Com. v. Bebee, G.

J-A05015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY BEBEE :
:
Appellant : No. 1551 EDA 2021
Appeal from the Judgment of Sentence Entered October 9, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000764-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED MARCH 13, 2023
Gregory Bebee entered an open guilty plea to three counts of possession
of a firearm by a person prohibited (F1),1 one count each of carrying a firearm
without a license (F3),2 and carrying a firearm in public on the streets of
Philadelphia (M1).3 The Honorable Scott DiClaudio sentenced Bebee to an
aggregate term of three to six years’ incarceration, followed by five years’
probation. Bebee filed a timely post-sentence motion, which was denied by
operation of law.4 On appeal, Bebee argues his sentence is harsh and
____________________________________________
1 18 Pa.C.S.A. § 6105.
2 Id. at § 6106.
3 Id. at § 6108.
4 Bebee did not filed a direct appeal from his October 9, 2019 judgment of
sentence and, instead, filed a pro se PCRA petition on March 4, 2020. The
(Footnote Continued Next Page)
J-A05015-23
excessive. See Appellant’s Brief, at 4. After review, we affirm on the basis
of Judge DeClaudio’s opinion.
There is no automatic right to appeal from a challenge to the
discretionary aspects of a sentence. See Commonwealth v. Austin, 66 A.3d
798, 807-08 (Pa. Super. 2013). Rather, when an appellant challenges the
discretionary aspects of his sentence, we must consider his brief on this issue
as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d
260, 267 (Pa. Super. 1997). Prior to reaching the merits of a discretionary
aspects of sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether the 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
____________________________________________
court appointed William Joseph Ciancaglini, Esquire, as counsel. On March 5,
2021, Bebee’s appellate rights were reinstated nunc pro tunc, and Attorney
Ciancaglini was granted permission to withdraw. On July 27, 2021, Bebee
filed a pro se notice of appeal, and this Court issued a rule to show cause why
the appeal should not be quashed as untimely. See Order, 8/11/21, citing
Pa.R.A.P. 105(b); Pa.R.A.P. 121(f); Pa.R.A.P. 903(a). Bebee filed a pro se
response on August 19, 2021, and, on September 21, 2021, this Court entered
an order discharging the rule and referring the matter to the merits panel.
Thereafter, this Court, by per curiam order dated September 26, 2021,
directed the trial court to determine Bebee’s eligibility for court-appointed
counsel, and, if so eligible, to appoint counsel for Bebee within 30 days. On
March 16, 2022, the trial court appointed Peter Alan Levin, Esquire, to
represent Bebee on appeal. See Order, 3/16/22. On June 1, 2022, the trial
court ordered Bebee to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, which Attorney Levin timely filed on behalf of Bebee
on June 15, 2022. In light of the procedural missteps here, where Bebee’s
appellate rights were reinstated nunc pro tunc, but counsel was permitted to
withdraw prior to filing a notice of appeal, and the trial court thereafter found
Bebee eligible for appointed counsel, we find Bebee’s pro se notice of appeal,
filed on July 27, 2021, timely filed.
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J-A05015-23
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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted). See also Commonwealth v.
Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) (requirement appellant
set forth reasons relied upon for allowance of appeal furthers purpose evident
in Sentencing Code of limiting challenges to trial court’s evaluation of
multitude of factors impinging on sentencing decision to exceptional cases).
A substantial question exists “only when the appellant advances a
colorable argument that the sentencing judge’s action were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Janda, 14 A.3d 147, 165 (Pa. Super. 2011) (quoting
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005)).
Additionally, “we cannot look beyond the statement of questions presented
and the prefatory Rule 2119(f) statement to determine whether a substantial
question exists.” Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa.
Super. 2018). Finally, for purposes of determining what constitutes a
substantial question, “we do not accept bald assertions of sentencing errors,”
but rather require an appellant to “articulat[e] the way in which the court’s
actions violated the sentencing code.” Commonwealth v. Malovich, 903
A.2d 1247, 1252 (Pa. 2006).
