J-S21009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

CARNELL THOMAS,

                          Appellant                    No. 3552 EDA 2013


             Appeal from the Judgment of Sentence June 26, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000259-2012


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 10, 2015

       Carnell Thomas appeals from the judgment of sentence of nine to

twenty-three years imprisonment that the court imposed after he was

convicted at a bench trial of one count each of burglary and possession of an

instrument of crime and six counts each of simple assault and unlawful

restraint.   We reject his challenges to the discretionary aspects of his

sentence and affirm.

       The trial court set forth the facts adduced by the Commonwealth in

support of the outlined convictions:

           Ms. Elaine Wilson, the first complainant in this case, testified
       that on September 10, 2011, she was at her house on the 200
       block of South 50th Street when her son Anthony Wilson walked
       inside and told her that there was a fight going on outside on the
       street. She walked outside and observed her son's friend Steve
       fighting with Defendant. After the fight ended, Ms. Wilson went
       back into the house and Anthony and Steve then went up to the
       third floor of the house.

*
    Retired Senior Judge assigned to the Superior Court.
J-S21009-15




        A few moments later, Defendant and his brother entered the
     house and pointed a gun at Malik Wilson, Ms. Wilson's grandson,
     backing him into the living room. Defendant then pointed the
     gun at Ms. Wilson and her children Denae Wilson, Sherri Scott,
     Joyce Wilson, and Tyreek Wilson, who were all seated on the
     couch. Ms. Wilson testified that the gun was a small black
     revolver. Defendant and his brother ordered Ms. Wilson and her
     children to remain seated, and demanded that somebody go find
     Steve. Joyce Wilson went upstairs to find Steve, but instead
     sought help from her brother Sean Wilson. Ms. Wilson testified
     that she felt like she could not leave at this point and that she
     felt that her life was threatened.

         As Sean Wilson entered the living room, Defendant pointed
     the gun at him. Mr. Wilson proceeded to grab Defendant and
     attempted to wrestle the gun from his hands. During the
     struggle the gun went off and the shot fired hit the ceiling fan
     and broke the attached glass light fixture, at which point
     everybody ran out of the house. Ms. Wilson, Anthony Wilson
     and Sean Wilson remained behind and were able to subdue
     Defendant until the police arrived.

         Mr. Sean Wilson, Ms. Wilson's oldest son, corroborated the
     testimony of Ms. Wilson. Mr. Wilson testified that on September
     10, 2011, he was at his house on 209 South 50th Street at
     approximately 10:00 pm when his sister Joyce Wilson came
     upstairs seeking help [with respect to] a gunman in the living
     room. Sean testified that as he entered the living room he saw
     Defendant pointing a black revolver at him.          Mr. Wilson
     immediately proceeded towards Defendant and attempted to
     wrestle the gun out of his hand. During the struggle he heard
     and felt the gun-go off. [Sean] Wilson and Anthony Wilson were
     able to obtain the gun and hold Defendant down until the police
     arrived.

        Philadelphia Police Officer Tamika Reid testified that while she
     was on duty on September 10, 2011, between 10:00 pm and
     11:00 pm, she responded to a radio call indicating a person
     screaming for help at 209 South 50th Street. Upon entering the
     house, Officer Reid observed several occupants of that property
     holding a male inside the property. Officer Reid also testified


                                    -2-
J-S21009-15




       that she observed broken glass on the floor from a shattered
       ceiling fan light fixture. Officer Reid identified Defendant as the
       man being held.

            ....

           Mr. Malik Wilson, Ms. Wilson's grandson, corroborated the
       testimony of Mr. and Ms. Wilson. He testified that Defendant
       entered his house on 209 South 50th Street at approximately 10
       pm, and pointed a black revolver at his head and chest. Mr.
       Wilson testified that he felt like he was unable to leave the
       situation at this time.

Trial Court Opinion, 8/1/14, at 3-5 (citations to record and quotation marks

omitted).

