Com. v. Lawrence, C.

J-S23019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRIS LAWRENCE :
:
Appellant : No. 3539 EDA 2016
Appeal from the Judgment of Sentence July 1, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008435-2013,
CP-51-CR-0008752-2013
BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 01, 2018
Appellant Chris Lawrence appeals from the judgments of sentence to
serve an aggregate 27½ to 55 years’ imprisonment imposed following his
convictions in the above-captioned cases. Appellant challenges the
discretionary aspects of his sentence. For the reasons that follow, we affirm
in part, but vacate the sentences on one count of aggravated assault and two
counts of violations of the Uniform Firearms Act (VUFA).
The trial court set forth the facts in CP-51-CR-0008435-2013 (8435-
2013) as follows:
On May 14, 2013, around 12:40 a.m., Police Officer Thomas
Schaffling heard gunshots in the area of the 2500 block of North
5th Street[, Philadelphia]. About 20 seconds later, Mr. Ryan Benes
pulled up driving a white utility truck [in front] of the Number One
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* Former Justice specially assigned to the Superior Court.
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Chinese Store. Officer Schaffling and his partner entered the store
and saw a black male on the floor, later identified as Mr. Montez
Perrin. The officers also observed another black male leaned
against the wall to the left who had blood dripping from his hand
identified as Mr. William Floyd. The officers first believed Mr. Perrin
was deceased, however, he suddenly took a gasp of air. The
officers then decided to load Mr. Perrin into a police cruiser and
take him to the hospital. Eventually, when the officers were
securing the scene, another man, Nicholas Sicard, came walking
off Lawrence Street with a gunshot wound from the incident.
Trial Ct. Op., 10/31/17, at 2-3. Appellant was charged with numerous
offenses, including attempted murder, aggravated assault, robbery,
conspiracy, firearms not to be carried without a license (VUFA 6106), and
carrying a firearm on a public street (VUFA 6108).1
In CP-51-CR-0008752-2013 (8752-2013), Appellant was charged with
one count of possession of a firearm by a prohibited person (VUFA 6105). 2
Although the facts underlying that conviction are not detailed in the record,
the criminal complaint states that the date of the offense was May 17, 2013,
which was the date of Appellant’s arrest for the robberies.
On July 12, 2013, the Commonwealth filed an information in 8435-2013
charging Appellant with twenty-two counts. The information contained a
notice that the Commonwealth intended to pursue “second-strike” mandatory
minimum sentences under 42 Pa.C.S. § 9714 for attempted murder,
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1 18 Pa.C.S. §§ 901(a), 2702, 3701(a)(1)(i), 903, 6106, and 6108,
respectively.
2 18 Pa.C.S. § 6105.
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aggravated assault, and robbery counts.3 On July 17, 2013, the
Commonwealth filed an information in 8752-2013 charging Appellant with a
single count of VUFA 6105.
Appellant proceeded to a jury trial in 8435-2013. On April 25, 2016, a
jury found Appellant of guilty of one count each of attempted murder,
conspiracy, VUFA 6106 and VUFA 6108, and three counts each of aggravated
assault, and robbery. The trial court held a separate nonjury trial in 8752-
2013 and, on April 29, 2016, found Appellant guilty of one count of VUFA
6105.
On July 1, 2016, the trial court, in 8435-2013, sentenced Appellant to
15 to 30 years’ incarceration for the attempted murder of Perrin4 and
mandatory 10 to 20 years’ incarceration each for the remaining three counts
of robbery and aggravated assault.5 The sentences for the robberies and
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3 Of relevance to this appeal, 42 Pa.C.S. § 9714(a)(1) requires the imposition
of a ten-year mandatory minimum sentence upon a second conviction of a
crime of violence. We add that mandatory minimum sentences based on prior
convictions do not violate Alleyne v. United States, 570 U.S. 99 (2013).
See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015).
4 At sentencing, the parties agreed that the jury rendered a verdict finding
that the attempted murder caused serious bodily injury. See
Commonwealth v. Barnes, 167 A.3d 110, 121 (Pa. Super. 2017) (en banc).
5 The trial court stated at the sentencing hearing that it merged the count of
aggravated assault as to Perrin into the count of attempted murder. However,
the written sentencing order states that it imposed a concurrent sentence on
that count.
