Com. v. Womack, A.

J-A17014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARMONTI WOMACK :
:
Appellant : No. 2744 EDA 2018
Appeal from the Judgment of Sentence Entered May 30, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006811-2016
BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 07, 2019
Armonti Womack appeals from the judgment of sentence imposed
following his guilty plea conviction of possession of a firearm with an altered
serial number, carrying a firearm without a license, and carrying a firearm in
public in Philadelphia. Appellant challenges the discretionary aspect of his
sentence, claiming that the court erred when it considered evidence of arrests
for which he had not yet been tried, and abused its discretion in imposing an
above the guidelines sentence without stating an adequate reason. We affirm.
On April 5, 2016, Philadelphia police officers Reuben Henry and Riccardo
Hanton pulled over Appellant’s SUV after watching it run through a stop sign.
Upon approaching the vehicle, Officer Henry smelled a strong odor of
marijuana, and so asked Appellant and his passenger to step out of the car.
Once they were out of the car, Officer Hanton observed a handgun stuck in
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between the driver’s seat and the center console. The officers then placed
Appellant under arrest.
On October 5, 2017, Appellant pleaded guilty to the aforementioned
violations of the uniform firearms act. The trial court deferred sentencing while
awaiting a presentence investigation report (PSI).
During sentencing on May 30, 2018, the parties agreed that the offense
gravity score was ten, prior record score was zero, and therefore the guideline
sentencing range was not less than twenty-two nor more than thirty-six
months of incarceration. The parties also stated that they had the opportunity
to review the PSI and mental health evaluation.
Defense counsel emphasized Appellant’s parental support, that he held
a job at the time of the arrest, he does not have a significant drug addiction
problem, and he plans to go back to college where he hopes to play football.
See N.T. Sentencing, 5/30/18, at 5-10. Counsel acknowledged Appellant’s
arrests that occurred subsequent to this case, both of which involved
weapons.
The parties agreed that, while on bail in the instant matter, Appellant
was arrested in New York in June 2017, for carrying a firearm in McDonalds in
Times Square. He was placed on bail for the New York case and came back to
Philadelphia. In November 2017, Appellant was arrested in Philadelphia for
possession of a firearm, which officers recovered during a traffic stop.
Appellant was subsequently arrested for pointing a gun and shooting it at his
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ex-girlfriend, after ballistics testing matched the traffic stop weapon to a bullet
fragment found in her apartment.
The court then found that the sentencing guidelines “significantly
underrepresent [Appellant’s] inclination to commit violent crimes and/or carry
firearms,” and that “his persistence in carrying firearms is unrelenting even
while on bail, which shows a defiance of authority that indicates very clearly
that there’s a need to protect society” from Appellant. Id. at 18. The court
sentenced Appellant to not less than five nor more than ten years of
incarceration, concurrent on each count, followed by five years of probation.
The court denied Appellant’s timely post-sentence motions, and this timely
appeal followed.
Appellant raises two issues on appeal.
1. [Whether] the [sentencing] court err[ed] when it treated
Appellant’s open charges as proof of criminal conduct?
2. [Whether] the [sentencing] court err[ed] in sentencing
Appellant to an above-guidelines sentence without adequately
addressing its reasons for departing from the guidelines on the
record?
Appellant’s Brief, at 3.
Appellant concedes both of his arguments raise challenges to the
discretionary aspect of his sentence. See id. at 10. Challenges to the
discretionary aspects of a sentence do not entitle an appellant to review as a
matter of right. Rather, an appellant must comply with the following
requirements before this court can address such a challenge.
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An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
(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.
Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation
omitted).
In the instant case, Appellant preserved his issues by timely filing his
notice of appeal and post-sentence motion. Furthermore, Appellant’s brief
includes a concise statement of reasons relied on for allowance of appeal
pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, at 10-11. Therefore, we
must determine whether Appellant presents a substantial question that the
sentence appealed from is not appropriate under the sentencing code. See
Swope, 123 A.3d at 337.
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Further:
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 (2)
contrary to the fundamental norms which underlie the
sentencing process.
Id. at 338 (quotation marks and citations omitted).
