J-S44030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    THOMAS BRADLEY,                            :
                                               :
                       Appellant               :   No. 3498 EDA 2017

             Appeal from the Judgment of Sentence August 25, 2017
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0003275-2017


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 03, 2018

        Thomas Bradley (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to possession with intent to deliver (PWID) a

controlled substance, and criminal conspiracy to commit PWID.1 We affirm.

        The trial court summarized the factual background as follows:

        On Thursday, June 6th of 2016, the Bristol Township Police
        Narcotics Unit conducted an investigation into cocaine sales in the
        area of Bloomsdale.      This investigation was initiated after
        numerous complaints from residents reporting ongoing drug sales
        in the streets of Bloomsdale.

        On Thursday, June 16th of 2016, [Bristol Township Police Detective
        Doug Slemmer] met with an undercover officer from the Bucks
        County Drug Unit at police headquarters. The police officer was
        provided with buy money to purchase illegal drugs. The police
        officer traveled by vehicle to the Bloomsdale section of Levittown
        in Bristol Township, Bucks County. The police officer made
        contact with the defendants, Ira Brinson and [Appellant], on the

____________________________________________


1   35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903.
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       2400 bl[o]ck of Airacobra Street.      Brinson and [Appellant]
       orchestrated a drug sale with the police officer, and the officer
       obtained cocaine from the defendants.

       The cocaine was field tested and did test positive for cocaine, and
       was later sent to the lab and also tested positive for cocaine . . .
       it was .13 grams.

Trial Court Opinion, 3/28/18, at 1-2.

       On August 25, 2017, Appellant appeared before the trial court and pled

guilty to the above crimes. That same day, the trial court sentenced Appellant

to 5 to 15 years of incarceration.             Appellant filed a timely post-sentence

motion on September 5, 2017.2             The trial court denied the post-sentence

motion on September 25, 2017, after which Appellant filed this timely appeal.

Both Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.3

       Appellant presents a single issue for our review:


____________________________________________


2   Monday, September 4, 2017 was Labor Day.

3 The trial court explained that it ordered Appellant’s counsel to file a Pa.R.A.P.
1925(b) statement on October 27, 2017. However, “[t]he Office of the Public
Defender, representing Appellant, mistakenly believed it had filed the Concise
Statement on November 6, 2017. The Concise Statement was provided at
this Court’s request [and was filed nunc pro tunc] on February 18, 2018.”
Trial Court Opinion, 3/28/18, at 2 n.4. We note that the untimely filing of
Appellant’s court-ordered Rule 1925(b) statement does not automatically
result in waiver. Where “the trial court accepts an untimely Rule 1925(b)
statement and addresses the issues raised in its Rule 1925(a) opinion, we will
not determine the issues to be waived.” Commonwealth v. Sohnleitner,
884 A.2d 307, 312 (Pa. Super. 2005), appeal denied, 897 A.2d 456 (Pa.
2006). Here, as in Sohnleitner, the trial court accepted Appellant’s 1925(b)
statement despite its untimeliness and addressed the issue raised. Therefore,
we decline to conclude that Appellant’s issue is waived. See id.


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      Did the sentencing court abuse its discretion in imposing a
      sentence above the aggravated range of the applicable sentencing
      guidelines by not considering mitigating evidence, by relying on
      factors that were already contemplated by the available
      sentencing guidelines, and by placing improper weight on the
      testimony of the investigating detective at sentencing?

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of his sentence.           We

recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal

quotations and citations omitted).

      “The right to appellate review of the discretionary aspects of a sentence

is not absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-

part test to invoke this Court’s jurisdiction when challenging the discretionary




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aspects of a sentence.”    Id.   We conduct this four-part test to determine

whether:

      (1) the appellant preserved the issue either by raising it at the
      time of sentencing or in a post[-]sentence motion; (2) the
      appellant filed a timely notice of appeal; (3) the appellant set forth
      a concise statement of reasons relied upon for the allowance of
      his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
      raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

      Here, Appellant has complied with the first three prongs of the

discretionary aspect test to invoke our jurisdiction by raising his issue in a

timely post-sentence motion, filing a timely notice of appeal, and including in

his appellate brief a Rule 2119(f) concise statement. In addition, by asserting

that his sentence beyond the aggravated range is unreasonable given the

mitigating circumstances, he has raised a substantial question. See, e.g.,

Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en

banc) (stating that a substantial question is raised where an appellant alleges

that the sentencing court imposed a sentence in the aggravated range without

adequately considering mitigating circumstances).



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      In his argument, Appellant recounts the procedural history of his case,

and cites case law for general propositions relating to the discretionary aspects

of sentencing. See Appellant’s Brief at 9-11. With regard to the specifics of

his claim, Appellant’s entire argument states:

            The sentencing court in this case imposed a sentence above
      the aggravated range of the applicable guidelines by not
      considering mitigating factors. Appellant presented mitigating
      evidence in this case by testifying to his various health ailments
      that he was being treated for while in custody. (N.T. 8/25/17 pp.
      31-32). Moreover, Appellant pled guilty to the charges and took
      responsibility for the crime [sic] he committed.