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J-A05015-23
Here, Bebee preserved his claim in a timely-filed motion for
reconsideration of sentence, see Motion for Reconsideration of Sentence,
10/19/21, and we deem his appeal timely filed. See supra at n. 4. In
addition, Bebee has included in his brief a Rule 2119 statement of reasons
relied upon for allowance of appeal with respect to the discretionary aspects
of his sentence. See Appellant’s Brief, at 8. Thus, we must determine
whether Bebee’s claim that the court “did not provide adequate reasons for
the sentence,” and imposed too severe a punishment in light of his “credible
character evidence showing that he is capable of being a positive contributing
member of the community with the support of his work[,]” raises a substantial
question. Id.
We find Bebee has raised a substantial question. See Commonwealth
v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (claim sentencing court did
not set forth adequate reasons for sentence raises substantial question); see
also Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009)
(same). However, upon review, we find no abuse of discretion.
Commonwealth v. Taylor, 277 A.3d 577, 592-93 (Pa. Super. 2022)
(sentencing is vested in sound discretion of sentencing judge; sentence will
not be disturbed on appeal absent manifest abuse of discretion).
Here, Judge DiClaudio imposed a sentence below the standard range of
the Sentencing Guidelines, considered a presentence investigation report and
relevant mitigating evidence on the record, and provided, at sentencing,
reasons for the sentence imposed. See Trial Court Opinion, 6/28/22, at 5-6
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J-A05015-23
(court noting Bebee’s sentence was mitigated by 36 months even after court
found Bebee had lied in open court under oath); N.T. Sentencing, 10/9/19, at
4, 46-48) (court stating guidelines are 6 years plus or minus 12 months; “I’m
giving him three times mitigation even after lying.”).
We rely on Judge DeClaudio’s opinion to affirm the judgment of
sentence, and we direct the parties to attach a copy of that opinion in the
event of further proceedings.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
-5-
Circulated 02113/202311:55 AM
IN THE COURT OF COMMON PLEAS
FOR THE COUNTY OF PHILADELPmA
CRIMINAL TRIAL DIVISION
COMMONWEALTH COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
v.
1551 EDA 2021
GREGORY BEBBE NO. CP-51-CR-0000764-2019
FILED
JUN 28 2022 OPINION
Appealsl_POlt Trial Scott DiClaudio, J.
Olfif.e of Judicial Records
Defendant Gregory Bebbe appeals from his sentence entered on October 9, 2019,
subsequent to a guilty plea on July 16, 2019, for three counts of Possession of a Firearm by a
Person Prohibited, 18 Pa.C.S. § 6105, one count of Carrying a Firearm Without a License, 18
Pa.C.S. § 6106, and one count of Carrying a Firearm in Public on the Street of Philadelphia, 18
Pa.C.S. § 6108. On appeal, Defendant challenges the sentence stating it is harsh and unreasonable.
For the reasons discussed herein, the Superior Court should affirm this Court's sentence and
uphold this Court's denial of Defendant's post-sentence motion.
I. FACTUAL IDSTORY'
On October 26, 2018, around 6:00 p.m., Defendant was at a barber shop near 68th and Ogontz
Avenues in the City and County of Philadelphia, Pennsylvania, when a young man holding his
chin entered the shop. N.T. Plea at 13, N.T. Sentencing at 19. The victim had been shot in the chin
and was bleeding profusely. N.T. Sentencing at 19. Defendant stated he did not know the young
man but saw that he was bleeding from his face. Id. at 36-3 7. One of the barbers in the shop called
-------··----
I This Factual History is taken from the Notes of Testimony Guilty Plea Volume l , dated July 16, 2019
(hereinafter "N.T. Plea"); Sentencing Volume I, dated October 9, 2019 (hereinafter "N.T. Sentencing").
for an ambulance. Id at 19. As those in the barber shop heard sirens coming towards them,
Defendant and the victim entered Defendant's vehicle and drove to the hospital although witnesses
testified that no words were spoken between Defendant and the victim. Id. About a block and half
away from the barber shop, as Defendant stopped at a stop sign, the two firearms the victim had
removed from his pocket and placed on the back seat, fell to the floor and made a thud. Id at 38-
39. Defendant looked back at the noise and said, "Shit, that's too much." Id Defendant then pulled
over and placed the firearms under the hood of the car. Id After dropping the victim off at the
hospital, Defendant apparently returned to the barber shop.
