J. S57008/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
CHRISTY PERRI,                             :          No. 926 WDA 2015
                                           :
                          Appellant        :


             Appeal from the Judgment of Sentence, March 3, 2015,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0010832-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JULY 21, 2016

        Christy Perri appeals from the March 3, 2015 aggregate judgment of

sentence of four to eight years’ imprisonment, followed by two years’

probation, imposed after she pled guilty to possession of a firearm, carrying

a firearm without a license, and the summary offense of driving under

suspension.1 After careful review, we affirm.

        The trial court set forth the relevant facts of this case, as gleaned from

the guilty plea hearing, as follows:

              [O]n or about Friday, [August 1, 2014], at
              approximately 2130 hours, City of Pittsburgh Police
              were on patrol in a marked unit in full uniform in the
              Uptown area of Pittsburgh. They observed a white
              Dodge Charger with Pennsylvania registration

* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105, 6106 and 75 Pa.C.S.A. § 1543, respectively.
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              HWV2753 traveling inbound on Fifth Avenue. When
              it came to the intersection of Washington Place, they
              observed that none of the brake lights were
              functioning on the vehicle. They effectuated a traffic
              stop and approached [appellant], who was the driver
              of the vehicle. They detected a faint odor of burnt
              marijuana coming from the vehicle’s compartment.
              [Appellant] stated that she did not have a valid
              driver’s license. The officers asked [appellant] and
              the occupants, based on their nervous behavior, to
              remove themselves from the vehicle for the officer’s
              safety. A pat–down of the occupants was completed,
              and during that time an unnatural bulge in
              [appellant’s] waistband was noticed by the officers.
              [Appellant] appeared to be attempting to cover the
              bulge by folding her hands over top. Officer McGee
              recovered a Rossi .38 Special revolver, Serial
              No. D656556 with five live rounds from [appellant’s]
              waistband, concealed beneath her clothing.        The
              Commonwealth would have submitted Laboratory
              Case No. 1407301 to show that this was a
              .38 Special caliber revolver that was in good
              operating condition. [Appellant’s driver’s] license
              had been suspended, and [appellant] stated that she
              had recently been the victim of a home invasion
              where she suffered a gunshot wound, that she had
              taken her aunt’s firearm to use for protection.

Trial court opinion, 1/4/16 at 2 (citation to notes of testimony omitted).

        Appellant   was   subsequently    arrested   and   charged     with   the

aforementioned offenses, as well as receiving stolen property, prohibited

offensive    weapons,     and   the   summary   offense    of   general   lighting

requirements.2 On November 18, 2014, appellant pled guilty to possession

of a firearm, carrying a firearm without a license, and the summary offense

of driving under suspension.      The Commonwealth withdrew the remaining


2
    18 Pa.C.S.A. §§ 3925, 908, and 75 Pa.C.S.A. § 4303, respectively.


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charges.     Following the completion of a pre-sentence investigation (“PSI”)

report,    the     trial   court   sentenced   appellant   to   four   to   eight   years’

imprisonment, followed by two years’ probation, on March 3, 2015.3                     On

March 10, 2015, appellant filed a motion for reconsideration of sentence,

which was denied by the trial court on March 13, 2015. On April 8, 2015,

appellant filed, inter alia, a motion for leave to file supplemental post-

sentence motions nunc pro tunc.4 The trial court granted said motions on

April 13, 2015. Thereafter, on May 4, 2015, appellant filed a supplemental

post-sentence motion, which was denied by the trial court on May 12, 2015.

This timely appeal followed.5

        On appeal, appellant raises the following issue for our review:

              I.       Did the trial court err in imposing a sentence
                       that was manifestly excessive, unreasonable,
                       and an abuse of discretion when the trial court
                       overlooked and/or failed to carefully consider
                       relevant factors when sentencing [appellant],
                       including the unique facts and circumstances of
                       the    crime,    and   her   background       and
                       rehabilitative needs; and the [trial] court relied
                       on erroneous, improper and impermissible
                       factors; and failed to impose an individualized
                       sentence?


