Com. v. Stewart, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAWN A. STEWART :
:
Appellant : No. 1817 MDA 2019
Appeal from the Judgment of Sentence Entered October 15, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005521-2014
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 24, 2020
Shawn A. Stewart appeals from the October 15, 2019 judgment of
sentence of seventeen and one-half to thirty-five years of imprisonment,
imposed when he was re-sentenced for robbery, burglary, recklessly
endangering another person (“REAP”), simple assault, theft by unlawful
taking, criminal use of a communication facility, and four counts of conspiracy.
Appellant challenges discretionary aspects of his sentence. After careful
review, we affirm.
The pertinent facts underlying Appellant’s convictions were set forth by
the trial court and summarized by this Court on direct appeal:
Briefly, in the two years leading up to early January 2014,
Appellant and Sandra Matos (“Sandra”) were engaged in a “friends
with benefits” relationship. As of January 2014, Sandra lived in a
Middletown, Pennsylvania townhome with her 13-year old twin
sons. In the two months leading up to January 6, 2014, Sandra’s
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father, Samuel Matos (“Matos”), lived with Sandra and her sons
after moving to Middletown from Puerto Rico.
On the morning of Monday, January 6, 2014, Sandra was at work
and her sons were at school when Matos heard a knock on the
front door of the townhome. He opened the door to find two males
and one female who asked for Sandra. When Matos explained she
was not there, the three entered the home uninvited. One
intruder put a gun to Matos’[s] chest, ordered him to the floor,
zip-tied his wrists behind him, and placed an item over his head.
The other two intruders went upstairs and ransacked Sandra’s
bedroom and Matos’[s] bedroom before leaving the home with a
small blue suitcase belonging to Matos.
Matos was able to leave the home and summon assistance from a
neighbor who called the police. The police, in turn, called Sandra
who returned to the home. In the course of discussions with the
police, Sandra explained that she had fabricated a story—playing
to Appellant’s perpetual interest in money—telling Appellant she
was traveling to Puerto Rico over the January 3-5 weekend to
conduct business for her father and she was returning to
Middletown with $87,000 in a locked bag.
Following a police investigation, Appellant was arrested and
charged with burglary, robbery, conspiracy and other crimes.
Following trial, a jury found Appellant guilty of all ten counts
against him. On August 3, 2015, the trial court sentenced
Appellant to consecutive terms of imprisonment totaling not less
than 28 years nor more than 56 years in a state correctional
institution, plus fines totaling $4,000. Each of the sentences fell
within the standard range for the crime committed.
Commonwealth v Stewart, 154 A.3d 869 (Pa.Super. 2016) (unpublished
memorandum). This Court affirmed judgment of sentence. Id.
Appellant filed a timely PCRA petition in which he alleged, inter alia, that
trial counsel was ineffective for failing to raise issues pertaining to sentencing,
specifically, that the trial court erred in imposing consecutive sentences for
conspiracy to commit burglary, conspiracy to commit robbery, and conspiracy
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to commit unlawful restraint. We determined that there was one common
plan or scheme to achieve a common, single, comprehensive goal, and hence,
the imposition of consecutive sentences on the inchoate crimes of conspiracy
was error. Since conspiracy to commit burglary and robbery were the higher-
graded offenses, i.e., first-degree felonies, we directed the trial court on
remand to determine which of these felonies would stand. Commonwealth
v. Stewart, 219 A.3d 228 (Pa.Super. 2019) (unpublished memorandum).
On October 15, 2019, the court resentenced Appellant to eight and one-
half to seventeen years imprisonment for robbery at count one; a consecutive
term of six to twelve years of imprisonment for burglary at count two; three
to six years of imprisonment for conspiracy to commit robbery at count three,
to run consecutive to the sentence imposed at count two; three to six years
of imprisonment for conspiracy to commit burglary at count four, to run
concurrent to the sentence imposed at count three; the costs of proceedings
and no further sentence at counts five and six for conspiracy; a fine and cost
for REAP at count seven; and no further sentence at counts eight, nine and
ten, simple assault, theft by unlawful taking, and criminal use of
communication facility, respectively. The aggregate term of imprisonment
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was seventeen and one-half to thirty-five years.1 N.T. Resentencing,
10/15/19, at 12-14.
Appellant timely appealed to this Court, and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant presents the following issues for our
review:
I. Whether the sentencing court abused its discretion when it
applied the deadly weapon enhancement where the trial
evidence was insufficient to establish that [Appellant]
possessed or used a deadly weapon at the time of the
robbery?
II. Whether the sentencing court abused its discretion when it
sentenced [Appellant] to an aggravated range sentence on
the robbery count of [eight] years, where the sentencing
guidelines even with the application of the deadly weapon
enhancement was 78 to 90 months, and the court did not
state its reasons for the aggravated range sentence?
