J-S40042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FARUQ BEY                                  :
                                               :
                      Appellant                :   No. 2966 EDA 2016

              Appeal from the Judgment of Sentence May 11, 2016
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0006412-2015


BEFORE:      OTT, DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                                     FILED JULY 25, 2017

        Faruq Bey appeals from the judgment of sentence imposed on May 11,

2016, in the Court of Common Pleas of Bucks County, after he pleaded guilty

to aggravated assault, terroristic threats, simple assault, and possession of

drug paraphernalia.1       The trial court sentenced Bey to nine to 20 years’

imprisonment on the aggravated assault charge, and imposed no further

penalty on the remaining charges. The sole issue raised in this appeal is a

challenge to the discretionary aspects of the sentence.          Based upon the

following, we affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S. §§ 2702(a)(1), 2601(a)(1), 2701(a)(1), and 35 P.S. § 780-
113(a)(32), respectively.
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        The trial court has provided the following factual and procedural

history:

        On August 5, 2015, Bensalem Township Police Officer Robert
        Schwarting responded to the Lincoln Motel in Bensalem
        Township for the report of an assault. Upon arriving on scene,
        Officer Schwarting observed Kishor Mehta, a sixty-three year old
        man, whose face was covered in blood and right eye was swollen
        shut.

        Mr. Mehta and [Bey’s] girlfriend, Natasha Steele, were co-
        workers at the Lincoln Motel in Bensalem Township. Ms. Steele
        had previously shared with [Bey] that Mr. Mehta had made her
        feel uncomfortable at times. [Bey] went to the Lincoln Motel on
        the night of August 5, 2015 to have “a man to man talk” with
        Mr. Mehta. [Bey] became upset by something Mr. Mehta
        allegedly said to Ms. Steele. [Bey] then repeatedly struck Mr.
        Mehta over the course of a ten to fifteen minute period. [Bey]
        was still present in the lobby of the motel upon Officer
        Schwarting’s arrival. [Bey] was thereafter arrested and taken
        into custody. On February 17, 2016, [Bey] pled guilty to
        [a]ggravated [a]ssault[, terroristic threats, simple assault, and
        possession of drug paraphernalia]. Sentencing was deferred until
        May 11, 2016.

        At [Bey’s] sentencing, the Commonwealth presented Mr. Mehta’s
        victim impact statement and a video from the night of August 5,
        2015    that   captured    the  assault.[2] Additionally,  the
        Commonwealth described [Bey’s] prior criminal history for the
        Court to consider when imposing a sentence.

        [Bey] offered a report prepared by Dr. Allan [T]epper, a
        psychologist, that states that [Bey] had untreated psychological
        issues stemming from physical and sexual abuse he experienced
        throughout his life. Ms. Steele also testified on behalf of [Bey]
        and stated that she believes [Bey] is not a violent man.


____________________________________________


2
    The video of the assault is included in the certified record.



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        [Bey] was ultimately sentenced to nine to twenty years of
        incarceration in a state correctional institution. On May 17, 2016,
        [Bey] filed a Motion for Reconsideration of Sentence and a
        hearing was held on August 31, 2016. Following the hearing, this
        Court denied Bey’s Motion. On September 21, 2016, [Bey] filed a
        Notice of Appeal to the Superior Court.

        On October 18, 2016, in accordance with Pennsylvania Rule of
        Appellate Procedure 1925(b), [Bey] filed his Concise Statement
        of Matters Complained of on Appeal[.]

Trial Court Opinion, 11/28/2016, at 1–2 (unnumbered) (record citations and

footnote omitted).

        Bey contends the trial court’s sentence of nine to 20 years’

imprisonment — which is outside the sentencing guidelines3 — was

excessive because the trial court “failed to take into account [Bey’s] troubled

background and psychological history, his guilty plea and rehabilitative

needs, and placed undue emphasis on the nature of the crime.” Bey’s Brief

at 7.    Bey maintains the trial court failed to comply with 42 Pa.C.S. §

9721(b), which provides 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.” See Bey’s Brief,

at 6.


