J-S34035-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :             IN THE SUPERIOR COURT OF
                              :                   PENNSYLVANIA
             Appellee         :
                              :
        v.                    :
                              :
SEAN JOSE RAIN,               :
                              :
             Appellant        :             No. 1894 WDA 2017

             Appeal from the Judgment of Sentence October 5, 2015
                in the Court of Common Pleas of Mercer County
              Criminal Division at No(s): CP-43-CR-0001010-2014

BEFORE: BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 14, 2018

     Sean Jose Rain (Appellant) appeals nunc pro tunc from the judgment

of sentence entered October 5, 2015, after he was found guilty of one count

of person not to possess a firearm. We are constrained to affirm.

     In September 2014, Appellant was charged with several crimes,

including two counts of person not to possess a firearm, in relation to a

shooting that occurred in 2013.      The victim, Leonard Figgins (Figgins),

identified Appellant as the shooter. On November 5, 2014, Appellant made

an application to sever the two counts of person not to possess, which the

trial court subsequently granted. In February 2015, Appellant proceeded to a

jury trial on all charges except the two possession counts, and was

acquitted.




* Retired Senior Judge assigned to the Superior Court
J-S34035-18


        Based upon, inter alia, the acquittal, Appellant filed a motion to quash

the two outstanding person not to possess charges.         The Commonwealth

opposed the motion to quash, and subsequently filed its own motion,

seeking to amend the information to add count 12, another person not to

possess charge, based upon information received from testimony provided

by a defense witness at Appellant’s earlier trial. On June 4, 2015, the trial

court granted both Appellant’s motion to quash and the Commonwealth’s

motion to amend and a count of person not to possess a firearm was added

to the information.

        Appellant proceeded to a jury trial.        At trial, Andre Hailstock

(Hailstock) testified that on October 9, 2013, Hailstock, Appellant, and

several other individuals, including Figgins were at a home on the 900 block

of Fruit Street. N.T., 7/14/2015, at 22. Hailstock testified that he was with

Appellant in the living room when Figgins approached, grabbed his coat, and

asked Appellant to hand him a gun that was on a table near where Appellant

was sitting.1 Appellant complied and Figgins left the home. Id. at 23-24.

Hailstock testified that he and Appellant were aware that Figgins had left the

home with the firearm “to go rob a dice game.” Id. at 26. Based upon the




1
    The firearm belonged to Figgins.




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foregoing,2 on July 15, 2015, Appellant was convicted of one count of person

not to possess a firearm, and on October 5, 2015, the trial court sentenced

Appellant to 30 to 60 months of incarceration.3

      On October 17, 2017, Appellant filed a post-sentence motion nunc pro

tunc.4 The trial court scheduled a hearing where it heard argument from the



2
  Only Hailstock and Alex Glessner, a forensic DNA scientist for the
Pennsylvania State Police testified. Mr. Glessner testified that Appellant’s
DNA was found on a Ruger Red Hawk revolver. N.T. 7/14/2015, at 44.
3 At sentencing, it was determined that with Appellant’s prior record score of
four and an offense gravity score of five, the sentencing guideline range was
nine to 16 months’ incarceration, plus or minus three. Thus, the trial court
imposed a sentence in excess of the guidelines, but within the statutory
maximum. See N.T., 10/5/2015, at 8-9; 18 Pa.C.S. § 1104(1) (“A person
who has been convicted of a misdemeanor may be sentenced to
imprisonment for a definite term which shall be fixed by the court and shall
be not more than … [f]ive years in the case of a misdemeanor of the first
degree.”).

4
  After his sentencing hearing, Appellant inquired with the public defender’s
office, who was appointed to represent him, about filing an appeal on his
behalf. Despite his inquiry, the deadline for filing an appeal passed without
action. This prompted Appellant to file his first petition pursuant to the Post-
Conviction Relief Act (PCRA), 42 Pa.C.S. §§9541-9546, requesting the court
reinstate his appellate rights nunc pro tunc. On July 25, 2016, the PCRA
court granted Appellant’s petition. Appellant filed an appeal challenging,
inter alia, the discretionary aspects of his sentence. On appeal, this Court
found Appellant’s sentencing claim waived for failure to preserve properly his
issue at sentencing or in a post-sentence motion. Commonwealth v. Rain,
170 A.3d 1186 (Pa. Super. 2017) (unpublished memorandum).

