Com. v. Deloatch, N.

J-S65019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NADIR DELOATCH :
:
Appellant : No. 2083 EDA 2016
Appeal from the Judgment of Sentence May 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004338-2015,
CP-51-CR-0004339-2015
BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 29, 2018
Nadir Deloatch appeals from the judgment of sentence imposed on May
11, 2016, in the Court of Common Pleas of Philadelphia County. The trial
judge found Deloatch guilty at Docket No. 4338-2015 of robbery, possession
of firearms prohibited, firearms not to be carried without a license, theft by
unlawful taking – movable property, receiving stolen property, carrying
firearms in public in Philadelphia, possession of an instrument of crime, simple
assault, and recklessly endangering another person.1 The trial judge found
Deloatch guilty at Docket No. 4339-2015 of robbery, theft by unlawful taking
– movable property, receiving stolen property, possession of an instrument of
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118 Pa.C.S. §§ 3701(a)(1)(ii), 6105(a)(1), 6106(a)(1), 3921(a), 3925(a),
6108, 907(a), 2701, and 2705, respectively.
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crime, simple assault, and recklessly endangering another person.2 Deloatch
was sentenced to serve two concurrent terms of four and one-half to nine
years’ imprisonment, followed by five years’ probation.3 Deloatch claims (1)
the trial court erred in denying his pretrial motion to exclude out-of-court and
in-court identifications of Deloatch, (2) the trial court erred in denying the
motion to suppress a firearm, paper money, and coins, (3) the trial court erred
in denying Deloatch’s motion in limine to exclude the mention of coins
recovered by police, (4) the identification evidence was insufficient to sustain
the guilty verdicts, (5) the verdicts were against the weight of the evidence,
and (6) the sentence imposed constitutes an abuse of discretion by the trial
court. 4, 5 Based upon the following, we affirm.
The trial court has detailed the procedural history of this case, and we
need not restate it herein. See Trial Court Opinion, 4/20/2017, at 1-3. The
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2 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 907(a), 2701, and 2705,
respectively.
3 The trial court imposed the concurrent sentences of 4½-9 years’
imprisonment followed by five years’ probation on the robbery charge at
Docket No. 4338-2015 and the robbery charge at Docket No. 4339-2015. The
trial court found the theft by unlawful taking charge at each docket merged
with the robbery charge. The trial court ordered no further penalty on the
remaining charges at the respective dockets.
4 Deloatch preserved these claims by timely complying with the order of the
trial court to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.
5 We have reordered Deloatch’s issues to address the pretrial rulings first.
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trial court has summarized the facts underlying Deloatch’s convictions, as
follows:
On February 17, 2015 at approximately 8:25 PM, [Deloatch]
entered a Hess gas station convenience store located at 330 Grays
Ferry in Philadelphia holding a revolver with a silver barrel and
black handle. He was wearing a mask, dark jacket, gray hoodie,
blue jeans, and black shoes. Natacha Azor and Ayodeji Adeoye
(Complainants) were each standing behind a cash register in the
store. [Deloatch] walked straight towards the cash registers with
the gun pointed at the Complainants. He told Azor to stay still and
Adeoye to “hurry up and give [him] all the money in the register.”
[Deloatch] spent approximately five to six minutes inside the store
during the robbery and took money and a cell phone from
Complainants.
At approximately 8:30 PM Complainants used the panic-button
inside the store to contact police. Officer Raymond Sima arrived
at the Hess Station in response to a call over police radio that a
robbery alarm was set off. The Complainants informed him that
[Deloatch] fled south after the robbery. Officer Sima put this
information over the police radio. At approximately 8:33 PM,
Officers Christopher Bartolo and Kathryn McChord of the
Philadelphia Police Department heard Officer Sima’s flash
information over police radio that a black male with medium
complexion approximately 5’7” tall wearing a dark jacket and blue
pants with a firearm had robbed a convenience store located near
the 3300 block of Grays Ferry Avenue in Philadelphia. Officers
Bartolo and McChord were patrolling at the intersection of Napa
and Dickinson Street in a police vehicle when they saw [Deloatch],
who matched the flash description, walking south on Napa Street.
When the officers tried to speak with [Deloatch], he
immediately ran away, continuing south on Napa Street.
Officer McChord exited the vehicle and chased [Deloatch] on foot.
