J-S20023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    CHONICE MARTIN

                             Appellant                 No. 1505 EDA 2019


        Appeal from the Judgment of Sentence entered January 11, 2018
             In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0005281-2014


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                               FILED JULY 29, 2020

        Appellant, Chonice Martin, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Philadelphia County on January 11,

2018, following entry of an open guilty plea to charges of aggravated assault

and possession of an instrument of crime (PIC).1 Appellant argues the trial

court abused its discretion by imposing an unduly harsh and excessive

sentence. Following review, we affirm.

        This Court previously summarized the facts elicited at Appellant’s

sentencing hearing as follows:

        During an alteration on July 1, 201[4], Appellant used a six-inch
        steak knife to stab the complainant, Ms. Mitchell, two times in her
        chest underneath her right arm.          The treatment of the
        complainant’s injuries required the placement of a chest tube and

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1   18 Pa.C.S.A. §§ 2702(a) and 907(a).
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       a five-day stay in the hospital. As a result, Appellant was charged
       with aggravated assault and PIC.

       On July 13, 2017, Appellant entered an open guilty plea to the
       aforementioned charges. Sentence was deferred for preparation
       of a pre-sentence investigation (PSI) report.

Commonwealth v. Martin, No. 1287 EDA 2018, unpublished memorandum

at 1-2 (Pa. Super. filed February 19, 2019) (citations to sentencing transcript

omitted). On January 11, 2018, the trial court imposed a sentence of four to

ten years in prison, followed by five years’ probation, for aggravated assault.2

The court also imposed a sentence of five years’ probation for PIC to run

concurrently with Appellant’s probationary sentence for aggravated assault.

       Although Appellant’s appeal from the judgment of sentence was

untimely filed, this Court declined to quash due to a “breakdown in the

operation of the court,” id. at 8, and instead remanded for the trial court to

address the merits of Appellant’s post-sentence motion nunc pro tunc. On

remand, the trial court denied Appellant’s motion for reconsideration. This

timely appeal followed.        Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant presents one issue for our consideration:


____________________________________________


2 As this Court explained, “Appellant had a prior record score of zero and an
offense gravity score of eleven. Therefore, the standard-range minimum
sentence was thirty-six to fifty-four months, plus or minus twelve months for
aggravating or mitigating factors. Commonwealth v. Martin, No. 1287 EDA
2018, unpublished memorandum at 2 n.2 (Pa. Super. filed February 19, 2019)
(citing 204 Pa. Code § 303.16(a)).          We note the maximum term of
incarceration for this offense is 20 years in prison. 18 Pa.C.S.A. § 1103(1).

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      Is the sentence imposed unduly harsh and excessive under the
      circumstances of this case?

Appellant’s Brief at 4.     As such, Appellant presents a challenge to the

discretionary aspects of sentence, which this Court reviews for an abuse of

discretion. Commonwealth v. Moury, 992 A.2d 162, 169 (Pa. Super. 2010).

As we reiterated in Moury:

      [A]n 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 manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will.
      In more expansive terms, our Court recently offered: An abuse
      of discretion may not be found merely because an appellate court
      might have reached a different conclusion, but requires a result of
      manifest unreasonableness, or partiality, prejudice, bias, or ill-
      will, or such lack of support so as to be clearly erroneous.

      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.

Id. at 169-70 (quoting Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (internal citations omitted)).

      Moreover, a challenge to the discretionary aspects of sentence does not

entitle an appellant to review as of right. Id. at 170 (citing Commonwealth

v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000)). An appellant must first

invoke this Court’s jurisdiction by satisfying a four-part test that includes filing

a timely notice of appeal; preserving the issue in a motion to reconsider and

modify sentence; including a statement in the appellant’s brief in accordance

with Pa.R.A.P. 2119(f); and presenting “a substantial question that the

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sentence appealed from is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).” Id. (quoting Commmonwealth v. Evans, 901 A.2d

528, 533 (Pa. Super. 2006)).

      Appellant filed a timely appeal, preserved the issue in a motion to

reconsider, and included a Rule 2119(f) statement in her brief. Although she

has satisfied the first three elements of the test, we must determine whether

she has presented a substantial question. As phrased in her Statement of

Questions presented, Appellant contends the trial court imposed a sentence

that was “unduly harsh and excessive under the circumstances of this case.”

Appellant’s Brief at 4.         A bald assertion of excessiveness does not raise a

substantial question.      See, e.g., Commonwealth v. Giordano, 121 A.3d

998, 1008 (Pa. Super. 2015) (quoting Commonwealth v. Fisher, 47 A.3d

155, 159 (Pa. Super. 2012) (“bald assertion that a sentence is excessive does

not by itself raise a substantial question justifying this Court’s review of the

merits of the underlying claim”)). However, in her Rule 2119(f) statement,

Appellant complains that the trial court failed “to acknowledge [her]

rehabilitative    needs    or     the     circumstances      surrounding    her    offense.”

Appellant’s Brief at 30.           As Appellant notes, this Court determined a

substantial question was raised when an appellant claimed the sentencing

court “disregarded rehabilitation and the nature and circumstances of the

offense   in     handing   down         its   sentence[.]”     Id.   at    30-31   (quoting

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013)).


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Therefore, we conclude Appellant has raised a substantial question and we

shall consider the merits of her claim.

