J-S62012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 VIC VAUGHN                              :
                                         :
                   Appellant             :   No. 1708 WDA 2018

     Appeal from the Judgment of Sentence Entered October 24, 2018
            In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0000791-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                     FILED JANUARY 24, 2020

     Vic Vaughn appeals from the judgment of sentence entered in the

Allegheny County Court of Common Pleas on October 24, 2018. On appeal,

Vaughn challenges the discretionary aspects of his sentence. We affirm.

     The trial court summarized the factual history as follows.

     On January 4, 2018, [Vaughn] was driving a vehicle in Clairton,
     Pennsylvania with an expired registration. Police officers activated
     lights and sirens and then effected a traffic stop. As [Vaughn]’s
     vehicle was pulling over, police officers observed [Vaughn] lifting
     the front of his body toward the roof of the vehicle and moving
     around inside the vehicle. [Vaughn] appeared to have removed
     something from his waistband and leaned toward the front
     passenger side of the vehicle. As the police officers approached
     the vehicle, they observed [Vaughn] attempting to replace a part
     of the console of the vehicle. [Vaughn] and his female passenger
     were ordered to show their hands. [Vaughn] initially refused. After
     being ordered to do so two more times, both occupants did show
     their hands. They were removed from the vehicle and a firearm
     was recovered from the console area. [Vaughn] was transported
     to the Clairton Police Department where he admitted that the
     firearm recovered from the vehicle belonged to him. The firearm
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      was a Glock, model 23. It had 11 rounds in the magazine and a
      live round in the chamber. It was reported stolen.

Trial Court Opinion, 8/8/2019, at 1-2.

      Vaughn was charged with receiving stolen property, firearms not to be

carried without a license, person not to possess firearms, and driving while

operating privilege suspended. His counsel thereafter filed a petition for

mental health evaluation, which the court granted.

      On August 1, 2018, Vaughn entered a guilty plea to both firearms

charges. As part of the plea, the Commonwealth withdrew the remaining

charges.   Sentencing     was   deferred   for   preparation   of   pre-sentence

investigation report.

      On October 24, 2018, a sentencing hearing was held. Defense counsel

presented testimony from Vaughn’s mother and Vaughn himself. The court

also heard a plan presented by Justice Related Services, for a sentence that

would address Vaughn’s rehabilitative needs related to his diagnosis for PTSD

from being shot multiple times in the past. After hearing from all witnesses

and considering the reports submitted, the court sentenced Vaughn to three

to seven years’ incarceration for carrying a firearm without a license to be

followed by five years’ probation for unlawful possession of a firearm. Vaughn

filed a post-sentence motion to modify sentence, which the court denied. This

timely appeal followed.

      In his sole issue on appeal, Vaughn argues the trial court abused its

discretion by imposing a manifestly excessive and unreasonable sentence.

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Vaughn concedes this claim challenges the discretionary aspects of his

sentence. See Appellant’s Brief, at 5. “A challenge to the discretionary aspects

of a sentence must be considered a petition for permission to appeal, as the

right to pursue such a claim is not absolute.” Commonwealth v. McAfee,

849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      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 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) (citation

omitted; brackets in original).

      Here, Vaughn preserved his issue through a timely post-sentence

motion to modify sentence, and filed a timely appeal. Counsel has included

the required Rule 2119(f) statement. We therefore review the Rule 2119(f)

statement to determine if Vaughn has raised a substantial question.

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for

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




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which are necessary only to decide the appeal on the merits.” Id. (citation

and emphasis omitted); see also Pa.R.A.P. 2119(f).

      Vaughn “must show that there is a substantial question that the

sentence imposed is not appropriate under the Sentencing Code.” McAfee,

849 A.2d at 274 (citation omitted). That is, “the sentence violates either a

specific provision of the sentencing scheme set forth in the Sentencing Code

or a particular fundamental norm underlying the sentencing process.” Tirado,

870 A.2d at 365. “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Provenzano, 50

A.3d 148, 154 (Pa. Super. 2012).

