J-S40008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    CHRISTOPHER WESTBROOKS, JR.,

                             Appellant               No. 1533 WDA 2018


        Appeal from the Judgment of Sentence Entered January 21, 2015
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0008986-2013

BEFORE: BENDER, P.J.E., MCLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                  FILED SEPTEMBER 26, 2019

        Appellant, Christopher Westbrooks, Jr., appeals nunc pro tunc from the

judgment of sentence of an aggregate term of 130 to 260 months’

incarceration, imposed after he was convicted, following a non-jury trial, of

aggravated assault (18 Pa.C.S. § 2702(a)(1)), persons not to possess a

firearm (18 Pa.C.S. § 6105), carrying a firearm without a license (18 Pa.C.S.

§ 6106), and recklessly endangering another person (18 Pa.C.S. § 2705). On

appeal, Appellant challenges the discretionary aspects of his sentence. After

careful review, we affirm.

        Briefly, Appellant was convicted of the above-stated offenses based on

evidence that he shot Allen Parker Newton on June 14, 2013. The trial court

explained:
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     [O]n the night of the incident[, Newton] was walking on North
     Third Avenue in Duquesne when he was approached by
     [Appellant,] who shot him five times. [Newton] was shot three
     times in the back and then twice in the chest. [Newton] testified
     that he had approximately 14 surgeries as a result of his injuries
     and will require additional surgeries. He also suffered from
     multiple infections, including a kidney infection, and testified that
     there was a bullet lodged near his heart that still poses a threat
     to his life.

Trial Court Opinion (TCO), 12/20/18, at 2.

     After the preparation of a presentence report, Appellant proceeded to a

sentencing hearing on January 21, 2015. There, Appellant

     argued that a mitigated range sentence of 5½ years [should] be
     imposed for the [a]ggravated [a]ssault. [Appellant also] argued
     that the guidelines were “bumped up” because of the [sentencing]
     enhancements and that[,] given “the entirety of his life history
     that was contained in the presentence report[,]” … a mitigated
     range sentence should be imposed.

           The Commonwealth noted [Appellant’s] prior record[,]
     which included … adjudication[s] as a juvenile for recklessly
     endangering another person and possession of a firearm…[,] as
     well as a consent decree for theft of a vehicle, criminal mischief,
     receiving stolen property and possession of a controlled
     substance. As an adult[, Appellant] also had convictions for
     possession of a firearm, possession with intent to deliver a
     controlled substance and resisting arrest. The Commonwealth
     requested a standard range sentence of 8 years[’ incarceration]
     for the aggravated assault and, “because the defendant has
     obviously not gotten the message about not carrying a firearm,”
     5 years[’ incarceration] for carrying a firearm [without a license,]
     for an aggregate recommended sentence of 13 to 26 years[’
     incarceration].

           [Appellant] spoke at length at the sentencing hearing [and]
     … acknowledged that he knew the [victim] and “loved him like a
     brother.” He indicated that “[they] had a fight many months
     before this happened over some money,” and contended that he
     was fearful of the victim and at the time of the incident he thought
     the victim, although unarmed, was carrying a gun. [Appellant]
     stated:

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         “I’m not saying that I am not guilty for what I did. What I
         did was completely wrong. I could have found a better way
         and made a way better decision and avoided it.”

         [Appellant] was then sentenced to a standard range sentence
      on the aggravated assault charge to 80 to 160 months[’
      incarceration,] and a consecutive sentence of 50 to 100 months[’
      incarceration] for persons not to possess a firearm. He was also
      sentenced to concurrent sentences of 36 to 72 months[’
      incarceration] for carrying a firearm without a license[,] and 6 to
      12 months[’ incarceration] for recklessly endangering another
      person.

Id. at 2-3 (citations to the record omitted).

      Appellant did not file post-sentence motions or a direct appeal.

However, on September 8, 2017, he filed a pro se letter to the court, which

the court treated as a petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546, and appointed counsel. In counsel’s amended PCRA

petition, he argued that Appellant had asked his trial counsel to file an appeal

on his behalf, but trial counsel failed to do so. Appellant alleged that he did

not discover this failure until August of 2017, after he inquired about the status

of his appeal with the Allegheny County Clerk of Courts.         Thus, Appellant

contended that his facially untimely petition met the ‘newly-discovered fact’

exception of 42 Pa.C.S. § 9545(b)(1)(ii), and his post-sentence motion and

appellate rights should be restored.