       The matter proceeded to sentencing on June 26, 2013, where the trial

court had the benefit of a presentence report.        Additionally, Appellant’s

counsel spoke in mitigation of sentence, noting that Appellant had a prior

record score of only one, had children, was working full time prior to this

incident, was intoxicated when the crimes occurred, and obtained his GED

while in jail.     The trial court imposed an aggregate sentence of nine to

twenty-three years. On the burglary conviction, Appellant was sentenced to

two to six years, which was within the applicable guidelines1 using the

deadly weapon enhancement, weapon possessed matrix. The court imposed




____________________________________________


1
  The applicable guidelines were the 6th edition, effective June 3, 2005 to
December 28, 2012.




                                           -3-
J-S21009-15




sentences of one to two years, which exceeded the guidelines, 2 on the

unlawful restraint and the simple assault convictions. The unlawful restraint

and simple assault sentences were made concurrent to each other insofar as

they pertained to a single victim, but the one to two year term was imposed

consecutively as to all six victims.           The sentence on PIC was one to five

years, an aggravated range sentence, and that sentence was made

consecutive to the other ones. No objection was raised to this sentence at

the hearing.

       Appellant filed a timely post-sentence motion for reconsideration of the

sentence claiming that: 1) “the Court did not consider all of the factors” and

the sentence imposed was excessive; and 2) “the cumulative sentence of 9

to 23 years is excessive considering Petitioner’s limited prior record and

excellent chance of being rehabilitated.” Defendant’s Post-Sentence Motion,

7/8/13, at ¶¶ 4, 5. This appeal followed denial of the post-sentence motion.

Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b)

statement, and now raises this contention on appeal:

       I. Did the trial court abuse its discretion and violate general
       sentencing principles when the court sentenced [Appellant] to an
       aggregate sentence of nine (9) to twenty three (23) years of


____________________________________________


2
  The Commonwealth did not invoke the deadly weapon enhancement
guidelines when it outlined the applicable guideline ranges for the simple
assault and unlawful restraint convictions. N.T. Sentencing, 6/26/12, at 4.



                                           -4-
J-S21009-15




      state imprisonment?

Appellant’s brief at 4.

      A defendant does not have an absolute right to pursue a challenge to

the discretionary aspects of his sentence. Commonwealth v. Raven, 97

A.3d 1244, 1252 (Pa.Super. 2014).          First, to preserve a discretionary

sentencing claim, the defendant must raise it either during the sentencing

proceedings or in a post-sentence motion. Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Second, to obtain merits

review of such a claim, an appellant must include a Pa.R.A.P. 2119(f)

statement in his brief. Raven, supra; Pa.R.A.P. 2119(b) (“An appellant who

challenges the discretionary aspects of a sentence in a criminal matter shall

set forth in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a

sentence.”).   Finally, the Pa.R.A.P. 2119(f) statement must demonstrate

“that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b).”          Raven,

supra at 1252 (citation and quotation marks omitted).           A substantial

question warranting appellate review of a sentence is raised if the defendant

avers that “the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process.” Id.




                                     -5-
J-S21009-15




        Appellant’s brief does contain the requisite statement.       Appellant’s

brief at 8. In that statement, as well as in the argument portion of his brief,

Appellant dissects his challenge to the sentence into two discrete aspects.

First, Appellant complains that the court “failed to consider all relevant

factors” in rendering its decision. Id. Second, he argues that the sentence

is manifestly excessive as grossly disproportionate to his crime and that the

trial court “failed to provide adequate reasons for the sentence on the

record” especially with respect to the sentences that exceeded the applicable

guidelines.     Id.     These positions raise a substantial question warranting

appellate     review.    Commonwealth v.       Raven,    97   A.3d   1244,   1253

(Pa.Super. 2014) (“It is well-established that a sentencing court's failure to

consider mitigating factors raises a substantial question.”); Commonwealth

v. Bowen, 55 A.3d 1254, 1263-64 (Pa.Super. 2012) (“In every case where

a sentencing court imposes a sentence outside of the sentencing guidelines,

the court must provide in open court a contemporaneous statement of

reasons in support of its sentence. 42 Pa.C.S.A. § 9721.”).

        Appellant’s first claim is that the sentencing court focused solely on the

seriousness of the offense and did not consider the mitigating factors at

play.     Concomitantly, Appellant suggests, his sentence was manifestly

excessive and the period of confinement was not consistent with the gravity

of the offenses, which he committed while intoxicated, or with his

rehabilitative needs. See 42 Pa.C.S. § 9721(b) (when imposing a sentence,


                                        -6-
J-S21009-15




the court must abide by the principle that the sentence of incarceration be

consistent with the public’s protection, the gravity of the offense, and the

defendant’s rehabilitative needs). This averment was preserved since it was

contained in the post-sentence motion.