____________________________________________


3
  The sentencing guideline recommendation for Bey’s aggravated assault
crime was 60 months in the mitigated range, 72 to 90 months in the
standard range, and 102 months in the aggravated range. See N.T.,
5/11/2016, at 2.



                                           -3-
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      It is well-established that “[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. Hoch, 936

A.2d 515, 518 (Pa. Super. 2007) (citation omitted). Before this Court may

review the merits of a challenge to the discretionary aspects of a sentence,

we must engage in the following four-pronged analysis:

      [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. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted).

      Here, Bey complied with the procedural requirements for this appeal

by filing a timely motion for reconsideration of sentence and timely notice of

appeal, and by including in his appellate brief a statement of reasons relied

upon for appeal pursuant to Pa.R.A.P. 2119(f). The fourth part of our

analysis focuses on whether there is a substantial question justifying our

review. 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.” Moury,

supra, 992 A.2d at 170 (citation and quotations omitted).



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      In the present case, Bey asserts:

      [A] substantial question arises in that the Lower Court did not
      comply with the sentencing code, in that the Court imposed such
      a manifestly excessive sentence resulting in too severe a
      punishment under all the circumstances, particularly when
      considering that [Bey] pled guilty and had a troubled background
      and psychological history. A substantial question arises as the
      Lower Court relied primarily on the nature of the crime. All of
      these factors are contrary to the fundamental norms underlying
      the sentencing process, i.e., the rehabilitative needs of the
      defendant, and protection of the public[.]

Bey’s Brief at 7 (Pa.R.A.P. 2119(f) statement) (citations omitted).

      “This Court has held that an excessive sentence claim — in conjunction

with an assertion that the court failed to consider mitigating factors — raises

a substantial question.” Commonwealth v. Johnson, 125 A.3d 822, 826

(Pa. Super. 2015) (quotations and citations omitted). Furthermore, “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) (citation and quotations omitted). Therefore, we will proceed

to review the merits of Bey’s discretionary sentencing challenge.

      The principles that guide our review of Bey’s sentence of 9-to-20

years’ imprisonment, outside the guidelines, are as follows:

      It is well settled that “the proper standard of review when
      considering whether to affirm the sentencing court’s
      determination is an abuse of discretion.” [Commonwealth v.]
      Walls, 592 Pa. [557,] 564, 926 A.2d [957,] 961 [2007]. An
      abuse of discretion “is more than a mere error of judgment;
      thus, a sentencing court will not have abused its discretion
      unless ‘the record discloses that the judgment exercised was

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     manifestly unreasonable, or the result of partiality, prejudice,
     bias or ill-will.’” Id. (citation omitted). An abuse of discretion
     may not be found merely because an appellate court might have
     reached a different conclusion. Id. Indeed, as we explained in
     Walls, there are significant policy reasons underpinning this
     deferential standard of review:

        The rationale behind such broad discretion and the
        concomitantly deferential standard of appellate review is
        that the sentencing 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.” Simply stated, the sentencing court sentences
        flesh-and-blood defendants and the nuances of
        sentencing decisions are difficult to gauge from the cold
        transcript used upon appellate review. Moreover, the
        sentencing court enjoys an institutional advantage to
        appellate review, bringing to its decisions an expertise,
        experience, and judgment that should not be lightly
        disturbed. Even with the advent of sentencing guidelines,
        the power of sentencing is a function to be performed by
        the sentencing court. Thus, rather than cabin the exercise
        of a sentencing court's discretion, the guidelines merely
        inform the sentencing decision.

     Id. at 565, 926 A.2d at 961-62 (citations and footnote omitted).