             The sentencing court also by relied [sic] on factors already
      contemplated by the available Sentencing Guidelines and placed
      improper weight on the testimony of the investigating detective.
      The sentencing court noted Appellant’s prior record and took into
      consideration Detective Douglas Slemmer’s testimony and request
      that Appellant be sentenced to the maximum penalty. (N.T.
      8/25/17 pp. 43-44). During his testimony, Detective Slemmer
      noted that “. . . it’s been nothing but violent crimes . . .” when
      referring to Appellant. (N.T. 8/25/17 pp. 25). It should be noted,
      however, Appellant’s last violent conviction was in 1987. (Id. at
      pg. 22). Though Appellant has a few convictions for drug related
      crimes, his last conviction for drugs was in 1997, about ten years
      prior to the conviction in this matter.

Id. at 12-13.

      The Commonwealth, in response, states that the trial court “properly

acted within its discretion in imposing a reasonable sentence, albeit above the

guidelines’ aggravated range, where the sentence reflected Appellant’s long

history of dealing drugs, the likelihood of his reoffending, and the impact his

criminal conduct had on the community.” Commonwealth Brief at 6.




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      We review a challenge to a sentence that falls outside of the guidelines

mindful of the following:

      The sentencing guidelines are not mandatory, and sentencing
      courts retain “broad discretion in sentencing matters, and
      therefore, may sentence defendants outside the [g]uidelines.”
      [Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 620-
      21 (2002); see 42 Pa.C.S. §9721(b)] (citing Commonwealth v.
      Ellis, 700 A.2d 948, 958 (Pa.Super.1997)). “In every case where
      the court imposes a sentence ... outside the guidelines adopted
      by the Pennsylvania Commission on Sentencing ... the court shall
      provide a contemporaneous written statement of the reason or
      reasons for the deviation from the guidelines.” 42 Pa.C.S. §
      9721(b). However, “[t]his requirement is satisfied ‘when the judge
      states his reasons for the sentence on the record and in the
      defendant’s presence.’” Commonwealth v. Widmer, 446 Pa.
      Super. 408, 667 A.2d 215, 223 (1995), reversed on other
      grounds, 547 Pa. 137, 689 A.2d 211 (1997). Consequently, all
      that a trial court must do to comply with the above procedural
      requirements is to state adequate reasons for the imposition of
      sentence on the record in open court. See Robinson, 931 A.2d
      at 26 (quoting Commonwealth v. Walls, 846 A.2d 152, 158
      (Pa.Super.2004), reversed on other grounds, 592 Pa. 557, 926
      A.2d 957 (2007)) (“If a court chooses to sentence a defendant
      outside of the sentencing guidelines, it should state on the record
      adequate reasons for the deviation.”).

      “When imposing sentence, a court is required to consider ‘the
      particular circumstances of the offense and the character of the
      defendant.’” Commonwealth v. McClendon, 403 Pa.Super. 467,
      589    A.2d 706, 712–13           (1991) (en banc) (quoting
      Commonwealth v. Frazier, 347 Pa.Super. 64, 500 A.2d 158,
      159 (1985)). “In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.” Id.

Commonwealth v. Antidormi, 84 A.3d 736, 760–61 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

      Consistent with the foregoing, and upon review of the record, we agree

with the Commonwealth that Appellant’s sentencing claim does not merit

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relief. The crux of Appellant’s argument – that the trial court disregarded

mitigating factors and improperly relied on the statements of Detective

Slemmer – is not supported by the record.

      First, we note that Appellant references Detective Slemmer’s comments,

particularly his statement that “it’s been nothing but violent crimes,” out of

context. Detective Slemmer’s testimony reads:

             Your Honor, I appreciate you taking the time here. I’m sure
      you’re aware of it; if not, I’ll inform the Court. Bloomsdale is a
      federally-funded Weed & Seed area. It’s been designated that for
      close to 20 years, maybe more, due to the fact for the propensity
      for high drug sales and a violent area.

            In 2009, we were approved for a grant. We put cameras
      down in the area to try to prevent the ongoing open air drug sales.
      That being said, the residents down there have just been – in my
      16 years have just been in constant ongoing battles with the drug
      dealers in the streets of Bloomsdale.