      On August 16, 2018, the PCRA court issued an order granting

Appellant’s petition and reinstating his right to file post-sentence motions and

a direct appeal nunc pro tunc. The Commonwealth did not file an appeal from

that order.



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      Appellant thereafter filed a post-sentence motion to modify his

sentence, which the court denied on September 19, 2018. On October 19,

2018, Appellant filed a timely notice of appeal. He also timely complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.     The trial court filed a responsive Rule 1925(a)

opinion. Herein, Appellant presents the following issue for our review:

      I. Did the trial court err in imposing a sentence that was manifestly
      excessive, unreasonable, and an abuse of discretion when the trial
      court overlooked and/or failed to carefully consider relevant
      factors when sentencing [Appellant], including his background and
      rehabilitative needs; and the court relied on impermissible
      duplicative factors, that is, the seriousness of the offense and
      [Appellant’s] prior record, and failed to impose an individualized
      sentence?

Appellant’s Brief at 6 (unnecessary capitalization and emphasis omitted).

      Appellant’s issue implicates the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         [the] appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the sentence
         appealed from is not appropriate under the Sentencing
         Code, 42 Pa.C.S.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). Objections to
      the discretionary aspects of a sentence are generally waived if


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      they are not raised at the sentencing hearing or in a motion to
      modify the sentence imposed. Commonwealth v. Mann, 820
      A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
      A.2d 599 (2003).

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Commonwealth v. Paul,
      925 A.2d 825, 828 (Pa. Super. 2007). 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.”
      Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

      Here, Appellant filed a timely notice of appeal and he preserved his

sentencing claims in his post-sentence motion. He has also included a Rule

2119(f) statement in his brief.     Therein, he argues that his sentence is

manifestly excessive and unreasonable because the court failed to consider

the factors set forth in 42 Pa.C.S. § 9721(b). He also insists that the court

focused solely on the seriousness of the crime and his prior record, thereby

‘double-counting’ factors that were already considered in calculating the

sentencing guideline range applicable to Appellant.          We conclude that

Appellant   has   raised   substantial   questions   for   our   review.   See

Commonwealth v. Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (“An

averment that the trial court failed to consider relevant sentencing criteria,

including the protection of the public, the gravity of the underlying offense

and the rehabilitative needs of [the a]ppellant, as 42 Pa.C.S. § 9721(b)

requires[,] presents a substantial question for our review in typical cases.”)


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(internal quotation marks and citation omitted); Commonwealth v.

Simpson, 829 A.2d 334, 338 (Pa. Super. 2003) (considering, as a substantial

question, a claim “that the sentencing court relied on impermissible factors,

by considering factors already included in the sentencing guidelines”).

      However, Appellant’s arguments do not demonstrate that he is entitled

to sentencing relief. To begin, we recognize that:

      “Sentencing is a matter vested within the discretion of the trial
      court and will not be disturbed absent a manifest abuse of
      discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282
      (Pa. Super. 2010). “An abuse of discretion requires the trial court
      to have acted with manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be clearly
      erroneous.” Id. “A sentencing 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.” Id. at 1283.

Commonwealth v. Rush, 162 A.3d 530, 544 (Pa. Super. 2017), appeal

denied, 170 A.3d 1049 (Pa. 2017).

      In this case, Appellant contends that the trial court abused its discretion

in fashioning his sentence because it “ignored [his] remorse, the fact that he

was working, had a family, and was making an effort to do the right things

and stay out of trouble despite peer pressure, living in a high-crime area, and

his fear of the victim.” Appellant’s Brief at 21. He further insists that the

court disregarded his rehabilitative needs, noting that “[n]o evidence was

presented that [he] had had an opportunity to be involved in a comprehensive

treatment plan in the past.” Id. According to Appellant, “[t]he possibility of



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[his] rehabilitation existed, yet the sentencing court did not specifically

address his rehabilitative needs or any factors regarding his ability to be

rehabilitated.” Id. Instead, Appellant claims that the court focused only on

the seriousness of the offense and his prior record, which constituted a

‘double-counting’ of factors that were “already included when determining the

guideline range, [and] the offense gravity score.” Id. at 23. For all of these

reasons, Appellant maintains that his sentence is manifestly excessive and

unreasonable.