      Again, we review a discretionary aspects of sentencing claim for abuse

of discretion.   Moury, 992 A.2d at 169. Appellant suggests the trial court

abused its discretion by failing to consider her rehabilitative needs and the

circumstances surrounding the events leading to her conviction.

      During Appellant’s sentencing hearing, the prosecutor presented

argument in favor of a minimum four and one-half year sentence for

aggravated assault, stating:

      A lot of the information that I will be talking about today will be
      based on the presentence investigation. I think that gives the
      most insight into [Appellant]. I mark that as C-1 in this case. The
      presentence investigation indicates that she had a lot of anger-
      related issues and she had previously been enrolled in the Wedge
      to report those issues. I do not see any indication of drug abuse.
      During the course of this fight, there was no indication of drug
      abuse as well. [Appellant] stabbed Antoinette Mitchell [two]
      times, the left side of the back and underneath the right arm, with
      a 6-inch steak knife. . . . [Ms. Mitchell was] in the hospital for 5
      days as a result of this incident with a punctured lung and a chest
      tube. When she came into court that day, she still had scars
      visible from the result of that fight.       She is still receiving
      treatment.

Notes of Testimony, Sentencing, 1/11/18, at 19-20.

      The prosecutor read into the record a letter from Sharlene Scott who is

the sister of Appellant’s victim and was a witness to the assault.           The

prosecutor then asked the court to consider “the egregiousness of this

offense.”   Id. at 22.   The prosecutor argued that the incident could have

turned into a homicide and asked that the seriousness of the situation not be

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lost on the court. Id.    She acknowledged Appellant had a prior record score

of zero and explained that a mental health report was requested “just to see

if there was anything within [Appellant’s] history that could explain how you

go from a zero to a stabbing, and nothing in the report is necessarily indicative

of someone suffering from something severe enough to have dictated these

actions.” Id. at 22-23.

      Appellant’s counsel responded:

      Your Honor, I'll just start with some of the stuff I think the Court
      already knows. My client is 33 years old. She is a single mother
      of a 12-year-old daughter that she's raising. She had issues
      growing up. At age 12 she was raised by her mother and
      grandmother. She works. She successfully completed 2 1/2 years
      of pretrial house arrest. She was taken off of that in July and
      remains incident-free until today. Here we are for sentencing.

      Your Honor, she had some issues with mental health in the past;
      schizophrenia, anxiety, which she did receive some treatment at
      the Wedge. She had recently reached out to the Wedge to resume
      her treatment. She recognizes she would benefit from that. She
      has attempted to get her GED on, I think, at least three occasions.
      She recently, again, made an effort and found out that the course
      will begin in March. She does want to do things to improve her
      current situation. Your Honor, I'm asking you to substantially
      mitigate. I know the Commonwealth is asking for a state sentence
      of around 4 1/2 years. [Appellant,] Your Honor, is not a danger
      to society or to the community. I say that for the following
      reasons. [The prosecutor] said how do you go from a zero to
      picking up a knife and stabbing somebody. Well, this was a melee.

Id. at 23-24.

      After taking testimony from Appellant about her work as a home health

care aide and a housekeeper, the court imposed its sentence.          The court

explained that when imposing a sentence following an open guilty plea, “I


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begin taking a look at my sentence from [the point of view of the mitigated

range].” Id. at 41. In this instance, a sentence in the mitigated range would

be 42 months, or three and one-half years. “With regard to [Appellant], the

charge of aggravated assault, the seriousness of the injury, I can’t stay down

to 3-1/2. I sentence her to 4 to 10 years in a state correctional institution.”

Id. at 41.    The court further sentenced Appellant to serve five years’

probation, consecutive to her sentence of incarceration, for aggravated assault

as well as five years’ probation for PIC, to be served concurrently with her

probation for aggravated assault.   Id. at 41-42.

      With respect to the alleged failure to consider rehabilitative needs, we

note that the trial court had the benefit of a mental health report as well as a

PSI. “Where the sentencing court had the benefit of a [PSI], we can assume

the sentencing court was aware of relevant information regarding the

defendant's character and weighed those considerations.” Id. at 171 (internal

quotations and citations omitted). Further, an aggravated range sentence is

justified “to the extent the individual circumstances of [her] case are atypical

of the crime for which Appellant was convicted, such that a more severe

punishment is appropriate.” Commonwealth v. Fullin, 892 A.2d 843, 848

(Pa. Super. 2006). Here, the trial court explained, “If you stab somebody with

a steak knife one time it could be an accident or even overwhelmed by some

kind of emotion. But to withdraw the knife and put it into the person a second

time, I mean, how do you explain that? Especially in a vital part of the body


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where she was stabbed, puncturing a lung.” Notes of Testimony, Sentencing,

1/11/18, at 31.

      The trial court had the benefit of the PSI and a mental health report, as

well as argument from the prosecutor and defense counsel, and testimony

from Appellant herself. “After careful review and consideration of the record,

the PSI and argument of counsel,” the court imposed its sentence. Trial Court

Opinion, 9/18/19, at 4.       As noted above, the trial court is given broad

discretion in sentencing and this Court’s deferential standard on 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.” Moury, 992 A.2d at 170.

      Based on our review of the record and the applicable law, we find the

trial court did not abuse its discretion in imposing Appellant’s sentence.

Appellant is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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