Com. v. Bradley, T.

J-S44030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS BRADLEY, :
:
Appellant : No. 3498 EDA 2017
Appeal from the Judgment of Sentence August 25, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0003275-2017
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 03, 2018
Thomas Bradley (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to possession with intent to deliver (PWID) a
controlled substance, and criminal conspiracy to commit PWID.1 We affirm.
The trial court summarized the factual background as follows:
On Thursday, June 6th of 2016, the Bristol Township Police
Narcotics Unit conducted an investigation into cocaine sales in the
area of Bloomsdale. This investigation was initiated after
numerous complaints from residents reporting ongoing drug sales
in the streets of Bloomsdale.
On Thursday, June 16th of 2016, [Bristol Township Police Detective
Doug Slemmer] met with an undercover officer from the Bucks
County Drug Unit at police headquarters. The police officer was
provided with buy money to purchase illegal drugs. The police
officer traveled by vehicle to the Bloomsdale section of Levittown
in Bristol Township, Bucks County. The police officer made
contact with the defendants, Ira Brinson and [Appellant], on the
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1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903.
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2400 bl[o]ck of Airacobra Street. Brinson and [Appellant]
orchestrated a drug sale with the police officer, and the officer
obtained cocaine from the defendants.
The cocaine was field tested and did test positive for cocaine, and
was later sent to the lab and also tested positive for cocaine . . .
it was .13 grams.
Trial Court Opinion, 3/28/18, at 1-2.
On August 25, 2017, Appellant appeared before the trial court and pled
guilty to the above crimes. That same day, the trial court sentenced Appellant
to 5 to 15 years of incarceration. Appellant filed a timely post-sentence
motion on September 5, 2017.2 The trial court denied the post-sentence
motion on September 25, 2017, after which Appellant filed this timely appeal.
Both Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.3
Appellant presents a single issue for our review:
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2 Monday, September 4, 2017 was Labor Day.
3 The trial court explained that it ordered Appellant’s counsel to file a Pa.R.A.P.
1925(b) statement on October 27, 2017. However, “[t]he Office of the Public
Defender, representing Appellant, mistakenly believed it had filed the Concise
Statement on November 6, 2017. The Concise Statement was provided at
this Court’s request [and was filed nunc pro tunc] on February 18, 2018.”
Trial Court Opinion, 3/28/18, at 2 n.4. We note that the untimely filing of
Appellant’s court-ordered Rule 1925(b) statement does not automatically
result in waiver. Where “the trial court accepts an untimely Rule 1925(b)
statement and addresses the issues raised in its Rule 1925(a) opinion, we will
not determine the issues to be waived.” Commonwealth v. Sohnleitner,
884 A.2d 307, 312 (Pa. Super. 2005), appeal denied, 897 A.2d 456 (Pa.
2006). Here, as in Sohnleitner, the trial court accepted Appellant’s 1925(b)
statement despite its untimeliness and addressed the issue raised. Therefore,
we decline to conclude that Appellant’s issue is waived. See id.-2-
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Did the sentencing court abuse its discretion in imposing a
sentence above the aggravated range of the applicable sentencing
guidelines by not considering mitigating evidence, by relying on
factors that were already contemplated by the available
sentencing guidelines, and by placing improper weight on the
testimony of the investigating detective at sentencing?
Appellant’s Brief at 4.
Appellant challenges the discretionary aspects of his sentence. We
recognize:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. 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. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-
part test to invoke this Court’s jurisdiction when challenging the discretionary
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aspects of a sentence.” Id. We conduct this four-part test to determine
whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Here, Appellant has complied with the first three prongs of the
discretionary aspect test to invoke our jurisdiction by raising his issue in a
timely post-sentence motion, filing a timely notice of appeal, and including in
his appellate brief a Rule 2119(f) concise statement. In addition, by asserting
that his sentence beyond the aggravated range is unreasonable given the
mitigating circumstances, he has raised a substantial question. See, e.g.,
Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en
banc) (stating that a substantial question is raised where an appellant alleges
that the sentencing court imposed a sentence in the aggravated range without
adequately considering mitigating circumstances).
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In his argument, Appellant recounts the procedural history of his case,
and cites case law for general propositions relating to the discretionary aspects
of sentencing. See Appellant’s Brief at 9-11. With regard to the specifics of
his claim, Appellant’s entire argument states:
The sentencing court in this case imposed a sentence above
the aggravated range of the applicable guidelines by not
considering mitigating factors. Appellant presented mitigating
evidence in this case by testifying to his various health ailments
that he was being treated for while in custody. (N.T. 8/25/17 pp.
