J-A08044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ABDULGADIR Q. IBN-SHAHEED                  :
                                               :
                       Appellant               :   No. 1499 EDA 2019

          Appeal from the Judgment of Sentence Entered April 23, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0007245-2015


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.:                               FILED MAY 12, 2020

       Abdulgadir Q. Ibn-Shaheed appeals from the judgment of sentence

entered in the Philadelphia Court of Common Pleas following the revocation of

his probation. Appellant argues the court abused its discretion when imposing

his sentence. We affirm.

       At approximately 11:00 p.m. on June 5, 2015, Appellant and another

individual approached the victim, pointed a gun at him, and ordered him to

get on the ground.1 Appellant and his cohort took the victim’s cash, two cell

phones, and his sneakers. Police arrested Appellant later that evening.




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1Appellant was 17 years old at the time of the offense. His motion to decertify
and transfer the case to juvenile court was denied following a hearing. See
Order, 11/4/15.
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        On June 2, 2016, Appellant entered a negotiated guilty plea before the

Honorable Scott O’Keefe in the instant trial docket, CP-51-CR-0007245-2015

(Docket 7245), to conspiracy to commit robbery, possessing an instrument of

crime (PIC), and robbery.2 On August 29, 2016, pursuant to the negotiations,

and after reviewing a pre-sentence investigation report (PSI), the trial court

sentenced him to an aggregate term of 11½ to 23 months’ incarceration plus

8 years’ probation.3

        The trial court summarized the following. See Trial Ct. Op., 7/29/19,

at 4. On June 20, 2017, while Appellant was on probation, Philadelphia Police

Officer James McGorry and his partner noticed a group of individuals, including

Appellant, smoking marijuana. The officers instructed the group to extinguish

the marijuana. As Appellant walked away, officers noticed a firearm in his

waistband.      The officers approached Appellant.       A struggle ensued and

Appellant reached for his firearm. As police attempted to subdue Appellant,

he continued to kick and punch the officers. All three fell onto the ground,

where Appellant managed to retrieve his firearm and pointed it at Officer

McGorry’s chest.      Officer McGorry drew his own firearm and grabbed the

magazine of Appellant’s gun.         At the violation of probation (VOP) hearing,

Officer McGorry stated:

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2   18 Pa.C.S. §§ 903(a), 907(a), 3701(a)(1)(ii).

3 The trial court imposed the following sentences: (1) for robbery and
conspiracy, concurrent terms of 11½ to 23 months’ incarceration, plus eight
years’ probation; and (2) for PIC, a concurrent term of 3 years’ probation.

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        For my training, I was taught to actually try to grab the mag of
        the gun sometimes, and that day it worked. But I believe he
        wanted to kill me that day, and me not pulling the trigger — I
        warned him numerous times. I told him, drop the gun, drop the
        gun, I will kill you. I told him I was going to kill him, and he still
        wouldn’t drop that gun.

             Like I said, I had the gun. I had the mag. I don’t know if
        that’s why he didn’t shoot. I don’t know if the gun was on safety,
        but someone was looking out for us that day, I guess; we are both
        here.

            But I just think this may — he had every chance to run, throw
        the gun. I think he wanted to shoot me that day.

N.T. VOP H’rg, 4/23/19, at 9-10.

        Appellant was charged under three separate criminal informations

arising from this incident, which were consolidated.4 Following a non-jury trial

on December 7, 2018, the Honorable Kai Scott found Appellant guilty of two

counts each of simple assault, aggravated assault, and recklessly endangering

another person (REAP),5 as well as three firearm offenses.6 On March 29,

2019, Judge Scott sentenced Appellant to an aggregate term of four to eight

years’ incarceration, followed by three years’ probation.

        Meanwhile, on April 23, 2019, Appellant appeared before Judge O’Keefe

for a VOP hearing in the present case, Docket 7245, stemming from his new



____________________________________________


4Appellant’s new charges were filed at trial dockets CP-XX-XXXXXXX-2017,
CP-XX-XXXXXXX-2017, and CP-XX-XXXXXXX-2017.

