J-S03024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD SCOTT STEPHENS

                            Appellant                 No. 1066 EDA 2015


            Appeal from the Judgment of Sentence March 10, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000235-2014


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                               FILED MARCH 29, 2016

       Ronald Scott Stephens appeals the judgment of sentence imposed on

March 10, 2015, in the Montgomery County Court of Common Pleas, made

final by the denial of post-sentence motions on April 7, 2015. The trial court

sentenced Stephens to a term of four to 10 years’ imprisonment, following

his non-jury conviction on charges of robbery (fear of bodily injury), robbery

(taking property from another by force), theft by unlawful taking or

disposition, receiving stolen property, terroristic threats, and simple assault.1

On appeal, he challenges the discretionary aspects of his sentence. Based

on the following, we affirm.

____________________________________________


1
   18 Pa.C.S. §§ 3701(a)(1)(iv), 3701(a)(1)(v),             3921(a),   3925(a),
2706(a)(1), and 2701(a)(3), respectively.
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       The trial court set forth the facts and procedural history as follows:

              At around 9:30 p.m. on December 27, 2013, [Stephens]
       entered a Wendy’s restaurant on Cheltenham Avenue in
       Cheltenham, Montgomery County and approached an employee
       at the register. He leaned in and said “Baby girl, this is a
       robbery. Give me the money in the register.” While [Stephens]
       said this, he held one hand in his pocket and pointed it in the
       direction of the counter. After the employee told [Stephens] she
       was unable to open the register, [Stephens] began to take his
       hand out of his pocket and instructed the employee that she
       better figure out how, at which point the employee opened the
       register and gave [Stephens] the money. [Stephens] took the
       money and left the restaurant. Based on a description of the
       assailant, police apprehended [Stephens] about two or three
       blocks from the restaurant.

             The matter proceeded to a bench trial and the undersigned
       found [Stephens] guilty robbery-fear of bodily injury, one count
       [of] robbery-taking property from another by force, theft by
       unlawful taking or disposition, receiving stolen property,
       terroristic threats and simple assault. The court sentenced
       [Stephens] to four to 10 years in prison on the charge of
       robbery-fear of bodily injury. The remaining charges merged for
       purposes of sentencing.

             [Stephens] filed a post-sentence motion. He asserted the
       charges of robbery, terroristic threats and simple assault were
       against the weight and sufficiency of the evidence. He also
       claimed this court failed to place sufficient reasons on the record
       to support a sentence outside the standard range.

            The court denied the post-sentence motion in an order
       dated April 7, 2015.

Trial Court Opinion, 6/15/2015, at unnumbered 1-2 (record citations and

footnotes omitted). This timely appeal followed.2

____________________________________________


2
   On April 24, 2015, the trial court ordered Stephens to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      In his sole issue on appeal, Stephens challenges the discretionary

aspects of his sentence, alleging the court did not set forth any specific

reasons on the record to justify an aggravated range sentence. Stephens’

Brief at 12.    Specifically, he states the judge “did not explain why this

particular offense is more severe than the normal type of this crime,” and

moreover, the judge

      wholly failed to consider that this robbery case was in fact less
      severe than many robbery cases, in that [Stephens] did not
      possess a weapon of any kind, did not directly threaten to
      commit any act of violence, did not commit any act of violence
      and, in fact, never even touched anyone or anything
      inappropriately until he was handed the money.

Id. at 15.3

      The standard of review for a claim challenging the discretionary

aspects of sentencing is well-established:

      Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. An abuse of discretion is not shown merely
      by an error in judgment. Rather, the appellant must establish,
                       _______________________
(Footnote Continued)

Stephens filed a concise statement on May 7, 2015. The trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on June 15, 2015.
3
    Stephens also claims the judge considered an incorrect fact, that the
victim-witness was scared to testify at trial, in his decision. We note
Stephens addresses this issue for the first time on appeal and failed to raise
it at sentencing or in a post-sentence motion. Therefore, this issue is
waived.     See Pa.R.A.P. 302(a).      Nevertheless, we note that during
sentencing, defense counsel indicated the victim was not a cooperative
witness, “the DA had to get a witness warrant and go pick her up and bring
her in” and she was “[n]ot the kind of victim, you know, that was running
into court.” N.T., 3/10/2015, at 11-12.



