J-S75042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK POWELL,                            :
                                               :
                       Appellant               :       No. 546 EDA 2018

            Appeal from the Judgment of Sentence January 26, 2018
              in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005015-2017,
                            CP-51-CR-0005016-2017

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 12, 2019

        Derrick Powell (“Powell”) appeals from the judgment of sentence

imposed following his open guilty plea to aggravated assault, robbery, and

firearms not to be carried without a license at CP-51-CR-0005015-2017

(“5015-2017”) and CP-51-CR-0005016-2017 (“5016-2017”).1 We affirm.

        The trial court set forth the relevant underlying factual and procedural

history as follows:

               [O]n December 10, 2016, [Powell] entered the Double
        Deli[,] located at 4944 Rosehill Street in Philadelphia, pulled out
        a gun[,] and pointed it at Seung Kim, the proprietor of the store.
        [Powell] then went behind the store’s counter and shot Mr. Kim in
        the leg. [Powell] attempted to open the cash register[,] but was
        unable to do so. He then took money and lottery tickets before
        fleeing the store. Mr. Kim was transported to a nearby hospital[,]
        where he remained for several days while being treated for
        gunshot injuries to his leg and hip.

____________________________________________


1   18 Pa.C.S.A. §§ 2702(a)(1), 3701(a)(1)(ii), 6106(a)(1).
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            The following day, [Powell] entered the San Rafael Mini
      [M]arket[,] situated at 5000 Gransback Street[,] and announced
      a robbery while brandishing a firearm. He ordered the four
      employees to lie down on the floor. One of the employees, Arsenio
      Rodriguez [(“Rodriguez”)], refused to do so[,] and [Powell] shot
      him in the leg. The owner of the store then put money on the
      counter[,] which [Powell] took before fleeing. [] Rodriguez was
      treated at a nearby hospital over the course of several days for
      gunshot injuries incurred during the incident.

           An examination of fired cartridge cases recovered at both
      scenes indicated that they had been fired from the same handgun.

             On November 16, 2017, [Powell] appeared before [the trial
      court] and entered an open guilty plea to [the above crimes].
      [The trial court deferred sentencing and ordered a pre-sentence
      investigation report (“PSI”).] On January 26, 2018, [the trial
      court] imposed concurrent sentences of seven and one-half to
      fifteen years’ incarceration on the [r]obbery and [a]ggravated
      [a]ssault charges[,] followed by an aggregate term of five years’
      probation. Concurrent sentences of seven years’ probation were
      imposed on the weapons charges, which were ordered to be
      served consecutive to the sentences of incarceration imposed on
      the [r]obbery and [a]ggravated [a]ssault charges.

            Following the imposition of sentence, [Powell] filed a timely
      [M]otion to vacate the sentence, which [the trial court] denied on
      January 29, 2018. [Powell] thereafter filed a timely [N]otice of
      [A]ppeal and a court ordered Pa.R.A.P. 1925(b) [Concise
      S]tatement.

Trial Court Opinion, 6/20/18, at 1-2 (paragraphs reordered; citations to record

omitted).

      On appeal, Powell raises the following claim for our review:

      Did [] the [trial] court abuse its discretion by imposing a
      manifestly excessive and unreasonable sentence of 7½ to 15
      years upon a youthful defendant with a prior record score of 0 and
      substantial mitigation, where the court double-counted factors
      already accounted for by the offense gravity score and did not
      adequately state its reasons for departing from the Sentencing
      Guidelines?


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Brief for Appellant at 3.

         Powell challenges the discretionary aspects of his sentence. “Challenges

to the discretionary aspects of sentencing do not entitle an appellant to review

as of right.”    Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.

2010). Prior to reaching the merits of a discretionary sentencing issue,

         [this Court conducts] 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.A. § 9781(b).

                                    ***

               The determination of what constitutes a substantial question
         must be evaluated on a case-by-case basis.          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, 992 A.2d at 170 (quotation marks and some citations omitted).

         Here, Powell filed a timely Notice of Appeal, raised his sentencing claim

in a post-sentence [M]otion, and included a Rule 2119(f) Statement in his

brief.    Further, Powell’s claim that the sentencing court departed from the

sentencing guidelines, without stating on the record the reasons therefor,

raises a substantial question. See Commonwealth v. McNabb, 819 A.2d

54, 56 (Pa. Super. 2003) (stating that the appellant “raise[d] a substantial




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question by alleging that the sentencing court did not sufficiently state its

reasons for the sentence.”).2 Thus, we will review Powell’s claim.

       Our standard of review is as follows:

       Sentencing is vested in the discretion of the trial court, and will
       not be disturbed absent a manifest abuse of that discretion. An
       abuse of discretion involves a sentence which was manifestly
       unreasonable, or which resulted from partiality, prejudice, bias, or
       ill will. It is more than just an error in judgment.

Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)

(citation omitted).

              The sentencing court is given broad discretion in
       determining whether a sentence is manifestly excessive because
       the sentencing judge 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. In order
       to find that a trial court imposed an unreasonable sentence, we
       must determine that the sentencing court imposed the sentence
       irrationally and that the court was not guided by sound judgment.

Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)

(internal citations and quotation marks omitted).

             When imposing a 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.     It must be
       demonstrated that the court considered the statutory factors
       enunciated for determination of sentencing alternatives, and the
____________________________________________


2 Powell’s claim that the sentencing court imposed a sentence that is contrary
to the fundamental norms that underlie the sentencing process also raises a
substantial question.     See McNabb, 819 A.2d at 56 (stating that “a
substantial question exists where the statement sets forth a plausible
argument that the sentence … is contrary to the fundamental norms
underlying the sentencing scheme.”).

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         sentencing guidelines. Additionally, the court must impose a
         sentence which 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 the community, and the rehabilitative needs of the
         defendant.

Id. at 712 (quotation marks and citations omitted); see also 42 Pa.C.S.A. §

9721(b). Further, “where the trial court is informed by a [PSI], it is presumed

that     the   court   is   aware   of   all    appropriate   sentencing   factors   and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Downing, 990 A.2d at 794 (quotation marks and

citations omitted).

         Here, the record reflects that the trial court considered the sentencing

guidelines, the severity of Powell’s crimes, and Powell’s age, family

background, and rehabilitative needs. See N.T., 1/26/18, at 5, 26-27; Trial

Court Opinion, 6/20/17, at 6-7. Thus, the trial court properly considered all

the statutory factors before sentencing Powell. See McClendon, supra.

         Moreover, because the trial court had the benefit of a PSI, it is presumed

that the court was aware of relevant information regarding Powell’s character,

and weighed those considerations along with any mitigating factors.                  See

Downing, supra. Accordingly, Powell’s discretionary sentencing challenge

fails.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/19




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