun to fall to
the floor and slide a few feet toward the elevator. Id. at 15, 17, 21. The
parties stipulated that the gun was loaded and operable. Id. at 26-27.
Other individuals were in the vicinity at the time of the scuffle. Id. at 16-
17.
Following a non-jury trial, Appellant was convicted of one count of
Carrying firearms on public streets or public property in Philadelphia, 18
Pa.C.S.A. § 6108. At the sentencing hearing held on January 13, 2015, the
parties agreed that the offense gravity score was five and the prior record
score was two; thus, a guideline-range sentence was three to fourteen
months, plus or minus three months, and a maximum sentence was two and
one-half to five years in prison. N.T., 1/13/15, at 10. The Commonwealth
also indicated that Appellant previously had been on probation due to a 2008
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juvenile adjudication for possession of controlled substances with intent to
deliver, and he also had a prior juvenile adjudication for possession of
controlled substances in 2010. Id. at 6, 8, 9. At the time of the instant
offense, Appellant had been on bail as an adult for a 2011 arrest for
possession of a firearm and possession of controlled substances with intent
to deliver. Id. at 8-9. The Commonwealth recommended that the trial
court impose a sentence of two years to four years of incarceration to be
followed by one year of probation.
Defense counsel urged the trial court to consider the fact that
Appellant had not challenged the officers’ observations and agreed to a
waiver trial. Id. at 7. Counsel also indicated Appellant had had a difficult
childhood but presently had familial support and a daughter; he had lost an
infant child when he was eighteen years old. Id. at 6. While counsel
acknowledged Appellant had been in trouble with the law in the past, he
stated Appellant is demonstrated he is able to comply with the law. Id. at
6-7. Appellant then expressed his remorse for his actions to the trial court.
Id. at 14.
In imposing a sentence of two and one-half years to five years in
prison, the trial court stated it had considered the arguments of the parties,
the Presentence Investigation Report (“PSI”), the Sentencing Guidelines, and
Appellant’s allocution after which it explained its reasons for sentencing
Appellant as follows:
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I find that [Appellant] while visibly displaying the gun was
defiant of authority by running through the police officer after he
was seen. I find the circumstances of [Appellant’s] arrest
disturbing. Not only in that respect, but in the fact that he’s
walking around the hallways of the projects with a gun visibly
displayed.
I also find as an aggravator that at that time, he was on
bail for another case and he had a prior gun case. I do agree
with the Commonwealth that this show [sic] a persistence and
defiance of authority. That should be noted.
I recognize that there are witnesses in the courtroom to
support him.
And the sentence will be two and a half to five years[’]
incarceration, credit for time served. While on supervision, he’ll
be subject to random urinalysis, anger management classes, job
training. He’s to be actively seeking employment or be verifiably
employed. And he’s to enroll in an educational program. That’s
it.
Id. at 15.
On January 23, 2015, Appellant filed his Post-Sentence Motion for
Reconsideration of Sentence, and he filed an Amended Post-Sentence Motion
for Reconsideration of Sentence on February 4, 2015. Therein, Appellant
argued that in imposing a maximum sentence as allowed by law and one
that was nearly twice the aggravated range sentence, the court failed to
properly weigh mitigating factors or take into account Appellant’s
rehabilitative needs. Following a hearing, the trial court denied the Motions
on February 6, 2015, and the instant timely appeal followed.
On March 11, 2015, the trial court ordered Appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant filed the same on April 1, 2015. On July 20, 2015, the trial court
filed its Memorandum Opinion.
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On appeal, Appellant raises the following question for our review:
Did not the trial court err and abuse its discretion in
imposing a statutory maximum sentence that was manifestly
excessive and unreasonable in that: it was nearly twice the
upper limit of the aggravated range of the sentencing guidelines;
it exceeded the Commonwealth’s recommended sentence; and it
was disproportionately based on the gravity of the offense,
which the court improperly assessed by relying on factors that
are not atypical in firearms cases, and also by relying on “facts”
not established at trial or sentencing?
Brief for Appellant at 3.
This issue presents a challenge to the discretionary aspects of
Appellant’s sentence, and one’s right to appeal the discretionary aspects of
his sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d
270, 274 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). To
reach the merits of a discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence; (3)
whether appellant's brief has a fatal defect; and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011)
(footnotes and citation omitted).
Herein, Appellant filed a notice of appeal, preserved the issue in a
post-sentence motion, and included the requisite Statement of Reasons for
Allowance of Appeal from Discretionary Aspects of Sentence pursuant to
Rule 2119(f) in his appellate brief. Brief for Appellant at 7-10. Therefore,
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he is in technical compliance with the requirements to challenge the
discretionary aspects of his sentence, and we may proceed to determine
whether he has presented a substantial question that his sentence is not
appropriate under the Sentencing Code. Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).
