J-S50011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                     v.

HASSAN AUSTIN

                          Appellant                   No. 3751 EDA 2015


         Appeal from the Judgment of Sentence November 5, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010116-2014


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 13, 2017

      Appellant, Hassan Austin, appeals from the judgment of sentence

entered on November 5, 2015, in the Court of Common Pleas of Philadelphia

County. Appellant only challenges the discretionary aspects of his sentence.

Finding his standard range sentence presumptively reasonable, we affirm.

      Raheed Roten, his girlfriend, Phelicia Lewis, and their five-month-old

child lived in an apartment in the Fairmount neighborhood of Philadelphia. The

reason violence visited this particular family late on the night of May 26, 2015,

remains unclear. But the motivation behind Appellant’s and his co-defendant’s

attack on this particular family is of no consequence; it is their actions that

brought all that followed.

      The pair attempted to utilize a ploy to gain entry into the apartment.

But once that failed, they used force. And once inside, they held the family at
J-S50011-17



gunpoint; each taking turns holding the handgun. The pair scoured the unit

for valuables. Finding little, they informed the couple that if they did not get

$2,000 in cash they would kill the baby.

       Roten called his mother, asking her to bring $2,000 in cash to his home.

Immediately suspecting foul play, Roten’s mother called the police. Officers

arrived promptly. And one observed Appellant’s co-defendant rifling through

Roten’s pockets and then leading Lewis into another room. The police gained

entry into the home and arrested the pair.

       Appellant entered an open guilty plea to two counts of robbery, 18

Pa.C.S.A. § 3701(a)(1)(ii), one count of burglary, 18 Pa.C.S.A. § 3502(a)(1),

one count of conspiracy, 18 Pa.C.S.A. § 903, and one count of person not to

possess a firearm, 18 Pa.C.S.A. § 6105(a)(1). The trial court later sentenced

Appellant to an aggregate term of imprisonment of six to fifteen years.1

Appellant filed a post-sentence motion, which the sentencing court denied.

This timely appeal followed.

       On appeal, Appellant raises challenges to the discretionary aspects of

his sentence. Essentially, he argues the sentencing court imposed an

excessive sentence. Curiously, in his appellate brief, Appellant notes that his

sentence of 72 months is in “the middle of the standard range of the deadly


____________________________________________


1 The sentences of confinement for the convictions break down as follows: six
to fifteen years for each robbery conviction, with the second count ordered to
run concurrent to the first; and six to fifteen years for the burglary conviction,
ordered to run concurrent to the robbery sentence.

                                           -2-
J-S50011-17



weapon used enhancement” to his robbery sentence. Appellant’s Brief, at 22.

That is true. And it results in a straightforward disposition of this appeal.

       With Appellant’s prior record score of four, see N.T., Sentencing,

11/5/15, at 4, the offense gravity score of the robbery statute at issue here

being ten, see 204 Pa. Code § 303.15, and the sentencing court’s use of the

Deadly Weapon Enhancement/Used Matrix of the sentencing guidelines, see

204 Pa. Code § 303.17(b), the standard range sentence is 66 to 78 months.

The sentencing court imposed a minimum sentence of 72 months—a sentence,

as Appellant concedes, squarely within the standard range of the guidelines.2

       The standard range of the guidelines “is presumptively where a

defendant should be sentenced.” Commonwealth v. Fowler, 893 A.2d 758,

767 (Pa. Super. 2006) (citation omitted). As the sentence was within the

standard range, to succeed on this claim Appellant has to show that “the case

involves circumstances where the application of the guidelines would be

clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). That is simply not the

case here. Appellant invaded an apartment, held the occupants at gunpoint,

searched the home for valuables, demanded money, and threatened to shoot

a baby.

       Even putting aside the presumptive reasonableness of the standard

range sentence Appellant received and assuming for the purposes of this
____________________________________________


2“Pennsylvania utilizes an indeterminate sentencing scheme with presumptive
guidelines which limit the judge’s discretion only concerning the minimum
sentence.” Commonwealth v. Smith, 863 A.2d 1172, 1178 (Pa. Super.
2004) (citations omitted).

                                           -3-
J-S50011-17



appeal that Appellant raises substantial questions for our review, an

examination of the sentencing transcript reveals his contentions have no

merit.

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

(citation omitted).

      Appellant spends a considerable portion of his brief arguing the

sentencing court failed to consider mitigating factors. Curiously, he does this

by providing numerous citations to the sentencing transcript to show the

mitigating factors were extensively discussed at sentencing. See Appellant’s

Brief, at 20-23. Given this extensive citation to the sentencing transcript, it is

not surprising to learn that the record belies his claim.