As she chased him, McChord observed coins falling from his
pockets and [Deloatch] holding his waistband. Officer
McChord lost her footing during the chase and fell, losing sight of
[Deloatch] as he continued down Napa Street towards Tasker
Street.
Officer Travis Clark, responding to the radio call, met
Officer McChord immediately after she lost sight of
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[Deloatch]. Officer Clark began searching the area and
found a handgun loaded with six bullets on the street next
to a parked car in front of 3104 Tasker Street. In addition,
Officer Palmiero found wrapped coins and loose change recovered
from the 1500 block of Napa Street.
Officer Heng observed a suspect near Hollywood and McKean that
substantially matched the flash information, but the suspect was
not wearing a dark jacket. After Officer Heng stopped the suspect,
both Complainants were taken to identify him. At approximately
9:40 PM, [Deloatch] was taken out of a police car in handcuffs and
put under a spotlight in front of Complainants. [Deloatch] did not
say anything. Both Complainants immediately identified
[Deloatch] as the person who robbed the convenience store earlier
that night. They recognized [Deloatch’s] eyes, eyebrows, the skin
above his eyebrows, body type, skin color, blue jeans, and black
shoes.
Trial Court Opinion, 4/20/2017, at 3-5 (footnotes omitted) (emphasis in
original).
In the first issue, Deloatch contends the trial court erred in denying the
pretrial motion to exclude the two victims’ out-of-court and in-court
identifications of him. He claims the victims only had a few minutes to observe
the perpetrator while focusing on the gun, and only being able to see eyes,
nose and a tiny section of the perpetrator’s hand. See Deloatch’s Brief at 17.
He argues the victims stated the perpetrator wore a dark jacket, which he did
not have. Id. He further contends the confrontation was unduly suggestive
because he was under arrest in a police car, surrounded by police and flashing
dome lights, with a light focused on him. Id.
“Our standard of review in addressing a challenge to a trial court’s denial
of a suppression motion is limited to determining whether the factual findings
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are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.
Super. 2003) (citation and internal citation omitted). Our scope of review is
limited to the evidence presented at the suppression hearing. In the Interest
of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).
In reviewing the propriety of identification evidence, the central
inquiry is whether, under the totality of the circumstances, the
identification was reliable. The purpose of a “one on one”
identification is to enhance reliability by reducing the time elapsed
after the commission of the crime. Suggestiveness in the
identification process is but one factor to be considered in
determining the admissibility of such evidence and will not warrant
exclusion absent other factors. As this Court has explained, the
following factors are to be considered in determining the propriety
of admitting identification evidence: the opportunity of the witness
to view the perpetrator at the time of the crime, the witness’
degree of attention, the accuracy of his prior description of the
perpetrator, the level of certainty demonstrated at the
confrontation, and the time between the crime and confrontation.
The corrupting effect of the suggestive identification, if any, must
be weighed against these factors. Absent some special element of
unfairness, a prompt “one on one” identification is not so
suggestive as to give rise to an irreparable likelihood of
misidentification.
Id. at 976 (citation and internal citations omitted).
Deloatch’s argument attempts to minimize the opportunity and ability
the victims had to observe the perpetrator, and to emphasize his police
custody at the time of the out of court identification. However, this argument
fails, given the detailed description of the perpetrator in the flash information
that substantially matched how Deloatch appeared when the police spotted
him on the street. See N.T., 2/12/2016 (suppression hearing) (mislabeled
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2/24/2016), at 16 (Officer Bartolo testifying Deloatch “fit the flash”
information). See also id. at 15, 38 (flash information of a black male,
medium complexion, about 5’7”, with a mask, blue jeans, a dark jacket and a
black handgun). Moreover, the detailed flash information describing the
perpetrator defeats Deloatch’s argument that the police identification
procedure used for the victims to identify Deloatch was unduly suggestive and
unreliable. Therefore, we conclude the trial court properly denied this aspect
of Deloatch’s suppression motion. See N.T., 2/29/2016 (suppression findings
of fact and conclusions of law), at 11-15. Accordingly, Deloatch’s first claim
warrants no relief.
In his second issue, Deloatch contends “[t]he trial court erred in denying
[the] motion to suppress the firearm as there was no reasonable suspicion or
probable cause to approach, chase or otherwise force [Deloatch] to abandon
any alleged contraband.” Deloatch’s Brief at 21.6 He argues police did not
have reasonable suspicion or probable cause to stop him because “[a]lthough
[Deloatch] matched some of the flash information, it was substantially
inconsistent, as well. [Deloatch] had no mask nor any dark jacket on.” Id.
at 21.