In his first issue, Appellant argues that the sentencing court relied on
an improper factor at sentencing when it treated evidence of his arrests as
proof of criminal conduct. See Appellant’s Brief, at 12-15. Appellant contends
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that this claim raises a substantial question because the court relied on an
impermissible factor—treating his arrests as proof of criminal conduct—when
it imposed sentence. See id. at 10. An allegation that the sentencing court
relied upon impermissible factors raises a substantial question. See
Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006).
Accordingly, we will review Appellant’s claim on the merits.
Our standard of review of a challenge to the discretionary
aspects of sentence is well-settled:
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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation
omitted).
When it imposes sentence, a court may consider prior arrests as long as
it does not treat the arrests as convictions or give them undue weight. See
Commonwealth v. Allen, 489 A.2d 906, 912 (Pa. Super. 1985). “This is
because the sentencing judge must neither ignore the presumption of
innocence nor regard defendant’s prior arrest record as showing criminal
conduct.” Id. at 912 n.4 (citations omitted).
Here, the sentencing court considered Appellant’s prior arrests in
addition to the arguments of counsel, the presentence report, mental health
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evaluation, sentencing guidelines, Appellant’s criminal history as a whole, the
particular circumstances of this case, and mitigating factors such as
Appellant’s acceptance of responsibility, personal history and family support.
See N.T. Sentencing, 5/30/18, at 18-19. The court recognized that the arrest
record referred to charges which had not been disposed of, stating: “while
recognizing that [Appellant is] not guilty of the offenses charged in the new
cases, any evidence available about that may and should be considered by
me.” Id. at 17.
We conclude that the sentencing court did not treat Appellant’s arrests
as convictions or give them undue weight. It appropriately recognized that
while on bail in the instant matter, Appellant was arrested three times, all
involving firearms. Accordingly, the sentencing court did not rely on an
impermissible factor when imposing sentence. Appellant’s first issue does not
merit relief.
In his second issue, Appellant claims that the sentencing court abused
its discretion when it imposed an above guidelines sentence without placing
adequate reasons on the record. Specifically, he argues that the reasons put
forth by the court to justify an above guidelines sentence were inadequate
because they were based on Appellant’s arrests without disposition. See
Appellant’s Brief, at 19-21. “Claims that the sentencing court imposed a
sentence outside the standard guidelines without stating adequate reasons on
the record presents a substantial question.” Antidormi, 84 A.3d at 759
(citations omitted). Accordingly, we review the merits of Appellant’s claim.
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In every case in which the court imposes a sentence for a
felony or a misdemeanor, the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed. The
sentencing guidelines are not mandatory, and sentencing courts
retain broad discretion in sentencing matters, and therefore, may
sentence defendants outside the [g]uidelines. 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. However, this
requirement is satisfied when the judge states his reasons for the
sentence on the record and in the defendant’s presence.
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.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation. Where pre-sentence reports exist,
we shall presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
Id. at 760-61 (citations, quotation marks, brackets and ellipses omitted).
Here, in addition to considering the sentencing factors, the sentencing
court explained its reasons for departing from the sentencing guidelines on
the record, stating:
This court finds that the sentencing guidelines in this case
significantly underrepresent the defendant’s inclination to commit
violent crimes and/or carry firearms. His persistence in carrying
firearms is unrelenting even while on bail, which shows a defiance
of authority that indicates very clearly that there’s a need to
protect society from this defendant.
This court also finds that the defendant’s rehabilitative
needs call for substantial confinement. He is not a candidate for
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supervision at this time. This court finds that a state sentence
might even serve to protect the defendant himself from whatever
he’s doing.
N.T. Sentencing, at 18-19 (unnecessary capitalization omitted).
We discern no abuse of discretion. The sentencing court had the benefit
of a presentence investigation report, and heard extensive argument from
both parties concerning Appellant’s arrest record. As discussed, we conclude
that the court appropriately considered the arrests as simply arrests, and did
not treat them as convictions or give them undue weight. The sentencing court
clearly stated its reasons for imposing an above guidelines sentence, which
included such arrests, on the record at the time of sentencing. Appellant’s
second issue does not merit relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/19
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