J-S66010-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

TYRELL DAVIS BOYER

                        Appellant                    No. 478 MDA 2016


         Appeal from the Judgment of Sentence February 4, 2016
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001729-2015



BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 13, 2016

      Tyrell Davis Boyer appeals from the judgment of sentence imposed

following his conviction for persons not to possess a firearm. We affirm.

      The following facts were established at Appellant’s non-jury trial. On

March 22, 2015, Lancaster City Officer Ryan Burgett and his partner were

directed to watch a home as part of an investigation into a shooting earlier

that day. Id. at 23. Officer Burgett parked his car across the street, turned

off his lights, and surveilled the home. Id. At approximately 2:50 a.m., a

vehicle drove by the residence very slowly. Id. at 26. Officer Burgett heard

several shots, and saw a man hanging outside of the vehicle’s rear

passenger window. Id. The man got back into the vehicle as it passed the

officers’ vehicle. Officer Burgett pulled behind the vehicle and activated his
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lights and sirens. Id. at 28. The two officers focused on the individual in

the backseat throughout the pursuit, which lasted less than one-half of a

mile. Id. at 32. Upon stopping, the vehicle’s three occupants were seized.

Id. at 33. Appellant was the only individual in the rear of the vehicle. Id.

at 49.

         Once all three occupants were escorted from the scene, the vehicle

was taken to the police station.      Id. at 38.    There, the vehicle was

inventoried and a revolver was recovered from the rear passenger’s seat

floor.    Id. at 77-78.   Inside the cylinder were several fired .22 caliber

rounds, each stamped on the bottom with the letter C. Id. at 82.

         Appellant was arrested, and, during the booking process, officers

recovered a plastic Mentos mint container containing nineteen .22 caliber

rounds stamped with the letter C on the bottom of each casing. Id. at 58-

59.

         On March 22, 2015, Appellant was charged at criminal action number

1729 of 2015, with one count each of persons not to possess firearms,

carrying a firearm without a license, recklessly endangering another person,

and criminal mischief.    On December 16, 2015, Appellant proceeded to a

bench trial on the persons not to possess a firearm offense, at the conclusion




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of which he was found guilty.1 A pre-sentence report was prepared and, on

February 4, 2016, the parties appeared for sentencing.

        Appellant made minor corrections to the presentence report.              N.T.

Sentencing, 2/4/16, at 4. He represented that he had emotional problems

from a very young age, a learning disability, and clinical depression. Id. at

7-8.     The court noted that it had considered all information in the

presentence report and summarized its contents. Id. at 13-20. Appellant

was     thereafter   sentenced     to   the    statutory   maximum   of   ten   years

imprisonment, which was within the standard range under the sentencing

guidelines due to Appellant’s prior record score.           The court expressed its

belief that

        [Y]ou are not amenable to treatment or rehabilitation. You are
        in need of correctional treatment that can be provided most
        effectively by your commitment to an institution. You are a
        danger to society, and society needs to be protected. And
        incarceration is warranted, because a lesser sentence would
        depreciate the seriousness of this offense.

Id. at 21.     On February 12, 2016, Appellant filed a post-sentence motion

seeking modification of his sentence, which was denied on February 16,

2016.




____________________________________________


1
  The remaining counts were severed for a separate trial on January 25,
2016. The certified record does not indicate the result of that proceeding.



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      Appellant and the trial court compiled with Pa.R.A.P. 1925 and the

matter is ready for our review.     The sole issue on appeal challenges the

discretionary aspects of the sentence.

      Was the trial court’s sentence of [five] to [ten] years of
      incarceration so manifestly excessive as to constitute an abuse
      of the court’s discretion and clearly unreasonable under the
      circumstances of this case which did not consider [Appellant]’s
      circumstances?

Appellant’s brief at 6.   As required by Pa.R.A.P. 2119(f), Appellant’s brief

includes a separate statement of reasons in support of reviewing the

discretionary aspects of the sentence.      Such a statement is necessary

because “there is no absolute right to appeal when challenging the

discretionary aspect of a sentence.” Commonwealth v. Ahmad, 961 A.2d

884, 886 (Pa.Super. 2008). An appellant must first satisfy a four-part test

to invoke this Court’s jurisdiction. We examine

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

omitted). The first three requirements have been met.