The principles that guide our review are, as follows:
Article I, § 8 of the Pennsylvania Constitution and the Fourth
Amendment of the United States Constitution afford protections
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6 Deloatch does not mention “the paper money and coins recovered” as stated
in his Statement of the Questions Involved. See Deloatch’s Brief at 8.
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against unreasonable searches and seizures. Among the
protections is the requirement that an officer have reasonable
suspicion before an investigatory stop.
Our [S]upreme [C]ourt has interpreted Article I, § 8 protection
more broadly than the Fourth Amendment and has found that a
seizure occurs when an officer gives chase. Under Pennsylvania
law, any items abandoned by an individual under pursuit are
considered fruits of a seizure. Those items may only be received
in evidence when an officer, before giving chase, has at least the
reasonable suspicion necessary for an investigatory stop. Stated
another way, when one is unconstitutionally seized by the police,
i.e., without reasonable suspicion or probable cause, any
subsequent flight with the police in pursuit continues the seizure
and any contraband discarded during the pursuit is considered a
product of coercion and is not admissible against the individual.
In re M.D., 781 A.2d 192, 196 (Pa. Super. 2001) (citation, internal citations,
and quotation marks omitted).
Here, the trial court rejected Deloatch’s claim, explaining that police did
have reasonable suspicion to stop him:
In our case, matching flash information gave the officers
reasonable suspicion to stop [Deloatch] as he walked down the
street. On February 17, 2015, at approximately 8:30PM, the police
received a radio call that a robbery had taken place at the Hess
Station located at 3300 Grays Ferry Avenue in Philadelphia. The
suspect was described as wearing a dark jacket, blue jeans, and
black shoes. Officers first spotted [Deloatch] on Napa Street four
blocks south of the Hess Station. He was wearing a dark jacket,
blue jeans, and black shoes. [Deloatch] closely matched the flash
information describing the robbery suspect. It was reasonable for
officers to stop [Deloatch] since a robbery had occurred and
[Deloatch] generally matched the flash of the suspect.
It is also important to note that the investigating officers did not
force [Deloatch] to abandon the money and firearm he was
carrying just because they approached him. Their actions were
not coercive. In In re M.D., [781 A.2d 192, 196 (Pa. Super.
2001),] when officers asked the [a]ppellant to stop, he fled
instead. Notwithstanding, the court held that the officers did not
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coerce the [a]ppellant to abandon incriminating evidence simply
because their approach caused him to flee. Similarly, when the
officers approached [Deloatch] on Napa Street, he voluntarily
abandoned his firearm and money. His actions gave the police
further suspicion that he committed the crime. Just as
importantly, the officers had reasonable suspicion to stop
[Deloatch] because he matched the description of the robber. As
the officers did not act improperly when they simply asked
[Deloatch] to approach, his contention that incriminating evidence
should be suppressed is unreasonable.
Trial Court Opinion, 4/20/2017, at 9-10. See also N.T., 2/29/2016
(suppression findings of fact and conclusions of law), at 8-11.
Based on our review, we conclude there is no basis upon which to disturb
the trial court’s determination. The trial court’s findings are supported by the
suppression record and we agree with the trial court’s legal conclusions. See
Moye, supra. Deloatch looked substantially similar to the description of the
perpetrator reported in the police flash. Accordingly, police had reasonable
suspicion to stop him. Therefore, we reject Deloatch’s claim that the trial
court erred in denying his motion to suppress the firearm.
Nor do we find merit in Deloatch’s third claim that the trial court erred
in denying his motion in limine to exclude mention of coins recovered that
were never placed on an evidentiary property receipt.
The admissibility of evidence “rests within the sound discretion of the
trial court, and therefore, we will reverse [the] trial court’s decision . . . only
if the appellant sustains the heavy burden to show that the trial court has
abused its discretion.” Commonwealth v. Christine, 125 A.3d 394, 398
(Pa. 2015) (citation and quotations omitted).