      Appellant then filed his second PCRA petition contending his appellate
counsel was ineffective for failing to preserve properly his sentencing claim.
On October 10, 2017, the court once again entered an order reinstating his
appellate rights nunc pro tunc, and Appellant filed the aforementioned post-
sentence motion.




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parties, including Appellant’s counsel, who requested the trial court re-

sentence Appellant within the standard range.       N.T., 11/27/2017, at 2-4.

Following the hearing, on November 30, 2017, the trial court denied

Appellant’s motion. Appellant thereafter timely filed a notice of appeal.5

        Appellant’s sole issue on appeal challenges the discretionary aspects of

his sentence.     Appellant’s Brief at 4.    Accordingly, we bear in mind the

following.

        Challenges to the discretionary aspects    of sentencing do not
        entitle an appellant to review as of       right.   An appellant
        challenging the discretionary aspects of   his [or her] sentence
        must invoke this Court’s jurisdiction by   satisfying a four-part
        test:

           We 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

        Here, Appellant timely filed a post-sentence motion nunc pro tunc and

notice of appeal, and included a statement pursuant to Rule 2119(f) in his




5
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.




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brief.6   We now turn to consider whether Appellant has presented 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. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “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.” Griffin, 65 A.3d at 935 (citation and quotation marks

omitted).

      In his 2119(f) statement, Appellant states only that the trial court

“abused its discretion when the [court] sentenced Appellant outside of the

sentencing guidelines without putting sufficient reasons for said deviation on

the record.”   Appellant’s Brief at 9.       Such a claim raises a substantial

question for our review. See Commonwealth v. Garcia-Rivera, 983 A.2d

777, 780 (Pa. Super. 2009) (“This [C]ourt has found that a claim the trial

court failed to state its reasons for deviating from the guidelines presents a

substantial question for review.”).     We address the merits of this claim

mindful of the following.



6Despite Appellant’s woefully inadequate 2119(f) statement, see Appellant’s
Brief at 9, the Commonwealth has not objected, so we will consider whether
Appellant has raised a substantial question for our review.




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      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)

(emphasis added; internal citations and quotation marks omitted).

      As a general matter, Pennsylvania’s sentencing scheme, with its
      guidelines and suggested minimum sentences, is “indeterminate,
      advisory, and guided” in its nature. Pennsylvania judges retain
      broad discretion to sentence up to and including the maximum
      sentence authorized by statute; “the only line that a sentence
      may not cross is the statutory maximum sentence.”

Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007) (citations

omitted; emphasis added).    “Traditionally, the trial court is afforded broad

discretion in sentencing criminal defendants ‘because of the perception that

the trial 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.’”   Commonwealth v. Mouzon, 812 A.2d 617, 620 (Pa. 2002).

See also Commowealth v. Melvin, 172 A.3d 14, 21 (Pa. Super. 2017)

(“To be clear, while the court must consider the guidelines, the court is also


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afforded broad discretion in sentencing matters, as it is in the best position

to evaluate the individual circumstances before it.”).

      In its opinion to this Court, the trial court responded to Appellant’s

claim as follows.

            Th[e trial c]ourt sentenced [Appellant] outside the
      sentencing guidelines and explained its reasoning extensively at
      the [s]entencing h]earing held on October 5, 2015.             Th[e
      c]ourt’s sentence and reasoning fully comply with 42 Pa.C.S.
       § 9721(b) and 42 Pa.C.S. §§ 9781(c) and (d). The [c]ourt
      discussed the nature of the offense and the fact that [Appellant]
      gave a gun to his friend knowing that the friend intended to
      commit armed robbery.          Th[e trial c]ourt also considered
      [Appellant’s] history, characteristics and reviewed his entire
      criminal history. [Appellant’s] [j]uvenile [r]ecord consisted of six
      arrests, four adjudications, two adult arrests, one conviction, and
      two incarcerations, both lasting about nine months.