     Further, Section 9781 of the Sentencing Code sets forth an
     appellate court’s statutory obligations in reviewing a sentence.
     Subsection (c) provides:

        (c) Determination on appeal.-The appellate court shall
        vacate the sentence and remand the case to the
        sentencing court with instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines, but applied the guidelines
        erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly
        unreasonable or



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         (3) the sentencing court sentenced outside the
         sentencing guidelines and the sentence is unreasonable.

         In all other cases the appellate court shall affirm the
         sentence imposed by the sentencing court.

     42 Pa.C.S.A. § 9781(c) (emphasis added). Thus, the appellate
     court must specifically review a sentence outside the guidelines
     for reasonableness.

     Subsection (d) sets forth the factors to be considered in
     determining whether a sentence outside of the guidelines is
     unreasonable:

         (d) Review of record.-In reviewing the record the
         appellate court shall have regard for:

         (1) The nature and circumstances of the offense and the
         history and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe
         the defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

     42 Pa.C.S.A. § 9781(d).

Commonwealth v. Perry, 32 A.3d 232, 236-37 (Pa. 2011).

     In Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007), the

Pennsylvania Supreme Court “decline[d] to fashion any concrete rules as to

the unreasonableness inquiry for a sentence that falls outside of applicable

guidelines….”   Id.   at   964.   The   Walls   Court   noted   that   the   term

“unreasonable” generally means a decision that is either irrational or not

guided by sound judgment. Id. at 963. The Supreme Court held that a

sentence can be defined as unreasonable either upon review of the four


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elements contained in 42 Pa.C.S. § 9781(d) or if the sentencing court failed

to take into account the factors outlined in Section 9721(b).        Walls, 926

A.2d at 964.

        Here, the trial court, aware of the relevant sentencing guidelines,4

justified its sentence, stating:

           [H]aving read this matter, heard the testimony, read the
           reports of Dr. Tepper, heard the testimony of the
           girlfriend, seen the photographs and video, frankly, this is
           one of those cases where the guidelines are largely
           irrelevant. Now, granted, I guess they do serve as a
           guide.

           But regardless of what the guidelines would say, I would
           still be considering his prior criminal history. I’d still be
           giving him the benefit of knowing that those offenses
           happened quite a few years ago and that he had a period
           in society where he was crime free, or at least arrest free,
           but I will take that as crime free.

           I also take into consideration the seriousness to the
           individual, that is the victim, and to the community at
           large. As I said from the very beginning, this was and is a
           brutal beating. You have heard from Mr. Mehta that he
           has sustained serious injuries that have not only caused
           him a great deal of pain and discomfort, prevented him
           from moving about, caused an imposition on his family
           and will affect him for the rest of his life. Just as — and
           this is rare for me to feel this way — the outcome of your
           sentence should affect you for the rest of your life.

           The video displays an aggressive, angry man backing an
           older man into a corner, arguing with him as, I’ll say, a
           friend of yours tried to keep you away, to dissuade you
           from your conduct. You couldn’t, you wouldn’t and you
           continued for a matter of moments.
____________________________________________


4
    N.T., 5/11/2016, at 2.



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J-S40042-17



         This was not a fit of anger, a momentary loss of
         judgment or a burst, but a cold, calculated, continuing
         assault for a period of over 15 minutes. Once the friend
         gave up and walked away, and you had beaten Mr. Mehta
         to the ground, you walked out, came back in, your
         girlfriend interceded. You pushed her back and left. You
         came back in. She interceded. You pushed her back and
         left. You came back in again. You left. You came back
         in again and continued your assault. And you violated
         and physically assaulted her, for which criminal charges
         could have been brought. All over a period of such an
         extent of time that a person of the character that you
         want me to believe you are, somewhere, somewhere the
         goodness of character would have shown through and
         stopped your actions. And it ultimately was only through
         the intercession of the police with pointed firearms that
         you stopped.

         Looking at the Bill of Information, I have what I calculate
         to be [13 and a half years] for which I can impose as a
         minimum sentence. … I consider doing that because of
         the depth of the depravity that you showed in this
         assault.

