J-S29034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    WALTER CHRISTIAN                                :
                                                    :
                       Appellant                    :   No. 2297 EDA 2019

          Appeal from the Judgment of Sentence Entered June 28, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002328-2018


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                                  FILED JULY 17, 2020

        Walter Christian (Christian) appeals from the judgment of sentence of

20 to 40 years’ imprisonment imposed by the Court of Common Pleas of

Philadelphia County (trial court) following his convictions of, among other

offenses, two counts of robbery and one count of persons not to possess

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

After review, we affirm.

                                               I.

        The trial court concisely summarized the relevant facts as follows:

        On October 25, 2017, during mid-afternoon, Ms. Francis Quinn
        and Mr. Michael Alston were working at Barto’s Auto Body located
        on North Broad Street in Philadelphia, which Ms. Quinn owned,
        when [Christian] entered the establishment and expressed
        interest in purchasing a vehicle. Ms. Quinn showed him some
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*   Retired Senior Judge assigned to the Superior Court.
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     vehicles for sale. After she did so, [Christian] appeared to leave
     the car lot, along with some employees and some customers who
     were present at the time because it was closing time, or so Ms.
     Quinn believed. She then went into her office and locked the door
     behind her. However, [Christian] had not left and knocked on the
     door to the business and asked Ms. Quinn, inter alia, if she could
     start a vehicle. [Christian] then appeared to have left the car lot
     again.

     A couple of minutes later, [Christian] again knocked on the office
     door, which was kept locked for security reasons. Ms. Quinn, who
     was seated in her office and was speaking to Mr. Alston when
     [Christina] returned, unlocked the door because she believed that
     [Christian] had another question about a car. When she did so,
     [Christian] entered the office armed with a handgun, and pointed
     it at her. [Christian] then repeatedly threatened to kill her unless
     she gave him money that he thought was present on the premises.
     There was no cash on the premises and after again threatening to
     kill Ms. Quinn, [Christian] took a set of keys to Ms. Quinn’s car
     that were hanging around her neck as well as with her cell phone
     and other items. [Christian] then got into Ms. Quinn's Mercedes
     and drove away.

     Mr. Alston, who worked as a guard at the business, picked up a
     machete as [Christian] was pointing a gun at Ms. Quinn and
     threatening to kill her. [Christian] pointed the gun at him and
     threatened to kill him when he picked up the machete. Mr. Alston
     participated in a lineup and identified [Christian] as the person
     who robbed him and Ms. Quinn.

     After [Christian] left the premises, Ms. Quinn called police, who
     arrived almost immediately, and gathered information about the
     incident from the two victims, which they broadcast over police
     radio. Shortly thereafter the police found Ms. Quinn's vehicle,
     which was running, and had it towed to a police garage to check
     it for fingerprints after Ms. Quinn, who had been driven to the
     location where the car was abandoned, positively identified the
     car as belonging to her. Ms. Quinn, who was not able to look
     inside the car before it was towed, noted that she left her
     pocketbook under the driver’s front seat in the car. In it, she had
     money, credit cards, and prescription drugs. Her purse and the
     items in it were not recovered. After she identified her vehicle,
     Ms. Quinn provided a statement to police.


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        A fingerprint examination of Ms. Quinn's car yielded, inter alia, a
        single fingerprint identified as belonging to [Christian] inside the
        car by the glove compartment. When the police identified the
        fingerprint, they contacted Ms. Quinn and had her participate in a
        photographic identification session on November 20, 2017.
        During the session, she immediately selected [Christian’s] photo
        and said that it depicted the person who had robbed her and Mr.
        Alston.

Trial Court Opinion (T.C.O.), 11/18/19, at 2-3.

