J-S82018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 REGINALD GREEN,                           :
                                           :
                    Appellant              :   No. 62 EDA 2018

         Appeal from the Judgment of Sentence November 17, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0003325-2015


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 25, 2019

      Appellant, Reginald Green, appeals from the judgment of sentence

entered on November 17, 2017 in the Criminal Division of the Court of

Common Pleas of Philadelphia County. We affirm.

      The trial court summarized the historical and procedural facts of this

case as follows.

      [Appellant] was charged with [robbery-inflict serious bodily injury
      (18 Pa.C.S.A. § 3701(a)(1)(i)), criminal attempt-rape forcible
      compulsion (18 Pa.C.S.A. §§ 901 and 3121(a)(a)(1)), and
      aggravated assault (18 Pa.C.S.A. § 2701(a)(1))], following his
      February 9, 2015 violent sexual assault on [Complainant].

      On January 10, 2017, following a week of trial and deliberation, a
      mistrial was granted due to a hung jury of eleven (11) to one (1)
      for conviction. On May 1, 2017, prior to being retried, Appellant
      entered into an open guilty plea to [r]obbery, [a]ttempted [r]ape,
      and [a]ggravated [a]ssault.[]        Appellant was sentenced on
      November 17, 2017 to a[n] aggregate sentence of twenty-five
      (25) to fifty (50) years of incarceration: five (5) to ten (10) years
      for the [r]obbery, ten (10) to twenty (20) years for [a]ttempted

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     [r]ape and ten (10) to twenty (20) years for [a]ggravated
     [a]ssault.    On November 27, 2017, Appellant filed a
     [p]ost[-s]entence [m]otion for [a]rrest of [j]udgment and
     [r]econsideration of [s]entence which was denied by th[e] trial
     court by [o]rder dated November 30, 2017[.]

                                     ***

     Appellant admitted [the following facts as part of his guilty plea]:

     On February 9, 2015, [Complainant, who] was 27 years-old at the
     time, met [Appellant] on Broad Street and asked him for
     directions on how to get to the [elevated train. Appellant led
     C]omplainant down to the area of Jefferson Station between
     Tracks 1 and 2 to the secluded track area. When he was down
     there, [Appellant] began to punch and kick [Complainant],
     knocking her to the ground, and continued to punch and kick her
     to the point where she [sustained] lacerations on her face which
     required stitches later at the hospital. [Appellant also attempted]
     forcible intercourse with [Complainant] by exposing his penis and
     [removing] her underwear. At some point[, Complainant] lost
     consciousness. She was taken to Jefferson Hospital and [later]
     taken to the Special Victims Unit[, where a rape kit was obtained]
     at the Sexual Assault Response Center. [Appellant] also gave a
     statement to detectives at the Special Victims Unit[,] admitting to
     having sexual and physical contact with [Complainant] on that
     day. Also during the incident, [Appellant], in the course of
     committing the attempted rape and aggravated assault, forcibly
     took [Complainant’s Galaxy cellular telephone, which] he did not
     have permission to do[.]

     At sentencing, the Commonwealth presented testimony [not only
     from Complainant but also from two prior bad acts witnesses,
     whom we shall refer to as B.T. and C.J.]

     [B.T.] testified that, on March 22, 2010, she was waiting for a
     commuter train on her way to work when [Appellant] approached
     her and asked her for change for 15 cents. [B.T.] told him several
     times, “Get out of my face,” and when he did not, she pulled out
     her pepper spray. [Appellant] said, “Oh, pepper spray,” and
     walked off. When [B.T.] got off the train, [Appellant] pushed her
     from behind and said, “Remember me?” He hit her multiple times
     on her upper body and pushed her to the ground. Due to the
     injuries from the incident, [B.T.] missed three weeks of work.

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       [C.J.] testified [that, on April 18, 2013 at approximately 2:00
       p.m.], she was on [a commuter train] going home. [Appellant]
       got on the train, which was nearly empty, and sat next to [C.J.]
       with a can of beer. He stared at her and tried to talk to her, which
       made her feel “really uncomfortable.” When [C.J.] got to her stop,
       she asked [Appellant] to move so that she could get out of [her]
       seat. After she asked him multiple times, [Appellant] hesitated
       and finally stood up only enough for her to “kind of brush past
       him.” As she was leaving, [Appellant] rubbed his hard penis on
       her backside. When [C.J.] asked [Appellant] why he rubbed his
       penis [against] her, he laughed and said, “Oh, it wasn’t on
       purpose.” [C.J.] testified that she felt “really violated.”