             I’m here to speak before you [and] to respectfully request
      a maximum sentence for [Appellant]. Since 19 – going back to
      the ‘80s, it’s been nothing but violent crimes, and,
      respectfully, this is the sixth or seventh possession with intent to
      deliver in the same streets, which I think – I would ask the Court
      to recognize. On the same streets, in the same neighborhood,
      he’s terrorizing the residents by the actions of the sale of
      cocaine, and I would respectfully request, Your Honor, and this
      Court, to consider a maximum sentence for [Appellant]. It is –
      like I said, it’s unusual, but, I mean, in the same streets, we’ve
      been dealing with [Appellant] since 1980, and enough is enough.
      It’s – he does not get it with probation, parole, or you know, being
      treated or, you know, things in prison and stuff like that. But
      Bristol Township has done its fair share of trying to eradicate the
      drug sales in Bloomsdale, and having [Appellant] on the streets is
      a detriment. . . . [T]here w[ere] children in the streets while this
      drug sale went on. Luckily, it was an undercover officer that was
      in the car, but Bloomsdale area, we’ve had close to a dozen
      homicides in the last 10, 12 years with, you know, relations to
      narcotics, and people often ask how do the kids get caught up in

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      this. And this is a prime example. If you watch the video, while
      [Appellant] and [his co-defendant] are dealing cocaine, there’s
      young children in front of – in the streets playing. So, I mean, it’s
      disheartening to see, but it makes sense. A lot of times when you
      hear it on the news or anywhere else, but that’s why we’re having
      such a problem down there.

N.T., 8/25/17, at 24-27 (emphasis added).

      From the above testimony, read as a whole, it is clear that Detective

Slemmer referenced the selling of drugs as a crime of violence based on the

impact of chronic, illegal drug sales on the Bloomsdale community, including

the correlation between the selling of drugs and crimes of violence. The trial

court said that it was “aware of and familiar with that area of Bristol Township

and the devastating effect that drug dealing has had on that area.” N.T.,

8/25/17, at 40.    Moreover, the trial court addressed Appellant’s allegation

concerning the detective’s testimony, and expressly stated that “[c]ontrary to

Appellant’s assertion, [the court] did not give undue weight to the testimony

of Detective Slemmer.” Trial Court Opinion, 3/28/18, at 6. The trial court

further stated, “I understand the detective’s remarks regarding [Appellant’s]

history of violent offenses; however, I note that those offenses are many years

ago, probably 30 years ago, and I believe that [Appellant is] not involved in

that same type of violence.” N.T., 8/25/17, at 45.

      With regard to mitigating factors, as Appellant indicated, he testified to

being 56 years old, having a “bad heart, high blood pressure” and being on “a

lot of medication, like 15 pills.”   Id. at 32.   He testified that his last drug

conviction was in 2007, and he was “just caught up” when he was arrested in

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this case. Id. at 31-33. When asked by the court to explain what he meant,

Appellant stated that he “didn’t make no sale,” and “didn’t do nothing.” Id.

at 34. He then became contrite, stating: “I made mistakes . . . I messed up.

You know, I admit I messed up. I’m apologizing, putting myself on the mercy

of the court.” Id. at 35.

      Again, and contrary Appellant’s argument, the record belies Appellant’s

claim that the trial court failed to consider mitigating factors when it imposed

Appellant’s sentence.   In addition to its commentary about other statutory

considerations, the court addressed Appellant:

            . . . I give you credit for the fact that you have accepted
      responsibility and entered a plea of guilty here. If, in fact, you
      had taken a trial, and you had been convicted by either the judge
      or a jury, I would seriously consider giving you seven-and-a-half
      to 15 years. But I will give you credit for your acceptance of
      responsibility.

             I consider your health issues, but as I previously stated, the
      impact of your crimes on the Bloomsdale community ha[s] been
      significant. You have shown a pattern of repeat behavior. I
      believe that you would continue to reoffend. I believe that you
      would continue to sell drugs, and I believe that it is necessary for
      me to remove you from the community for the good of that
      community.

             When I consider the nature and the circumstances of the
      crime, and the history, character and condition of [Appellant], and
      I understand the detective’s remarks regarding your history of
      violent offenses; however, I note that those offenses are many
      years ago, probably 30 years ago, and I believe that you’re not
      involved in that same type of violence. However, I believe there’s
      an undue risk that you will commit another crime. I believe that
      you are in need of correction treatment that can be provided most
      effectively by your commitment to a state correctional institution,
      and that any lesser sentence would depreciate the seriousness of
      the crime.

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N.T., 8/25/17, at 43-45.

      Based on the foregoing, we find no merit to Appellant’s claims that the

trial court abused its discretion by improperly relying on the statements of

Detective Slemmer and disregarding mitigating factors when it imposed

Appellant’s sentence. See, e.g., Felmlee, supra (judgment of sentence in

aggravated range affirmed where court noted mitigating factors and “carefully

reviewed all the facts and made an intelligent decision as to sentencing”); cf.

Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super. 2005) (judgment of

sentence vacated where court “focused exclusively” aggravating factors and

“virtually ignored” mitigating factors such as appellant’s lack of prior criminal

record, his age, his personal characteristics, and his life situation).

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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