J-S82020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEROME BANKS                               :
                                               :
                          Appellant            :   No. 409 WDA 2017

               Appeal from the Judgment of Sentence June 24, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0015870-2014


BEFORE:        BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 22, 2018

          Appellant Jerome Banks appeals from the judgment of sentence

entered in the Court of Common Pleas of Allegheny County after a jury

convicted Appellant of Robbery (Causing Serious Bodily Injury),1 Burglary,2

Aggravated Assault,3 and Criminal Conspiracy to commit the aforementioned

crimes.4 After careful review, we affirm the judgment of sentence.

          The trial court summarized the factual background of this case as

follows:

          On the morning of October 10, 2014, at approximately 8:30
          a.m., the victim, Anthony Matthews, was asleep in his bedroom
____________________________________________


1
    18   Pa.C.S.A.   §   3701(a)(1).
2
    18   Pa.C.S.A.   §   3502(a)(1).
3
    18   Pa.C.S.A.   §   2702(a)(1).
4
    18   Pa.C.S.A.   §   903.


____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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     when he was suddenly awakened by three (3) African-American
     men standing at his bedside. The intruders had broken into his
     apartment at 100 Moore Avenue, located in the Knoxville/Mt.
     Oliver area of the city of Pittsburgh. All three (3) men were
     armed with weapons, and they made no attempt to mask their
     identities. Mr. Matthews was immediately able to recognize two
     (2) of the intruders as James and Jerome Banks, the younger
     brothers of his ex-girlfriend, London Banks. Mr. Matthews met
     [Appellant] in May of 2014, and he was well familiar with the
     Banks brothers. He knew exactly what the Banks brothers
     looked and sounded like because he had spent time with them
     during the time that he was dating their sister. James Banks
     knew exactly where Mr. Matthews lived because London Banks
     had briefly resided with Mr. Matthews during the time that they
     were dating, and James Banks had been inside of Mr. Matthews’
     apartment on at least one (1) prior occasion.

     Mr. Matthews woke up to an unidentified man yelling “Where’s
     the money[,] [w]here’s the money?” Armed with a knife, the
     unidentified man was standing at the side of Mr. Matthews’ bed,
     and he stabbed Mr. Matthews in the abdomen as Mr. Matthews
     was attempting to stand up in order to get out of bed. Mr.
     Matthews began fighting with the unidentified man, and, with his
     right hand, Mr. Matthews grabbed the knife that the man was
     holding. During the struggle, Mr. Matthews felt himself stabbed
     again, this time in the back. When he turned around, he
     realized that James Banks was also armed with a knife and that
     James Banks had been the one who had stabbed him in the
     back.

     As Mr. Matthews tried to push James Banks away from him, the
     unidentified man stabbed him again, this time in the side. Mr.
     Matthews turned back around to grab the knife from the
     unidentified man, and, as he continued to struggle for the knife,
     [Appellant] began hitting Mr. Matthews repeatedly in the head
     with a brick, delivering between six (6) and seven (7) blows.
     Mr. Matthews heard James Banks yell to [Appellant], “hit him,
     hit him, hit him.” Shortly thereafter, [Appellant] and his brother
     ran out of the bedroom, leaving Mr. Matthews alone with the
     unidentified male. At that point, Mr. Matthews, who still had a
     grip on the unidentified male’s knife, released his grip from the
     knife, which allowed the man to flee from the apartment. Before
     leaving the apartment, however, the three (3) men stole Mr.
     Matthews’ Playstation 3 gaming system and laptop from his

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     living room, and they smashed his television with the same brick
     that [Appellant] had used to repeatedly hit him in the head.

     After the third male ran out of the bedroom, Mr. Matthews
     stumbled out into his living room, screaming, “I don’t have
     anything, I swear to God I don’t have any money, I don’t have
     anything for you all to take.” Mr. Matthews collapsed on the
     floor of his living room. However, he managed to call 911 on his
     cell phone. Mr. Matthews then crawled across his living room
     floor and out into the hallway of his apartment building. His
     next-door neighbor, Donald Fuller, heard the struggle take place.
     Mr. Fuller had seen three (3) black men fleeing from Mr.
     Matthews’ apartment when he peered through his peephole after
     he had heard the commotion outside.