3
  Appellant’s sentence fell within the mitigated range of the Pennsylvania
Sentencing Guidelines, 42 Pa.C.S.A. § 9701, et seq.
4
  The record reflects that this motion was filed by appellant’s newly
appointed counsel, William E. Brennan, Esq., and the trial court granted said
motion on April 13, 2015, the last day for filing an appeal from the denial of
the March 13, 2015 order.
5
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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Appellant’s brief at 5.

        Generally, our standard of review in assessing whether a trial court

has erred in fashioning a sentence is well settled.

             Sentencing is a matter vested in the sound discretion
             of the sentencing judge, and 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.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014), appeal

denied, 117 A.3d 297 (Pa. 2015) (citation omitted).

        Where an appellant challenges the discretionary aspects of her

sentence, as is the case here, the right to appellate review is not absolute.

See Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

Rather, an appellant challenging the discretionary aspects of her sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

             (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.




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Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).

      Instantly, the record reveals that appellant has filed a timely notice of

appeal and has preserved her issue in her supplemental post-sentence

motion. Appellant has also included a statement in her brief that comports

with the requirements of Pa.R.A.P. 2119(f). Accordingly, we must determine

whether appellant has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”     Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013), appeal denied, 76 A.3d 538 (Pa. 2013)

(citation omitted).    “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.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012),

appeal denied, 63 A.3d 774 (Pa. 2013) (citation omitted). “At a minimum,

the Rule 2119(f) statement must articulate what particular provision of the

code is violated, what fundamental norms the sentence violates, and the

manner in which it violates that norm.”     Commonwealth v. Davis, 2016

WL 1625810, at *15 (Pa.Super. 2016) (citation omitted).

      In her Rule 2119(f) statement, appellant argues that her sentence

“was manifestly excessive, unreasonable, and an abuse of discretion[.]”



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(Appellant’s brief at 12.) In support of this claim, appellant contends that

the trial court “failed to consider all relevant factors, particularly the unique

circumstances of the crime[] and [her] background and rehabilitative

needs[,]” as required by 42 Pa.C.S.A. § 9721(b).               (Id. at 12-13.)

Appellant’s assertion that the trial court failed to consider her background

and rehabilitative needs raises a substantial question. See Commonwealth

v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013), appeal denied, 91 A.3d

161 (Pa. 2014) (finding “[a]ppellant’s claim that the sentencing court

disregarded rehabilitation and the nature and circumstances of the offense in

handing down its sentence presents a substantial question for our review.”);

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

denied, 86 A.3d 231 (Pa. 2014) (finding, inter alia, an assertion that the

trial court failed to account for appellant’s rehabilitative needs was a

substantial question suitable for review).

      Appellant further avers that the trial court considered “erroneous,

improper and impermissible factors” in sentencing her and “failed to impose

an individualized sentence tailored to her and the attendant facts of her

case.” (Appellant’s brief at 13.) We have recognized that “a claim that a

sentence is excessive because the trial court relied on an impermissible

factor raises a substantial question.” Allen, 24 A.3d at 1064-1065 (citation

omitted).   Likewise, in Commonwealth v. Ahmad, a panel of this court

concluded that a claim that the sentencing court failed to consider an



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appellant’s individualized circumstances in its imposition of sentence raised a

substantial question.      Ahmad, 961 A.2d 884, 887 (Pa.Super. 2008).

Accordingly, we proceed to consider the merits of appellant’s discretionary

sentencing claims.

      Appellant first argues that the trial court abused its discretion in failing

to consider “the unique circumstances of the crime” and her “background

and rehabilitative needs” when it imposed sentence.         (Appellant’s brief at

18.) Appellant contends her sentence was not individually “tailored to her

and the attendant facts of her case.” (Id. at 18-19.) We disagree.

      This court will not disturb a trial court’s sentence absent a finding the

court failed to weigh the sentencing considerations in a meaningful fashion.