5   18 Pa.C.S. §§ 2701(a)(1), 2702(a), 2705.

6   18 Pa.C.S. §§ 6105(a)(1), 6106(a)(1), 6108.

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convictions.    The trial court found him in direct violation and revoked his

probation. The court then sentenced Appellant to: two concurrent terms of

five to ten years’ incarceration for his robbery and conspiracy convictions; and

a consecutive five years’ probation for PIC. The court ordered this sentence

to run consecutively to the four to eight years’ sentence imposed by Judge

Scott, for an aggregate term of nine to eighteen years’ incarceration followed

by eight years’ probation.        In imposing this sentence, the court relied on

arguments from both parties, Officer McGorry’s testimony, and the probation

officer’s VOP report, which was summarized by Appellant’s counsel. See N.T.

at 5-10.

       On May 2, 2019, Appellant timely filed a post-sentence motion, which

the trial court denied on May 3rd. On May 17th, Appellant timely filed a notice

of appeal.7 He timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) statement of errors complained of on appeal.

       Appellant presents one issue for our review:

       Did not the lower court violate the tenets of the Sentencing Code,
       which mandate individualized sentencing, where the court did not
       state adequate grounds for imposing its sentence, failed to
       consider [A]ppellant’s background, character or rehabilitative
       needs, and imposed an excessive sentence of five to ten years of
       confinement plus five years of probation for a violation of
       probation to run consecutively to another sentence on another
       case, which was in excess of what was necessary to address the
____________________________________________


7 See Pa.R.Crim.P. 708(E) (“A motion to modify a sentence imposed after a
revocation shall be filed within 10 days of the date of imposition. The filing of
a motion to modify sentence will not toll the 30-day appeal period.”).



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        gravity of the offense, the protection of the community and
        [A]ppellant’s rehabilitative needs?

Appellants Brief at 3.         Appellant avers the trial court violated several

fundamental principles of the Sentencing Code.8 He argues the court did not

consult any PSI or inquire into his background, character, or rehabilitative

needs.9    Appellant contends the court did not provide any reasons on the

record for the excessive sentence, and instead focused solely on the

seriousness of his new crimes, for which he was already sentenced. Appellant

claims his sentence should be vacated and remanded for re-sentencing. No

relief is due.

        Appellant challenges the discretionary aspects of his sentence.        This

Court has stated:

        Before we reach the merits of [such an issue], we must engage in
        a four part analysis to 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. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2013) (citation



____________________________________________


8   42 Pa.C.S. §§ 9701-9799.75.

9 Section 9721(b) of the Sentencing Code codifies the factors a court should
consider for imposition of a sentence: “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).

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omitted).

          The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          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.”

           As to what constitutes a substantial question, this Court does
      not accept bald assertions of sentencing errors. An appellant must
      articulate the reasons the sentencing court’s actions violated the
      sentencing code.

Commonwealth v. Derry, 150 A.3d 987, 991-92 (Pa. Super. 2016).

Generally, the Sentencing Guidelines do not apply to VOP proceedings. Id. at

993. Nevertheless, a claim that a sentencing court failed to consider Section

9721(b) factors presents “a substantial question for our review of the

discretionary aspects of sentences imposed for violations of probation.” Id.

at 999.

      Appellant complied with the procedural requirements for this appeal by

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

brief a Pa.R.A.P. 2119(f) statement of reasons relied upon for appeal. See

Colon, 102 A.3d at 1043; Appellant’s Brief at 9-11. Additionally, the claim

that the trial court failed to consider the required sentencing factors raises a

substantial question. See Derry, 150 A.3d at 999. Therefore, we will review

Appellant’s claim.

      This Court has stated:




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          The imposition of sentence following the revocation of
          probation is vested within the sound discretion of the trial
          court, which, absent an abuse of that discretion, will not
          be disturbed on appeal. An abuse of discretion is more
          than an error in judgment — a sentencing court has not
          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 determining whether a sentence is manifestly
          excessive, the appellate court must give great weight to
          the sentencing court’s discretion, as he or she is in the
          best position to measure factors such as the nature of
          the crime, the defendant’s character, and the defendant’s
          display of remorse, defiance, or indifference.