        In April 2019, a jury convicted Christian of two counts of robbery;

carrying firearms without a license; theft by unlawful taking; possessing an

instrument of crime; carrying firearms in Philadelphia; and two counts each

of terroristic threats and simple assault.1 In a bifurcated bench trial after the

verdict, the Commonwealth presented evidence that Christian was convicted

of rape in 1991 and, therefore, prohibited from possessing a firearm. Based

on this, the trial court convicted him of persons not to possess firearms.2

        At the sentencing hearing, Christian presented the testimony of his

longtime fiancé. She testified that Christian has volunteered with her doing

charity work in the community, as well as starting his own landscaping

business in June 2017. Christian’s counsel highlighted that despite having a

serious criminal record as a juvenile and young adult, Christian had not been

in trouble since 2002.       Counsel asked that the court sentence Christian to


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1 18 Pa.C.S. §§ 3701(a)(1)(ii), 6106(a)(1), 3921(a), 907(a), 6108,
2706(a)(1) and 2701(a).

2   18 Pa.C.S. § 6105(a)(1).


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concurrent sentences of 7 to 14 years’ imprisonment on the robbery charges,

with a consecutive 10 years’ probation for any of the other offenses.

      The Commonwealth, on the other hand, requested a sentence of 20 to

40 years’ imprisonment.     In support, the Commonwealth presented the

testimony of both of the victims, including Francis Quinn, who is over 70 years

old. Both victims testified to the trauma Christian caused them by pointing a

gun and threatening to kill them. After their testimony, Christian exercised

his right to allocution and maintained that he was innocent.

      After hearing from Christian, the trial court made the following remarks:

             I will note for the record, Mr. Christian, I didn’t find you
      guilty. A jury of your peers found you guilty beyond a reasonable
      doubt. I’m just wondering how a guy that comes from a good
      family, who comes with a good woman behind him, ends up with
      this record. I’m not talking about something that happened to
      you 29 years ago. I’m not talking about something that happened
      15 years ago. I’m talking about something that happened to you
      on this particular date and this location. You had two people who
      said you walked into that car dealership with a gun, stuck a gun
      in their face, robbed them, and left with the Mercedes. You have
      independent evidence in this case, including fingerprints, your
      fingerprints, not somebody else’s, inside the car that was taken.
      I don’t find fault with anything that the jury said. What I find
      curious is the way you sit up here and you talk about the good
      woman behind you, who is a good woman, and your good family
      that’s behind you, as a [repeat felon], and you express no remorse
      from what happened to Ms. Quinn or Mr. Alston on that particular
      date. What I am left with is somebody with a record, we don’t
      need to rehash today, who was convicted by a jury of your peers
      of two gunpoint robberies.

N.T., 6/28/19, at 22.




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        Relevant to this appeal, the trial court determined that the deadly-

weapon-possessed enhancement (DWPE) was applicable.3 Because his prior

record score placed him in the repeat felony offender range, Christian’s

standard range guidelines for his robbery convictions were increased to 81 –

93 under the DWPE sentencing matrix. The trial court imposed consecutive

sentences of 7½ to 15 years’ imprisonment for each robbery conviction, and

a consecutive 5 to 10 years’ imprisonment for persons not to possess firearms.

As a result, Christian’s aggregate sentence was 20 to 40 years’ imprisonment.4

        After sentencing, Christian filed a timely post-sentence motion to modify

sentence, arguing that the trial court’s sentence was unduly harsh and

excessive because it increased his guidelines on the robbery convictions

through the DWPE, but then imposed a consecutive sentence for persons not



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3   The DWPE applies as follows:

        (1) When the court determines that the offender possessed a
        deadly weapon during the commission of the current conviction
        offense, the court shall consider the DWE/Possessed Matrix
        (§ 303.17(a)). An offender has possessed a deadly weapon if any
        of the following were on the offender’s person or within his
        immediate physical control:

             (i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
        loaded or unloaded[.]

204 Pa. Code § 303.10(a)(1)(i).

4 The trial court sentenced Christian to concurrent probationary terms or
imposed no further penalty on the remaining counts.