When officers responded to a report of a shooting and a person with a firearm on October 26,
2018 around 6 p.m., Defendant was on scene, and admitted to two police officers that he hid two
revolvers that the victim possessed. N.T. Plea at 13. Defendant stated he took the revolvers from
the victim's pockets and hid them under the hood of the vehicle before driving the victim to the
hospital. Id. at 14. The two revolvers were ultimately placed on a property receipt. Id.
II. PROCEDURAL IDSTORY
On October 27, 2018, Defendant, Gregory Bebbe, was arrested and charged with Carrying
a Firearm without a License, Carrying a Firearm on the Public Streets of Philadelphia, and three
counts of Possession of a Firearm by a Prohibited Person.' On July 16, 2019, Defendant pied
.guilty. On October 9, 2019, this Court sentenced Defendant to three (3) to six (6) years
incarceration for the Possession of a Firearm by a Person Prohibited with five (S) years probations
on the remaining charges. Defendant filed a Motion to Reconsider on October 16, 2019. This
Court, by operation of law, denied the motion on February 14, 2020. Defendant did not file a direct
appeal. On March 4, 2020, Defendant filed a pro-se PCRA Petition. PCRA Counsel was appointed,
118 Pa. C.S. § 6106, 18 Pa. C.S § 6108, 18 Pa. C.S. § 6105.
2
and counsel filed an amended petition on August 30, 2020. On March 5, 2021, this Court granted
Defendant's PCRA and reinstated Defendant's direct appellate rights nunc pro tune. On March 6,
2021, Defendant filed a pro-se Motion to Reconsider Sentence. On July 26, 2021, by operation of
law, this Court denied the motion. On July 27, 2021, Defendant filed a prose appeal. On February
7, 2022, Appellate Counsel was appointed. On June 1, 2022, this Court filed a 1925(b) order.' On
June 15, 2022, Defendant filed a Statement of Errors Complained of On Appeal.
Ill. DEFENDANT'S ST ATEMENT OF MATIERS COMPLAINED OF ON
APPEAL
Defendant raises the following issue in his Statement of Errors:
The Court was in error in denying the defendant's Motion to Reconsider Sentence as the
sentence of3-6 years was harsh and unreasonable for the following reasons:
I. The defendant completed trade school and was employed full time.
2. The defendant had a good record of employment at Pro Com roofing and at
Munn roofing.
3. His supervisor, Charles Venezia. testified in defendant's behalf at the
sentencing hearing. Mr. Venezia describe the defendant as a really good
worker, he doesn't goof off, and is trustworthy.
4. The defendant is a father of four and was granted custody of his children in
2018.
5. Before his arrest in 2018, he had no police contact for nine years.
6. He successfully completed state parole without any issues.
Def.'s Statement of Matters Complained of On Appeal at 2 (Hereinafter "Def. SOE").
IV. DISCUSSION
For the reasons discussed below, the alleged error has no merit.
a. Sentence was not unreasonable and harsh.
Defendant alleges that this Court abused its discretion because it imposed a harsh and
unreasonable sentence because this Court did not take into account that:
3
The delay in the appointment of appellate counsel and the filing of the 1925b order was due to a breakdown in
court operations.
3
The defendant completed trade school and was employed fu11 time. Toe defendant had a
good record of employment at Pro Com roofing and at Munn roofing. His supervisor,
Charles Venezia, testified in defendant's behalf at the sentencing hearing. Mr. Venezia
describe the defendant as a really good worker, he doesn't goof off, and is trustworthy. The
defendant is a father of four and was granted custody of his children in 2018. Before his
arrest in 2018, he had no police contact for nine years. He successfully completed state
parole without any issues.