           Upon revoking probation, a sentencing court may choose
      from any of the sentencing options that existed at the time of the
      original sentencing, including incarceration.       42 Pa.C.S.A.
      § 9771(b). . . .

Colon, 102 A.3d at 1043 (some citations omitted). The court may impose a

sentence of total confinement upon revocation if “the defendant has been

convicted of another crime[. T]he trial court is limited only by the maximum

sentence that it could have imposed originally at the time of the probationary

sentence.” Id. at 1044, citing, inter alia, 42 Pa.C.S.A. § 9771(b), (c)(1).

      In addition, in all cases where the court resentences an offender
      following revocation of probation . . . the court shall make as a
      part of the record, and disclose in open court at the time of
      sentencing a statement of the reason or reasons for the sentence
      imposed[and f]ailure to comply with these provisions shall be
      grounds for vacating the sentence or resentence and resentencing
      the defendant. 42 Pa.C.S. § 9721(b). A trial court need not
      undertake a lengthy discourse for its reasons for imposing a
      sentence or specifically reference the statute in question, but the
      record as a whole must reflect the sentencing court’s
      consideration of the facts of the crime and character of the
      offender.


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Colon, 102 A.3d at 1044 (citations and quotation marks omitted).

      Here, the trial court explained its sentencing decision:

           When sentencing [Appellant], this court balanced the need to
      protect society from individuals such as [Appellant], who has been
      convicted of two counts of aggravated assault and recklessly
      endangering another person, three counts of simple assault as
      well as robbery, conspiracy and possessing the instruments of a
      crime. Furthermore, the court considered [Appellant’s] failure to
      complete a period of probation.

           As to the claim that the sentence was harsh and unreasonable
      for failing to adequately examine [Appellant’s] background,
      character and rehabilitative needs, the probation violation report,
      prepared by [Appellant’s] probation officer as well as the Pre-
      Sentence Investigation report were all considered as well as the
      arguments of counsel. [Appellant] was on probation when he
      committed the three new cases that he was convicted [of].
      Appellant was afforded a notable opportunity during the original
      sentencing. With a prior record score of zero and an offense
      gravity score [of] ten, the guideline minimum sentence was forty
      to fifty-four months plus or minus twelve. [Appellant] was
      originally sentenced to eleven and one-half to twenty-three
      months, no parole before eighteen months, to be followed by eight
      years of probation. For [A]ppellant to then go out, while on
      probation, and to pull a loaded gun on a police officer, who merely
      told [A]ppellant’s group to put out the marijuana cigarette they
      were smoking in the street is outrageous. As Officer McGorry
      stated, [Appellant] had every chance to run, but he didn’t. The
      police officer’s testimony was crystal clear — he believed
      [Appellant] wanted to shoot the officer that day. [Appellant’s]
      original case was for an armed robbery. He was convicted of three
      new cases, involving a loaded gun, where he tried his best to shoot
      a police officer — for telling them to put out a marijuana cigarette.
      Society needs to be protected from [Appellant].

Trial Ct. Op. at 6.

      Contrary to Appellant’s assertions, the trial court considered the

relevant sentencing factors.     It considered the VOP report prepared by

Appellant’s probation officer and arguments of counsel. While the VOP hearing

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transcript does not specifically indicate the court referred to a new PSI

prepared for that hearing, we reiterate the trial court had reviewed a PSI for

Appellant’s original sentencing, two years and seven months earlier, and this

was his VOP proceeding. The court found a prison term was appropriate in

light of Appellant’s failure to complete the terms of his original sentence,

imposed for a robbery involving a gun, as well as his commission of new

crimes, which involved pointing a firearm at a law enforcement officer. See

42 Pa.C.S. § 9771(c); Derry, 150 A.3d at 993. Thus, Appellant is not entitled

to relief.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/12/2020




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