In considering whether Appellant’s issue presents a substantial
question, we are guided by the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exits 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.
Id. at 330 (citations and quotation marks omitted).
Appellant claims that his sentence, which exceeded the
Commonwealth’s recommended sentence and the aggravated range of the
sentencing guidleines, was unreasonable and manifestly excessive because
the sentencing court did not consider mitigating factors, misrepresented the
evidence and failed to provide adequate reasons on the record for imposing
a statutory maximum sentence. Brief for Appellant at 12-20. We note that
a bald claim of an excessive sentence does not generally raise a substantial
question. See Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa.Super.
2013) (en banc), appeal denied, 91 A.3d 161 (Pa. 2014). However, this
Court has held that a claim of excessiveness in conjunction with a claim that
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the sentencing court did not consider mitigating factors presents a
substantial question. See Commonwealth v. Gonzalez, 109 A.3d 711, 731
(Pa.Super. 2015) (citing Dodge, supra at 1272); see also
Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015). We will
therefore address the merits of Appellant's claim and in doing so note that:
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 judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Gonzalez, supra, 109 A.3d at 731 (citation omitted).
Despite the recommendations set forth in the Sentencing Guidelines,
trial courts retain broad discretion in sentencing matters and may sentence a
defendant outside of those Guidelines. “The only line that a sentence may
not cross is the statutory maximum sentence.” Commonwealth v. Yuhasz,
923 A.2d 1111, 1118-19 (Pa. 2007) (citations and quotations omitted).
The sentencing court had the benefit of a PSI herein. In such cases,
this Court has stated that “we can assume the sentencing court was aware
of relevant information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).
In his appellate brief, although Appellant does not contest that his
sentence falls within the statutory maximum under Pa.C.S.A. § 106(a)(5),
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he avers the trial court “ignored all mitigating evidence, focus[ed] solely on
punishment and retribution, and, relied on facts not of record” when
sentencing him. Brief for Appellant at 9. In support of this contention,
Appellant states the trial court highlighted factors that “are not atypical in
firearms cases” and erroneously determined Appellant’s behavior revealed a
defiance of authority because he had been perusing the hallways of the
housing development with a gun visibly displayed. Id. at 15-16. Appellant
further faults the trial court for taking issue with several of the allegations
set forth in his post-sentence motions and for stressing that trial courts are
not required to blindly adhere to the Sentencing Guidelines Id. at 17-18.
Appellant maintains the trial court’s bias and “disproportionately high”
sentence are grounds for reversal. Id. at 19-20. We disagree.
At the post-sentence motion hearing held on February 6, 2015, the
trial court did express its frustration with allegations set forth in Appellant’s
motions for reconsideration of sentence. However, it specifically recognized
those filings had been drafted by defense counsel and pointed to places in
the transcripts which refuted them. N.T., 2/6/15, at 11. The trial court
went on to reiterate its belief that in the instant matter, the aggravating
factors surrounding Appellant’s behavior on December 6, 2013, far
outweighed any mitigating ones.
Appellant otherwise has failed to demonstrate that his sentence was
manifestly excessive because the trial court failed to consider mitigating
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factors. As discussed above, at sentencing, the trial court acknowledged
having reviewed the PSI, considered Appellant’s expression of remorse,
entertained defense counsel’s pleas for a mitigated sentence, and noted the
presence of family in the courtroom. Nevertheless, the trial court noted
Appellant’s prior record of juvenile adjudications for crimes involving drugs.
The court was particularly disturbed by the fact that Appellant had been on
bail for a firearms offense when, while holding a firearm, he pushed aside a
police officer attempting to apprehended him in the hallway of an apartment
complex known for its drug activity and presence of weapons as passersby
watched. It was for these reasons the trial court imposed the statutory
maximum sentence. See Trial Court Opinion, filed 7/20/15 at 4-5.
Appellant’s contentions to the contrary, the trial court was mindful of
Appellant’s rehabilitative needs as is evinced in its provision that while on
supervision, he will be subject to random urinalysis, attend anger
management classes, receive job training, and enroll in an educational
program. N.T., 1/13/15, at 15.
In light of the foregoing, we find the sentencing court did not abuse its
discretion or enter a manifestly unreasonable sentence. See Zeigler, supra
at 662 (holding sentence not manifestly unreasonable where sentencing
court considered PSI, details of crime, and explained reasons for sentence);
see also Moury, supra at 171. As Appellant's claim lacks merit, we affirm
his judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/23/2016
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