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aggravated assault were ordered to run concurrently to each other but
consecutive to the sentence for attempted murder. The court further
sentenced Appellant to concurrent terms of 3½ to 7 years’ incarceration for
VUFA 6106, and 2½ to 5 years’ incarceration for VUFA 6108. The trial court
applied the deadly weapon used enhancement6 (DWE-used) to all of the
counts in 8435-2013, including the two VUFA counts.
The trial court also sentenced Appellant to 2½ to 5 years’ incarceration
for VUFA 6105 in 8752-2013, to run consecutively to the sentences imposed
in 8435-2013. Id. The resulting aggregate sentence for both cases was 27½
to 55 years’ incarceration. Id.Appellant filed timely post-sentence motions in both cases arguing, in
relevant part, that the trial court failed to consider mitigating circumstances
at sentencing. Appellant further suggested that the trial court’s aggregate
sentence exceeded the sentencing guideline applicable to attempted murder.
The trial court denied Appellant’s motion by operation of law on November 2,
2016.
On November 9, 2016, Appellant filed timely notices of appeal in both
cases. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
In its Rule 1925(a) opinion, the trial court stated, in relevant part, that
the aggregate sentence imposed was not excessive. Trial Ct. Op., 10/31/17,
at 20-21. The court indicated that it considered the sentencing guidelines and
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6 See 204 Pa. Code §§ 303.10(a), 303.17(b).
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weighed Appellant’s age, background, rehabilitative needs, and the testimony
offered at the sentencing hearing. Id. at 21.
Appellant raises a single question for our review:
Did the trial court commit an abuse of discretion because it
imposed a sentence that was excessive under the circumstances
given that the honorable court did not consider Appellant’s
mitigating circumstances?
Appellant’s Brief at 4.
Appellant contends that the trial court’s sentence was excessive and that
the court failed to consider mitigating factors. Appellant’s Brief at 20. He
further claims that the sentencing court focused solely on the seriousness of
the crime in fashioning the sentence. Id. Finally, Appellant asserts that the
sentencing court provided no explanation for why a sentence of this particular
length was warranted, nor did it offer any reasons for the sentence “other
than to say [the court] chose a sentence that was approximately halfway
between what defense counsel and the prosecutor suggested would be an
appropriate aggregate sentence.” Id. at 30-31.
The Commonwealth counters that the trial court did not abuse its
discretion in sentencing Appellant. In support, the Commonwealth argues
that “the sentencing court had no alternative but to impose mandatory
minimum sentences 42 Pa.C.S. § 9714(a)(1), (d) for [Appellant]’s robbery,
aggravated assault, and conspiracy convictions” and that Appellant has failed
to show that his aggregate sentence is manifestly excessive.
Commonwealth’s Brief at 8.
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The Commonwealth, however, observes that although the trial court
stated that it intended to merge the count of aggravated assault as to Perrin
with the count of attempted murder, the written sentencing order states that
the court imposed a concurrent sentence of 10 to 20 years’ imprisonment.
The Commonwealth also notes that the trial court erred in using the DWE to
calculate the sentencing ranges for VUFA 6106 and 6108 because “the deadly
weapon enhancement does not apply to [VUFA].” Id. at 12-13 (citing 204 Pa.
Code § 303.10(a)(3)(viii)). Regardless, the Commonwealth suggests because
the court imposed the sentences for those counts concurrently, the sentences
may be vacated without affecting the overall sentencing scheme. Id. at 13.
The issues raised by Appellant implicate the discretionary aspects of the
trial court’s sentence. It is well-settled that a challenge to the discretionary
aspects of sentencing is not automatically reviewable as a matter of right.
Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super. 2004). To reach
the merits of a discretionary issue, this Court must determine whether the
appellant: (1) preserved the issue either by raising it at the time of sentencing
or in a post-sentence motion; (2) filed a timely notice of appeal; (3) 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) raises a substantial question for our
review. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).
Appellant has timely appealed and included a Rule 2119(f) statement in
his brief. Appellant also timely filed post-sentence motions that preserved his
claim that the trial court failed to consider mitigating factors. However,
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Appellant’s post-sentence motion did not raise a claim that the trial court’s
statement for imposing the sentence was inadequate, and Appellant did not
object at the sentencing hearing. Therefore, this claim is waived. See
Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal”); Commonwealth v. Reeves 778 A.2d
691, 692-93 (Pa. Super. 2001) (noting waiver is appropriate where the
appellant failed to provide the trial court with an opportunity to consider the
claim or correct its error).
