Com. v. Abduss-Salaam, I.

J-S34043-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISSA ABDUSS-SALAAM :
:
Appellant : No. 1449 WDA 2021
Appeal from the Judgment of Sentence Entered July 16, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000546-2020
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: October 7, 2022
Issa Abduss-Salaam (Abduss-Salaam) appeals the judgment of
sentence entered by the Court of Common Pleas of Allegheny County (trial
court) challenging the discretionary aspects of his sentence. In 2021, Abduss-
Salaam pleaded guilty to a number of offenses arising from an incident of
domestic violence which turned into a shootout with the police. He was
sentenced to an aggregate prison term of 15-30 years. In this appeal,
Abduss-Salaam contends that the trial court abused its discretion by imposing
a manifestly excessive and unreasonable sentence in light of his mitigation
evidence. We affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34043-22
I.
In 2019, Abduss-Salaam got into a violent domestic dispute with his
then-girlfriend (C.N.) and slapped her in the face. The incident escalated when
Abduss-Salaam armed himself with a handgun, at which point C.N.’s daughter
(age 16) called 911. The 911 operator soon overheard Abduss-Salaam
threaten to use deadly force against the police if they intervened. Rather than
stand down, Abduss-Salaam gathered ammunition and blocked C.N., her
daughter and her son (age 5) from leaving the residence. Abduss-Salaam
then discharged his weapon twice, shooting at a wall, and pointed the weapon
at C.N. threatening to kill her.
Two police officers arrived at the residence minutes later and ordered
Abduss-Salaam to drop the firearm he was still holding. Abduss-Salaam
instead opened fire on the officers, striking only their patrol vehicle. The
officers returned fire, striking Abduss-Salaam several times and seriously
injuring him. The officers gave Abduss-Salaam medical attention until first
responders arrived and transported him to the hospital.
In 2020, after he had recovered from his wounds, Abduss-Salaam
entered into an open guilty plea to two counts of attempted homicide (18
Pa.C.S. § 903(a)); two counts of attempted aggravated assault (18 Pa.C.S.
§ 2702(a)(2)); two counts of endangering the welfare of children (18 Pa.C.S.
§ 4304(a)(1)); one count of terroristic threats (18 Pa.C.S. § 2706(a)(1)); one
count of unlawful restraint (18 Pa.C.S. § 2902(a)); one count of simple assault
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(18 Pa.C.S. § 2701(a)(1)); and five counts of recklessly endangering another
person (18 Pa.C.S. § 2705).
Prior to sentencing, a pre-sentence report was ordered and reviewed by
the trial court, as was a defense mitigation report and a sentencing
memorandum prepared by the Commonwealth. At the sentencing hearing,
the trial court announced on the record that it had thoroughly reviewed these
materials and considered their contents. See Sentencing Hearing Transcript,
7/16/2021, at pp. 3-4.
Six witnesses were called by the defense to testify at the sentencing
hearing as evidence in support of a mitigated sentence. These witnesses
included a social worker, family and friends. They testified at length as to the
typically peaceful character of Abduss-Salaam, his personal history, military
service, and mental health struggles arising from that experience.
At the conclusion of the testimony, Abduss-Salaam was sentenced to
the following prison terms: 6 to 12 years as to each count of attempted
homicide; 2.5 to 5 years as to each count of attempted aggravated assault; 1
to 2 years as to each count of child endangerment; 6 to 12 months as to the
single count of unlawful restraint, and 6 to 12 months as to the single count
of simple assault.
All the sentences were set to run consecutively except for the two counts
of attempted aggravated assault, which were made concurrent with one count
of attempted homicide. No sentence was imposed as to the one count of
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terroristic threats and the five counts of reckless endangerment. Thus, the
aggregate prison term totaled 15 to 30 years.
Abduss-Salaam filed a post-sentence motion claiming that the sentence
should be reduced in light of the mitigation evidence he presented at
sentencing. The lower court summarily denied the motion on November 4,
2021, and a timely appeal was filed. In his brief, Abduss-Salaam now raises
one issue for our consideration:
Was the aggregate sentence of imprisonment imposed upon
[Abduss-Salaam] (15-to-30 years) manifestly excessive given the
totality of the circumstances of this case, requiring vacation of
that sentence and a remand for resentencing pursuant to 42
Pa.C.S. § 9781(c)(2)?
Appellant’s Brief, at 5.
II.
Abduss-Salaam argues in this appeal that the trial court abused its
discretion at sentencing by failing to consider mitigation evidence and
imposing a manifestly excessive sentence. “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); see generally 42
Pa.C.S. § 9781(b). Before the merits of such a claim may be considered, an
appellant must first satisfy a four-part test:
(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
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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).
Rule 2119(f) requires the appellant to “set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). The concise
statement must specify “where the sentence falls in relation to the sentencing
guidelines and what particular provision of the code it violates.”
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). The
statement must also specify “what fundamental norm the sentence violates
and the manner in which it violates that norm.” Id. If these requirements
are met, then this Court may determine whether a substantial question has
been raised. See id.Here, Abduss-Salaam timely filed a post-sentence motion, as well as a
timely notice of appeal. His brief includes a concise statement of reasons
relied upon in accordance with Rule 2119(f). However, the issue Abduss-
Salaam raised in his post-sentence motion did not preserve for appeal an issue
presenting a substantial question as to the discretionary aspect of his
sentence.