      We now address whether Appellant has presented a substantial

question. The presence of a substantial question is determined on a case-

by-case basis and exists only when


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      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.
      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. Diehl, 140 A.3d 34, 44–45 (Pa.Super. 2016) (internal

citations and quotation marks omitted).

      Herein, Appellant alleges that the sentence satisfies our substantial

question requirement because he received the statutory maximum sentence

of ten years imprisonment, which, Appellant avers, is manifestly excessive.

Additionally, Appellant contends that the sentencing court focused solely on

the gravity of the offense and failed to consider all relevant factors.

Appellant’s brief at 11.    We find that Appellant has raised a substantial

question.   “[A]n 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. Macias, 968 A.2d 773, 776

(Pa.Super. 2009) (citing Commonwealth v. Lawrence, 960 A.2d 473

(Pa.Super. 2008)).    Hence, we will consider the merits of his sentencing

claim.

      As Appellant recognizes, his sentence was within the standard range of

the sentencing guidelines even though he received the statutory maximum.

Our standard of review limits our ability to vacate and remand where the

court sentenced within the guidelines. We may reverse only if application of


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the guidelines would be clearly unreasonable under the circumstances. 42

Pa.C.S. § 9781(c)(2); Macias, supra at 777 (term unreasonable not defined

in Sentencing Code but generally means a decision that is either irrational or

not guided by sound judgment).

      Appellant    recognizes   our   limited    ability   to    reverse    in    these

circumstances, and contends, in a rather conclusory fashion, that application

of   the   guidelines   was   unreasonable      because    “it   would     be    ‘clearly

unreasonable’ to impose a statutory-maximum sentence when [Appellant]’s

current circumstances and history militate in favor of a lesser sentence.”

Appellant’s brief at 15.

      According to Appellant, he has endured difficult circumstances in his

life, including educational deficiencies, substance abuse issues, and a

dysfunctional childhood. Additionally, Appellant cited behavioral problems in

his past, including the inability to control himself in a classroom setting.

See Appellant’s brief at 15-17.       This argument ignores the multitude of

countervailing factors considered by the court. To wit, the trial court noted

Appellant was twenty-seven years old when the offense occurred, the

presentence report indicated his academic and vocational motivations were

minimal, and that all prior attempts at rehabilitation failed, as indicated by

his probation officer’s assessment in 2011 that he was not amenable to

supervision. N.T. Sentencing, 2/4/16, at 16-18. All of these considerations

were clearly weighed in tandem with Appellant’s arguments.

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      The trial court did not, contrary to Appellant’s assertions, reflexively

impose its sentence merely on the basis of the seriousness of the offense.

Rather, the trial court appropriately considered “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 trial court balanced the points

delineated by Appellant in his brief, and concluded that the seriousness of

the offense warranted the statutory maximum in spite of those mitigating

circumstances.    “You are a danger to society, and society needs to be

protected. And incarceration is warranted, because a lesser sentence would

depreciate the seriousness of this offense.” N.T. Sentencing, 2/4/16, at 21.

      Accordingly, Appellant’s argument does not persuade us that the trial

court’s application was irrational. Rather, his argument is little more than an

invitation to reweigh the various factors in his favor and override the trial

court’s sound judgment. “The sentencing court merely chose not to give the

mitigating factors as much weight as [he] would have liked and decided that

the facts did not warrant imposition of a sentence lower than the standard

range.” Macias, supra at 778.

      Since the trial court complied with the directives of 9721(b), we are

left with the task of assessing the reasonableness of the sentence pursuant

to the elements set forth in § 9781(d).      Commonwealth v. Walls, 926

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A.2d 957, 964 (Pa. 2007). We are obligated to consider the record in light

of

     (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. § 9781(d). In light of the applicable guidelines, the findings of

the trial court, the court’s consideration of the presentence report, and the

facts and circumstances of the crime, we cannot find that the sentence is

clearly unreasonable. Hence, we affirm.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2016




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