J-S22040-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
DEVON O. SHEALEY,                        :
                                         :
                 Appellant               :     No. 1896 WDA 2014

     Appeal from the Judgment of Sentence Entered October 30, 2014
            in the Court of Common Pleas of Allegheny County,
          Criminal Division, at No(s): CP-02-CR-0015377-2008

BEFORE:    PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JUNE 03, 2015

     Devon O. Shealey (Appellant) appeals from the October 30, 2014

aggregate judgment of sentence of 30 to 60 years’ imprisonment imposed

following numerous convictions including intimidation of a witness, four

counts of robbery, and two counts of conspiracy (robbery and witness

intimidation). We affirm.

     A prior panel of this Court recounted the history of the case as follows.

     The cases involved four robberies at gunpoint, which occurred in
     the Strip District area of the City of Pittsburgh in the late
     evening hours on May 26, 2008. At trial the Commonwealth
     presented evidence through all four victims, various police and
     investigative witnesses. On the night in question Officer Kelly
     Joyce, of the Pittsburgh Police Department, while on patrol
     observed a black SUV Ford Explorer going at a high rate of speed
     down an alleyway with a blue vehicle chasing it. The driver of
     the blue vehicle (later identified as Marcus Neal) shouted to
     Officer Joyce that he had just been robbed.        Officer Joyce
     attempted to make a traffic stop, when the SUV took off at a


*Retired Senior Judge assigned to the Superior Court.
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     very high rate of speed and in the pursuit struck 11 parked
     vehicles, eventually causing the [SUV] to stop. At that time the
     occupants of the vehicle fled. The collisions caused the oil pan
     from the vehicle to explode inward covering much of the interior
     with black motor oil. Officer Joyce observed the passenger exit
     the vehicle, and initially was chasing him on foot while she had
     put out a description for the other officers who were responding.
     Three additional victims had come to the scene stating that they
     had been robbed at gunpoint by two individuals who both had
     weapons and were traveling in a dark SUV. All of the victims
     were robbed at gunpoint of money, jewelry, and cell phones.
     Various items which had been taken from the victims were
     identified at the scene of the crashed vehicle. The co-defendant,
     passenger [Germaine Edge], was apprehended and identified
     that evening by each of the four robbery victims, as being the
     passenger of the vehicle who had robbed them. [When he was
     apprehended, Edge was covered in motor oil.] [Appellant],
     driver of the vehicle, was identified a day or so later by each of
     the four victims through photo arrays which were introduced at
     trial. Additional evidence linking [Appellant] to the robberies
     was the license plate on the vehicle, which through previous tow
     slips of the police department came up with [Appellant’s] name
     as the plate was registered to his girlfriend’s mother.

            With regard to the attempted witness intimidation charges,
     the Commonwealth introduced various audio tapes from the
     Allegheny County Jail for the jury’s consideration of these
     charges. A captain of the Allegheny County Jail, as well as a
     homicide detective for the Pittsburgh police department,
     identified Devon Shealey as the person on the tapes.

Commonwealth v. Shealey, 93 A.3d 517 (Pa. Super. 2013) (unpublished

memorandum at 1-2) (quoting Trial Court Opinion, 6/15/2010, at 2-3),

appeal denied, 91 A.3d 1239 (Pa. 2014).

     According to the written sentencing order of the Honorable Robert C.

Reed, Appellant was given an aggregate term of imprisonment of 34 to 68

years, while his co-defendant Edge, who was convicted of fewer crimes and



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had a lower prior record score, was sentenced to 22 to 44 years. This Court

affirmed that judgment of sentence on direct appeal.            Commonwealth v.

Shealey, 31 A.3d 734 (Pa. Super. 2011) (unpublished memorandum)

(rejecting challenge to the validity of Appellant’s waiver of right to have a

judge and court reporter present during voir dire; no sentencing issue was

raised).

          Appellant timely filed a petition pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking a new trial based upon after-

discovered evidence. On appeal from the denial of the petition, this Court

determined that, although the PCRA court did not err in denying Appellant a

new trial on the new evidence proffered, Appellant was entitled to PCRA

relief:

                First, both the PCRA court and the Commonwealth agree
          that [Appellant] was entitled to credit for his pretrial
          incarceration from November 7, 2008, until January 12, 2010,
          because this period of incarceration was not applied to any other
          sentence of incarceration imposed on [Appellant]. … The PCRA
          court specifically stated in its opinion that it had intended to
          grant relief on this claim in its final order, but neglected to do so.

                With regard to [Appellant’s] contention that the written
          sentencing order contains two patent errors, … both the PCRA
          court and the Commonwealth agree that [Appellant’s] written
          sentencing order contains two patent mistakes. First, the order
          indicates that [Appellant] received sentences of four to eight
          years imprisonment on one count of persons not to possess
          firearms, a charge that was dismissed, and one count of criminal
          conspiracy. Second, the written order indicates that all the
          sentences are to run consecutively. However, a review of the
          sentencing transcript reveals the trial court’s clear and obvious



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     intention to impose four consecutive six and one-half to 13 year
     sentences on the robbery charges, and two four to eight year
     sentences on the charges of firearms not to be carried without a
     license, that were to run concurrent to one another but
     consecutive to the robbery charges. Accordingly, we agree that
     the written order contains a patent, correctible error.