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It is important to point out that, here, the Commonwealth did not seek
to introduce the coins into evidence. Accordingly, there was no need for the
Commonwealth to establish chain of custody with an evidentiary property
receipt. See In re D.Y., 34 A.3d 177, 185 (Pa. Super. 2011) (“Chain-of-
custody refers to the manner in which evidence was maintained from the time
it was collected to its submission at trial[.]”). Furthermore, as the trial court
aptly reasoned:
[T]he coins were documented on the officers’ crime scene log even
though there was no property receipt.30 Therefore, the Court
chose not to prevent the Commonwealth from mentioning the
coins. [Deloatch] was also granted ample opportunity to cross-
examine the officers on this point. Given the circumstances, the
probative value of the evidence outweighed its prejudicial
impact.31
30 N.T., February 24, 2016, at 7.
31[Deloatch] further claims since the coins were not on a
property receipt he did not have the opportunity to inspect
them. However criminal defendants do not have an
automatic right to inspect all evidence in possession of the
prosecution. Had [Deloatch] formally asked the Court to
give him an opportunity to inspect the coins either before
or during trial, the Court may have granted his requests.
Finally, even if the Court had excluded the coinage as
evidence, the Commonwealth was still able to establish
that [Deloatch] possessed paper currency. [Deloatch’s]
guilt was established by the paper contraband alone.
Therefore, the Court did not err when it denied [Deloatch’s]
motion in limine to exclude the coins.
Trial Court Opinion, 4/20/2017, at 11-12. Based on our review, we discern
no abuse of discretion in the trial court’s ruling. Therefore, we reject
Deloatch’s third claim.
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Next, Deloatch argues the evidence was insufficient to sustain the guilty
verdicts because “there was no corroborating evidence that [Deloatch]
committed any of the elements of the crimes as it was not proven beyond a
reasonable doubt that [Deloatch] was present at the scene of the crime or
possessed any proceeds from the robbery, and where the witnesses incredibly
identified [Deloatch] when the perpetrator wore a mask.” Deloatch’s Brief at
17.
Our standard of review of a sufficiency claim is well settled:
Our standard for evaluating sufficiency of the evidence is whether
the evidence, viewed in the light most favorable to the
Commonwealth [as verdict winner], is sufficient to enable a
reasonable [factfinder] to find every element of the crime beyond
a reasonable doubt. [T]he entire trial record must be evaluated
and all evidence actually received must be considered, whether or
not the trial court's rulings thereon were correct. Moreover, [t]he
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Finally, the trier of fact, while passing
upon the credibility of witnesses and the weight to be afforded the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation
omitted).
Regarding the sufficiency of evidence of identification, the Pennsylvania
Supreme Court has instructed:
Proof beyond a reasonable doubt of the identity of the accused as
the person who committed the crime is essential to a conviction.
The evidence of identification, however, needn’t be positive and
certain in order to convict, although any indefiniteness and
uncertainty in the identification testimony goes to its weight.
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Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations
omitted).
Based on our review, we conclude that Deloatch’s claim that the
evidence was insufficient to prove he was the perpetrator warrants no relief.
Deloatch seeks to have this Court review the evidence in the light most
favorable to him. However, our standard of review requires us to view the
evidence in the light most favorable to the verdict-winner, the
Commonwealth. See Shull, supra. Here, the two victims positively identified
Deloatch, at the time of the crimes and at trial, as the person who committed
the crimes charged. At the scene, their identification was immediate. See
N.T., 3/4/2016, at 21; N.T., 3/7/2016, at 17-18. At trial, their identification
was unequivocal. See N.T. 3/4/2016, at 17; N.T., 3/7/2016, at 14-15.
Moreover, there was overwhelming circumstantial evidence that Deloatch was
the perpetrator, namely, the victims’ description of their assailant
substantially matched Deloatch,7 police observed coins falling from Deloatch’s
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7 The flash information for the suspect – which came from the victims – was
a black male, about 5’7”, medium complexion, wearing a mask, a dark jacket
and blue jeans and a black handgun. N.T., 3/4/2016, at 28-29. One police
unit spotted a male that matched the description. Id. at 28. See also N.T.,
2/12/2016 (suppression hearing) (mislabeled 2/24/2016), at 15, 38. (All of
the testimony and exhibits from the suppression hearing were incorporated
into the evidence at the non-jury trial, see N.T., 3/7/2016, at 30.) When
Officer Christopher Bartolo observed Deloatch, he was walking at a brisk pace,
and was wearing a dark jacket, and blue jeans. N.T., 2/12/2016, at 16.