       In rejecting Appellant’s arguments, the trial court reasoned as follows:

             In this case[,] the factors set forth in the sentencing code
       were properly considered. [Appellant] engaged in an attack on
       the victim shooting him multiple times[,] which resulted in life
       threatening and permanent injuries. The shooting took place on
       a public street with others nearby. [Appellant’s] history, as shown
       in the presentence report, reflects that [Appellant] has a history
       of multiple offenses related to carrying a firearm. As [the court]
       noted at the sentencing [hearing]:

          “[Appellant], I agree with you a hundred percent. You have
          to find a better way to deal with disputes than shooting each
          other. It’s a dangerous way. The other thing is there are
          other people in that neighborhood that somebody else could
          have been killed. It’s a tragic event. And the victim, I don’t
          know how much longer he’s going to live given all of this -
          [h]e still has a bullet in him.” ([N.T. Sentencing, 1/21/15,
          at] 12)[.][1]

____________________________________________


1 To the extent Appellant challenges the adequacy of the court’s on-the-record
statement of its reasons for imposing his sentence, see Appellant’s Brief at
21, this claim was not preserved in his post-sentence motion, nor in his Rule
1925(b) statement.      Appellant also failed to assert in either of those
documents that the court did not consider mitigating circumstances, such as



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       As noted above, [Appellant’s] conduct is not an isolated event but
       represents a pattern of repeated criminal conduct that has
       continued and escalated. Clearly[,] the sentence in the standard
       range [accounted for] the gravity of the offenses as it relates to
       the lifelong impact on the victim. The sentence also [accounted
       for] the impact of [Appellant’s] continued illegal carrying of a
       firearm on the community as a whole.

             The rehabilitative needs of [Appellant] were also specifically
       considered. Despite the fact that [Appellant] has had previous
       adjudications and convictions related to firearms, he has failed to
       recognize and appreciate the dangers involved to himself and
       others by his conduct. As the Commonwealth appropriately
       indicated, [Appellant] has “not gotten the message about not
       carrying a firearm.” The record clearly demonstrates that the
       sentence of incarceration was appropriate not only for the
       protection of the community as a whole[,] but also to facilitate
       [Appellant’s] long term rehabilitation.

             [Appellant] also contends that[,] by focusing exclusively on
       the seriousness of the offense and [his] prior record[,]… the
       [c]ourt engaged in “double counting” the factors already included
       in the Offense Gravity Score, the Deadly Weapon Enhancement
       and the Prior Record Score of each offense. In this case, in
       imposing [a] sentence less than [that] requested by the
       Commonwealth[,] and [one] that was [in] “a little bit of a low end”
       of the standard range, the sentence did not double count any
       factors to enhance or impose a harsher sentence.               ([N.T.
       Sentencing Hearing at] 12)[.] As a general rule, a sentencing
       court may not ‘double count’ factors already taken into account in
       the sentencing guidelines[;] however, a sentencing court is
       permitted to use prior conviction history and other factors included
       in the guidelines if[] they are used to supplement other
____________________________________________


his work history, family support, and fear of the victim. Therefore, these
arguments are waived. See Commonwealth v. Bromley, 862 A.2d 598,
603 (Pa. Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the
discretionary aspects of his sentence is waived if the [a]ppellant has not filed
a post-sentence motion challenging the discretionary aspects with the
sentencing court.”) (citation omitted); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).



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      extraneous sentencing information.         Commonwealth v.
      Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). In this case[,]
      there was no abuse of discretion and an appropriate sentence was
      imposed.

TCO at 4-6.

      Given the reasons stated by the trial court, and after reviewing the

record of the sentencing hearing, we conclude that the court did not abuse its

discretion in imposing Appellant’s sentence.          Contrary to Appellant’s

arguments,    the   court   considered   the   required   factors,   including   his

rehabilitative needs, and balanced those factors against the seriousness of his

offense, his prior record, and the danger he poses to the public. The court

also had the benefit of a presentence report, and it imposed standard range

sentences. Appellant is not entitled to relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2019




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