“This Court has held that a claim the trial court focused solely on the
nature of the offense, without considering the protection of the public or the
rehabilitative needs of the appellant, as is required by 42 Pa.C.S. § 9721(b),
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presents a substantial question.” Commonwealth v. Clarke, 70 A.3d 1281,
1287 (Pa. Super. 2013); Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.
Super. 2005). A substantial question is similarly raised when the claim of
excessiveness includes the averment that the sentence is so manifestly
excessive as to constitute too severe a punishment under the circumstances
of the case. See Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.
Super. 2003). Conversely, a substantial question is not raised where it is
claimed that the trial court “failed to consider” or “did not adequately consider”
various sentencing factors, as this would amount to a request for the reviewing
court to substitute its judgment for that of the trial court. See
Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en
banc); Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (same).
The Commonwealth has argued in its answer brief that Abduss-Salaam
failed to preserve for appeal a substantial question because he had only
contended in his post-sentence motion that the trial court did not give due
weight to his evidence of mitigation – a claim which differs from the central
argument in his brief and Rule 2119(f) statement that the sentence is
manifestly excessive and unreasonable in light of all the evidence of mitigation
he had presented to the trial court. See Answer Brief, at 7-12.
The content of Abduss-Salaam’s post-sentence motion demonstrates
the merit of the Commonwealth’s contention. Abduss-Salaam did not claim
in the post-sentence motion, as he does now on appeal, that the sentence is
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“excessive” or “unreasonable.” He instead asked for a reduction in the
sentence based on “proper weight” being assigned to the mitigation evidence:
Undersigned Counsel argues that the overall length of the
sentence does not give proper weight to Issa’s aptitude for
rehabilitation and successful reintegration into society, nor does it
fully consider how little chance there is of further danger to the
public. Issa would therefore request only a modification to the
length of the sentences imposed by the Court.
Post-Sentence Motion, at para. 9.
Accordingly, the substantial question Abduss-Salaam now raises is
waived because it was not preserved for appeal. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (“Although we find that
this argument raises a substantial question . . . his issue is waived for not
being preserved in his post-sentence motion or at sentencing.”); see also
Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011) (absent an
issue being raised in a post-sentence motion or presenting a claim during
sentencing proceedings, “an objection to a discretionary aspect of a sentence
is waived.”).
III.
Even if Abduss-Salaam had preserved an issue raising a substantial
question, we would find that the claim is belied by the record. In his brief, he
argued that the trial court abused its discretion by imposing a manifestly
excessive and unreasonable sentence in light of his mitigation evidence.
Sentencing is a matter vested in the sound discretion of the sentencing
court. See Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super.
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2021). The standard of review involving discretionary aspects of a sentence
is a manifest abuse of discretion. See Commonwealth v. Hyland, 875 A.2d
1175, 1184 (Pa. Super. 2005). A trial court abuses its discretion in this
context by ignoring or misapplying the law, exercising its judgment for
reasons of partiality, prejudice, bias or ill will, or arriving at a manifestly
unreasonable decision. See id.“In determining whether a sentence is manifestly excessive, the
appellate court must give great weight to the sentencing court’s discretion, as
he or she is in the best position to measure factors such as the nature of the
crime, the defendant’s character, and the defendant’s display of remorse,
defiance, or indifference. Commonwealth v. Mouzon, 828 A.2d 1126, 1128
(Pa. Super. 2003). This discretion extends to the choice to run sentences
concurrently or consecutively. See Commonwealth v. Prisk, 13 A.3d 526,
533 (Pa. Super. 2011).
When reviewing challenges to the discretionary aspects of a sentence,
an appellate court may vacate the sentence and remand for a resentencing
only where the record shows that:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
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42 Pa.C.S. § 9781(c).
Abduss-Salaam’s central contention on appeal is that while his sentence
was within the statutory sentencing guidelines, the sentence was manifestly
excessive and unreasonable because the trial court ignored that Abduss-
Salaam was a first-time offender; no one was seriously injured by his violent
behavior except for himself; he is a combat veteran who suffers from post-
traumatic stress disorder; he has expressed remorse; and he has only just
recently begun to receive treatment that will likely reduce future incidents of
violent outbursts. See Appellant’s Brief, at 36-42.
The record establishes, however, that the trial court took all of the
mitigating evidence into account when imposing sentence. Significantly, the
trial court had the benefit of a pre-sentence report, and “[o]ur Supreme Court
has determined that where the trial court is informed by a pre-sentence
report, it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.” Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). While a sentencing
court must state, on the record, its reasons for imposing a sentence, that
requirement can be satisfied “by indicating that he or she has been informed
by the pre-sentencing report; thus properly considering and weighing all
relevant factors.” Id. (citation omitted).
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The trial court in this case not only indicated that it had reviewed the
pre-sentence report, it also specifically referenced the defense’s mitigation
report and discussed the testimony of the witnesses prior to imposing the
sentence. The trial court further stressed that the sentence reflected both the
rehabilitative needs of Abduss-Salaam and the seriousness of the offenses:
[H]aving given this serious consideration, and after reading
through things multiple times, I will impose the following sentence
which the Court believes takes into account not only your
rehabilitative needs, but also the seriousness of this offense and
the impact that this offense has had on the victims in this case,
the community at large, the need for protection of the public, and
also takes into account all of the other things that were not only
contained in the presentence report, but also contained in the
statements of your family, your friends, your counsel.
Sentencing Hearing Transcript, 7/16/2021, at pp. 40-41.
Thus, due to the waiver of Abduss-Salaam’s appellate claim, as well as
the lack of record evidence to rebut the presumption that the trial court acted
within its discretion at the sentencing, the judgment of sentence must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/07/2022
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