             The [c]ourt discussed the protection of the public, the
      gravity of the offense, the impact on the community and the
      victim, and [Appellant’s] rehabilitative needs. The [c]ourt noted
      that this is not an offense in which there is a specific victim,
      however the strong impact on the community must be
      considered.    The [c]ourt addressed the prevalence of gun
      violence in Mercer County and that [Appellant] contributed to
      this [] problem by handing a gun to a person who was going to
      commit a robbery. The [c]ourt also discussed the need to
      protect the community from gun violence.               The [c]ourt
      specifically addressed [Appellant’s] rehabilitati[ve] needs
      drawing attention to [Appellant’s] repeat offenses and lack of
      remorse. The [c]ourt did consider the letters sent by members
      of the community speaking positively about [Appellant],
      however, the [c]ourt also noted that [Appellant] has a history of
      physical altercations and other violence throughout his past.
      Having considered all of this, the [c]ourt imposed a sentence
      that, while outside of the guidelines, complies fully with the law.

Trial Court Opinion, 2/14/2018, at 5-6 (unnumbered; citations omitted).




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      Indeed, at Appellant’s sentencing hearing, on the record, the trial

court stated the following.

            As indicated by the Assistant District Attorney, you were
      found guilty by a jury on July 15[], 2015. And just as I don’t
      take into consideration acquittals, nor am I allowed to, I do take
      into consideration that a jury has spoken in this case. That it
      was not a de minimis matter.

            And I do believe that the Assistant District Attorney cited
      the record correctly, that the testimony from [Hailstock] was
      that you passed over the gun to [Figgins] knowing that he was
      going to go out and rob crap[s] games.

            The presentence investigation [report (PSI)] indicates
      you’re twenty-one. You have a GED.

             Your co-[d]efendant [Figgins], if we can call him that
      because he’s really not your co-[d]efendant on this charge, but
      he was involved in the underlying situation or the totality of the
      situation, did receive a state sentence. Of course, he was
      convicted on much different charges.

            Juvenile record indicates six arrests, four adjudications;
      two adult arrests, one conviction. Two incarcerations, one lasted
      about nine months and the other maybe a little bit less than
      that.

            [A]lthough your attorney has argued, primarily focusing on
      what’s become of you since the last time you got out of jail, I am
      required and I do think it’s important that I consider a --
      consider the past. The juvenile supervision adjustment indicates
      you were placed in shelter care from March 27[], 2008 to April
      14[], 2008. You then went to a boot camp from April 14[], 2008
      to July 8[], 2008. You then went home from July 8[], 2008 to
      November 27[], 2008, when you had new charges. You were
      back to shelter care from November 27[], 2008 to March 6,
      2009.

           You went into the Adelphoi Village secure facility from
      March 6[], 2009 to July 30[], 2009. And then to … the Greystone
      Group Home from July 30[], 2009 to December 7[], 2009.
      Came back home again on December 7[], 2009 until June 22[],


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     2011, when you had new charges again. Back to shelter care
     from June 22[], 2011 to June 27[], 2011. Placed in the New
     Castle YDC from June 27[], 2011 to January 12[], 2012. Then
     back home again on January 12[], 2012 until January 25[],
     2012, when you had parole violations and back in shelter care
     from July 25[], 2012 to July 27[], 2012.

           You then came home on house arrest on July 27[], 2012,
     and finished on house arrest on March 15[], 2012 [], when you
     turned eighteen.

           The juvenile offenses were two counts of [d]isorderly
     [c]onduct and [a]ggravated [a]ssault and then another
     [d]isorderly [c]onduct and then an [e]scape from the shelter
     care.

           Your adult record, you were acquitted twice and then you
     had your current case where you were convicted. You noted in -
     - the PSI notes you had a close family relationship. You have no
     real drug or alcohol issues. You’re single with no children.

           You reported to the … auditor that you’re not a violent
     person and you describe yourself as someone who tries to de-
     escalate a volatile situation. And you had an anger management
     while in juvenile placement.

            Your work history indicates you worked for an uncle and
     you then you had the job in Georgia for about three months and
     lately now, it’s been testified here, that you are a bouncer in a
     bar. … [Y]ou did say you [] clean the bar after it closes as well.

           The sentencing guidelines are an [o]ffense [g]ravity
     [s]core of five, [p]rior [r]ecord [s]core of four. Standard range is
     nine to sixteen, plus or minus three.

