J-S03006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

TERRY EUGENE SHIELDS

                        Appellant                  No. 2005 WDA 2015


        Appeal from the Judgment of Sentence November 13, 2015
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0003007-2009


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                      FILED FEBRUARY 13, 2017

     Appellant, Terry Eugene Shields, appeals from the judgment of

sentence entered on November 13, 2015, as made final by the denial of

Appellant’s post-sentence motion on November 24, 2015. We affirm.

     We previously explained the underlying facts of this case:

        On November 11, 2008, at approximately 12:30 p.m., [J.B.]
        and her fiancé[, P.D., ] were at home, in their living room,
        with their two-year-old son. [J.B.], wearing only a tank top
        and wrapped in a blanket, was sitting on the couch. Three
        men broke down the locked front door and entered the
        house. . . .

        [P.D.] attempted to stop the three men, who repeatedly
        struck him in the face with a gun. The men demanded to
        know where they could find money and guns in the house,
        but both [P.D.] and [J.B.] denied having either. One of the
        three men then informed [P.D.] and [J.B.] that “Coke told
        [them] everything,” so they knew there was money in the
        house. [P.D.] testified that “Coke” was the nickname of a

* Retired Senior Judge assigned to the Superior Court.
J-S03006-17


        childhood friend. Eventually, [P.D.] told the three men
        where they could find money and a gun.

        Meanwhile, [Appellant], who was not wearing a mask,
        picked [J.B.] up and threw her to the ground, bound her
        hands and feet with duct tape, and taped her mouth. [J.B.]
        further testified that [Appellant] slapped her across the face
        numerous times as she pleaded with him not [to] do this to
        her in front of her young son. [Appellant] then smacked
        her across the buttocks and said she had a “fat ass.” The
        other two men dragged [P.D.] upstairs to get the money
        and gun, while [Appellant] remained downstairs with [J.B.],
        who testified that [Appellant] continued to hit her
        repeatedly, and then inserted his fingers into her vagina
        and rectum. [Appellant] then said he was going to force
        her to perform oral sex on him. [J.B.] continued to plead
        with [Appellant] not to do so in front of her son.

        [P.D.] came back downstairs with the two men, who
        attempted to flee but could not open the door because they
        had broken it coming in. They screamed at [J.B.] asking
        how to get out, and she directed them to use the back door
        downstairs. The other two men left while [Appellant] waited
        with [J.B.] to make sure they got out. He then grabbed the
        necklace and earrings [J.B.] was wearing, and followed the
        other men.       Throughout the ten-minute attack, the
        intruders broke numerous pieces of furniture including a
        television and a table that [Appellant] broke over [J.B.’s]
        arms.

        [J.B.] testified that once the men left, she put on
        sweatpants and went to the neighbor’s home to call the
        police. . . .

        On February 2, 2009, [J.B.] was at a Pittsburgh Municipal
        Court building with a friend when she spotted [Appellant]
        standing within ten feet of her. She immediately contacted
        police, who arrested [Appellant].

Commonwealth v. Shields, 83 A.3d 1059 (Pa. Super. 2013) (unpublished

memorandum) at 1-3 (internal citations omitted), appeal denied, 81 A.3d 77

(Pa. 2013).


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        The jury found Appellant guilty of two counts of robbery and one count

each of burglary, aggravated indecent assault, unlawful restraint, and

criminal conspiracy to commit robbery.1 On June 29, 2012, the trial court

sentenced Appellant to serve an aggregate term of 15 to 45 years in prison;

Appellant’s sentence included five-year mandatory minimum sentencing

terms under 42 Pa.C.S.A. § 9712, as the sentencing court determined that

Appellant was convicted of violent crimes and, during the commission of the

offenses, Appellant visibly possessed a firearm that placed the victim in

reasonable fear of death or serious bodily injury. See 42 Pa.C.S.A. § 9712

(held unconstitutional in Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014)).      Moreover, during the original sentencing hearing, the trial

court explained:

          This is the time set for sentencing [Appellant]. I do have a
          pre-sentence report. I have read it.