31-32). Moreover, Appellant pled guilty to the charges and took
responsibility for the crime [sic] he committed.
The sentencing court also by relied [sic] on factors already
contemplated by the available Sentencing Guidelines and placed
improper weight on the testimony of the investigating detective.
The sentencing court noted Appellant’s prior record and took into
consideration Detective Douglas Slemmer’s testimony and request
that Appellant be sentenced to the maximum penalty. (N.T.
8/25/17 pp. 43-44). During his testimony, Detective Slemmer
noted that “. . . it’s been nothing but violent crimes . . .” when
referring to Appellant. (N.T. 8/25/17 pp. 25). It should be noted,
however, Appellant’s last violent conviction was in 1987. (Id. at
pg. 22). Though Appellant has a few convictions for drug related
crimes, his last conviction for drugs was in 1997, about ten years
prior to the conviction in this matter.
Id. at 12-13.
The Commonwealth, in response, states that the trial court “properly
acted within its discretion in imposing a reasonable sentence, albeit above the
guidelines’ aggravated range, where the sentence reflected Appellant’s long
history of dealing drugs, the likelihood of his reoffending, and the impact his
criminal conduct had on the community.” Commonwealth Brief at 6.
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We review a challenge to a sentence that falls outside of the guidelines
mindful of the following:
The sentencing guidelines are not mandatory, and sentencing
courts retain “broad discretion in sentencing matters, and
therefore, may sentence defendants outside the [g]uidelines.”
[Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 620-
21 (2002); see 42 Pa.C.S. §9721(b)] (citing Commonwealth v.
Ellis, 700 A.2d 948, 958 (Pa.Super.1997)). “In every case where
the court imposes a sentence ... outside the guidelines adopted
by the Pennsylvania Commission on Sentencing ... the court shall
provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines.” 42 Pa.C.S. §
9721(b). However, “[t]his requirement is satisfied ‘when the judge
states his reasons for the sentence on the record and in the
defendant’s presence.’” Commonwealth v. Widmer, 446 Pa.
Super. 408, 667 A.2d 215, 223 (1995), reversed on other
grounds, 547 Pa. 137, 689 A.2d 211 (1997). Consequently, all
that a trial court must do to comply with the above procedural
requirements is to state adequate reasons for the imposition of
sentence on the record in open court. See Robinson, 931 A.2d
at 26 (quoting Commonwealth v. Walls, 846 A.2d 152, 158
(Pa.Super.2004), reversed on other grounds, 592 Pa. 557, 926
A.2d 957 (2007)) (“If a court chooses to sentence a defendant
outside of the sentencing guidelines, it should state on the record
adequate reasons for the deviation.”).
“When imposing sentence, a court is required to consider ‘the
particular circumstances of the offense and the character of the
defendant.’” Commonwealth v. McClendon, 403 Pa.Super. 467,
589 A.2d 706, 712–13 (1991) (en banc) (quoting
Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158,
159 (1985)). “In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.” Id.Commonwealth v. Antidormi, 84 A.3d 736, 760–61 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
Consistent with the foregoing, and upon review of the record, we agree
with the Commonwealth that Appellant’s sentencing claim does not merit
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relief. The crux of Appellant’s argument – that the trial court disregarded
mitigating factors and improperly relied on the statements of Detective
Slemmer – is not supported by the record.
First, we note that Appellant references Detective Slemmer’s comments,
particularly his statement that “it’s been nothing but violent crimes,” out of
context. Detective Slemmer’s testimony reads:
Your Honor, I appreciate you taking the time here. I’m sure
you’re aware of it; if not, I’ll inform the Court. Bloomsdale is a
federally-funded Weed & Seed area. It’s been designated that for
close to 20 years, maybe more, due to the fact for the propensity
for high drug sales and a violent area.
In 2009, we were approved for a grant. We put cameras
down in the area to try to prevent the ongoing open air drug sales.
That being said, the residents down there have just been – in my
16 years have just been in constant ongoing battles with the drug
dealers in the streets of Bloomsdale.
I’m here to speak before you [and] to respectfully request
a maximum sentence for [Appellant]. Since 19 – going back to
the ‘80s, it’s been nothing but violent crimes, and,
respectfully, this is the sixth or seventh possession with intent to
deliver in the same streets, which I think – I would ask the Court
to recognize. On the same streets, in the same neighborhood,
he’s terrorizing the residents by the actions of the sale of
cocaine, and I would respectfully request, Your Honor, and this
Court, to consider a maximum sentence for [Appellant]. It is –
like I said, it’s unusual, but, I mean, in the same streets, we’ve
been dealing with [Appellant] since 1980, and enough is enough.
