J-S23003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHAWN JONES

                            Appellant                  No. 961 EDA 2015


            Appeal from the Judgment of Sentence January 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008254-2014


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                FILED MAY 19, 2016

        Appellant, Shawn Jones, also known as Everett Jones, appeals from

the judgment of sentence entered after the trial court, sitting without a jury,

convicted Jones of forgery, bad checks, and securing the execution of

documents through deception. Jones contends that the evidence at trial was

insufficient to support his convictions, and further, that the trial court abused

its discretion in sentencing him to a term of imprisonment of 18 to 36

months. After careful review, we affirm.

        The following facts were established by testimony at trial. Jones

entered the National Penn Bank on Market Street in Philadelphia and

presented a check to the teller. This check purported to be drawn on the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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account of the Berks County Juvenile Probation Department (“Juvenile

Probation”), and was made out to “Everett Jones” in the amount of $958.00.

        The teller noted some discrepancies in the check, and had the head

teller review the check. The head teller also noted discrepancies, and made

copies of the check before asking Jones if he would like to wait while she

verified the check by calling Juvenile Probation. Jones told the head teller

“not to worry about it” and that “[t]hey don’t like me, so they might not

verify it for me.” The head teller gave Jones the check back, and Jones left

the bank. The head teller notified the loss prevention department of her

bank.

        A representative of Juvenile Probation testified that no such check had

ever been made out to an Everett Jones. In fact, Juvenile Probation had not

yet issued the check number on Jones’s check. Furthermore, she testified

that her signature appeared to be on the check, but that she had not signed

the check.

        The trial court found Jones guilty, and subsequently sentenced him to

18 to 36 months’ incarceration. The trial court denied Jones’s post-sentence

motions, and this timely appeal followed.

        On appeal, Jones first argues that the evidence at trial was not

sufficient to support his convictions. In reviewing a challenge to the

sufficiency of the evidence, “[w]e must determine whether the evidence

admitted at trial, and all reasonable inferences derived therefrom, when


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viewed in the light most favorable to the Commonwealth as verdict winner,

support all of the elements of the offense beyond a reasonable doubt.”

Commonwealth v. Cooper, 941 A.2d 655, 662 (Pa. 2007) (citation

omitted).

      Our scope of review is plenary. See Commonwealth v. Weston, 749

A.2d 458, 460 n.8 (Pa. 2000). We may not weigh the evidence and

substitute our judgment for the fact-finder’s, as the fact-finder solely

determines the credibility of witnesses and is free to believe all, part or none

of the evidence submitted. See Cooper, 941 A.2d at 662. “This standard is

equally applicable to cases where the evidence is circumstantial rather than

direct so long as the combination of the evidence links the accused to the

crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 636

A.2d 1173, 1176 (Pa. Super. 1994) (citation omitted).

      Jones’s argument focuses on whether he had the necessary guilty

knowledge that is an element of all his convictions. In support of his

contention, Jones cites to Commonwealth v. Gibson, 416 A.2d 543 (Pa.

Super. 1979), in which this Court held that mere possession of a forged

check made out to “cash” was insufficient to establish that the defendant

forged the check or knew that it was forged. See id., at 545.

      We find Gibson distinguishable. In Gibson, the defendant did not

“engage in any other suspicious behavior” other than presenting the check

and claiming that he had left his identification at home. Id. Here, when the


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head teller asked Jones if he would wait while she verified the check by

phone, he declined, noting that Juvenile Probation did not like him. See

N.T., Trial, 12/3/14, at 26. Jones’s unwillingness to wait for the phone call

and his statement are circumstantial evidence of Jones’s guilty knowledge

that the check was forged. Thus, we conclude that Jones’s first issue on

appeal merits no relief.

        In his second issue on appeal, Jones asserts that the trial court abused

its discretion in imposing a sentence in the aggravated range of the

sentencing guidelines. Jones concedes that this argument constitutes a

challenge to the discretionary aspects of his sentence. See Appellant’s Brief,

at 9.

        “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence. See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

        “Two requirements must be met before we will review this challenge

on its merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an

appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a


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sentence.” Id. (citation omitted). “Second, the appellant must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.” Id. (citation omitted). That is, “the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Tirado, 870 A.2d at 365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted). See also Pa.R.A.P. 2119(f).

      In the present case, Jones’s appellate brief contains the requisite Rule

2119(f) concise statement. Furthermore, he preserved his argument against

the discretionary aspects of his sentence through a post-sentence motion.

Thus, he is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence.