Defs SOE at 2.
The right to appellate review of the discretionary aspects of a sentence is not absolute.
Sentencing falls within the purview of the trial court and will not be disturbed absent a manifest
abuse of that discretion. "An abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias or ill will. It is more than just an
error in judgment." Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. Ct. 2009). The trial
court may also make any reasonable inferences deduced from the evidence at trial. Commonwealth
v, Downing, 990 A.2d 778, 793 (Pa. Super. Ct. 2003). In addition,
[w)hen a sentencing court deviates from the sentencing guidelines, it is important that
the court reflect a consideration of the sentencing guidelines, the background and
character of the defendant, the circumstances of the crime, and impose a sentence that
is consistent with the protection of the public and the rehabilitative needs of the
defendant.
Commonwealth v. Cruz Ortega, 539 A.2d 849, 852 (Pa. Super. Ct. 1988).
Here, a timely notice of appeal was filed, and the issue was preserved in a post-sentence
motion. Defendant claims that the sentence was unduly harsh is without merit. This Court
detailed the reasons for the sentence. Defendant, in his allocution, told multiple stories about
what happened the night of the shooting. As the Court summarized,
But [Defendant] knew [the victim] and he hid the guns on purpose under the hood, which
is different from what he was trying to convey, which is the difference between a probation
or a county sentence, and when you lie to a judge at sentencing, it's a problem. I'm still
going to mitigate, and I am going to mitigate substantially, but you can't lie to me in open
court and try to sustain those lies. Those are not little lies. I didn't know him. He's a stranger.
That's a big lie, and they fell, and I didn't know what they were and I took them out and I
hid them is another pretty big lie in terms of mitigation.
4
N.T. Sentencing at 42-43.
Defendant admitted he did not tell the truth to the Court about knowing the victim, and that
the firearms fell out of the victim's pocket. Id. 40-41. Defendant further admitted that he knew the
victim, he had previously offered him a job, and that Defendant had taken the firearms from the
victim and placed them under the hood of his car. Id. at 41. The fact that the Court found Defendant
less than credible due to the multiple versions of his story was a significant factor in the Court's
sentencing. The Court stated:
Here's where J am going to go, Ms. McLaughlin,4 I'm going to go with what my instinct
was, not that he had the gun, not that he was involved in the shooting, but he knew that the
guy had guns, and he hid them for his friend or acquaintance, and I'm accepting all of that,
but there is a certain sentence for that when you're a convicted felon, and it's not probation
and it's not a county sentence, and he's lucky I can take a deep breath. Some judges would
be not completely displeased and give him a guideline sentence for lying multiple times.
Jin still going to mitigate substantially. His guidelines are what?
MS. MCMULLEN:5 72 to 90.
THE COURT: His guidelines are six years plus or minus 12. I'm going to give him that full
mitigation to 12 months, and I'm going to give him another 12 months mitigation, and then
I'm giving him another 12 months mitigation. So I'm giving him three times mitigation
even after lying. So his sentence is three to six years, and you should consider yourself
fortunate by my taking three years off the guidelines ..... That's on Count 1. On Count 2,
five years probation, concurrent. On Count 3, five years probation concurrent. Tampering
with evidence, that's nolle pros'd, and so it's three to six years with credit for time served.
He is not RRRI eligible .... I don't take this lightly. If you had not lied, you would have
been in a better position. Your lawyer probably told you I'm reasonable, but you just can't
lie in open court under oath. Jt cost you about a year, maybe a year and a half. I was
considering 11 V, to 23, but the lying was just problematic.
N.T. Sentencing at 46-47.
Defendant was sentenced to three (3) to six (6) years with 5 years of probation, which is
within the sentencing guidelines of seventy-two (?2) months to ninety (90) months.6 The Court
• Brandi Mclaughin, Esq. represented Defendant during sentencing.
5
Kolleen McMullen, Esq. represented the Commonwealth during sentencing.
• Six (6) years to seven and a half(7 Y,) years.