Officer Bartolo further stated Deloatch was wearing a dark jacket with a gray
hoodie. Id. at 21. However, when Deloatch was apprehended, he was not
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pockets as he fled, and police recovered wrapped coins and loose change from
the street where Deloatch had fled, and also located a gun on the street where
Deloatch was seen heading by police. Accordingly, Deloatch’s sufficiency
claim fails.
Deloatch also challenges the weight of the evidence. However, this
claim has been waived for appellate review.
It is well settled that a defendant must present his challenge to
the weight of the evidence to the trial court for a review in the first
instance. See Pa.R.Crim.P. 607(A); Commonwealth v. Griffin,
2013 PA Super 70, 65 A.3d 932, 939 (Pa. Super. 2013).
Thereafter, appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence.
Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa. Super. 2016) (citation
omitted), appeal denied, 163 A.3d 403 (Pa. 2016). “[A] weight of the
evidence claim must be preserved either in a post-sentence motion, by a
written motion before sentencing, or orally prior to sentencing.”
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (citations
omitted). See Pa.R.Crim.P. 607.
Here, Deloatch did not file a written post-sentence motion, nor did he
challenge the weight of the evidence either prior to or during his sentencing
hearing. Therefore, the trial court did not consider whether the verdict was
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wearing a dark jacket. Id. at 22. During arrest processing, Deloatch indicated
he was 5’7” and weighed 120 pounds. See N.T., 3/4/2016, at 45.
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against the weight of the evidence, and, consequently, waiver applies to this
claim.8
The final issue is a challenge to the discretionary aspects of the
sentence. A challenge to the discretionary aspects of a sentence is not
absolute, but rather, “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and
internal citation omitted). To reach the merits of a discretionary issue, this
Court must determine:
whether the appeal is timely; (2) whether Appellant preserved
[the] issue; (3) whether Appellant's brief includes a 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 appropriate under the sentencing code.
Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted).
Deloatch complied with the procedural requirements for this appeal by
presenting an oral post-sentence motion seeking modification of his
sentence,9 and a subsequent notice of appeal, and by including in his appellate
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8 We note the fact that Deloatch included this claim in his Pa.R.A.P. 1925(b)
statement and the trial court addressed the claim in its opinion did not
preserve the issue for our review absent the filing of an earlier motion. See
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009), cert. denied,
559 U.S. 1111 (2010).
9 Following the May 11, 2016, sentence, the Commonwealth filed a motion for
reconsideration of sentence and, on May 26, 2016, at a hearing on the motion,
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brief a statement of reasons relied upon for appeal pursuant to
Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.
2119(f).10 Therefore, we must determine whether he has raised a substantial
question justifying our review.
A defendant raises a substantial question when he “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. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (citation omitted), appeal
denied, ___ A.3d ___ (Pa. October 10, 2017).
Here, Deloatch cites 42 Pa.C.S. § 9721(b) (“the court shall 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”). See Deloatch’s Brief at 26-27.
Deloatch claims the trial court’s sentence “did not properly consider
[Deloatch’s] youth and likelihood of complete rehabilitation, his being the
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Deloatch also orally objected to his sentence. See N.T., 5/26/2016. On June
1, 2016, the trial court denied both motions. See N.T., 6/1/2016, at 3.
10 While Deloatch has ostensibly included a separate Rule 2119(f) statement
in his amended brief, it simply states relevant legal tenets, and the statement
of reasons relied upon for appeal is mistakenly combined with the argument
of the claim. We will overlook this misstep, however, as it is one of form, not
substance.
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father of a young boy, and [Deloatch’s] showing of remorse and acceptance
of responsibility at sentencing, and familial support.” Deloatch’s Brief at 27.
He also contends the trial court should have used the standard guidelines (36-
48 months +/-12) at sentencing rather than the deadly weapons/used
enhancement (54-66 months +/-12). See id. We conclude Deloatch presents
a substantial question for our review. See Commonwealth v. Buterbaugh,
91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (“[A]rguments that the
sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721
does present a substantial question[.]”); Commonwealth v. Phillips, 946
A.2d 103, 112 (Pa. Super. 2008) (“A substantial question is raised where an
appellant alleges his sentence is excessive due to the sentencing court’s error
in applying the deadly weapon enhancement.”). Therefore, we will proceed
to review the discretionary aspects of Deloatch’s sentence.