III. Whether the sentencing court abused its discretion by
imposing consecutive sentences on the robbery, burglary
and conspiracy counts where the entire criminal episode was
part of one continuous incident and objective[,] thereby
resulting in an aggregate sentence that was unreasonable?
____________________________________________
1As Appellant notes, the trial court stated in its opinion that the new aggregate
sentence was fourteen and one-half to twenty-nine years of imprisonment,
maintaining that it imposed no further penalty at count three. However, the
sentencing order and the sentencing transcript confirm that the court imposed
a three-to-six-year term of imprisonment for conspiracy to commit robbery at
count three. The court may have taken into consideration the fact that the
sentence of three to six years at count four (conspiracy to commit burglary),
and one to two years at count seven, were run concurrent to the sentence at
count three and count one, respectively, resulting in an aggregate sentence
of fourteen and one-half to twenty-nine years of imprisonment.
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Appellant’s brief at 4.
All of Appellant’s issues implicate discretionary aspects of his sentence.
An appellant is not entitled as a matter of right to review of such challenges.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Rather,
we treat appellant’s brief on such issues as a petition for permission to appeal.
Commonwealth v. Best, 120 A.3d 329, 348 (Pa.Super. 2015); see also 42
Pa.C.S. § 9781(b). Prior to reaching the merits of a discretionary sentencing
issue, we conduct a four-part analysis to determine: (1) whether appellant
has filed a timely notice of appeal; (2) whether the issue was preserved at
sentencing or in a motion to modify or reconsider sentence; (3) whether
appellant has supplied a Pa.R.A.P. 2119(f) statement in his appellate brief;
and (4) whether appellant has presented a substantial question under the
Sentencing Code. See Moury, supra at 170. We determine what constitutes
a substantial question on a case-by-case basis. Commonwealth v. Battles,
169 A.3d 1086, 1090 (Pa.Super. 2017). “A substantial question exists only
when the appellant advances a colorable argument that the sentencing judge’s
actions 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. Grays, 167 A.3d 793, 816 (Pa.Super. 2017)
(citation omitted).
Appellant filed a timely notice of appeal. Although he did not file a post-
sentence motion, he raised the issues at the resentencing hearing. See N.T.
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Resentencing, 10/15/19, at 6-7. His appellate brief contains the requisite Rule
2119(f) statement. Therein, he relies upon Commonwealth v. Rhoades, 8
A.3d 912 (Pa.Super. 2010), in support of his claim that allegations of error in
the application of the deadly weapon enhancement present a substantial
question. Appellant cites Commonwealth v. Booze, 953 A.2d 1263, 1278
(Pa.Super. 2008), and Commonwealth v. Wellor, 731 A.2d 152, 155
(Pa.Super. 1999), for the proposition that the trial court’s failure to recite its
reasons for imposing an aggravated range sentence on the robbery count
presents a substantial question. Finally, in support of his claim that
consecutive sentencing on the robbery, burglary, and conspiracy to commit
robbery resulted in an excessive sentence presents a substantial question,
Appellant relies upon Commonwealth v. Foust, 180 A.3d 416 (Pa.Super.
2018).
We find that Appellant’s first two claims present substantial questions.
As to Appellant’s third issue, which is a challenge to the reasonability of
imposing consecutive sentences, the following principles inform our review.
“Generally, Pennsylvania law affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed
at the same time or to sentences already imposed. Any challenge to the
exercise of this discretion ordinarily does not raise a substantial question.”
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013); see also
42 Pa.C.S. § 9721(a) (providing that the court may impose sentences
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“consecutively or concurrently”); Commonwealth v. Johnson, 873 A.2d
704, 709 n.2 (Pa.Super. 2005) (noting that challenges to the trial court's
discretion to impose consecutive or concurrent sentences ordinarily does not
raise a substantial question). “The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.Super. 2018); accord
Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012) (en banc).
The sentence herein does not rise to that level. We agree with the trial
court that the aggregate sentence of fourteen and one-half to twenty-nine
years is not unduly harsh nor an abuse of discretion when one considers the
nature of the crimes committed. See Commonwealth v. Wright, 832 A.2d
1104, 1107 (Pa.Super. 2003) (court has discretion to determine whether a
sentence should be consecutive or concurrent). While the court imposed an
aggravated range sentence on the robbery count, it reduced the term of
imprisonment on the burglary charge from seven to fourteen years to six to
twelve years. In accordance with this Court’s directive, the court imposed
sentence on conspiracy to commit robbery, which was for a term of
imprisonment of three to six years instead of six to twelve years, a concurrent
sentence on the conspiracy to commit burglary, and no sentence on the
remaining two conspiracy counts. At Count seven, REAP, the court imposed
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a sentence of one to two years to run concurrent to the sentence imposed at
count one. No additional penalty was imposed on the simple assault, theft by
unlawful taking, or criminal use of a communication facility. The aggregate
sentence of imprisonment was substantially lower than the sentence originally
imposed, and much lower than the sentence that could have been imposed.