It’s – he does not get it with probation, parole, or you know, being
treated or, you know, things in prison and stuff like that. But
Bristol Township has done its fair share of trying to eradicate the
drug sales in Bloomsdale, and having [Appellant] on the streets is
a detriment. . . . [T]here w[ere] children in the streets while this
drug sale went on. Luckily, it was an undercover officer that was
in the car, but Bloomsdale area, we’ve had close to a dozen
homicides in the last 10, 12 years with, you know, relations to
narcotics, and people often ask how do the kids get caught up in
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this. And this is a prime example. If you watch the video, while
[Appellant] and [his co-defendant] are dealing cocaine, there’s
young children in front of – in the streets playing. So, I mean, it’s
disheartening to see, but it makes sense. A lot of times when you
hear it on the news or anywhere else, but that’s why we’re having
such a problem down there.
N.T., 8/25/17, at 24-27 (emphasis added).
From the above testimony, read as a whole, it is clear that Detective
Slemmer referenced the selling of drugs as a crime of violence based on the
impact of chronic, illegal drug sales on the Bloomsdale community, including
the correlation between the selling of drugs and crimes of violence. The trial
court said that it was “aware of and familiar with that area of Bristol Township
and the devastating effect that drug dealing has had on that area.” N.T.,
8/25/17, at 40. Moreover, the trial court addressed Appellant’s allegation
concerning the detective’s testimony, and expressly stated that “[c]ontrary to
Appellant’s assertion, [the court] did not give undue weight to the testimony
of Detective Slemmer.” Trial Court Opinion, 3/28/18, at 6. The trial court
further stated, “I understand the detective’s remarks regarding [Appellant’s]
history of violent offenses; however, I note that those offenses are many years
ago, probably 30 years ago, and I believe that [Appellant is] not involved in
that same type of violence.” N.T., 8/25/17, at 45.
With regard to mitigating factors, as Appellant indicated, he testified to
being 56 years old, having a “bad heart, high blood pressure” and being on “a
lot of medication, like 15 pills.” Id. at 32. He testified that his last drug
conviction was in 2007, and he was “just caught up” when he was arrested in
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this case. Id. at 31-33. When asked by the court to explain what he meant,
Appellant stated that he “didn’t make no sale,” and “didn’t do nothing.” Id.
at 34. He then became contrite, stating: “I made mistakes . . . I messed up.
You know, I admit I messed up. I’m apologizing, putting myself on the mercy
of the court.” Id. at 35.
Again, and contrary Appellant’s argument, the record belies Appellant’s
claim that the trial court failed to consider mitigating factors when it imposed
Appellant’s sentence. In addition to its commentary about other statutory
considerations, the court addressed Appellant:
. . . I give you credit for the fact that you have accepted
responsibility and entered a plea of guilty here. If, in fact, you
had taken a trial, and you had been convicted by either the judge
or a jury, I would seriously consider giving you seven-and-a-half
to 15 years. But I will give you credit for your acceptance of
responsibility.
I consider your health issues, but as I previously stated, the
impact of your crimes on the Bloomsdale community ha[s] been
significant. You have shown a pattern of repeat behavior. I
believe that you would continue to reoffend. I believe that you
would continue to sell drugs, and I believe that it is necessary for
me to remove you from the community for the good of that
community.
When I consider the nature and the circumstances of the
crime, and the history, character and condition of [Appellant], and
I understand the detective’s remarks regarding your history of
violent offenses; however, I note that those offenses are many
years ago, probably 30 years ago, and I believe that you’re not
involved in that same type of violence. However, I believe there’s
an undue risk that you will commit another crime. I believe that
you are in need of correction treatment that can be provided most
effectively by your commitment to a state correctional institution,
and that any lesser sentence would depreciate the seriousness of
the crime.
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N.T., 8/25/17, at 43-45.
Based on the foregoing, we find no merit to Appellant’s claims that the
trial court abused its discretion by improperly relying on the statements of
Detective Slemmer and disregarding mitigating factors when it imposed
Appellant’s sentence. See, e.g., Felmlee, supra (judgment of sentence in
aggravated range affirmed where court noted mitigating factors and “carefully
reviewed all the facts and made an intelligent decision as to sentencing”); cf.
Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super. 2005) (judgment of
sentence vacated where court “focused exclusively” aggravating factors and
“virtually ignored” mitigating factors such as appellant’s lack of prior criminal
record, his age, his personal characteristics, and his life situation).
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/18
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