      In Vaughn’s Rule 2119(f) statement, he claims the trial court imposed

a manifestly unreasonable sentence under the circumstances of the case and

failed to put adequate reasons on the record for imposing the maximum

sentence. He further contends the trial court focused exclusively on the

seriousness of the offense. As these claims raise a substantial question, we

proceed to examine the merits of Vaughn’s sentencing challenge. See

Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009) (finding a

substantial question is raised based on the failure to set forth adequate

reasons for the sentence imposed and sentencing solely on the seriousness of

the offense).




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      Our standard of review for a challenge to the discretionary aspects of

sentencing is as follows:

      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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).

      Despite Vaughn’s assertions to the contrary, the court adequately

explained the reasons for the sentence on the record.

      With all that good influence from your mother and from Mr.
      Raiford you continue to embrace the street life. This gun was
      loaded with 13 or 14 rounds in it and one in the chamber.

      Now, no sense having a gun if it's not loaded. But this also had
      one in the chamber just to make sure you didn't have to pull that
      slide back if you needed it.

      Even for safety's sake, for your own safety's sake, on a
      semiautomatic maybe you don't have one in the chamber so that
      you don't blow your foot off accidentally grabbing the gun by the
      trigger.

      But, no, after three prior gun possessions, including one in which
      you fired your firearm at the gas station, you continued to
      embrace the life of possessing loaded firearms on the street.

      […]

      He is not eligible for a Boot Camp recommendation because it is
      necessary that this Defendant be under supervision for as long as
      possible to make the point to him that he cannot carry a loaded,
      concealed firearm, that he is not to possess a firearm.

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      […]

      This sentence is required to protect the Defendant and the
      community from his willingness to engage in the street life over
      and over again despite the wonderful guidance and teaching of his
      mother; despite the efforts of a very sincere, dedicated lawyer,
      Mr. Raiford, who himself spends Thursday nights counselling
      youth in his community.

      People who are represented by Mr. Raiford, particularly those from
      his own community, not only get legal counsel, they get a life
      counselor.

      Mr. Vaughn has had to ignore all of that to be standing here in
      handcuffs today as he is.

N.T., Sentencing Hearing, 10/24/2018, at 23-25.

      Further, the trial court reviewed a pre-sentence report. Where the trial

court had the benefit of reviewing a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment procedure.
      Having been fully informed by the pre-sentence report, the
      sentencing court’s discretion should not be disturbed. This is
      particularly true, we repeat, in those circumstances where it can
      be demonstrated that the judge had any degree of awareness of
      the sentencing considerations, and there we will presume also that
      the weighing process took place in a meaningful fashion. It would
      be foolish, indeed, to take the position that if a court is in
      possession of the facts, it will fail to apply them to the case at
      hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992).

Additionally, the trial court also specifically considered a plan submitted by

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Justice Related Services, in which he requested Vaughn be sent to a boarding

home, which would allow him to find employment and attend mental health

treatment for his PTSD.

      For the record I did review the plan submitted on the defense
      behalf by [Justice Related Services]. I looked at his Certificate of
      Achievement. I have studied everything that has been presented
      in this case.

      But I do not want to read Mr. Vaughn's obituary. Because his
      history is he makes promises in this room, and then he goes out
      and he gets another gun. He's either going to kill somebody or get
      himself killed. He's got to stop now. That's it.

Id., at 27.

      Based on our review of the record, the trial court’s findings set forth

above, and our standard of review, we conclude the trial court did not abuse

its discretion in sentencing Vaughn to three to seven years’ imprisonment,

plus five years’ probation. The court clearly considered the facts surrounding

the offenses, as well as evidence presented as to his character and desire to

change his life. The judge also noted on the record Vaughn’s inability to

conform to the law after numerous firearms convictions over the years. Based

on its consideration of these factors, the court concluded that the public would

be best protected by Vaughn receiving more supervision.

      As the trial court in this case had the benefit of a pre-sentence report,

combined with the trial court’s explicit consideration of the witness testimony,

the sentencing guidelines, and the seriousness of the offense, we conclude

that it considered all relevant sentencing factors. Vaughn has failed to


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establish the 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. As we find Vaughn’s sole issue on appeal merits no

relief, we affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/24/2020




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