Appellant’s Rule 2119(f) statement challenges the trial court’s failure to
consider mitigating factors and an attendant claim that the sentence was
excessive. Appellant’s assertion that the aggregate sentence was excessive,
however, amounts to little more than a challenge to the consecutive nature of
(1) the 15-to-30 year sentence for attempted murder, (2) the mandatory 10-
to 20-year sentences for the remaining aggravated assaults and robberies,
and (3) the 2½-to-5 year sentence for VUFA 6105. Such a challenge ordinarily
does not raise a substantial question where, as here, there were multiple
victims of Appellant’s crimes and separate criminal incidents. See
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018).
Nevertheless, “an excessive sentence claim—in conjunction with an assertion
that the court failed to consider mitigating factors—raises a substantial
question.” See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015) (en banc) (citation omitted). Therefore, we will consider Appellant’s
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arguments that the aggregate sentence was excessive and that the trial court
failed to consider mitigating factors.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citing
Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super. 2009)). “An abuse
of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citing Commonwealth v. Walls,
926 A.2d 957 (Pa. 2007)).
Where a sentence is imposed within the guidelines, we may only reverse
the trial court if we find that the circumstances of the case rendered the
application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c).
Our review of the reasonableness is based upon the factors contained in 42
Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing
standards contained in 42 Pa.C.S. § 9721(b).7 See Commonwealth v.
Baker, 72 A.3d 652, 663 (Pa. Super. 2013).
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7 Section 9721(b) states 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.” 42 Pa.C.S. §
9721(b).
Section 9781(d) provides:
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In fashioning a sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the defendant.
See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009);
42 Pa.C.S. § 9721(b)). The court should reference “the defendant’s prior
criminal record, age, personal characteristics, and potential for rehabilitation.”
Id. Although “[a] sentencing court need not undertake a lengthy discourse
for its reasons for imposing a sentence, . . . the record as a whole must reflect
the sentencing court’s consideration of the facts of the crime and character of
the offender.” Crump, 995 A.2d at 1283. Further, this Court has held that
“where the sentencing judge had the benefit of a pre-sentence investigation
report [(PSI)], it will be presumed that he or she was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Ventura, 975 A.2d
at 1135.
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In reviewing the record, the appellate court shall have regard for:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
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As to Appellant’s claim that the trial court failed to consider mitigating
factors, a review of the sentencing transcript indicates that the trial court was
aware of all relevant factors. The court had the benefit of a PSI, and we can
presume that the court read and considered the contents of the report.8 See
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992); Ventura,
975 A.2d at 1135. Moreover, the sentencing transcript reveals that the court
heard: (1) testimony from Appellant’s mother; (2) a statement from the
mother of Appellant’s children; (3) the results of Appellant’s mental health
evaluation and diagnosis of bipolar disorder; and (4) information regarding
Appellant’s age and background. See N.T., 7/1/17, at 6-12. Therefore,
Appellant’s assertion that the trial court failed to consider mitigating factors
warrants no relief.9
As to Appellant’s claim that the aggregate sentence was excessive, the
trial court was well aware of the nature and circumstances of the offenses.
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8 We note that the PSI was not included in the record. However, the court
indicated in its Rule 1925(a) opinion that the PSI mentioned Appellant’s age
and discussed his difficult upbringing and mental health history, among other
factors. See Trial Ct. Op., 10/31/17, at 21.
9 Indeed, the trial court’s sentence was below the Commonwealth’s
recommendation of a statutory maximum sentence for attempted murder.
Moreover, the trial court, which imposed a concurrent sentence for robbery as
to robbery of Perrin, rejected the Commonwealth’s argument that consecutive
sentences were appropriate because the robbery and attempted murder
constituted separate acts. Cf. Commonwealth v. Payne, 868 A.2d 1257,
1262-63 (Pa. Super. 2005) (holding that robbery resulting in serious bodily
injury did not merge with aggravated assault causing serious bodily injury).
