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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
JARIB POSTON,                            :         No. 632 WDA 2014
                                         :
                        Appellant        :


           Appeal from the Judgment of Sentence, March 17, 2014,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0009366-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 10, 2015

      Jarib Poston appeals from the judgment of sentence of March 17,

2014, following his guilty plea to one count each of simple assault, recklessly

endangering another person (“REAP”), terroristic threats, and endangering

the welfare of a child. We affirm.

      The trial court has set forth the underlying facts of this matter as

follows:

                  At the time [appellant] entered his guilty plea,
            he acknowledged his guilt at all charges and he
            acknowledged that he assaulted Lundon Minniefield
            by choking her, pulling her to the floor by her hair
            and striking her in the face with the butt end of a
            shotgun. At the time of the attack, Ms. Minniefield
            was holding her child. [Appellant] is the father of
            the child.[1] [Appellant]’s mother reported that she

1
  The child was only three days old at the time of the incident. (Notes of
testimony, 12/17/13 at 8.)
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             was present during the incident and she attempted
             to stop the attack by jumping on [appellant]’s back.
             Various witnesses reported seeing the attack and
             observing [appellant] point the shotgun at
             Ms. Minniefield. They all indicated that [appellant]
             went outside the residence where the attack
             occurred and observed [appellant] discharge one
             round into a hillside and threaten to kill
             Ms. Minniefield.     Ms. Minniefield obtained a
             Protection From Abuse order against [appellant].

                   Despite acknowledging his guilt at time of his
             guilty plea, [appellant] denied pointing the shotgun
             at Ms. Minniefield or striking her with the butt end of
             the shotgun during his presentence interview.

Trial court opinion, 7/18/14 at 2.

        On December 17, 2013, appellant entered an open guilty plea to the

above charges. The trial court rejected a plea agreement whereby appellant

would serve 3 to 6 months’ incarceration, finding that it was not

commensurate with the seriousness of the offenses.        On March 17, 2014,

appellant appeared for sentencing.     The trial court imposed a sentence of

11½ to 23 months’ incarceration at count 4, terroristic threats, with no

further penalty at the remaining counts. Appellant was also to serve 3 years

of consecutive probation. Appellant’s sentence was beyond the aggravated

range of the sentencing guidelines.         A timely post-sentence motion to

reconsider sentence was filed on March 18, 2014, and denied on March 20,

2014.    A timely notice of appeal was filed on April 17, 2014.        Appellant

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.



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      Appellant has raised the following issue for this court’s review,

challenging the discretionary aspects of his sentence:

            I.     Did the trial court abuse its discretion in
                   sentencing    [appellant]   outside  of   the
                   sentencing guidelines without providing a
                   contemporaneous written statement of the
                   reason or reasons for the deviation from the
                   guidelines,  in   violation of    42  Pa.C.S.
                   § 9721(b)?

Appellant’s brief at 6.

            A challenge to the discretionary aspects of
            sentencing is not automatically reviewable as a
            matter of right. Commonwealth v. Hunter, 768
            A.2d 1136 (Pa.Super.2001)[,] appeal denied, 568
            Pa. 695, 796 A.2d 979 (2001). When challenging
            the discretionary aspects of a sentence, an appellant
            must invoke the appellate court’s jurisdiction by
            including in his brief a separate concise statement
            demonstrating that there is a substantial question as
            to the appropriateness of the sentence under the
            Sentencing Code. Commonwealth v. Mouzon, 571
            Pa. 419, 812 A.2d 617 (2002); Commonwealth v.
            Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987);
            42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). “The
            requirement that an appellant separately set forth
            the reasons relied upon for allowance of appeal
            ‘furthers the purpose evident in the Sentencing Code
            as a whole of limiting any challenges to the trial
            court’s evaluation of the multitude of factors
            impinging on the sentencing decision to exceptional
            cases.’”     Commonwealth v. Williams, 386
            Pa.Super. 322, 562 A.2d 1385, 1387 (1989)
            (en banc) (emphasis in original).

Commonwealth v. McNear, 852 A.2d 401, 407-408 (Pa.Super. 2004).

      In his Pa.R.A.P. 2119(f) statement and also in the argument section of

his brief, it is clear that the gist of appellant’s argument is that the trial court



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failed    to   reference   the   applicable   guideline   ranges   at   sentencing.

(Appellant’s brief at 18, 21.) As the Commonwealth observes, this issue was

not raised at sentencing or in appellant’s post-sentence motion. Rather, in

his motion to reconsider sentence, appellant argued only that his sentence

was excessive in light of various mitigating factors, including his age, lack of

a prior criminal record, his strong family support system, the fact he is

taking classes at jail towards earning his G.E.D., etc.            (Docket #10.)

Nowhere did appellant contend that the trial court failed to consider the

guidelines or provide a contemporaneous written statement of the reason or

reasons for deviating from the guidelines. As such, the issue is waived. See

Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007), appeal

denied, 936 A.2d 40 (Pa. 2007) (“an appellant can seek to appeal

discretionary sentencing issues only after preserving them during the

sentencing hearing or in post-sentence motions”), citing Commonwealth v.

Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006); Commonwealth v.

Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005), appeal denied, 890 A.2d

1057 (Pa. 2005) (“Objections to the discretionary aspects of a sentence are

generally waived if they are not raised at the sentencing hearing or raised in

a motion to modify the sentence imposed at that hearing.”) (citations

omitted).

         To the extent appellant argues that the trial court failed to articulate

sufficient reasons, on the record, for its upward departure from the



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guidelines, he raises a substantial question for our review.          See, e.g.,

Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),

citing Commonwealth v. Eby, 784 A.2d 204 (Pa.Super. 2001) (“[T]he

sentencing judge must state of record the factual basis and specific reasons

which compelled him or her to deviate from the guideline ranges.            When

evaluating a claim of this type, it is necessary to remember that the

sentencing guidelines are advisory only.”); Commonwealth v. Rodda, 723

A.2d 212, 214 (Pa.Super. 1999) (en banc), quoting Commonwealth v.

Wagner, 702 A.2d 1084, 1086 (Pa.Super. 1997) (“Where the appellant

asserts that the trial court failed to state sufficiently its reasons for imposing

sentence outside the sentencing guidelines, we will conclude that the

appellant has stated a substantial question for our review.”).

      However, the record belies such a claim.

            When the sentence imposed is outside the
            sentencing guidelines, moreover, the court must
            provide a contemporaneous written statement of the
            reason or reasons for the deviation from the
            guidelines. This requirement is satisfied when the
            judge states his reasons for the sentence on the
            record and in the defendant’s presence.

Commonwealth v. Widmer, 667 A.2d 215, 223 (Pa.Super. 1995),

reversed on other grounds, 689 A.2d 211 (Pa. 1997) (citations and

quotation marks omitted).




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      It is clear from the record that the trial court did not find appellant’s

self-serving explanations for his conduct to be credible and that he did not

take responsibility for his criminal behavior. (Notes of testimony, 3/17/14 at

14-15.)   The trial court observed that although he pled guilty, appellant

continued to dispute what happened, including the version of events as

recounted by three different eyewitnesses. (Id. at 5-6.) The trial court did

not believe appellant’s explanation that he accidentally struck the victim with

the butt end of his shotgun and accidentally discharged the gun when he

was trying to unload it. (Id. at 11.) The trial court found that appellant’s

conduct was “outrageously dangerous” and that he was not accepting full

responsibility. (Id. at 4, 16.) Therefore, the trial court did put reasons on

the record justifying an upward deviation from the sentencing guidelines.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/10/2015




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