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.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
At sentencing, the trial court justified its sentence, stating:
It’s a very serious charge. I could have easily gone higher. But I
can’t go too low, because he needs to understand the
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consequences of his actions. He simply can’t go out there and stick
up people with loaded guns. It’s inappropriate.
And you’re 22, but the bottom line is, you have to be responsible
for your own actions and your conduct. … [Y]ou need to
understand, before you go and stick somebody up with a loaded
gun, what the consequences of your actions are.
****
The reason for the sentence is because, like I said, you are young.
I do believe that there’s a lot of redeeming value in you. You seem
like a pretty nice young man overall. You’re pretty articulate. My
hope is that you go to school and learn a trade so that when you
come out you can be a productive citizen. I think you will.
N.T., 5/11/2016, at 27-28, 29. The trial court also explained, “under the
circumstances[,] I’m protecting society.” Id. at 30.
Furthermore, in response to Deloatch’s Pa.R.A.P. 1925(b) statement,
trial court expounded:
[W]hen sentencing a defendant, the trial court must consider
certain circumstances regarding the offense and the defendant’s
character. Com[monwealth] v. Boyer, 2004 Pa. Super. 303,
856 A.2d 149, 154 (Pa. Super. 2004). However, if the sentencing
judge has considered the presentence investigation report, it will
be presumed that he was aware of and considered all of the
relevant circumstances in determining the appropriate sentence.
Id.While the sentencing court has discretion in these respects, it has
“no discretion to refuse to apply the deadly weapons enhancement
when it is appropriate”. Com. v. Raybuck, 9[1]5 A.2d 125[,129]
(Pa. Super. 2006). Under Pennsylvania code when an offender
uses a deadly weapon, including a firearm, in a way that threatens
or injures another individual they are subject to the deadly
weapon enhancement in sentencing. 204 Pa. Code §
303.10(a)(2)(i).
Here the record shows that the Court considered many factors
before it sentenced [Deloatch] including his age, severity of the
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crime, potential for education, ability to be rehabilitated, and the
fact he has a young child. The Court noted [Deloatch] is only 22
years old which is young. He was arrested for burglary at the age
of 16. He has two marijuana convictions one of which was
Possession with Intent to Distribute. It seems he had a fairly
stable childhood as both of his parents were present in his life, his
father spoke during sentencing, and there is no evidence of abuse.
At sentencing [Deloatch] told the trial judge he plans to go to
school for a computer technician program. Considering all
circumstances the trial judge sentenced [Deloatch] to four and a
half to nine years in jail followed by five years’ probation.
[Deloatch] recognized this range was not outside the maximum
punishment allowed for this type of offense because his
suggestion was a prison term of two to nine years. Therefore
nothing about this sentence reveals manifest abuse by the trial
judge. In fact, the Court heard [Deloatch’s] motion to reconsider
after the sentencing hearing, but it upheld the initial sentence.
[Deloatch] argued the minimum range of the sentence should be
lower. The minimum range was given pursuant to the sentencing
guidelines with the used deadly weapon enhancement. It is clear
[Deloatch] used a firearm to threaten the Complainants.
Therefore, the deadly weapon enhancement applies to
[Deloatch’s] sentencing and the incarceration term given by the
Court was appropriate. The fact still remains this was a violent
robbery committed with a firearm and there were two victims. The
trial judge reiterated his initial sentencing was already fair. Clearly
none of the actions by the trial judge in this case rise to the level
of abuse of discretion.
Trial Court Opinion, 4/20/2016, at 21-22.
Based on our review of the record, and applying our deferential standard
of review, we find no abuse of discretion in this sentencing decision. The trial
court was aware of all mitigating circumstances and justified its sentence with
a full explanation of all relevant sentencing factors. Furthermore, the trial
court properly applied the deadly weapon/used enhancement since the record
shows Deloatch used the weapon to threaten the victims while committing the
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J-S65019-17
robbery. See, Shull, supra, 148 A.3d at 832 (Pa. Super. 2016) (defendant’s
“mere possession of a gun transcended to his use of the gun” when he
removed gun from under his clothing and pointed it at victim’s face during
attempted robbery). Accordingly, we affirm.
Judgment of sentence affirmed.
Judge Musmanno joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/29/18
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