Thus, as to Appellant’s third issue, we find no substantial question.
Accordingly, we proceed to review the merits of Appellant’s first two
issues, mindful of our standard of review.
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.
....
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa.Super. 2014).
Further, the trial court exercises considerable discretion when sentencing a
defendant. Although the Commission on Sentencing has promulgated
sentencing guidelines, those guidelines are not mandatory. Id. at 760.
First, Appellant contends that the trial court imposed the deadly weapon
enhancement when the evidence was insufficient to support it. Although the
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trial court denied that it applied the enhancement, Appellant maintains that
the court’s denial cannot be reconciled with its imposition of a term of eight
and one-half to seventeen years of imprisonment on the robbery count, which
was identical to the sentence that it originally imposed for that crime.
Appellant’s brief at 17. Appellant argues further that since the original
guideline form submitted at the first sentencing hearing and the ones prepared
for the resentencing both contained a deadly weapon used enhancement for
the robbery, burglary, and conspiracy offenses, the sentencing court applied
the enhancement. Moreover, Appellant argues that when his counsel argued
that the enhancement should not be applied, the sentencing court did not
expressly state that it was not applying the enhancement. He contends that
the court’s numbers do not add up for a “straight aggravated range sentence.”
Id. at 19.
Appellant argues further that before a deadly weapon enhancement can
be applied, the sentencing judge must first determine whether a defendant
possessed the weapon during the commission of the offense. See
Commonwealth v. Greene, 702 A.2d 547 (Pa.Super. 1997). That did not
occur here. Finally, Appellant contends that there was no evidence to support
the application of the deadly weapon enhancement because the victim
testified at trial that Appellant was not the male who possessed the gun and
there was no evidence that it was within his immediate control, citing
Commonwealth v. Greene, 702 A.2d 547 (Pa.Super. 1997).
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In response to Appellant’s claim that it applied a deadly weapon
enhancement at resentencing, the trial court stated: “we did not, as
Defendant asserts, apply a deadly weapon enhancement in fashioning the
sentence. Our record makes no reference to a deadly weapon enhancement.
Rather, we sentenced in the aggravated range based upon appropriate
reasons which we stated on the record.” Trial Court Opinion, 7/18/13, at
unnumbered 11.
We see no indication in the record that the trial court applied a deadly
weapon enhancement to the sentence for robbery. It did not make the
requisite finding that Appellant used a deadly weapon or announce its
intention to apply an enhancement. Moreover, the sentencing court had the
discretion to impose the sentence it did on the robbery count without applying
such an enhancement. Hence, we find no abuse of discretion.
Second, Appellant directs our attention to Commonwealth v. Mrozik,
213 A.3d 273 (Pa.Super. 2019), reaffirming that a court is obligated to state
its reasons on the record when it imposes an aggravated range sentence. He
alleges that the trial court failed to do so when it imposed an aggravated range
sentence on the robbery count, and that remand is necessary.
At the resentencing on October 15, 2019, the Commonwealth asked the
court to impose the same aggregate sentence or something “very close to it.”
N.T. Resentencing, 10/15/19, at 12. Appellant’s counsel represented to the
court that his client had no significant disciplinary infractions while
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incarcerated. Furthermore, Appellant completed some course work, but was
ineligible for a core program because his minimum sentence was too high. A
witness addressed the court and explained what a good man Appellant was to
her when her father died, and how he took care of her mother and his mother.
Id. at 10. She also testified that Appellant is a good father to his own children.
Id. at 11. The sentencing court stated that the witness’s pleas caused him to
fashion a more favorable sentence for Appellant.
The trial court offered the following reasons in Appellant’s presence for
the sentence imposed. The court noted the serious impact of the crime upon
the elderly victim, and pointed out that the victim’s fear of Appellant was
palpable at trial. Furthermore, the court noted that “the crime was very
deliberate, very planned, very organized,” and expressed fear for what may
have occurred. Trial Court Opinion, 7/18/13, at 3-4 (unnumbered). The
specific facts supporting this particular robbery and its effect upon the victim
are appropriate factors upon which to base an aggravated sentence. See
Commonwealth v Fullin, 892 A.2d 843 (Pa.Super. 2006) (holding an
aggravated range sentence justified where the appellant showed extreme
indifference for the consequences of his actions and because of the extreme
nature of the harm to the victim).
Having previously concluded that Appellant’s third issue fails to raise a
substantial question, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/24/2020
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