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Appellant and two co-conspirators robbed three individuals (Perrin, Sicard,
and Floyd) inside a Chinese food store. Appellant and his co-conspirators took
$250 and an iPhone from Sicard and an iPhone from Perrin. When a fight
broke out during the robbery, one of Appellant’s co-conspirators fled the store.
However, Appellant and his remaining co-conspirator fired more than sixteen
shots inside the store, striking Perrin six times and nearly killing him. Both
Sicard and Floyd were also shot. In light of these circumstances, we cannot
conclude that the aggregate sentence was clearly unreasonable or excessive.
Lastly, we address the two issues raised by the Commonwealth.10 First,
the trial court stated its intent to merge the count for the aggravated assault
of Perrin into the sentence for the attempted murder of Perrin. See N.T.,
7/1/17, at 21-22. The written sentencing order, however, states that the
court imposed a concurrent ten-to-twenty year sentence on the count of
aggravated assault as to Perrin. Merger implicates the legality of a sentence
and may be addressed by this Court sua sponte. Commonwealth v. Kelly,
78 A.3d 1136, 1146 (Pa. Super. 2013). Aggravated assault is a lesser-
included offense of attempted murder, and it merges for sentencing purposes
when it is premised on the same act. Commonwealth v. Hilliard, 172 A.3d
5, 13 (Pa. Super. 2017) (citing Commonwealth v. Anderson, 650 A.2d 20,
24 (Pa. 1994)). Accordingly, because the charges of aggravated assault and
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10 We appreciate the Commonwealth’s candor, as the appellee, in raising
possible sentencing issues to this Court’s attention, notwithstanding the fact
that Appellant did not raise these claims.
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attempted murder committed against Perrin stemmed from the same act,
those crimes merge for sentencing purposes. Therefore, we vacate the ten-
to-twenty year sentence for aggravated assault as to Perrin.
Second, the Commonwealth notes that the trial court improperly applied
the DWE-used guidelines to the VUFA 6106 and VUFA 6108 convictions in
8435-2013. We agree. The Sentencing Guidelines provide that “[t]here shall
be no Deadly Weapon Enhancement for . . . [v]iolations of the Pennsylvania
Uniform Firearms Act.” 204 Pa. Code § 303.10(a)(3)(viii). Therefore, we
accept the Commonwealth’s invitation to vacate the VUFA sentences for VUFA
6106 and VUFA 6108.11
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11There is no indication that the trial court applied the DWE-used matrix to
the separate charge of VUFA 6105 in 8752-2013. Unlike the VUFA counts in
8435-2013, which were related to other crimes involving the use of a deadly
weapon, the VUFA 6105 was the sole count in 8752-2013. Moreover, the
court’s sentence of 2½ to 5 years imprisonment for VUFA 6105 was below the
mitigated range sentence suggested by the basic sentencing matrix.
We acknowledge that Appellant’s 2½-to-5-year sentence for VUFA 6106 fell
far below the mitigated range sentence called for by the DWE-used matrix,
and approximately six months below a mitigated range sentence under the
standard matrix. Nevertheless, because the trial court purported to apply the
DWE-used matrix to this offense, its application of the Sentencing Guidelines
may be deemed a basis for vacating a sentence. See 42 Pa.C.S. § 9781(c)(1)
(“The appellate court shall vacate the sentence and remand the case to the
sentencing court with instructions if it finds . . . the sentencing court
purported to sentence within the sentencing guidelines but applied the
guidelines erroneously”).
We acknowledge that although a misapplication of the Sentencing Guideline
constitutes “legal error,” it does not constitute a non-waivable challenge to
the “legality of sentence” warranting sua sponte review. See
Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc).
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In sum, we conclude that Appellant’s sentencing claims are meritless.
However, the concurrent sentence for aggravated assault as to Perrin and the
concurrent sentences for VUFA 6106 and 6108 in 8435-2013 should be
vacated. Because vacating these sentences does not affect the trial court’s
overall sentencing scheme, there is no need to remand for resentencing.
Judgment of sentence affirmed in part. The sentences for aggravated
assault as to Perrin, VUFA 6106, and VUFA 6108 in 8435-2013 are vacated.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/18
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Here, however, the Commonwealth has called our attention to the error, and
we have considered it in this appeal for the reasons set forth above.
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