                                           ...

          Aside from the heinous nature of this offense, I have to take
          into consideration his history.

          At age 15, he was adjudicated of defiant trespass, a
          misdemeanor [three], a minor offense, for which he
          received a period of probation and was placed in the
          Academy Day-Evening Treatment Program.

          However, his ongoing failure to adjust on two occasions in
          that program, and then subsequently at Summit Academy,
          Vision Quest, and, ultimately, YDC New Castle, led to the
____________________________________________


1
    18 Pa.C.S.A. §§ 3701, 3502, 3125, 2902, and 903, respectively.



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        extraordinary result of him having a total of six placements
        precipitated by one misdemeanor [three] charge.

        When he finally was released, it wasn’t terribly long until he
        was rearrested on this case.

        While incarcerated in this case, he was involved in another
        conspiracy, assault by a prisoner, which led to the assault
        by prisoner, but it is of note to me that during the assault,
        the victim believes that he was raped.

        Those charges were withdrawn for a plea agreement, but
        the behavior there is concerning and frighteningly similar:
        aggravated indecent assault, involuntary deviate sexual
        intercourse.

        And I must take that into consideration as well in imposing
        a sentence here today.

        Similarly, I generally follow the philosophy that where there
        are multiple victims in a case, each victim deserves to have
        the particular crime that he suffered receive fair
        consideration by the court.

N.T. Sentencing Hearing, 6/29/12, at 16-18 (some internal capitalization

omitted).

     This Court affirmed Appellant’s judgment of sentence on August 6,

2013 and, on December 18, 2013, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal.   Commonwealth v. Shields,

83 A.3d 1059 (Pa. Super. 2013) (unpublished memorandum) at 1-6, appeal

denied, 81 A.3d 77 (Pa. 2013).

     Appellant filed a timely petition under Pennsylvania’s Post-Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and claimed that his

sentence was illegal, as he was sentenced under a mandatory minimum

sentencing statute that was rendered unconstitutional by Alleyne v. United

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States, ___ U.S. ___, 133 S.Ct. 2151 (2013). On July 30, 2015, this Court

held that Appellant’s sentence was illegal under Alleyne. Commonwealth

v.   Shields,   ___   A.3d   ___,   2015   WL   6134012   (Pa.   Super.   2015)

(unpublished memorandum) at 1-6.            Therefore, we vacated Appellant’s

judgment of sentence and remanded for resentencing. Id.

      On November 13, 2015, the trial court held Appellant’s resentencing

hearing. During the hearing, the trial court stated:

        I do recall this case.      I recall the facts of the case.
        Unfortunately for [Appellant], I recall them quite clearly.
        And at the time of the original sentencing, my sentence was
        driven in part at least by the mandatories and by the desire
        to not stack up [Appellant] with what would essentially
        amount to a life sentence, given his young age, but,
        nevertheless, to impose a sentence that would recognize
        the severity and cruelty of the crime that he committed and
        the individual victims, in particular, the separate crime –
        when I say “separate,” it was part of the same criminal act,
        but a crime of a very different nature – committed on [J.B.]

        And so in constructing a sentence that does not entail
        mandatories, I have taken into consideration the guidelines,
        my knowledge of [Appellant’s] history, [and] the nature of
        the crimes involved for each of the victims here.

N.T. Sentencing Hearing, 11/13/15, at 4-5.

      The trial court then sentenced Appellant to serve: at Count 2 (robbery

against J.B.), a term of 50 to 100 months’ incarceration; at Count 3

(aggravated indecent assault against J.B.), a term of 50 to 100 months’

incarceration, consecutive to the term imposed at Count 2; at Count 5

(robbery against P.D.), a term of 50 to 100 months’ incarceration,

consecutive to the term imposed at Count 3; at Count 6 (criminal


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conspiracy), a term of 30 to 60 months’ incarceration, consecutive to the

term imposed at Count 5; a concurrent term of 30 to 60 months’

incarceration for burglary; and, no further penalty for unlawful restraint.

