J-S02029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JERONE LEGGETT

                            Appellant                 No. 221 EDA 2015


           Appeal from the Judgment of Sentence October 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011320-2013


BEFORE: SHOGAN, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 03, 2016

        Jerone Leggett appeals from the judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after the court, in a non-jury

trial, found him guilty of one count each of possession of firearm prohibited,1

firearms not to be carried without a license2 and carrying firearms on the

public streets in Philadelphia.3 After careful review, we affirm.

        The Honorable Daniel J. Anders set forth the facts of this case as

follows:

        On August 23, 2013, at 6:00 p.m., Police Officer Jeffrey
        Thompson responded to an anonymous radio call for a report of
____________________________________________


1
    18 Pa.C.S.A. § 6105(a)(1).
2
    18 Pa.C.S.A. § 6101(a)(1).
3
    18 Pa.C.S.A. § 6108.
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      a bald, black male with a beard who was wearing a black shirt
      and camouflage shorts and was in possession of a firearm at
      Baynton and Walnut Streets. Officer Thompson arrived at that
      intersection within minutes of the radio call, but did not see
      anyone. As he traveled one block from that intersection, he
      observed [Leggett,] who was standing in the middle of the
      street. Officer Thompson believed [Leggett] matched the flash
      information because, inter alia, he was wearing camouflage
      shorts.    As he got closer to [Leggett], Officer Thompson
      observed the handle of a black semiautomatic handgun showing
      from the right pocket of [Leggett’s] shorts. Officer Thompson
      immediately recognized the handle as a handle of a firearm
      based upon his training and experience with firearms.

      Upon seeing the firearm, Officer Thompson ordered [Leggett] to
      stop. In response, [Leggett] walked around a vehicle. As
      [Leggett] was walking around the vehicle, Officer Thompson
      heard the sound of metal or plastic hitting the ground, which was
      – based upon his prior experience with people who have thrown
      firearms to the ground – consistent with a firearm hitting the
      ground. After [Leggett] was secured in the patrol car, Officer
      Thompson recovered from behind the vehicle a black
      semiautomatic handgun that was loaded with ten live rounds and
      two magazines that were each loaded with ten live rounds.

Trial Court Opinion, 4/13/15, at 1-2.

      A non-jury trial was held on April 11, 2014, at which time the trial

court found Leggett guilty of the above-enumerated offenses. On October

10, 2014, the court sentenced Leggett to concurrent terms of 5 to 10 years’

incarceration for possession of a firearm prohibited, 4 to 8 years’

incarceration for firearms not to be carried without a license, and 16 to 32

months’ incarceration for carrying firearms on the public streets in

Philadelphia. Leggett filed a timely notice of appeal to this court on January




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7, 2015, followed by a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).4 Leggett raises a single issue for our

review:     Whether the sentencing court erred by imposing a manifestly

excessive sentence which overemphasized the protection of the public and

did not consider the rehabilitative needs of Leggett, who suffers from Post-

Traumatic Stress Disorder (“PTSD”). See Brief of Appellant, at 3.

       Leggett challenges the discretionary aspects of his sentence. Such a

claim does not entitle an appellant to review as a matter of right.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015). Rather,

before this Court can address such a discretionary challenge, an appellant

must comply with the following requirements:

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test: (1) whether 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
       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.

Id., quoting Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super.

2011).
____________________________________________


4
  Leggett failed to file his Rule 1925(b) statement within the time frame
specified by the trial court in its Rule 1925(b) order. However, where, as
here, the trial court has addressed the issues raised in an untimely Rule
1925(b) statement, we may address the issues on their merits.
Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015).



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       Here, Leggett filed a post-sentence motion raising his sentencing

claim, followed by a timely notice of appeal to this Court.             He has also

included in his brief a concise statement of reasons relied upon for allowance

of appeal with respect to the discretionary aspects of his sentence pursuant

Pa.R.A.P. 2119(f).        We must now determine whether he has raised a

substantial question that the sentence appealed from is not appropriate

under the Sentencing Code.

       In his Rule 2119(f) statement, Leggett claims that his sentence was

manifestly excessive and the sentencing court did not assign the appropriate

weight to the rehabilitative needs of the defendant, the seriousness of the

offense, and the protection of the public. Leggett claims the court did not

consider his PTSD and that treatment would have been a more effective way

to rehabilitate him and protect the public. This Court has previously found

that the      failure   of a sentencing court to       consider   the   defendant’s

rehabilitation and the nature and circumstances of the offense in handing

down    its   sentence    presents   a   substantial   question   for   our   review.

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013).

Accordingly, we will review the substance of Leggett’s claim.

       We begin by noting:

       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,


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      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015).

      “When imposing a sentence, the sentencing court must consider the

factors set out in 42 Pa.C.S. § 9721(b), that is, the protection of the public,

gravity of offense in relation to impact on victim and community, and

rehabilitative needs of the defendant.      And, of course, the court must

consider the sentencing guidelines.”   Id. at 768, quoting Commonwealth

v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006).          Finally, when the

sentencing court possesses and considers a presentence report, we presume

that the sentencing court was aware of relevant information regarding the

defendant’s   character   and   weighed    those   considerations   along   with

mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12, 18

(Pa. 1988).

      Here, Leggett claims that he suffers from PTSD as a result of a prior

gunshot wound to the head, and has exhibited symptoms of the disorder for

an unusually long period of time. He asserts that the trauma he experienced

after being shot led directly to the commission of the instant crimes, as “he

did not want to be caught by either another assassin or be caught unarmed

in his dangerous neighborhood.” Brief of Appellant, at 9. Leggett asserts

that incarceration will not lessen the trauma he feels and will not serve any

rehabilitative purpose.   Thus, the court should have sentenced him to

treatment, followed by a period of close supervision by the Probation

Department. Leggett is entitled to no relief.

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      We begin by noting that the trial court sentenced Leggett to a

standard-range sentence under the sentencing guidelines.       In imposing its

sentence, the trial court took note of numerous mitigating factors, including

Leggett’s family and community support, employment history and prior

gunshot injury.   The court also was informed by a presentence report, as

well as a mental health evaluation.

      However, the court also noted Leggett’s statement to police that “he’d

rather be arrested [carrying a gun] than [get] shot again,” suggesting that

he would reoffend in the future.      N.T. Sentencing, 10/10/14, at 29.     The

court further noted that Leggett had been under juvenile supervision, “which

was ultimately unsuccessful given the fact that he was convicted of other

offenses,” id., that the instant offense was Leggett’s third for unlawful

possession of a firearm, and that this offense occurred while Leggett was

under probationary supervision for a firearms violation.     Finally, the court

noted that, when Leggett was arrested for the instant offense, he not only

possessed a firearm loaded with ten rounds of ammunition, but also carried

two additional ammunition clips that were fully loaded with an additional ten

rounds each.

      In sum, prior to imposing sentence, the court considered the

protection of the public, the nature and gravity of the offense as it relates to

the impact on the community, and Leggett’s rehabilitative needs, as well as

the arguments of counsel, the statement Leggett made to the court at

sentencing and Leggett’s demeanor before the sentencing court. See id. at

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29-30; Trial Court Opinion, 4/13/15, at 5-6. In light of Leggett’s extensive

juvenile history, his adult record of multiple firearms offenses and his

repeated failure to take advantage of past opportunities for rehabilitation,

we can discern no abuse of discretion on the part of the trial court in

imposing an aggregate sentence of 5 to 10 years’ incarceration for the

instant convictions.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2016




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