      Next, we must determine whether Jones has raised a substantial

question. Jones concedes that the sentence imposed is within the guidelines;

his dispute centers on the fact that the sentence is in the aggravated range

of the guidelines. See Appellant’s Brief, at 9. In particular, he argues that

the sentencing court relied on impermissible factors to aggravate the

sentence, and that the sentencing court failed to properly consider his


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rehabilitative    needs.   These   issues   raise   substantial   questions.   See

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

Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012).

         For such challenges, the following standard of review has been set

forth.

         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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(quoting Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006)).

         Pennsylvania has an indeterminate guided sentencing scheme. See

Commonwealth v. Yuhasz, 923 A.2d 1111, 1117 (Pa. 2007). The

sentencing judge is required to consider the sentencing guidelines that have

been adopted by the Legislature. See 42 Pa.C.S.A. § 9721(b). The

sentencing guidelines, however, are purely advisory in nature and are

merely one factor among many that the court must consider in imposing a

sentence. See Yuhasz, 923 A.2d at 1118. “[A] trial court judge has wide

discretion in sentencing and can, on the appropriate record and for the

appropriate reasons, consider any legal factor in imposing a sentence in the

aggravated range.” Shugars, 895 A.2d at 1275.




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     It is impermissible for a court to consider factors already included

within the sentencing guidelines as the sole reason for increasing a sentence

into the aggravated range. See Commonwealth v. Simpson, 829 A.2d

334, 339 (Pa. Super. 2003). Specifically, “factors already used in Guideline

computations, including inter alia, prior convictions, may not be used to

justify an aggravated sentence.” Commonwealth v. McNabb, 819 A.2d 54,

57 (Pa. Super. 2003) (citation omitted).

     Jones first argues that the sentencing court erred by considering his

prior arrests in imposing sentence. Jones contends that by doing so, the

sentencing court ignored the presumption of innocence associated with

arrests that do not result in a conviction. However, reviewing the sentencing

court’s statement, we conclude that it did not seek to punish Jones for his

arrests, but rather considered the arrests in the context of Jones’s

knowledge of being on probation for a prior federal conviction for armed

robbery.

     At age 19 [Jones] was convicted of an armed robbery in federal
     court and sentenced to 9 ½ years, followed by three years
     supervised release. The instant offenses were committed while
     on that federal supervised release.

     The instant offenses involved an attempt to fraudulently obtain
     money from a county probation department’s crime victim’s
     restitution fund. Notably, the crimes were committed by [Jones]
     while he was on federal supervised release, after having already
     served 9 ½ years in federal prison.

     Further, [Jones] had been incarcerated twice since his release
     from federal prison, on charges for which he was not convicted.
     The point being not that the Court took these offenses

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      themselves into account, but that [Jones] knew from being
      reincarcerated while on federal supervised release, the
      consequences of criminal conduct. Yet, despite these
      experiences of lengthy incarceration, reincarceration, and active
      supervised release, [Jones] chose to re-offend, and to do so in a
      manner that sought to take money from crime victims. [Jones’s]
      conduct, in the context of his history and involvement in the
      criminal justice system demonstrated to the [c]ourt that [Jones]
      was not amenable to supervision.

Trial Court Opinion, 8/24/15, at 9-10 (emphasis supplied). This reasoning is

consistent with the statements made by the court in imposing sentence. See

N.T., Sentencing, 1/30/15, at 13 (“It does show a pattern of someone who is

not amenable to supervision …”). As the sentencing court did not rely

directly on his prior arrests, but rather on the fact that Jones had been

incarcerated pending resolution of his prior arrests due to his supervised

release status, we conclude that Jones’s first challenge to the discretionary

aspects of his sentence merits no relief.

      In his second challenge to the discretionary aspects of his sentence,

Jones argues that the trial court failed to adequately consider his

rehabilitative needs. As noted above, the trial court’s primary concern, as

evidenced by its contemporaneous statements at sentencing, was whether

Jones was amenable to supervised release. Admittedly, the sentencing court

did not explicitly address Jones’s rehabilitative needs. However, we note that

the trial court reviewed a pre-sentence report.       See N.T., Sentencing,

1/30/15, at 14. Where the trial court had the benefit of reviewing a pre-

sentence report, we must


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      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.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. 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) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the trial court in this case had the benefit of a pre-sentence report,

combined with the trial court’s explicit consideration of the appropriateness

of supervised release, we conclude that it considered all relevant sentencing

factors. Thus, Jones’s final issue on appeal merits no relief.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2016




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