Com. v. T.S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
T.S. :
:
Appellant : No. 3587 EDA 2019
Appeal from the Judgment of Sentence Entered August 1, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000254-2019
BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 4, 2021
T.S. appeals from the judgment of sentence, imposed in the Court of
Common Pleas of Philadelphia County, after he entered an open guilty plea to
endangering the welfare of a child (“EWOC”),1 simple assault,2 recklessly
endangering another person (“REAP”),3 aggravated assault of a victim under
thirteen,4 and aggravated assault of a victim under six.5 Upon careful review,
we affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 4304(a)(1).
2 18 Pa.C.S.A. § 2701(a).
3 18 Pa.C.S.A. § 2705.
4 18 Pa.C.S.A. § 2702(a)(9).
5 18 Pa.C.S.A. § 2702(a)(8).
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The following factual basis for T.S.’s plea was recited by the
Commonwealth at the guilty plea hearing on May 16, 2019:
[DISTRICT ATTORNEY]: Your Honor, on September 24, 2018,
[T.S.] had exclusive custody of his child, [C.S.], date of birth 12-
25-16.
The next morning the mother of the child was changing [C.S.’s]
diaper when she noticed a bruise on him. He went to day care
that day.
While at day care[,] the worker who was there discovered more
injuries to the child, including bad bruising on his buttocks as well
[as] his side, and there was a bruise on his face as well.
When [T.S.] was confronted about this, he said that he had to
correct him. The doctors at CHOP where the child was admitted
for a few days determine[d] that this was not accidental trauma.
N.T. Guilty Plea Hearing, 5/16/19, at 5.
On August 1, 2019, the trial court sentenced T.S. to an aggregate term
of 7½ to 15 years’ incarceration, plus five years of probation.6 On August 6,
2019, T.S. filed a motion for reconsideration of his sentence, which was denied
by operation of law on December 6, 2019. T.S. filed a timely notice of appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.
T.S. raises the following issue for our review:
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6 Specifically, the court imposed the following periods of confinement: for
aggravated assault of a victim under 13, 7 ½ to 15 years’ incarceration,
followed by 5 years of probation; for EWOC, 5 to 10 years’ incarceration; and
for aggravated assault of a victim under six, 5 to 10 years’ incarceration. T.S.
received no further penalty on the remaining convictions and all sentences
were ordered to run concurrently.
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Whether the sentencing court abused its discretion by entering
manifestly excessive and clearly unreasonable sentences, where
the sentences violated the sentencing guidelines, where the trial
court overly focused on the offenses and ignored [T.S.’s]
mitigating circumstances, [and] where the sentences greatly
exceeded the sentencing guidelines?
Brief of Appellant, at 8.
T.S.’s claim raises a challenge to the discretionary aspects of his
sentence. Such a claim does not entitle an appellant to review as a matter of
right. Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015).
Rather, before this Court can address such a discretionary challenge, an
appellant must invoke this Court’s jurisdiction by: (1) filing a timely notice
of appeal, see Pa.R.A.P. 902 and 903; (2) properly preserving the issue at
sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P.
720; (3) including in his brief a concise statement of reasons relied upon for
allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) raising a
substantial question that the sentence appealed from is not appropriate under
the Sentencing Code. Swope, 123 A.3d at 337.
Here, T.S. filed a post-sentence motion for reconsideration of his
sentence, followed by a timely notice of appeal to this Court. He has also
included in his brief a concise statement of reasons relied upon for allowance
of appeal with respect to the discretionary aspects of his sentence pursuant
to Rule 2119(f). Accordingly, we must now determine whether T.S. has raised
a substantial question that his sentence is not appropriate under the
Sentencing Code.
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In his Rule 2119(f) statement, T.S. asserts that “[i]n this case, the
sentence imposed upon [him] was manifestly excessive and clearly
unreasonable. Additionally[,] the [C]ommonwealth[’s] recommendation was
for only two (2) years[’] incarceration. Upon instruction[,] the trial court did
not mention the [presentence investigation report] at sentencing.” Brief of
Appellant, at 11. Standing alone, T.S.’s Rule 2119(f) statement fails to raise
a substantial question. See Commonwealth v. Fisher, 47 A.3d 155, 159
(Pa. Super. 2012) (“[A] bald assertion that a sentence is excessive does not
by itself raise a substantial question justifying this Court’s review of the merits
of the underlying claim.”); Commonwealth v. Lutes, 793 A.2d 949, 964 (Pa.
Super. 2002) (same).
However, when read in conjunction with his statement of the questions
involved, see Commonwealth v. Felix, 539 A.2d 371, 377 (Pa. Super. 1988)
(court may look to both Pa.R.A.P. 2119(f) statement and statement of
questions presented to determine if substantial questions are raised), we
conclude that T.S. raises a substantial question for our review. Specifically, a
claim that a court imposed a sentence outside the guidelines while failing to
consider mitigating circumstances has been found to raise a substantial
question. See Swope, supra (holding claim of excessiveness coupled with
claim trial court failed to consider rehabilitative needs and mitigating factors
presents substantial question); Commonwealth v. Samuel, 102 A.3d 1001,
1007 (Pa. Super. 2014) (same). T.S. having properly invoked our jurisdiction,
we may proceed to review his claim.