5
noted that the sentence was mitigated by thirty-six (36) months even after the Court found
Defendant lacked credibility. Id at 47. Accordingly, this Court did not abuse its discretion in
denying Defendant's Post-Sentence Motion.
V. CONCLUSION
For the abovementioned reasons, the trial court's judgement and sentence should be
affirmed.
BY THE COURT:
SCOTT DICLAUDIO, J.
6
Commonwealth v. Gregory Bebbe
CP-51-CR-0000764-2019
PROOF OF SERVICE
I hereby certify that I am this day caused to be served the foregoing this person(s), and in the
manner indicated below:
Attorney for the Commonwealth:
ATIN: Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal '1 First class mail
Attorney for Defendant:
Peter A Levin, Esquire
l 927 Hamilton St
Philadelphia, PA 19130
Type of Service: ( ) Personal ( ¥First class mail
TJ �ey, Esquire
Law Clerk to Hon. Scott Di Claudio
7
APPENDIXB
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� Criminal Electronic Filing System
June 15, 2022 09:02am
IMPORTANT NOTICE
Peter A. Levin
The legal paper you electronically presented for filing has been received by the Clerk of Court. The
following information will assist you in tracking the status or the pleading:
Usemame:plevin
-�p
Yndate Information Docket No.: CP-51-CR-0000764-2019
("'O Main Menu Caption: Comm. v. Bebee. Gregll!Y.1
Date Presented to the Clerk of Court for Filing: June 15. 2022 09:02 AM
.. J.2g_Qff Type of Filing/Legal Paper: Statement Of Matters Complained On Apl!.!l!.l
CP-51 ·CR-0000764- E-File No.: 2206030455
2019
EFile #: 2206030455 Confirmation No.: 4853E474C
Status: Pending
Started: 06/15/22 Personal Reference No.: H[A
Court: CR
Filing Fee: ll-.Qg_
* Required Field.
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----·----
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and time of submission, and the legal paper is not rejected by the Clerk of Court, the date and time
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Deputy Court Administrator
Go back to main men\!
-----Z-
Peter A. Levin
Attorney at Law
#09221
1927 Hamilton Street
Philadelphia, PA 19130
(215)563-3454
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP 51-CR- 0000764-2019
VS.
GREGORY BEBEE
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
TO THE HONORABLE scorr DICLAUDIO, JUDGE OF THE SAID COURT:
The above named defendant, by his attorney, Peter A. Levin, respectfully notes the
following matters to be raised on appeal, pursuant to Pennsylvania Rules of Appellate
Procedure 1925(b):
Background
The defendant's attorney, William Ciancaglini, filed an amended PCRA petition on
August 30, 2020 requesting that Defendant's appellate rights be restored nune pro
tune.
The defendant's appellate rights were reinstated nun pro tune on March 5, 2021.
The defendant's attorney, William Ciancaglini, was permitted to withdraw on March 5,
2021.
No counsel was appointed to represent the defendant.
On March 6, 2021, the defendant filed a prose motion for reconsideration of
sentence.
On July 26, 2021, the motion was denied by operation of Jaw.
On July 27, 2021, the defendant filed a notice of appeal.
Present counsel was appointed on February 7, 2022.
ISSUE TO BE RAISED ON APPEAL
The Court was in error in denying the defendant's Motion to Reconsider
Sentence as the sentence of 3-6 years incarceration was harsh and unreasonable for
the following reasons:
1. The defendant completed trade school and was employed full time.
2. The defendant had a good record of employment working at Pro Com roofing and at
Munn roofing.
3. His supervisor, Charles Venezia, testified in defendant's behalf at the sentencing
hearing. Mr. Venezia described the defendant as a really good worker, he doesn't goof
off, and is trustworthy.
4. The defendant is a father of four and was granted custody of his children in 2018.
5 .. Before his arrest in 2018, he had no police contact for nine years.
6 .. He successfully completed state parole without any issues.
Respectfully submitted,
'-----'
Pete�
Attorney-at-Law