     Law enforcement officials were dispatched to the scene at
     approximately 8:56 a.m. Officers and medical personnel arrived
     within minutes and found Mr. Matthews in the hallway outside of
     his apartment, laying in a large pool of his own blood. Mr.
     Matthews was bleeding profusely, and he was fading in and out
     of consciousness due to the amount of blood loss that he had
     sustained. Mr. Matthews was in substantial pain to the “multiple
     severe stab wounds” that he suffered. His intestines were
     hanging out of his body, and he was struggling to breathe
     because of a stab wound to his lung.         Mr. Matthews was
     transported to Mercy Hospital. While he was in route to the
     hospital, Mr. Matthews began panicking, believing that he was
     going to die, and he attempted to provide paramedic Shawn
     Eigenbrode with information about the attack. Although he was
     struggling to breathe through an oxygen mask, Mr. Matthews
     asked Mr. Eigenbrode to tell his mother, father, and daughter, if
     he did not survive, that he loved them. Mr. Matthews also
     relayed to Mr. Eigenbrode that he had been stabbed by his ex-
     girlfriend’s brothers and that there were three (3) men who
     attacked him. When Mr. Eigenbrode asked the name of his ex-
     girlfriend, Mr. Matthews replied, “London Banks.”

     Upon his arrival at Mercy Hospital, Mr. Matthews was put into a
     medically-induced coma for approximately two (2) days. For
     about the next week, Mr. Matthews remained at the hospital,
     undergoing various surgeries and treatment. On October 17,
     2014, Mr. Matthews’ condition stabilized enough that he was
     able to speak with the police about the attack and stabbing. Mr.
     Matthews spoke with Detective Judd Emery, identifying his

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      attackers as Jerome and James Banks, the younger brothers of
      his ex-girlfriend, London Banks. Mr. Matthews was presented
      with separate photo arrays for each brother, and he positively
      identified both brothers without any hesitation. He circled their
      pictures, wrote their nicknames next to their faces, and signed
      his name.

      After spending approximately a week in the hospital, Mr.
      Matthews was discharged. Unfortunately, he was readmitted
      less than 48 hours after discharge due to various complications
      from his injuries.     Mr. Matthews required more surgical
      procedures, and he developed deep vein thrombosis. He spent
      nearly a month in the hospital during his second admission due
      to the complications he developed from his stab wounds. Mr.
      Matthews was ultimately discharged from the hospital on
      November 6, 2014. By the time of trial, Mr. Matthews still was
      experiencing symptoms from nerve damages in both of his
      hands and in his lower back. He continued to struggle with pain
      in his abdominal area from the scar tissue that had developed
      after his surgeries. He reported some slight short-term memory
      loss from the head injury that had been caused by the blows
      from the brick wielded by [Appellant]. In addition to his physical
      injuries, Mr. Matthews struggled with anxiety and post-traumatic
      stress, and he reported difficulty sleeping since the attack in his
      bedroom.

      Prior to the attack, Mr. Matthews had been working full-time at
      the Chipotle Mexican Grill. He primarily worked on the grill and
      was also training for a management position at the restaurant.
      Since the stabbing, however, Mr. Matthews has not been able to
      work in any capacity because he is significantly limited in his
      ability to use his hands for an extended period of time. It is also
      difficult for him to work in any position that requires lifting or
      squatting because of the scar tissue in his stomach and the
      nerve damage in his back. Mr. Matthews also has difficulty
      sitting and standing for prolonged periods of time because he
      experiences severe, sharp pains in his back that shoot down his
      leg. Mr. Matthews is unsure whether he will be able to work a
      full workday again.

Trial Court Opinion (T.C.O.), 6/13/17, at 3-8 (citations omitted).




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      Following the grant of a mistrial on December 3, 2015, Appellant was

retried before a jury in April 2016. At the conclusion of the trial, the jury

convicted Appellant of robbery, burglary, aggravated assault, and criminal

conspiracy to commit robbery, burglary, and aggravated assault. The jury

acquitted Appellant of attempted murder. On June 24, 2016, the trial court

sentenced Appellant to ten to twenty years’ imprisonment for the robbery

conviction and a consecutive term of ten to twenty years’ imprisonment for

aggravated assault. In addition, the trial court imposed a concurrent term of

seven to fourteen years’ imprisonment and five years’ probation for the

burglary conviction and a concurrent term of ten to twenty years’

imprisonment for conspiracy to commit robbery.       Appellant did not file a

notice of appeal.

      Three months later, defense counsel filed a motion to withdraw, which

the trial court granted. After new counsel was appointed, Appellant filed a

petition pursuant to the Post Conviction Relief Act (PCRA) seeking that his

right to file a post-sentence motion and a notice of appeal be reinstated. On

December 12, 2016, the lower court reinstated Appellant’s post-sentence

and appellate rights.   Thereafter, Appellant filed a post-sentence motion

which the lower court denied. Appellant filed this timely appeal.