Trial Court Opinion, 6/29/18, at 1-5 (internal citations omitted).

       Appellant moved to reconsider his sentence on November 27, 2017. The

court denied that motion on November 30, 2017. Appellant’s timely appeal

followed on December 29, 2017. The court, pursuant to Pa.R.A.P. 1925(b),

directed Appellant to file a concise statement of errors complained of on

appeal. Appellant timely filed his concise statement on March 16, 2018.

       On appeal, Appellant claims that the trial court abused its discretion by

imposing manifestly excessive and unreasonable sentences for attempted

rape and aggravated assault.1          Specifically, Appellant asserts that the trial

court improperly relied upon factors such as his prior record score and the

seriousness of his previous offenses when it imposed sentences that exceeded

the aggravated range of the guidelines. Appellant submits that because prior


____________________________________________


1 Neither party disputes that the ten to 20 year sentences Appellant received
for attempted rape and aggravated assault exceeded the aggravated range of
the guidelines and constituted statutory maximum punishments for those
offenses. See 18 Pa.C.S.A. § 1103(1).

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convictions are included in the computation of prior record scores, they do not

constitute grounds for deviating from recommended punishments.                 See

Appellant’s Brief at 10-12.

       Appellant’s claim implicates a challenge to the discretionary aspects of

his    sentence.           “It    is    well-settled   that,   with   regard    to

the discretionary aspects of sentencing, there is no automatic right to

appeal.” Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)

(citation omitted). Accordingly,


       [b]efore this Court may reach the merits of a challenge to
       the discretionary aspects of a sentence, we must engage in a four
       part analysis to determine: (1) whether the appeal is timely; (2)
       whether [the a]ppellant preserved his issue; (3) whether [the
       a]ppellant's brief includes a concise statement of the reasons
       relied upon for allowance of appeal with respect to
       the discretionary aspects of sentence [see Pa.R.A.P. 2119(f)];
       and (4) whether the concise statement raises a substantial
       question      that      the sentence is    appropriate     under
       the sentencing code. If the appeal satisfies each of these four
       requirements we will then proceed to decide the substantive
       merits of the case.

Id. (original brackets, ellipsis, and citation omitted).

       Here, Appellant filed a timely notice of appeal after preserving his

sentencing claim in a post-sentence motion.2 He has included a proper Rule
____________________________________________


2 The Commonwealth asserts that Appellant waived his claims by failing to
raise them in his Rule 1925(b) concise statement. See Commonwealth’s Brief
at 9-12 and n.4. The Commonwealth raises a valid point that the precise issue
Appellant litigates in this appeal was omitted from his Rule 1925(b) statement.
Ordinarily, such an omission results in complete waiver on appeal. See, e.g.,
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Nevertheless,



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2119(f) statement in his brief.        See Appellant’s Brief at 8. Appellant also

presents a substantial question. See Commonwealth v. Goggins, 784 A.2d

721, 731-732 (Pa. Super. 2000) (averment that sentencing court relied on

factors already taken into account in determining prior record score and

offense gravity score raises a substantial question).

       Our standard of review of a challenge to the discretionary aspects of

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.

       In every case in which the court imposes a sentence for a felony
       or a misdemeanor, 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.            The
       sentencing guidelines are not mandatory, and sentencing courts
       retain broad discretion in sentencing matters, and therefore, may
       sentence defendants outside the guidelines. In every case where
       the court imposes a sentence outside the guidelines adopted by
       the Pennsylvania Commission on Sentencing the court shall
       provide a contemporaneous written statement of the reason or
       reasons for the deviation from the guidelines. However, this
       requirement is satisfied when the judge states his reasons for the
____________________________________________


Appellant’s concise statement alleged, among other things, that the trial court
gave undue weight to crimes for which Appellant was charged, but not
convicted. See Appellant’s Concise Statement, 3/16/18, at 2 para. C. In
addition, the trial court’s thorough opinion explained how Appellant’s prior
conduct informed its sentencing determination. Under these circumstances,
we shall exercise our discretion and forgo a finding of waiver since the
challenged omission has not hampered our review.

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       sentence on the record and in the defendant's presence.
       Consequently, all that a trial court must do to comply with the
       above procedural requirements is to state adequate reasons for
       the imposition of sentence on the record in open court.

