Com. v. Allen, L.

J-S18007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEON LAMONT ALLEN,
Appellant No. 1328 MDA 2015
Appeal from the Judgment of Sentence June 15, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001153-2014
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 11, 2016
Leon Lamont Allen appeals from the judgment of sentence of six to
fifteen years imprisonment that the trial court imposed after it convicted
Appellant at a nonjury trial of robbery and possession of an instrument of
crime (“PIC”). We affirm.
The following evidence produced by the Commonwealth supported the
convictions in question. At approximately 7:15 p.m. on February 9, 2014,
the victim, Trisha Magilton, went to her boyfriend’s residence, which was
located in a condominium complex at 1525 North Front Street, Harrisburg.
After entering the lobby of the building through the locked door by using
either a key or a key pad, Ms. Magilton pressed the elevator button, and
then she heard a knock on the front door.
*
Retired Senior Judge assigned to the Superior Court.
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Appellant was standing outside, and Ms. Magilton opened the door
slightly to ascertain what he wanted. At trial, the victim testified that
Appellant then “shoved his hands in, had a gun, and demanded my purse.”
N.T. Nonjury Trial, 4/6/15, at 9. Due to confusion and fear, Ms. Magilton
screamed and hesitated, but, after Appellant “shook the gun at [her] and
demanded it a couple times,” she “slid the purse over to [Appellant] on the
floor[.]” Id. Appellant reached into the lobby, grabbed the orange purse,
and fled. The victim stated the gun was black.
Ms. Magilton ran upstairs to her boyfriend’s fifth-floor condominium
and contacted police, giving them a description of Appellant and his clothing.
Shortly thereafter, police transported the victim to the corner of Second and
Reily Streets, which was approximately one block away from the
condominium complex. Appellant was standing in front of a police vehicle,
and the victim identified him as the perpetrator of the crime. Ms. Magilton
was then taken to a Lexus and viewed her purse on the backseat.
United States Marshal Luis Rodriguez testified as follows. On February
9, 2014, he was employed by the Harrisburg Police Department and was on
routine patrol when, at 7:20 p.m., he heard a broadcast that an armed
robbery had occurred on the 1500 block of North Front Street. Marshal
Rodriguez, who was on the corner of Second and Reily Streets, began
searching the area, and immediately saw Appellant, who matched the
description of the perpetrator. Appellant was exiting a Lexus with another
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individual. Marshal Rodriguez radioed for backup, and he and two other
officers detained Appellant.
The victim was brought to the area and positively identified both
Appellant as the person who robbed her at gunpoint, and her purse in the
Lexus that he had just exited. Police then contacted the vehicle’s owner,
who gave them consent to search it. In addition to the purse, police found a
black Airsoft gun that was altered to look like a Beretta and various items
from Ms. Magilton’s purse.
Appellant was sentenced on June 15, 2015. The pre-sentence report,
to which Appellant had no corrections, outlined a significant criminal history.
In addition to four juvenile delinquency adjudications, his adult offenses
resulted in a prior record score of four. The offense gravity score was ten
for the armed robbery, resulting in a standard-range sentence of forty-eight
to sixty months. The PIC, with an offense gravity score of three, had a
standard-range sentence of three to fourteen months incarceration. The
Commonwealth did not invoke a mandatory minimum sentence. The
sentencing court imposed an aggravated-range sentence on the armed
robbery of six to fifteen years imprisonment and a concurrent standard-
range sentence of one to two years in jail for PIC.
This appeal followed denial of Appellant’s motion to modify the
sentence. Appellant complied with the trial court’s directive to file a
Pa.R.A.P. 1925(b) statement, and this matter is ready for review. Appellant
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raises this contention: “Whether the trial court erred in denying Appellant’s
Post-Sentence Motion where his sentence is excessive and unreasonable and
constitutes too severe a punishment in light of Appellant’s rehabilitative
needs, the gravity of the offense, and what is needed to protect the public?”
Appellant’s brief at 5.
A defendant does not enjoy an automatic right to direct review of the
discretionary aspects of a sentence. Commonweath v. Haynes, 125 A.3d
800 (Pa.Super. 2015). Instead, our jurisdiction is invoked only when a four-
part test is satisfied: 1) the appeal must be timely; 2) the issue has to be
preserved in a motion to reconsider or by objection at sentencing as well as
in response to an order to file a Pa.R.A.P. 1925(b) statement; 3) defendant’s
appellate brief must contain the statement required by Pa.R.A.P. 2119(f);
and (4) that statement has to raise the existence of a substantial question
that the sentence is not appropriate under the Sentencing Code. Id.In this case, the appeal was timely, and the contention was preserved
in a post-sentence motion to modify and in Appellant’s Pa.R.A.P. 1925(b)
statement. Also, Appellant’s brief contains a Pa.R.A.P. 2119(f) statement of
reasons for allowance of appeal from the discretionary aspects of his
sentence. Appellant maintains that the sentence is so manifestly excessive
as to constitute too severe a punishment, and he relies upon
Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011), In that
decision, we stated, “A claim that a sentence is manifestly excessive such
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that it constitutes too severe a punishment raises a substantial question.”
Accordingly, we will review the merits of Appellant’s averment.
It is well established that “the trial court has broad discretion in
sentencing a defendant, and concomitantly, the appellate courts utilize a
deferential standard of appellate review in determining whether the trial
court abused its discretion in fashioning an appropriate sentence.”
Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014). The rationale
behind according trial courts this broad discretion 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.” Id. (citation and quotation marks
omitted). First, “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.” Id. Additionally, “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.” Id.Appellant makes scant effort to develop his sentencing claim.
Appellant’s brief at 11-12. Instead, he recites a litany of what he labels as
mitigating factors. Specifically, he relies upon his trial testimony, which was
rejected by the fact-finder, that “an unknown male had left the victim’s
purse and BB gun in Appellant’s car when that unknown male initially tried
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to sell the purse to Appellant.” Id. at 11. Appellant then points out that the
pre-sentence report established that he obtained his GED, completed two
semesters of community college, and was gainfully employed when he
committed this crime.
Thus, Appellant appears to suggest that the court did not weigh those
factors. However, since the sentencing court had the benefit of a pre-
sentence report, we must presume that the “sentencing judge was aware of
the relevant information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors.” Pasture,
supra at 28 (citation omitted); accord Commonwealth v. Devers, 546
A.2d 12 (Pa. 1988)
To the extent that Appellant is asking us to re-weigh the sentencing
factors and remand for imposition of a more lenient sentence based upon
what he views as mitigating facts, we are not permitted to do so. As we
have observed, “We cannot re-weigh the sentencing factors and impose our
judgment in the place of the sentencing court.” Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (citing Commonwealth v.
Walls, 926 A.2d 957 (Pa. 2007). Since Appellant does not provide any
cogent support for his position that his sentence was so manifestly excessive
as to constitute too severe a punishment, we must reject it.
Judgment of sentence affirmed.
Judge Lazarus Joins this Memorandum.
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Judge Strassburger files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2016
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