      Appellant raises one issue for our review:

      Did the trial court abuse its discretion at sentencing when it
      failed to adequately consider the sentencing guidelines and any
      relevant mitigating factors before imposing a sentence based
      solely on the nature and circumstances of the crime[?]


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Appellant’s Brief, at 6.

      We begin by noting that it is well-established that “[a] challenge to the

discretionary aspects of sentencing does not entitle an appellant to review as

of right.”    Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184

(Pa.Super. 2016).     To invoke this Court’s jurisdiction to address such a

challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S.A. § 9781(b). Id.

Appellant filed a timely appeal, preserved his sentencing claim in a timely

post-sentence motion, and submitted a Rule 2119(f) statement in his

appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.          “The determination of what constitutes a

substantial   question     must   be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015).                This

Court has provided that “[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




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Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.”

      Appellant asserts that the trial court imposed the sentence in this case

without adequate consideration of relevant mitigating factors and improperly

focused solely on the gravity of the offenses.        “This Court has held on

numerous occasions that a claim of inadequate consideration of mitigating

factors   does    not   raise   a   substantial   question   for   our   review.”

Commonwealth v. Miklos, 159 A.3d 962, 970 (Pa.Super. 2017) (quoting

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013)).

However, this Court has provided that “an averment that the court

sentenced based solely on the seriousness of the offense and failed to

consider all relevant factors raises a substantial question.” Commonwealth

v. Bricker, 41 A.3d 872, 875 (Pa.Super. 2012) (quoting Commonwealth v.

Macias, 968 A.2d 773, 776 (Pa.Super. 2009).

      In reviewing a challenge to the discretionary aspects of sentence, we

emphasize that:

      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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).


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      Section 9721 of the Sentencing Code outlines general principles for the

trial court to follow in fashioning a sentence, providing that “the sentence

imposed should call for confinement that is consistent with the protection of

the public, the gravity of the offense as it relates to the impact on the life of

the victim and on the community, and the rehabilitative needs of the

defendant.” 42 Pa.C.S.A. § 9721. Moreover,

      Section 9781(c) specifically defines three instances in which the
      appellate courts should vacate a sentence and remand: (1) the
      sentencing court applied the guidelines erroneously; (2) the
      sentence falls within the guidelines, but is “clearly unreasonable”
      based on the circumstances of the case; and (3) the sentence
      falls outside of the guidelines and is “unreasonable.” 42 Pa.C.S.
      § 9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts
      must review the record and consider the nature and
      circumstances of the offense, the sentencing court's
      observations of the defendant, the findings that formed the basis
      of the sentence, and the sentencing guidelines. The ... weighing
      of factors under 42 Pa.C.S. § 9721(b) [is] exclusively for the
      sentencing court, and an appellate court could not substitute its
      own weighing of those factors. The primary consideration,
      therefore, is whether the court imposed an individualized
      sentence, and whether the sentence was nonetheless
      unreasonable for sentences falling outside the guidelines, or
      clearly unreasonable for sentences falling within the guidelines,
      pursuant to 42 Pa.C.S. § 9781(c).

Bricker, 41 A.3d at 875–76 (Pa.Super. 2012) (citing Commonwealth v.

Bowen, 975 A.2d 1120, 1123–1124 (Pa.Super. 2009)).

      As noted above, Appellant received two consecutive sentences of ten

to twenty years’ imprisonment for his convictions for robbery (causing

serious bodily injury) and aggravated assault as well as concurrent

sentences for his burglary and conspiracy convictions. As Appellant’s prior



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record score rendered him a repeat felony offender (RFEL) pursuant to 204

Pa.Code § 303.4 and the trial court applied the Deadly Weapon (Used)

Enhancement set forth in 204 Pa.Code § 303.10(a)(1)(iii), Appellant’s

consecutive terms of ten to twenty years’ imprisonment were standard range

sentences.5

       At the sentencing hearing, the lower court assured Appellant that he

had twice reviewed the presentence report, which set forth mitigating factors

and discussed Appellant’s rehabilitative needs. We observe that:

       [w]here the sentencing court had the benefit of a presentence
       investigation report (“PSI”), we can assume the sentencing court
       was aware of the relevant information regarding the defendant's
       character and weighed those considerations along with
       mitigating statutory factors. Further, where a sentence is within
       the standard range of the guidelines, Pennsylvania law views the
       sentence as appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013) (citations

and internal quotation marks omitted).




____________________________________________


5
  Given that Appellant’s prior record score (PRS) was RFEL and his conviction
of robbery (causing serious bodily injury) carried an offense gravity score
(OGS) of 12, the guidelines provided a standard range of 114 to 132
months. For Appellant’s aggravated assault conviction that carried an OGS
of 11, the guidelines provided for a standard range of 102-120 months. See
204 Pa.Code § 303.17(b).