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to possess firearms. In his view, this resulted in his possession of the firearm

being “doubly, or triply, counted against [him] for a brief act [.]”     After a

hearing, the trial court denied the post-sentence motion. Christian filed this

direct appeal.

                                      II.

      On appeal, Christian argues that the trial court imposed an unduly harsh

and excessive sentence under the circumstances. First, he claims that all of

the offenses occurred simultaneously and were committed as part of a single

criminal episode. Second, he reasserts his quasi-double jeopardy argument

that imposing a consecutive sentence for the firearms offense was excessive

because the possession was already used to increase the guidelines for the

robbery offenses through the DWPE.          Third, he claims that the trial court

ignored his substantial mitigating evidence at the sentencing, including his

charity work, employment history and family support. Finally, because he is

48 years old, Christian claims that his sentence is effectively a de facto life

sentence. In his view, such a lengthy term of imprisonment is not the least

restrictive sentence necessary to effectuate the aims of our sentencing laws.

      Christian’s arguments implicate the discretionary aspects of sentencing.

“The right to appellate review of the discretionary aspects of a sentence is not

absolute, and must be considered a petition for permission to appeal.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). To




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determine whether the appellant has invoked our jurisdiction, we consider the

following four factors:

       (1) whether appellant has filed a timely notice of appeal; (2)
       whether the issue was properly preserved at sentencing or in a
       motion to reconsider and modify sentence; (3) whether
       appellant’s brief has a fatal defect; and (4) whether there is a
       substantial question that the sentence appealed from is not
       appropriate under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(citations omitted).

       Instantly, Christian filed a timely appeal and preserved his sentencing

issue in a timely post-sentence motion. He has also included a statement of

reasons relied upon for his challenge to the discretionary aspects of his

sentence as required by Pa.R.A.P. 2119(f). Additionally, his challenge to the

imposition of consecutive sentences as being unduly excessive, along with his

claim that the trial court failed to consider mitigating factors, raises a

substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253

(Pa. Super. 2015) (“This Court has held that an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.”). Therefore, we address the merits of

his claim.5

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5 “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



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       When the trial court sentences within the guidelines, we will vacate the

sentence only when “the case involves circumstances where the application of

the guidelines would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In

reviewing the record, we consider:

       (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).

       On the merits, Christian is not claiming that the trial court misapplied

the guidelines or sentenced him outside of them.              Indeed, he does not

challenge the application of the DWPE.           Instead, he believes that the trial

court’s imposition of three consecutive sentences was unreasonable in light

of, among other reasons, the mitigating evidence presented at sentencing that

he did charity work, started his own business, and had family support.

       However, because the trial court had the benefit of a pre-sentence

investigation report, we presume that the trial court was aware of all of



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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. Gonzalez, 109 A.3d
711, 731 (Pa. Super. 2015) (quotation omitted).


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Christian’s mitigating evidence and weighed it along with any other mitigating

factors. See Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super.

2014). In fact, as quoted above in full, the trial court explicitly acknowledged

and credited Christian’s mitigating evidence, but simply determined that it was

outweighed by Christian being a repeat felon offender who committed two

gunpoint robberies—one of which was committed against a 70-year-old

woman. Accordingly, the trial court committed no error in connection with its

consideration of Christian’s mitigating evidence.

      We likewise find no error in the trial court imposing consecutive

sentences for the robberies and persons not to possess firearms.          As to

consecutive sentences, “long standing precedent ... recognizes that [the

Sentencing Code] affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.” Commonwealth v. Marts,

889 A.2d 608, 612 (Pa. Super. 2005).         We will not disturb consecutive

sentences unless the aggregate sentence is “grossly disparate” to the

defendant’s conduct, or “viscerally appear[s] as patently unreasonable.”

Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super.

2010).

      As to the consecutive sentences for the robberies, it does not follow—as

Christian seems to believe it does—that he should get a reduction in sentence

simply because the two offenses were committed close in time to each other.