The trial court thus sentenced Appellant to serve an aggregate term of 180

to 360 months’ incarceration (or, 15 to 30 years in prison). All of Appellant’s

sentencing terms fell within the standard sentencing range. See Appellant’s

Post-Sentence Motion, 11/23/15, at ¶ 18.

      Appellant filed a timely post-sentence motion and claimed that “[t]he

aggregate sentence of 15 to 30 years’ imprisonment was manifestly

excessive and unreasonable insofar as [the trial] court failed to consider the

nature and characteristics of [Appellant] before imposing consecutive

sentences totaling a term of imprisonment for a non-homicide that was just

[five] years less than the statutory maximum for third degree murder.” Id.

at ¶ 20 (some internal capitalization omitted). Appellant further claimed:

        Here, there were pertinent factors . . . that made the
        sentence imposed unreasonable. . . . [Appellant] was only
        19 years old at the time of the incident. His father had
        passed away, as well as his other grandmother with whom
        he had been close. . . . When his father passed away,
        [Appellant] lost interest in activities he shared with his dad.
        Both losses caused him to lapse into a deep depression from
        which he never really recovered. The rest of his family was
        very supportive of him. [Appellant] was diagnosed with
        attention deficit disorder and oppositional defiant disorder.
        He was exposed to violence in his neighborhood, including
        witnessing his best friend getting shot in the head. There is
        no indication that the [trial] court gave careful consideration
        to the above factors when resentencing [Appellant].

Id. at ¶ 22 (internal citations omitted).


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      The trial court denied Appellant’s post-sentence motion on November

24, 2015 and Appellant filed a timely notice of appeal. Appellant raises one

claim on appeal:

        Did the [trial] court abuse its discretion in imposing a
        manifestly excessive and unreasonable aggregate sentence
        of 15 to 30 years’ imprisonment in that it failed to craft a
        sentence based on consideration of all of the sentencing
        factors set forth in 42 [Pa.C.S.A.] § 9721(b); rather[,] did it
        focus on the nature of the offenses to the exclusion of the
        other relevant factors under the Sentencing Code?

Appellant’s Brief at 5 (some internal capitalization omitted).

      Appellant’s claim on appeal is a challenge to the discretionary aspects

of his sentence. “[S]entencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.”    Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa.

Super. 2001).     Moreover, pursuant to statute, Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).      Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      As this Court explained:

        [t]o reach 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, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify
        sentence, 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).

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Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal.     Moreover, within Appellant’s post-sentence motion,

Appellant claimed that the trial court abused its discretion at sentencing

because the trial court “failed to consider” certain mitigating factors. These

mitigating factors were, specifically:   Appellant was 19 years old when he

committed the crimes; Appellant’s father and grandmother had passed away

before he committed the crimes; Appellant was diagnosed with attention

deficit disorder and oppositional defiant disorder; and, Appellant had been

exposed to violence in his neighborhood. Appellant’s Post-Sentence Motion,

11/23/15, at ¶ 22.

      On appeal, Appellant repeats his claim that the trial court failed to

consider the above mitigating factors and Appellant attempts to raise the

additional claim that the trial court “focused entirely on the nature and

circumstances of the offenses.”    Appellant’s Brief at 15-16 and 19.     The

latter claim is waived, as Appellant failed to raise the claim in his post-

sentence motion. Pa.R.Crim.P. 720; Pa.R.A.P. 302(a) (“[i]ssues not raised

in the lower court are waived and cannot be raised for the first time on

appeal”).   We will now determine whether Appellant’s claim that the trial

court “failed to consider” certain mitigating factors presents a “substantial

question that the sentence appealed from is not appropriate under the

Sentencing Code.” Cook, 941 A.2d at 11.