           Therefore, because we agree (1) [Appellant] was entitled
     to receive credit for time served, and (2) the written sentencing
     order was inconsistent with the unambiguous sentence imposed
     by the trial court at the sentencing hearing, we reverse the PCRA
     order in part, and remand for re-sentencing consistent with this
     memorandum.8
           _____
           8
             We note that the PCRA court also concluded that the
           sentences of four to eight years’ imprisonment on the
           charges of firearms not to be carried without a license
           were illegal. A violation of [that statute] is a third degree
           felony.    The statutory maximum sentence for a third
           degree felony is seven years’ imprisonment. Therefore,
           the PCRA court also indicated its intention to correct the
           sentence imposed on the firearms charges to two terms of
           three and one-half to seven years’ imprisonment.

Shealey, 93 A.3d 517 (unpublished memorandum at 6-9) (internal

quotation marks and citations omitted).

     On remand, the Honorable Anthony M. Mariani re-sentenced Appellant

to an aggregate term of 30 to 60 years’ imprisonment, a sentence which is

both consistent with Judge Reed’s oral recitation of the sentence he intended

to impose on Appellant and with this Court’s memorandum.

     Both at the resentencing hearing and in a timely-filed post-sentence

motion, Appellant challenged this sentence as being substantially disparate

from the 22 to 44 years of incarceration which his co-defendant received.




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Post-Sentence Motion, 11/4/2014, at 2 (pages unnumbered). Judge Mariani

denied Appellant’s motion by order filed on November 13, 2014, and

Appellant timely filed a notice of appeal.

      Appellant states the following issue for this Court’s consideration:

      Whether the Court of Common Pleas abused its discretion in
      imposing an aggregate sentence of 30 to 60 years [of]
      incarceration which, under the circumstances of the case[,] is
      unreasonable when [Appellant’s] co-defendant’s aggregate
      sentence was 22 to 44 years [of] incarceration and the Court of
      Common Pleas failed to explain this substantial disparity
      between sentences?

Appellant’s Brief at 4.

      Appellant’s question challenges the discretionary aspects of his

sentence. Accordingly, we bear in mind the following.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [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 [filed]; (2) whether Appellant preserved
         his issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).




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      Here, the appeal is timely filed; Appellant’s brief contains the requisite

concise statement; and the claim that the sentencing court failed to explain

the difference between the co-defendants’ sentences raises a substantial

question. See, e.g., Commonwealth v. Cleveland, 703 A.2d 1046, 1048

(Pa. Super. 1997). (“[A]ppellant’s … claim raises a substantial question by

alleging an unexplained disparity between his sentence and that of a co-

defendant.”). However, it is unclear whether Appellant preserved the issue.

      Appellant raised his complaint both at the resentencing hearing and in

a timely-filed post-sentence motion.         However, Appellant makes no

argument that the resentencing court was guilty of an abuse of discretion.

The resentencing court held no hearing and exercised no discretion at all; it

merely signed an order imposing the sentence this Court directed it to

impose. Appellant presents us with no indication that the resentencing 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. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.

2014) (quoting Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super.

2007)). Accordingly, Appellant has failed to convince us that any challenge

to the resentencing court’s sentence constituted an abuse of discretion.

      Appellant’s real argument is that the original sentencing court abused

its discretion when it sentenced him and Edge back in 2010.           However,




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Appellant never raised his discretionary-aspects issue before Judge Reed;

nor did he pursue a claim in his PCRA petition that counsel was ineffective in

failing to do so.   Appellant asserts, with no citation to authority, that his

discretionary aspects claim “can be raised after re-sentencing when the

entire sentence is vacated.” Appellant’s Brief at 22.

      It is not at all clear to this Court that Appellant’s assertion is valid.

However, assuming arguendo that he is correct, he is not entitled to relief.

Appellant acknowledges that his prior record score was 5, while Edge’s was

2.   Id. at 23.     As a result, when the original sentencing court treated

Appellant and Edge the same by giving each consecutive, standard-range

sentences for the robbery counts, Appellant ended up with a longer

sentence. Furthermore, as Appellant acknowledges in his brief, he was

convicted of additional crimes (intimidating a witness and conspiracy to

intimidate a witness) of which Edge not charged, let alone convicted.

Appellant’s Brief at 17.

      There is a clear and reasonable explanation for the disparity between

the sentences of Appellant and Edge.         Accordingly, Appellant has not

convinced us that the original sentencing court abused its discretion in giving

Appellant a longer sentence than his co-defendant received.

      Judgment of sentence affirmed.




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J-S22040-15


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/3/2015




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