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That he pointed his gun and threatened to kill the two victims close together

hardly minimizes the seriousness of his actions. This Court has long held that

defendants convicted of multiple offenses are not entitled to a “volume

discount” on their aggregate sentence. Commonwealth v. Foust, 180 A.3d

416, 434-35 (Pa. Super. 2018) (citations omitted).       The robberies were

distinct crimes with distinct victims, both of who testified about the trauma

caused by Christian’s actions.

       We also find no error with the trial court imposing a consecutive

sentence for persons not to possess a firearm. Significantly, Christian does

not argue that the trial court was precluded from imposing a consecutive

sentence for persons not to possess firearms because it applied the DWPE to

the robbery convictions.        Indeed, robbery is not one of the enumerated

offenses specifically precluded from application of the deadly weapon

enhancement. 204 Pa. Code. § 303.10(a)(3).6 Instead, Christian argues that

the consecutive sentence for the firearms offense was excessive because his

possession of the firearm was already utilized to increase his sentencing

guidelines on the robbery sentences.

       However, this argument fails to recognize that 18 Pa.C.S. § 6105 does

not merely punish possession of a firearm; instead, it punishes the possession


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6We note that violations of the Uniform Firearms Acts, which includes persons
not to possess firearms, are specifically excluded from DWPE. 204 Pa. Code.
§ 303.10 (a)(3)(viii).


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of a firearm by certain enumerated persons.             See Commonwealth v.

Gillespie, 821 A.2d 1221, 1224 (Pa. Super. 2003) (“The clear purpose of

§ 6105 is to protect the public from convicted criminals who possess firearms,

regardless of whether the previous crimes were actually violent or the barrel

of the firearm was a certain length.”).            As noted above, Christian was

prohibited from possessing a firearm because he had been convicted of

enumerated offense under § 6105(b), specifically, rape. Because he was an

enumerated offender, his possession of the firearm constituted a distinct crime

in and of itself from the robberies. The trial court acknowledged this in its

Rule 1925(a) opinion, stating that Christian “[used] a firearm to threaten the

lives of the two victims thereby blatantly ignoring the law prohibiting felons

from possessing guns.” T.C.O., 11/18/19, at 5. The court was free in its

discretion to determine that Christian’s possession of the firearm—as a

convicted felon—warranted a consecutive sentence.7

       Finally, we are unpersuaded by Christian’s argument that the trial

court’s sentence is clearly unreasonable because he will possibly be

incarcerated well into his 80s until reaching his statutory maximum. First,

Christian will be, based on our calculation, 66 years old when he reaches his

minimum sentence.         We cannot agree that his sentence “affords him no



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7We would also note that Christian’s standard range sentencing guidelines for
persons not to possess firearms was 72 – 84, meaning the trial court’s
sentence of 5 to 10 years’ imprisonment was below the guidelines.

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reasonable probability or a meaningful life thereafter.” Commonwealth v.

Anderson, 224 A.3d 40, 47 (Pa. Super. 2018).

      Moreover, the trial court determined that the length of total confinement

was warranted based on the protection of the public, the gravity of offenses

and their impact on the victims, and the rehabilitative needs of the defendant.

See 42 Pa.C.S. § 9721(b). In its Rule 1925(a) opinion, the trial court showed

that it weighed these competing considerations:

      [T]he facts of the instant case, when viewed in conjunction with
      his prior criminal record and previous incarceration, showed that
      [Christian] was not amenable to rehabilitation and that he
      represented a threat to law-abiding citizens. [Christian’s] actions
      also showed a complete disregard for the law and the citizens of
      Philadelphia, making it imperative for the safety of the community
      that he receive a lengthy sentence.

T.C.O. at 5-6.

      Based on our review of the record, including all the considerations under

42 Pa.C.S. § 9781(d), we find that the trial court did not abuse its discretion

in sentencing Christian to 20 to 40 years’ imprisonment.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20



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