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       We also note that the lower court was familiar with Appellant’s criminal

history as it had previously imposed Appellant’s probation in prior cases.6

Although defense counsel asserts that the lower court did not address

Appellant’s age and his “lack of prior convictions as an adult,” the trial court

rejected this argument, pointing out that Appellant was convicted as a

juvenile for an offense in which he beat a female’s head with a handgun and

had already achieved the classification of a repeat felony offender (RFEL) at

the age of twenty-three. See Appellant’s Brief, at 26; Notes of Testimony

(N.T.), Sentencing, 6/24/16, at 4. The trial court observed that Appellant’s

“prior, more lenient sentences for his past criminal conduct clearly failed to

deter him from committing more crimes.              His crimes escalated in

seriousness throughout the years, and his demonstrated failure to be

deterred from criminal activity makes him a danger to society.” T.C.O. at

24.

       The lower court’s standard range sentences imposed for his violent

robbery and assault of the victim were in no way an abuse of discretion.

The lower court was well aware of the violent circumstances of this case in

which Appellant and his co-defendants committed a home invasion in which

they awoke the sleeping victim, demanded money, and repeatedly stabbed

____________________________________________


6
  Appellant’s convictions in this case served as grounds for the lower court to
revoke his probation and resentence him in two prior cases involving
convictions for weapons charges and receiving stolen property.



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the victim.     While the victim was already severely wounded and was

struggling to defend himself, Appellant repeatedly hit the victim in the head

with a brick.

      Although Appellant apologized to the victim at the sentencing hearing,

the lower court criticized Appellant’s characterization of the attack as a “bad

decision”:

      [Appellant], I am sure the victim appreciates hearing some
      apology from you. I think it perhaps comes a bit late. There is
      no doubt that during the trial and mistrial that occurred before[,]
      the attitude that I got from you and your brother was certainly
      anything but apologetic. It was quite frankly arrogant and it was
      inappropriate a lot of times and certainly indicated no remorse.
      Perhaps having been convicted and facing substantial time in the
      state prison system you have now come to realize what you
      have done was wrong. This isn’t just a poor decision. This isn’t
      just a bad decision. I mean you don’t do this kind of vicious,
      horrible attack, you know, because it was a bad decision like you
      picked the wrong pack of gum in the morning, you picked out
      the wrong socks or wrong color pants. Those are bad decisions.
      This is well beyond that.

      This is a horrible crime that you have committed where you
      almost killed a man, an innocent man who did nothing. He was
      going to and from work every day, staying off the streets,
      staying out of trouble, not causing issues. And to violate his
      home, a place where he should feel safe – he’s not just in his
      home, but in his bedroom, a place where he should feel safe
      laying his head on a pillow every night, having good dreams
      about the better life he’s creating for himself by hard work.
      Instead you have taken that from him. Taking his Play Station,
      you know, big deal. What you took from him was his ability to
      ever trust people and feel secure. And that’s something that is
      not going to come back to him any time soon. That’s something
      he’s going to live with, my guess is for most if not all of his life.

      So you will certainly serve a sentence but at some point you will
      be free of that sentence, you will be out on the streets again.
      [The victim], however, is going to serve that sentence forever.

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      It’s not going to stop with him. Every time he goes into his
      bedroom to lay down he’s going to worry about is it going to be
      the alarm clock waking him up or is it going to be a knife in his
      side, is it going to be a brick to his head, is it going to be people
      screaming at him for something he doesn’t even know what it is.
      That’s what you have sentenced him to.

      So perhaps we see the beginnings of remorse here because you
      have apologized, but you have a much farther way to go. My
      hope is that throughout your sentence you will continue to
      improve yourself so at some point maybe through your own
      actions you can make amends for what you have done. But it’s
      going to take an awful long time for you to do that, sir, because
      of the damage you have caused.

N.T. at 22-24.

      Accordingly, the record clearly shows that the lower court properly

exercised its discretion and considered all the relevant sentencing factors in

determining the appropriate sentence.         See Commonwealth v. Mouzon,

828 A.2d 1126, 1128 (Pa. Super. 2003) (An “appellate court must give great

weight to the sentencing court's discretion, as he or she is in the best

position to measure factors such as the nature of the crime, the defendant's

character,   and   the   defendant's    display   of   remorse,   defiance,   or

indifference”). Therefore, Appellant’s challenge to the discretionary aspects

of his sentence is meritless.

      Judgment of sentence affirmed.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2018




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