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We begin by noting our standard of review in sentencing matters:
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014).
Deference is accorded to the trial court’s pronouncement of sentence
because the trial court is in the best position to determine the proper penalty
for a particular offense based upon an evaluation of the individual
circumstances before it. Commonwealth v. Ward, 568 A.2d 1242, 1243
(Pa. 1990). “When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the protection of the
public, gravity of offense in relation to impact on victim and community, and
rehabilitative needs of the defendant[.]” Commonwealth v. Fullin, 892 A.2d
843, 847 (Pa. Super. 2006). Furthermore, “[a] trial court judge has wide
discretion in sentencing and can, on the appropriate record and for the
appropriate reasons, consider any legal factor in imposing a sentence in the
aggravated range.” Commonwealth v. Stewart, 867 A.2d 589, 593 (Pa.
Super. 2005) (citation omitted). The sentencing court must, however,
consider the sentencing guidelines. See Fullin, 892 A.2d at 847. Finally,
where the court is in possession of a presentence report (“PSI”), we “presume
that the sentencing judge was aware of relevant information regarding the
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defendant’s character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Watson, 228 A.3d 928, 936 (Pa.
Super. 2020), quoting Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988).
Here, the argument section of T.S.’s brief consists, in its entirety, of the
following:
When fashioning a sentence, a court is required to consider “the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. McClendon, 589 A.2d 706,
712–13 (Pa. Super, 1991) (en banc) (quoting Commonwealth v.
Frazier, 500 A.2d 158, 159 (Pa. Super. 1985)). “In considering
these factors, the court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation.” Id.Therefore, the imposed sentence was an abuse of discretion,
because it was overly focused on the offense. Mr. Stewart’s
sentence should and must be vacated and the matter remanded
for a new sentencing hearing.
Brief of Appellant, at 12.
T.S.’s counseled brief is woefully inadequate.7 The argument portion of
the brief—consisting of a mere four sentences—is utterly undeveloped and
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7 In light of the deficiency of T.S.’s counseled brief, we feel compelled to note
that counsel requested—and received—three extensions of time within which
to file his client’s brief in this matter, which was originally due to be submitted
on March 23, 2020. In his first request, filed on March 16, 2020, counsel
averred that, given his “previously arranged trial schedule, (41) days in [sic]
an inadequate amount of time for him to prepare a legally a legally sound brief
and zealously represent his client.” Application for Extension, 3/16/20, at ¶
3. We granted counsel’s request and ordered the brief to be filed by May 25,
2020. See Order, 3/16/20. In his second request, filed one day after this
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unsupported by citation to relevant legal authority. T.S. fails to provide
support from the record for his bald assertion that the sentencing court was
“overly focused on the offense.” Moreover, the argument section of T.S.’s
brief fails to even mention the assertions raised in his Rule 2119(f) statement
and statement of the questions involved regarding the excessiveness of his
sentence and the court’s failure to consider mitigating circumstances—the
very claims forming the basis of our grant of allowance of appeal. It is not
this Court’s responsibility to comb through the record in search of the factual
underpinnings of an appellant’s claim, nor will we act as co-counsel and
develop arguments on his behalf. Samuel, 102 A.3d at 1005. Rather, it was
T.S.’s responsibility to provide an adequately developed argument by
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Court’s extended deadline for filing T.S.’s brief, counsel wrote that “Covid-19
rages on” and, therefore, the initial extension provided “an inadequate amount
of time for him to prepare a legally sound brief and zealously represent his
client.” Second Application for Extension, 5/26/20, at ¶¶ 2-3. This Court
again granted counsel’s request, ordered the brief to be filed by June 24, 2020,
and stated that no further continuances would be granted. See Order,
5/27/20. Nevertheless, on June 17, 2020, counsel filed yet another request
for an extension, this time citing the stay-at-home order issued by
Pennsylvania Governor Tom Wolf, as well as the rioting that occurred in the
aftermath of the death of George Floyd at the hands of Minneapolis police.
See Third Application For Extension, 6/17/20. Counsel averred that these
circumstances had resulted in his having “limited access to the research
materials needed to research and draft the Appellant’s [b]rief.” Id. at ¶ 2.
We again granted a thirty-day extension and informed counsel that no further
extensions would be granted. See Order, 6/25/20. Despite receiving these
extensions which, together, granted him nearly four additional months to
research and draft a “legally sound brief,” see Second Application for
Extension, supra, counsel inexplicably saw fit to submit a document that can
only be described as utterly lacking in substance and deficient in all material
aspects.
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identifying the factual bases of his claim and providing citation to, and
discussion of, relevant authority in relation to those facts. See Pa.R.A.P.
2119. Because he has failed to do so, we find his claim waived. See Samuel,
supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/21
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