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     by reference to the record, that then 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.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

     “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).      To reach the merits of a discretionary

issue, this Court must determine:

     (1) whether the appeal is timely; (2) whether Appellant
     preserved his issue; (3) whether Appellant’s brief includes a
     concise statement of the reasons relied upon for allowance of
     appeal with respect to the discretionary aspects of sentence; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Here,    Stephens   filed   a   post-sentence   motion   challenging   the

discretionary aspects of his sentence, as well as a timely direct appeal.

Moreover, his brief includes the requisite statement pursuant to Pa.R.A.P.

2119(f), setting forth the reasons relied upon for allowance of appeal. See

Stephens’ Brief at 11.   Therefore, we may proceed to determine whether

Stephens has set forth a substantial question that his sentence is




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inappropriate under the Sentencing Code. See Commonwealth v. Titus,

816 A.2d 251, 255 (Pa. Super. 2003).

      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa Super. 2009) (citation omitted), appeal denied, 987 A.2d

161 (Pa. 2009). As noted above, Stephens asserts that the court sentenced

him in the aggravated range and failed to state its reasons for doing so on

the record.   This Court has previously held that such a claim raises a

substantial question. See Commonwealth v. Simpson, 829 A.2d 334, 338

(Pa. Super. 2003); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.

Super. 2008), appeal denied, 13 A.3d 474 (Pa. 2010). This Court has also

determined that a substantial question is raised where, as Stephens also

alleges, the court imposed a sentence in the aggravated range without

adequately considering mitigating circumstances. See Commonwealth v.

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

      We note that when imposing a sentence, the sentencing court must

consider “the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Moreover,

      “a court is required to consider the particular circumstances of
      the   offense    and   the   character    of   the   defendant.”

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      Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002),
      appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005), cert. denied,
      545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902 (2005). “In
      particular, the court should refer to the defendant’s prior criminal
      record, his age, personal characteristics and his potential for
      rehabilitation.” Id. Where the sentencing court had the benefit
      of a presentence investigation report (“PSI”), we can assume the
      sentencing court “was aware of relevant information regarding
      the defendant’s character and weighed those considerations
      along with mitigating statutory factors.” Commonwealth v.
      Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988). See also
      Commonwealth v. Tirado, 870 A.2d 362, 368 (Pa. Super.
      2005) (stating if sentencing court has benefit of PSI, law expects
      court was aware of relevant information regarding defendant’s
      character and weighed those considerations along with any
      mitigating factors).

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

      Furthermore,

      [a] sentencing court may consider any legal factor in
      determining that a sentence in the aggravated range should be
      imposed.    In addition, the sentencing judge’s statement of
      reasons on the record must reflect this consideration, and the
      sentencing judge’s decision regarding the aggravation of a
      sentence will not be disturbed absent a manifest abuse of
      discretion.

Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)

(citations and quotation marks omitted); see also 204 Pa.Code § 303.13(c)

(providing that when imposing sentence in aggravated range sentencing

court, “shall state [its] reasons on the record[.]”).

      “[A]n appellate court may not disturb a sentence that is within the

sentencing guidelines unless it determines that the sentence is ‘clearly




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unreasonable.’” Bowen, 975 A.2d at 1126 n.5, quoting 42 Pa.C.S. §

9781(c).4

             A sentence may be found unreasonable if it fails to
       properly account for [the] four statutory factors [listed in Section
       9781]. A sentence may also be found unreasonable if the
       “sentence was imposed without express or implicit consideration
       by the sentencing court of the general standards applicable to
       sentencing.”     These general standards mandate that a
       sentencing court impose a sentence “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 on the community, and
       the rehabilitative needs of the defendant.”          42 Pa.C.S. §
       9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 191 (Pa. Super. 2008), appeal

denied, 980 A.2d 607 (Pa. 2009).