           I’ve noted already and I’ll note again I did consider the
     sentencing memorandum and the various letters, some of whom
     [are] from people I know. And they do report on you regarding
     your past mistakes, noting your past mistakes, and that you’re
     changing your life. And certainly I've heard the witnesses testify
     today, including your mom.




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           I’m required by law to consider the impact of the crime on
     the victim. In essence, there is no victim here because this was
     a possession charge.

           The impact on the community. The offense does have a
     great impact on the community. I don’t view it as de minim[i]s.
     Gun violence is prevalent in parts of Mercer County. Everyone
     walks in fear because of the prevalence of guns.

           By the testimony in this trial, you were sitting in
     someone’s home and there’s a gun sitting on the table. Just part
     of the décor. You were part of that. That was your life. And
     when someone wanted the gun to go rob crap[s] games, you
     just handed it to him.

           I have to consider the safety of the community. There is a
     strong need to protect the community from gun violence. People
     need to be safe from guns everywhere. In their homes, in their
     work, and certainly in their neighborhoods.

           Must also consider your rehabilitation needs. Your record
     shows that for a significant period of time you were a regular
     offender. Despite many placements, you re-offended soon after
     returning home. Despite juvenile placements and incarceration,
     you offended again.

           I do note the letters that admired your attempt to change
     your life and that you try to speak to youth groups about your
     mistakes.

           I also consider your attitude. It appears that the people
     that have written on your behalf certainly believe your attitude
     has changed. You’re trying to become a better person. You
     correctly indicate you recognize your mistakes.

           What I didn’t see anywhere is any suggestion of remorse
     on your part. Maybe that’s implied from the course of conduct
     you’re now trying to follow. None of the letters ever mention[s]
     specifically remorse or that you’ve showed remorse. They do
     show you’ve tried to help others avoid what you went through.

          You made mistakes, admit to them, but don’t really
     apologize for them. You told the … PSI auditor that you’re a
     non[-]violent person and you act as a de-escalator, you try to


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     de-escalate a violent situation. Well, let’s talk about that. Were
     you a de-escalator in the first of your two [d]isorderly [c]onducts
     when you were a juvenile? You told the PSI auditor you were
     involved in a physical altercation at Sharon High School. You
     would not calm down, you screamed obscenities at the police
     and were jumping around.[7]

                                       ***

     I've tried to look at everything, []including [Appellant’s] past,
     which I do think is significant; the fact that this involved a gun, a
     gun that was then used, at a minimum, to rob crap[s] games.

           I do take seriously the letters that were written and the
     things that have been said upon [Appellant’s] behalf. But I note
     there were periods of time when he came home and then got in
     trouble again. That seemed to be a repetitive situation. He
     hasn’t yet, but, of course, he knew he had -- was facing trial in
     this case and now sentencing on this case. Does that explain
     some of his behavior?

                                       ***

          The [trial court] notes that the sentence is outside        the
     standard range of the guidelines, but believes that it is         an
     appropriate sentence due to the seriousness of the offense,      the
     impact of the crime on the community, the need to keep           the
     community safe.

           [Appellant has] been in multiple placements, including
     incarceration, but continue[d] to offend.    I am not seeing
     remorse. I’m seeing someone who’s telling me they’re trying to
     change their life. I question your credibility. You told the
     auditor you were a de-escalator and I saw no de-escalation in
     any of your conduct.

N.T., 10/5/2015, at 32-42.



7 The trial court then went on to note several other instances in which the
court found Appellant did not act as a de-escalator. This included other
crimes of violence, as well as several misconducts Appellant received while
incarcerated. See N.T., 10/5/2015, at 38-40.



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      Here the trial court provided reasons for the sentence imposed

including, inter alia, the seriousness of the crime, the protection of the public

against gun violence, which has been a prevalent problem in Mercer County

according   to   the   trial   court,   and   Appellant’s   lack   of   remorse   and

rehabilitation despite several placements, arrests, and incarcerations.           Id.

at 42.   The court also acknowledged the sentencing guidelines prior to

imposing an above the guideline range sentence. Id. at 8.

      In addition, the trial court received and reviewed a PSI prior to

sentencing. “[W]here the sentencing judge had the benefit of a PSI, 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.”      Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004).         The court stated on multiple occasions that it

considered the mitigating information presented by Appellant and that it

took the letters and statements made on Appellant’s behalf “seriously.”