         But you said something to me. You want the opportunity
         to get back to society and prove that you’re the [sic]
         human. ….

                                   ****

         On Count One of the Bill of Information, it’s ordered and
         directed that you pay the costs and undergo
         imprisonment in a state correctional institution for a
         period of not less than nine nor more than 20 years. …

                                   ****

         No further penalty on Counts Two, Three and Four.

N.T., 5/11/2016, at 46–49.




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        It bears emphasis that the court deferred the sentencing hearing to

allow the defense time to gather mitigation evidence. See N.T., 5/11/2016,

at 2.    Further, the trial court’s on-the-record statement set forth above

clearly shows that the trial court considered the Section 9721(b) factors

(i.e., 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). Contrary to Bey’s argument, our review confirms

the trial court’s position that:

        In fashioning [Bey’s] sentence, [the trial court] took into account
        numerous factors specific to this case after hearing testimony
        offered by both the Commonwealth and [Bey]. The [trial court]
        considered mitigating evidence of [Bey], including the findings
        from [Bey’s] psychological evaluation, the fifteen year span
        [Bey] was not engaged in criminal activities and [Bey’s]
        testimony relating to his desire to re-renter society and prove
        that he is a good person beyond his actions. Furthermore, the
        Court adequately stated its reasons for imposing [Bey’s]
        sentence on the record[.]

Trial Court Opinion, 11/28/2016, at 3–4.

        Moreover, the trial court held a hearing on Bey’s motion for

reconsideration. Bey’s counsel presented the testimony of Dr. Allan Tepper,

who discussed his psychological report that had been submitted at the

sentencing hearing.     In addition, Bey expressed his remorse to the court.

The victim also testified regarding the impact the crime had on him.

Thereafter, Bey’s counsel argued to the court that Bey “certainly had a

difficult situation,” that Bey was remorseful, that Bey’s “prior record is not

for violence[, and] is an older, prior record,” and that Bey took responsibility

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J-S40042-17


and pled guilty. N.T., 8/31/2016, at 28–30. Bey’s counsel asked the court to

consider imposing a standard range sentence of 72 to 90 months. See id.

at 30.

         Again, the trial court explained its reasoning, stating:

         All right. Let me say this. I would suspect that if you would look
         at my ten-plus years on the criminal bench, the number of times
         I exceeded the aggravated range could probably be counted on
         one hand.

         I don’t doubt Dr. Tepper’s conclusions, the basis for his
         conclusions.    I actually don’t discount or disbelieve the
         expressions of remorse by Mr. Bey. Sure, I’m sure part of that
         comes from remorse for his own situation, but I truly believe he
         has some remorse for the injuries inflicted upon Mr. Mehta.

         Everyone agrees that a lengthy period of incarceration is
         appropriate here. The question becomes, what exactly is an
         appropriate length? I’m required to and I do, in fact, look to the
         guidelines for guidance. In this particular matter of greatest
         significance, I look to the facts themselves as they are depicted
         on the video, which are essentially uncontested. And what that
         video shows is not an individual exploding and lashing out, it
         shows a person exploding, lashing out, being coerced away,
         returning and continuing to mete out a beating, leaving, coming
         back, I don’t recall off the top of my head how many times that
         cycle continued. But there was more than adequate time to cool
         off, to reflect, to accept the prodding of the woman in his life to
         stop. And he even pushed her aside and continued to beat the
         victim.

         Dr. Tepper has recited a number of reasons that might have
         caused [Bey] to lash out. One of those will continue to be the
         case. Actually, I guess all of them will be. One in particular, we
         know that individuals that have been incarcerated, particularly
         those that have been incarcerated for lengthy periods of time,
         have a great deal of difficulty in securing employment that
         provides them a living wage.




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       I accept the statement that that probably plays upon a person’s
       ego, their view of themselves, because that’s going to continue
       no matter what the sentence I impose will be.