“When reviewing sentencing matters, this Court must accord the sentencing

court great weight as it is in [the] best position to view the defendant’s

character, displays of remorse, defiance or indifference, and the overall

effect and nature of the crime.”        Commonwealth v. Ventura, 975 A.2d

1128, 1134 (Pa.Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).

      Herein, the record reveals that the trial court considered and weighed

numerous    factors   in   fashioning    appellant’s   sentence,   including   the

sentencing guidelines, the gravity of the offense, her prior criminal history,

and the fact that her “adjustment to supervision has been poor.” (Notes of

testimony, 3/3/15 at 6, 15-16; see also trial court opinion, 1/4/16 at 5-6.)



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At the sentencing hearing, the trial court heard evidence from appellant’s

counsel on her background and the underlying violent crime that led her to

possess the firearm in question. (Notes of testimony, 3/3/15 at 3-4, 6-7.)

The trial court also heard testimony on appellant’s background from

appellant’s niece, Lucianna Perri, who stated she would like appellant to “go

through some kind of drug and alcohol rehabilitation,” as well as from

appellant herself. (Id. at 10-12, 14-15.)

      Although the record reflects that the trial court did not specifically

state at the sentencing hearing that it considered appellant’s rehabilitative

needs, the trial court was in possession of a PSI report.      Where the trial

court has the benefit of a PSI report, as is the case here, “we shall . . .

presume that the sentencing judge was aware of relevant information

regarding the defendant’s character and weighed those considerations along

with mitigating statutory factors.” Commonwealth v. Antidormi, 84 A.3d

736, 761 (Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014)

(citation omitted).6   The record further reflects that the trial court heard



6
 We note that appellant has failed to ensure that the PSI report was made a
part of the certified record. Generally,

            [i]t is the obligation of the appellant to make sure
            that the record forwarded to an appellate court
            contains those documents necessary to allow a
            complete and judicious assessment of the issues
            raised on appeal . . . A failure by appellant to insure
            that the original record certified for appeal contains
            sufficient information to conduct a proper review


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testimony from a number of witnesses regarding appellant’s rehabilitative

needs. Specifically, both Tomilyn Ward, a master in professional counseling

who had been working with appellant, and Kristen George, who developed

an outpatient service plan for appellant in conjunction with Justice Related

Services, testified at the March 3, 2015 hearing.         (Notes of testimony,

3/3/15 at 8-10, 12-13; see also trial court opinion, 1/4/16 at 6.)

      Appellant also claims that the trial court considered impermissible

factors in fashioning her sentence; specifically, the effect imposing a

sentence of probation or home confinement would have on the trial judge’s

reputation. (Appellant’s brief at 18, 20.) This claim is belied by the record.

The record reveals that the trial court’s statement at the sentencing hearing

that, “if something goes wrong it’s my name that goes in the paper, not

yours[,]” albeit inappropriate, was not a factor the trial court considered in

imposing sentence.     (See notes of testimony, 3/3/15 at 13.) Rather, this

statement was made in direct response to the following statement by

appellant’s counsel:

            [Counsel]: Your Honor, just in closing, I understand
            the Court’s position with respect to my client and its
            intention with respect to the sentence. I’ve gotten to
            know this young lady very well over the last



            constitutes   waiver   of   the   issue   sought   to   be
            examined.

Commonwealth v. Manley, 985 A.2d 256, 263 (Pa.Super. 2009), appeal
denied, 996 A.2d 491 (Pa. 2010) (citations and brackets omitted). As our
review was not impeded, however, we decline to find waiver in this instance.


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            7 months, and if Your Honor would consider an
            electronic monitoring program or some such program
            that doesn’t involve the state prison, and if it does
            involve electronic monitoring my client – I don’t
            doubt that my client will not disappoint this Court,
            Your Honor. And if she did I would be just as equally
            disappointed.

Id. Accordingly, for all the foregoing reasons, appellant’s challenge to the

discretionary aspects of her sentence must fail.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2016




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