N.T., 10/5/2015, at 41.         Nonetheless, for the reasons cited supra, the

sentencing court concluded that the imposition of an above-guideline

sentence was appropriate.

      We are cognizant that gun violence plagues our society. We are also

keenly aware that courts must punish individuals who use firearms to break

the law and help to perpetuate crimes in our communities. However, in this

case, we are troubled with the imposition of an above-guideline-range



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sentence based on the facts before us.        While we do not find his act “de

minimis,” Appellant’s actions narrowly meet the definition set forth in 18

Pa.S.C. § 6105 (a)(1),8 which makes the imposition of a statutory maximum

sentence troubling.

      Nonetheless, based on the record before us and the limited review this

Court has when considering sentencing claims, as cited in more detail supra,

we cannot find, nor has Appellant convinced this Court that, the trial court’s

determination was manifestly unreasonable, a misapplication of the law or

was the product of partiality, prejudice, bias, or ill-will.9 “[I]f the sentencing



8A person convicted of an enumerated offense set forth in the statute “shall
not possess, use, control, sell, transfer or manufacture or obtain a license to
possess, use, control, sell, transfer or manufacture a firearm in this
Commonwealth.” 18 Pa.S.C. § 6105 (a)(1).
9 Lastly, we note that although Appellant only raises the aforementioned
issue in his 2119(f) statement, the argument section of his brief raises
several additional arguments in support of his contention that an above the
guideline range sentence was inappropriate. Specifically, Appellant avers
the trial court failed “to take into consideration the mitigating factors
presented by Appellant” and found that Appellant lacked remorse.
Appellant’s Brief at 12. Furthermore, Appellant contends his possession of
the firearm was de minimis, that the trial court took into consideration
Figgins’s actions at Appellant’s sentencing hearing, and that he was not
involved in a crime of violence or gun violence. Id. at 14. With that in
mind, Appellant avers the trial court erred in relying on the sentence Figgins
received, especially since Figgins was convicted of crimes that varied greatly
from, and were “far more serious than, the charge for which Appellant was
convicted.” Id. Lastly, Appellant argues the trial court’s emphasis on the
protection to the public and his juvenile record were misplaced. Id. at 13-
16.
      Assuming arguendo that Appellant preserved properly these claims
and raised substantial questions for our review, he would still not be entitled
to relief. At sentencing, the trial court heard and considered statements
(Footnote Continued Next Page)


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court, after considering the appropriate [] sentencing factors, states valid

reasons for its sentence, which are supported by the record, this Court must

affirm the decision even if the particular panel does not agree with the

weight the sentencing court accorded them.” Commonwealth v. Marts,

889 A.2d 608, 616 (Pa. Super. 2005).                      See also Commonwealth v.

Stewart, 867 A.2d 589, 592 (Pa. Super. 2005) (“It is not the function of an

appellate court to determine whether it would have imposed the same

sentence as the trial court.”).

      In light of the foregoing, we are constrained to affirm.

(Footnote Continued)   _______________________

from Appellant, his pastor, and his mother, as well as reviewed various
letters in support of Appellant. Additionally, the court received and reviewed
Appellant’s PSI report and as our case law notes, the trial court is in the best
position to consider these factors and evaluate Appellant’s remorse. See
Mouzon, supra. Likewise, we find Appellant’s complaint about the court’s
discussion of Figgins’ actions and sentence at Appellant’s sentencing hearing
meritless. We find nowhere in the record, and Appellant has failed to
convince this Court, that the trial court considered improper factors when
sentencing Appellant. To the contrary, we find the trial court mentioned
Figgins to highlight that Appellant was aware that the firearm he passed off
to Figgins was going to be used to commit an armed robbery. To wit, the
court acknowledged that although Figgins received a lengthy sentence, he
“was convicted on much different charges.” N.T., 10/5/2015, at 33.

       Nor has this Court been convinced that the trial court erred by
considering Appellant’s juvenile record and emphasizing the impact
Appellant’s crime had on the community. When sentencing a defendant, the
trial court “shall follow the general principle 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. § 9721(b). The aforementioned considerations were
proper and balanced by the court’s recognition of the mitigating evidence
presented by Appellant.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




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