      Our standard of review is established: “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.” Bowen, supra

at 1263. An abuse of discretion occurs only if “the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will.” Id. (citation omitted).

      Appellant takes umbrage with the sentencing court’s failure to

specifically articulate that it weighed Appellant’s low prior record score, his

personal background, his intoxication, and his rehabilitative needs. The fatal

flaw in this position is that the sentencing court herein had the benefit of a

presentence report, which the record establishes that it reviewed prior to

sentencing, and heard Appellant’s mitigation argument, which it also

expressly considered. N.T. Sentencing, 6/26/13, at 11. (“THE COURT: Well,

I reviewed the presentence report.        I listened to the arguments of both

sides.”).

      The law is settled.        When the sentencing court possesses and

considers a presentence report, we are required by our Supreme Court’s

decision in Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988), to


                                       -7-
J-S21009-15




presume that the sentencing court “was aware of relevant information

regarding the defendant's character and weighed those considerations along

with mitigating statutory factors.” See also Commonwealth v. Griffin, 65

A.3d 932 (Pa.Super. 2013).         The case upon which Appellant relies,

Commonwealth v. Richey, 779 A.2d 1183 (Pa.Super. 2001), is inapposite

because therein, the matter proceeded to sentencing immediately after the

defendant’s guilty plea was entered, and the court did not have a

presentence report. Hence, we must reject Appellant’s first position.

      Appellant’s second averment is that the sentencing court failed to

articulate sufficient reasons for the sentence imposed.      This contention is

waived.    At sentencing, Appellant did not object to the court’s failure to

verbally justify its sentence. Additionally, the allegation was not preserved

in the post-sentence motion.    However, since this allegation was raised in

the Pa.R.A.P. 1925(b) statement, it was addressed by the sentencing court.

That court maintained that it had proffered a sufficient basis for its decision.

We agree.

      Initially, we note that “the sentencing guidelines are advisory in

nature.”    Bowen, supra at 1264.      A sentencing court may deviate from

them if “it offers reasons for this determination.”    Id.   We must affirm a

sentencing court’s departure if the rationale outlined by the sentencing court

indicates that its decision is not unreasonable. Id. “In order to find that a

trial court imposed an ‘unreasonable’ sentence, we must determine that the


                                     -8-
J-S21009-15




sentencing court imposed the sentence irrationally and that the court was

‘not guided by sound judgment.’” Commonwealth v. Riggs, 63 A.3d 780,

786 (Pa.Super. 2012) (partially quoting Commonwealth v. Walls, 926

A.2d 957, 961 (Pa. 2007)). In this case, the sentencing court supported its

sentence as follows:

          For each sentence outside the recommended sentencing
      guidelines, the Court acknowledged its deviations and put
      reasons for these deviations on the record. The court noted that
      although the imposed sentences for simple assault and [unlawful
      restraint] were above the guideline sentences, "The aggregate
      sentence was certainly within the guidelines." (N.T. 6/26/13 pg
      16). The court reasoned further that the aggregate sentence of
      nine to twenty three years was an appropriate sentence when it
      comes down to a home invasion," despite minor deviations from
      the guidelines on the individual crimes. (N.T. 6/26/13 pg 14).
      This home invasion specifically involved holding six individuals at
      gunpoint, including two minors, and a shot being fired.

Trial Court Opinion, 8/1/14, at 9.

      This statement establishes that the trial court’s decision was neither

irrational nor unguided by sound judgment. Appellant entered a home and

brandished a weapon at six people, including adolescents aged fourteen and

fifteen and a sixty-year-old woman.      He demanded that they produce the

man with whom he just had been fighting, presumably so Appellant could

shoot his target. The family came to the man’s defense, and Sean Wilson

attempted to disarm Appellant.       In the process, a shot, which could have

struck someone, was fired in an occupied room. A sentence exceeding the

guideline ranges as to simple assault and unlawful restraint was not


                                      -9-
J-S21009-15




unreasonable in light of these circumstances especially since the sentences

were concurrent with each other to the extent the same victim was involved.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




                                  - 10 -