       When imposing sentence, a court is required to consider the
       particular circumstances of the offense and the character of the
       defendant. In considering these factors, the court should refer to
       the defendant's prior criminal record, age, personal characteristics
       and potential for rehabilitation. Where pre-sentence reports exist,
       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. A
       pre-sentence report constitutes the record and speaks for itself.

Id. at 760–761 (internal citations, quotations, original brackets and ellipsis

omitted).

       Here, Appellant’s claim is that the trial court abused its discretion in

considering factors already included in his prior record score3 when it imposed

punishments that exceeded the aggravated range of the sentencing

guidelines.

       [It is well settled, however, that a sentencing court may impose a
       sentence outside the guidelines where valid reasons exist].
____________________________________________


3 Although Appellant suggests that his prior record score accounted for all of
his assaultive conduct involving other victims, he offered little detail to support
this contention. See Appellant’s Brief at 13. Appellant’s simple assault
conviction arising from his 2010 attack against B.T. appears to have
contributed to his prior record score. See Presentence Investigation Report,
8/28/17, at 1. The charges stemming from his 2013 contact with C.J.,
however, were dismissed because she did not appear in court. Thus, those
charges did not contribute to Appellant’s prior record calculation. In any
event, our review of the record reveals that the trial court did not impose its
sentence because Appellant committed these prior assaults as a matter of
fact. Instead, the court considered Appellant’s past conduct only to assess
the trajectory of his behavior as part of its statutory duty to consider the
danger Appellant posed to society. As we explain below, the court’s approach
did not violate the Sentencing Code or the norms of the sentencing process.

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      [I]n exercising its discretion, the sentencing court may deviate
      from the guidelines, if necessary, to fashion a sentence which
      takes into account the protection of the public, the rehabilitative
      needs of the defendant, and the gravity of the particular offenses
      as it relates to the impact on the life of the victim and the
      community, so long as [it] also states of record the factual basis
      and specific reasons which compelled him to deviate from the
      guideline range. The sentencing guidelines are merely advisory
      and the sentencing court may sentence a defendant outside of the
      guidelines so long as it places its reasons for the deviation on the
      record.

      Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa.
      Super. 2002) (citation omitted). The legislature has provided that
      an appellate court shall vacate a sentence and remand to the
      sentencing court if “the sentencing court sentenced outside the
      sentencing guidelines and the sentence is unreasonable.” 42
      Pa.C.S. § 9781(c)(3). That section also mandates that “in all
      other cases the appellate court shall affirm the sentence imposed
      by the sentencing court.” 42 Pa.C.S. § 9781(c). The factors that
      should be weighed when we review a sentence include:

        (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).

Commonwealth v. P.L.S., 894 A.2d 120, 129-130 (Pa. Super. 2006).

      Contrary to Appellant’s claim that matters included within a prior record

score are per se off limits for the sentencing court, our sentencing guidelines

recognize that prior record scores may inadequately reflect a defendant's

criminal background. In 204 Pa.Code § 303.5(d), entitled “Adequacy of the

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Prior Record Score,” the guidelines provide that the court “may consider at

sentencing previous convictions, juvenile adjudications or dispositions not

counted in the calculation of the Prior Record Score, in addition to other factors

deemed appropriate by the court.” See P.L.S., 894 A.2d at 131.

      Here, we initially note that the trial court had the benefit of a

pre-sentence investigation report. Thus, the trial court was aware of

Appellant’s relevant personal background, including his mental health issues,

and we presume the trial court considered those factors in fixing Appellant’s

sentence.   In addition, the trial court had ample grounds to conclude that

Appellant’s prior record score did not accurately reflect his criminal history and

the unmistakable trends emerging from his criminal conduct. Based upon the

testimony introduced at Appellant’s sentencing hearing, the trial court

observed that Appellant engaged in a pattern of assaults against women in

public places during daylight hours.        From this, the court inferred that

Appellant possessed little impulse control.     The court found this aspect of

Appellant’s behavior to be particularly troubling given that Appellant’s criminal

conduct was growing increasingly more violent and that he failed, on prior

occasions, to take advantage of opportunities to rehabilitate himself. Taken

together, in the trial court’s view, these factors demonstrated that Appellant

posed a significant danger to the community and, therefore, supported a

departure from the guidelines. Because these findings are supported by the

record and because the court’s legal conclusions are free from error, we are


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without grounds to conclude that the sentence imposed in this case was

unreasonable. Accordingly, we affirm.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/19




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