      Indeed, a review of the sentencing transcript indicates that Appellant’s

counsel exhaustively discussed the mitigating factors, see N.T., Sentencing,

11/5/15, at 12-18, and even Appellant himself addressed the court, see id.,

at 18, discussing some of them. There is no question the sentencing court was

well aware of the mitigating factors and considered them, explaining “[i]n

fashioning its sentence, the [c]ourt has considered the presentence

investigation [report] … [and] argument from both counsel…. The [c]ourt has

considered defendant’s allocution.” Id., at 19.

      Perhaps most importantly in this regard, as the sentencing court had

the benefit of a pre-sentence investigation report, we must

                                      -4-
J-S50011-17



      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      … Having been fully informed by the pre-sentence report, the
      sentencing court’s discretion should not be disturbed. This is
      particularly true, we repeat, in those circumstances where it can
      be demonstrated that the judge had any degree of awareness of
      the sentencing considerations, and there we will presume also that
      the weighing process took place in a meaningful fashion. It would
      be foolish, indeed, to take the position that if a court is in
      possession of the facts, it will fail to apply them to the case at
      hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted).

      Appellant also argues “that the presentation by the Commonwealth

about two prior arrests for robbery offenses may have been improperly

considered by the court.” Appellant’s Brief, at 23. “[A] court, in imposing

sentence[,] may consider prior arrests and concurrent charges as long as the

court realizes that the defendant had not been convicted on those prior

charges[.]” Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super.

1982) (citations omitted). The sentencing court had that very knowledge in

this case.

      Here, the Commonwealth specifically informed the sentencing court that

the two prior robbery cases had both been “withdrawn.” N.T., Sentencing,

11/5/15, at 5-6. That the Commonwealth informed the sentencing court it had

not obtained convictions in these two matters is a fact Appellant acknowledges




                                    -5-
J-S50011-17


in his brief. See Appellant’s Brief, at 24. Again, this claim has no support in

the record.

        Lastly, Appellant claims the sentencing court abused its discretion by

imposing on his co-defendant a less severe sentence without providing

support in the record. The co-defendant pled guilty to the same offenses as

Appellant. But the sentencing court sentenced the co-defendant six weeks

after imposing sentence on Appellant. And the co-defendant received an

aggregate sentence of 5½ to 11 years.3

        “[C]o-defendants are not required to receive identical sentences,” but

“when there is a disparity between co-defendants' sentences, a sentencing

court must give reasons particular to each defendant explaining why they

received their individual sentences.” Commonwealth v. Mastromarino, 2

A.3d 581, 589 (Pa. Super. 2010) (citations omitted).

        Appellant’s contention fails for a couple reasons. First, this claim was

never raised in the trial court. See Commonwealth v. Shugars, 895 A.2d

1270,     1273-1274      (Pa.   Super.    2006)   (explaining   need   to   preserve

discretionary aspects of sentencing claims in the sentencing court); Pa.R.A.P.




____________________________________________


3 There is no information in the certified record about the co-defendant’s
sentence. The parties and trial court, however, are in agreement as to the
length of the sentence imposed.




                                           -6-
J-S50011-17


302(a).4 Its inclusion in his Rule 1925(b) statement does not act to preserve

it. See Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (holding that

inclusion of an issue in a Rule 1925(b) statement that has not been previously

preserved does not entitle litigant to appellate review of the unpreserved

claim). Thus, the claim is waived.

       Second, the claim is unreviewable as the certified record is devoid of

anything concerning co-defendant’s sentencing. See Commonwealth v.

Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (“When a claim is dependent

on materials not provided in the certified record, that claim is considered

waived.”) In its Rule 1925(a) opinion, the sentencing court thoughtfully

explains its reasoning as to the minor difference in the two sentences. See

Rule 1925(a) Opinion, 7/19/16, at 6-7. But “[t]his Court does not rely on items

dehors the record, such as assertions in … a trial court opinion.”

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citation

omitted). Accordingly, the claim is waived for this additional reason.

       The sentencing court in this case carefully considered the appropriate

factors, see 42 Pa.C.S.A. § 9721(b), and imposed a sentence firmly in the

standard range of the sentencing guidelines. In doing so, the court committed

no abuse of discretion.



____________________________________________


4 The proper course to have preserved this issue given the date of co-
defendant’s sentence was to file a petition for remand in this Court to seek
redress in the lower court.

                                           -7-
J-S50011-17


     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




                                 -8-