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      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were:      (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental     norms     which     underlie    the    sentencing     process.”

Commonwealth v. McKiel, 629 A.2d 1012, 1013 (Pa. Super. 1993);

Commonwealth v. Goggins, 748 A.2d 721, 726 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). Moreover, in determining

whether an appellant has raised a substantial question, we must limit our

review to Appellant’s Rule 2119(f) statement. Goggins, 748 A.2d at 726.

This limitation ensures that our inquiry remains “focus[ed] on the reasons

for which the appeal is sought, in contrast to the facts underlying the appeal,

which are necessary only to decide the appeal on the merits.”       Id. at 727

(internal emphasis omitted).

      In his brief to this Court, Appellant acknowledges that all of his

sentences fell within the “standard” sentencing range.     Appellant’s Brief at

14-15. Yet, as Appellant claims, his aggregate sentence of 15 to 30 years in

prison was manifestly excessive because the trial court failed to consider

such mitigating evidence as: Appellant’s young age when he committed the

crimes; the fact that Appellant’s father and grandmother had passed away

before he committed the crimes; the fact that Appellant was diagnosed with

attention deficit disorder and oppositional defiant disorder; and, the fact that




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Appellant had been exposed to violence in his neighborhood. Id. at 15 and

20.

       Appellant’s claim does not raise a substantial question under the

Sentencing Code. See Commonwealth v. McNabb, 819 A.2d 54, 57 (Pa.

Super. 2003) (“an allegation that the sentencing court did not consider

certain mitigating factors does not raise a substantial question”); see

Commonwealth v. Dunphy, 20 A.3d 1215, 1222 (Pa. Super. 2011) (“[a]n

allegation that the sentencing court ‘failed to consider’ or ‘did not adequately

consider’ various factors does not raise a substantial question that the

sentence was inappropriate”), quoting McKiel, 629 A.2d at 1013; see also

Commonwealth v. Felmlee, 828 A.2d 1105, 1106 (Pa. Super. 2003) (a

claim that the trial court “erred by imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question”) (emphasis added).          Therefore, we may not reach the merits of

Appellant’s claim.2,   3



____________________________________________


2
  To the extent that Appellant has raised a substantial question, we conclude
that Appellant would not be entitled to relief because the trial court had the
benefit of a pre-sentence investigation report. See Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (“[W]here the sentencing
judge had the benefit of a presentence investigation report, it will be
presumed that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors”).
3
  We note that Appellant baldly claims that the trial court erred in
“sentenc[ing] him without providing sufficient reasons for the sentence
(Footnote Continued Next Page)


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      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/2017




                       _______________________
(Footnote Continued)

imposed.” See Appellant’s Brief at 12 and 14. This claim is waived, as
Appellant never expounded upon the claim in his brief. Commonwealth v.
Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the Pennsylvania Supreme
Court] has held that an issue will be deemed to be waived when an appellant
fails to properly explain or develop it in his brief”). Further, to the extent
Appellant preserved this claim in his post-sentence motion, the claim was
based solely on the contention that the trial court erred in sentencing him in
the aggravated range for the burglary conviction, without placing adequate
reasons on the record. Appellant’s Post-Sentence Motion, 11/23/15, at ¶ 19.
However, Appellant was sentenced to a concurrent term of 30 to 60 months
in prison for the burglary conviction and Appellant acknowledges that “[f]or
the charge of burglary, the minimum standard [sentencing] range was 30 to
42 months[’] imprisonment, with +/- 12 months for aggravating or
mitigating factors.” Id. at ¶ 18. Therefore, Appellant received a standard
range sentence for his burglary conviction. Appellant’s claim that the trial
court “failed to place adequate reasons on the record” in sentencing him to
an aggravated range sentence would, thus, be baseless if Appellant properly
raised the claim in his brief to this Court.



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