Com. v. Poston, J.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JARIB POSTON, : No. 632 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 17, 2014,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0009366-2013
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Jarib Poston appeals from the judgment of sentence of March 17,
2014, following his guilty plea to one count each of simple assault, recklessly
endangering another person (“REAP”), terroristic threats, and endangering
the welfare of a child. We affirm.
The trial court has set forth the underlying facts of this matter as
follows:
At the time [appellant] entered his guilty plea,
he acknowledged his guilt at all charges and he
acknowledged that he assaulted Lundon Minniefield
by choking her, pulling her to the floor by her hair
and striking her in the face with the butt end of a
shotgun. At the time of the attack, Ms. Minniefield
was holding her child. [Appellant] is the father of
the child.[1] [Appellant]’s mother reported that she
1
The child was only three days old at the time of the incident. (Notes of
testimony, 12/17/13 at 8.)
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was present during the incident and she attempted
to stop the attack by jumping on [appellant]’s back.
Various witnesses reported seeing the attack and
observing [appellant] point the shotgun at
Ms. Minniefield. They all indicated that [appellant]
went outside the residence where the attack
occurred and observed [appellant] discharge one
round into a hillside and threaten to kill
Ms. Minniefield. Ms. Minniefield obtained a
Protection From Abuse order against [appellant].
Despite acknowledging his guilt at time of his
guilty plea, [appellant] denied pointing the shotgun
at Ms. Minniefield or striking her with the butt end of
the shotgun during his presentence interview.
Trial court opinion, 7/18/14 at 2.
On December 17, 2013, appellant entered an open guilty plea to the
above charges. The trial court rejected a plea agreement whereby appellant
would serve 3 to 6 months’ incarceration, finding that it was not
commensurate with the seriousness of the offenses. On March 17, 2014,
appellant appeared for sentencing. The trial court imposed a sentence of
11½ to 23 months’ incarceration at count 4, terroristic threats, with no
further penalty at the remaining counts. Appellant was also to serve 3 years
of consecutive probation. Appellant’s sentence was beyond the aggravated
range of the sentencing guidelines. A timely post-sentence motion to
reconsider sentence was filed on March 18, 2014, and denied on March 20,
2014. A timely notice of appeal was filed on April 17, 2014. Appellant
complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
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Appellant has raised the following issue for this court’s review,
challenging the discretionary aspects of his sentence:
I. Did the trial court abuse its discretion in
sentencing [appellant] outside of the
sentencing guidelines without providing a
contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines, in violation of 42 Pa.C.S.
§ 9721(b)?
Appellant’s brief at 6.
A challenge to the discretionary aspects of
sentencing is not automatically reviewable as a
matter of right. Commonwealth v. Hunter, 768
A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568
Pa. 695, 796 A.2d 979 (2001). When challenging
the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by
including in his brief a separate concise statement
demonstrating that there is a substantial question as
to the appropriateness of the sentence under the
Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal
‘furthers the purpose evident in the Sentencing Code
as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors
impinging on the sentencing decision to exceptional
cases.’” Commonwealth v. Williams, 386
Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
(en banc) (emphasis in original).
Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).
In his Pa.R.A.P. 2119(f) statement and also in the argument section of
his brief, it is clear that the gist of appellant’s argument is that the trial court
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failed to reference the applicable guideline ranges at sentencing.
(Appellant’s brief at 18, 21.) As the Commonwealth observes, this issue was
not raised at sentencing or in appellant’s post-sentence motion. Rather, in
his motion to reconsider sentence, appellant argued only that his sentence
was excessive in light of various mitigating factors, including his age, lack of
a prior criminal record, his strong family support system, the fact he is
taking classes at jail towards earning his G.E.D., etc. (Docket #10.)
Nowhere did appellant contend that the trial court failed to consider the
guidelines or provide a contemporaneous written statement of the reason or
reasons for deviating from the guidelines. As such, the issue is waived. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), appeal
denied, 936 A.2d 40 (Pa. 2007) (“an appellant can seek to appeal
discretionary sentencing issues only after preserving them during the
sentencing hearing or in post-sentence motions”), citing Commonwealth v.
Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006); Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 890 A.2d
1057 (Pa. 2005) (“Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing or raised in
a motion to modify the sentence imposed at that hearing.”) (citations
omitted).
To the extent appellant argues that the trial court failed to articulate
sufficient reasons, on the record, for its upward departure from the
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guidelines, he raises a substantial question for our review. See, e.g.,
Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal
denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),
citing Commonwealth v. Eby, 784 A.2d 204 (Pa.Super. 2001) (“[T]he
sentencing judge must state of record the factual basis and specific reasons
which compelled him or her to deviate from the guideline ranges. When
evaluating a claim of this type, it is necessary to remember that the
sentencing guidelines are advisory only.”); Commonwealth v. Rodda, 723
A.2d 212, 214 (Pa.Super. 1999) (en banc), quoting Commonwealth v.
Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (“Where the appellant
asserts that the trial court failed to state sufficiently its reasons for imposing
sentence outside the sentencing guidelines, we will conclude that the
appellant has stated a substantial question for our review.”).
However, the record belies such a claim.
When the sentence imposed is outside the
sentencing guidelines, moreover, the court must
provide a contemporaneous written statement of the
reason or reasons for the deviation from the
guidelines. This requirement is satisfied when the
judge states his reasons for the sentence on the
record and in the defendant’s presence.
Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),
reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and
quotation marks omitted).
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It is clear from the record that the trial court did not find appellant’s
self-serving explanations for his conduct to be credible and that he did not
take responsibility for his criminal behavior. (Notes of testimony, 3/17/14 at
14-15.) The trial court observed that although he pled guilty, appellant
continued to dispute what happened, including the version of events as
recounted by three different eyewitnesses. (Id. at 5-6.) The trial court did
not believe appellant’s explanation that he accidentally struck the victim with
the butt end of his shotgun and accidentally discharged the gun when he
was trying to unload it. (Id. at 11.) The trial court found that appellant’s
conduct was “outrageously dangerous” and that he was not accepting full
responsibility. (Id. at 4, 16.) Therefore, the trial court did put reasons on
the record justifying an upward deviation from the sentencing guidelines.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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