       Here, the trial court had the benefit of a presentence investigation

report,5 and therefore, we will presume it was “aware of all appropriate


____________________________________________


4
   In making a reasonableness determination, a court should consider four
factors:

       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d)(1)-(4).
5
    Trial Court Opinion, 6/15/2015, at unnumbered 9.



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sentencing factors and considerations.” Commonwealth v. Downing, 990

A.2d 788, 794 (Pa. Super. 2010) (citation omitted).

     Moreover, the standard sentencing guideline range for Stephens’

robbery conviction was 35 to 45 months. N.T., 3/10/2015, at 9. The court

sentenced him to four to 10 years’ imprisonment, three months above the

top end of the standard range.         Trial Court Opinion, 6/15/2015, at

unnumbered 8. At the time of sentencing, Stephens was 56 years old, this

was his ninth robbery conviction, and he was a repeat felony offender

(“RFEL”). N.T., 3/10/2015, at 8-9, 14. Additionally, he was on parole when

he committed the present offense. Id. at 13.

     Furthermore, the trial court had the opportunity to observe Stephens’

behavior at both his trial and sentencing hearing, and to hear his allocution

at sentencing. Stephens apologized for his actions, submitted several

supportive letters from members of the community, and admitted that he

had alcohol and drug issues which he has battled his whole life. Id. at 2-8.

     Lastly, at the March 10, 2015, sentencing hearing, the trial court

placed its reasons for the sentence it imposed on the record:

           [C]learly, you are not just a robber, you are prolific. I
     mean, this is your ninth conviction for robbery.       That is
     unbelievable.

                                         …

           In the present case, I have considered your age, the
     information about yourself that you have presented to me. And
     it is very impressive and informative.       And I have also
     considered the evidence and the circumstances of the offense.

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           The fact of the matter is I was the trial judge in this
      matter. It was a bench trial. So I feel very familiar with this
      case. And I watched the videotape, saw it all, heard what this
      young lady had to say, the victim. She thought it was a gun.
      No question in her mind.

                                      …

            So as I say, the facts of the offense have been established
      by the verdict. So you are admitting to that.

            And after considering those factors, I find that there is an
      undue risk that during the period of any type of probation or
      partial confinement you will commit another crime. I don’t think
      you would disagree with that otherwise.

                                      …

             Clearly, a lesser sentence than I am about to give you
      would depreciate the seriousness of your crime. I, therefore,
      find that total confinement is proper.

                                      …

           If it wasn’t mentioned, you are an RFEL defendant. And
      that if I have to weigh protecting society versus your
      rehabilitative needs, I think this is the route that I am mandated
      by my own conscience to go with.

N.T., 3/10/2015, at 14, 16-19.

      Based on the above, our review of Stephens’ sentence, pursuant to

Section 9781 of the Sentencing Code, leads us to conclude that the court

imposed a reasonable and appropriate sentence.        It is evident from the

court’s on-the-record statement that it considered all the requisite factors,

including the nature and circumstances of the offense, the recommended

guideline range, the protection of the public, the gravity of the offense, and


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Stephens’ rehabilitative needs, when fashioning his sentence.      Moreover,

contrary to Stephens’ argument, it is clear from the court’s statement that it

did set forth specific reasons on the record to justify an aggravated range

sentence and did consider the mitigating circumstances surrounding the

incident. Accordingly, we conclude the court properly exercised its discretion

in sentencing Stephens in the aggravated range of the Sentencing

Guidelines. Therefore, Stephens’ sole issue on appeal does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2016




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