       And, of course, it causes me concern that upon his release, and
       there’s no question the day will come when he is released,
       whether the same frustration will arise again[.] …

       The request here is for me to reduce the sentence I have
       imposed, claiming that it was excessive, it exceeds what is
       necessary to protect the public and rehabilitate the defendant.
       Where I disagree with Mr. Mehta [is] I truly believe that an
       individual who has done wrong should, in fact, repent, and then
       that does count to mitigate one’s conduct.[5] If not, then our
       system is a farce, because if we are not going to try to
       rehabilitate people, then for each first offender of any
       offense, we should probably just lock them away for the
       rest of their lives, but that’s not the foundation of our
       system.

       While we fail miserably in rehabilitating people, it should still be,
       and is, a goal. But the reality of it is, I see no difference in how
       [Bey] would be rehabilitated if I were to reduce his sentence
       from a minimum of what, 108 months to 102, because at the
       very least his actions require a sentence in the aggravated
       range.

       The longer he is away, the longer society is protected from his
       conduct. And so I think those two issues – and I’m sure I
       addressed them at the time I initially imposed sentence and I
       don’t want to rehash my entire thought process.           But in
       considering whether to reduce this sentence, while I accept what
       I’ve heard from both Dr. Tepper and the defendant, I cannot get
       past what is not just a beating, but really a series of beatings,
       interrupted, providing for the opportunity to give thought to
       hesitate, to pause. If this was a murder case we would be talking
       about premeditation, because certainly ample time occurred.

____________________________________________


5
  Mr. Mehta had testified that “to repent afterwards is no use.”               N.T.,
8/31/2016, at 27.



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        I don’t know what the defendant was seeking by coming back
        time after time, but to mete out upon Mr. Mehta the beating he
        did, perhaps to take out a lifetime of frustrations is
        unacceptable, it’s dangerous, and the request to amend the
        sentence is denied.

N.T., 8/31/2016, at 33–38.

        The trial court considered Dr. Tepper’s testimony regarding Bey’s

childhood and psychological issues, as well as Bey’s remorse. The trial court

also considered that Bey’s aggravated assault crime was “a cold, calculated,

continuing assault for a period of over 15 minutes,” 6 which involved “not just

a beating, but really a series of beatings, interrupted, providing for the

opportunity to give thought to hesitate, to pause.” 7     In this regard, the

Supreme Court has instructed that “[f]actors that are not specific elements

of an offense may be considered by the sentencing court in imposing its

sentence.” Perry, supra, 32 A.3d at 242. Furthermore, this court may not

“reweigh the reasons offered by the trial court.” Walls, supra, 926 A.2d at

966.

        Based on our review, we discern no basis upon which to disturb the

decision of the trial court. The record demonstrates the trial court took into

account Bey’s mitigating evidence, weighed all relevant sentencing factors

under Section 9721(b), and fashioned an individualized sentence with
____________________________________________


6
    N.T., 5/11/2016, at 47.
7
    N.T., 8/31/2016, at 38.




                                          - 13 -
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respect to Bey that is fully supported by the court’s reasons stated on the

record at sentencing, and reiterated at the hearing on the motion for

reconsideration.        As    such,    we      cannot   conclude   the   sentence   is

“unreasonable.”8 42 Pa.C.S. § 9781(c)(3), supra.

       Accordingly, we affirm.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




____________________________________________


8
  To the extent that Bey cites Commonwealth v. Simpson, 510 A.2d 760,
763 (Pa. Super. 1987) for the proposition that “there must be a balanced
consideration as to the potential for rehabilitation and the minimum
sentence feasible to accomplish that result,” Bey’s Brief at 10, we point out
that “under the current Sentencing Code there is no requirement that a
sentencing court’s imposition of sentence must be the minimum possible
confinement[.]” Walls, supra, 926 A.2d at 965.




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