J. S69023/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                   v.                    :
                                         :
JULIO A. TORRES,                         :       No. 3496 EDA 2013
                                         :
                        Appellant        :


          Appeal from the Judgment of Sentence, August 9, 2013,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0004877-2012


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 12, 2014

     Julio A. Torres appeals from the judgment of sentence of August 9,

2013. After careful review, we affirm.

                 At trial, the Commonwealth presented the
           testimony of Stephanie Muller and Philadelphia Police
           Officers    James      Reilly,    Theresa    Brooks,
           Richard Lynch, Derrick Jones, Mark Wolf, and
           Daniel Wright. Viewed in the light most favorable to
           the Commonwealth as the verdict winner, their
           testimony established the following.

                 At approximately 6:30 p.m. on February 18,
           2012, Philadelphia Police Officer James Reilly was
           performing narcotics surveillance on the 300 block of
           East Somerset Street in Philadelphia.       From his
           unmarked police vehicle, Officer Reilly observed
           [appellant] standing in front of a bodega on the
           corner of Somerset Street and Rosehill Street. As
           Officer Reilly watched, a man later identified as
           Daniel     Contreras     approached       [appellant].
           [Appellant] handed Contreras an unknown amount of
           money and Contreras handed [appellant] objects.
J. S69023/14


          [Appellant] then went into an alley behind the store,
          where he stayed for approximately ten seconds.
          [Appellant] then returned to the corner, where he
          began yelling, “dope, powder.”[Footnote 1]

                [Footnote 1] “Dope” is a street term for
                heroin and “powder” is a street term for
                powder cocaine.

                After a few minutes, a man, later identified as
          Ryan Mastriana, approached [appellant]. Mastriana
          handed [appellant] money, and [appellant] returned
          to the alley in which he had been earlier. [Appellant]
          stayed in the alley for approximately ten seconds,
          emerged, and handed Mastriana a small object.
          Officer Reilly relayed a description of Mastriana to his
          backup team, who stopped Mastriana a few blocks
          away. Police searched Mastriana and recovered two
          blue-tinted packets of cocaine.

                A few minutes later, a woman, later identified
          as Tracy Gowronski, approached [appellant]. She
          handed [appellant] money and [appellant] went back
          to the alley. [Appellant] again stayed in the alley for
          approximately ten seconds, emerged, and handed
          Gowronski a small object. Officer Reilly relayed a
          description of Gowronski to his backup team, who
          stopped Gowronski a few blocks away.             Police
          searched Gowronski and recovered one blue-tinted
          packet containing cocaine.

                As Officer Reilly was observing these drug
          sales, Daniel Contreras was walking around the area
          of the corner on which [appellant] stood. When it
          appeared to Officer Reilly that Contreras was leaving
          the area, he called for backup to converge on the
          corner. Police stopped Contreras and recovered $50
          in cash. Police arrested [appellant] and recovered
          $170 in cash and one clear packet with a blue
          glassine insert stamped with the logo “Ace,”
          containing heroin.

               Police then searched the alleyway in which
          [appellant] had been after his transaction with


                                   -2-
J. S69023/14


            Contreras and his subsequent transactions with
            Mastriana and Gowronski. From the alley, police
            recovered a Newport cigarette pack that contained
            three clear packets with peach glassine inserts. The
            three packets were each stamped with the logo
            “Ace,” and contained heroin. Police also recovered
            from the Newport box two clear plastic baggies that
            contained 26 additional packets of heroin. Each of
            these packets was stamped with the logo “808.”

Trial court opinion, 3/14/14 at 1-3 (citations to the record omitted).

      On May 8, 2013, following a jury trial, appellant was found guilty of

possession with intent to deliver (“PWID”) -- heroin, and PWID -- cocaine.

On August 9, 2013, appellant was sentenced to 5 to 15 years’ imprisonment.

Post-sentence motions were denied, and this timely appeal followed.

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.

      On appeal, appellant raises a single question for our review,

challenging the discretionary aspects of sentencing:

            Did not the lower court err and abuse its discretion
            by sentencing [appellant] to an unreasonable and
            excessive sentence that was more severe than the
            top of the aggravated range of the Sentencing
            Guidelines, gave a disproportionate amount of
            weight to improper aggravating factors and
            discounted significant and substantial mitigating
            factors,   resulting  in    an   unbalanced     and
            disproportionate weighing process leading to an
            unreasonable and excessive sentence?

Appellant’s brief at 3.

      “A challenge to the discretionary aspects of a sentence requires the

claimant to set forth in his brief a separate, concise statement of the reasons


                                     -3-
J. S69023/14


relied   upon    for   the   allowance   of    appeal   as   to   that   challenge.”

Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa.Super. 2002), appeal

denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005),

citing Commonwealth v. Eby, 784 A.2d 204, 206 n.2 (Pa.Super. 2001), in

turn citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa. 1987). Appellant has complied with this requirement. (Appellant’s

brief at 5-7.)

            This Court may reach the merits of an appeal
            challenging the discretionary aspects of a sentence
            only if it appears that a substantial question exists as
            to whether the sentence imposed is not appropriate
            under the Sentencing Code. “A substantial question
            will be found where the defendant advances a
            colorable argument that the sentence imposed is
            either inconsistent with a specific provision of the
            code or is contrary to the fundamental norms which
            underlie the sentencing process. A claim that the
            sentencing court imposed an unreasonable sentence
            by sentencing outside the guideline ranges presents
            a ‘substantial question’ for our review.”

Griffin, supra, quoting Eby, supra.

            The matter of sentencing is vested within the sound
            discretion of the trial court; we only reverse the
            court’s determination upon an abuse of discretion.
            To demonstrate that the trial court has abused its
            discretion, 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.
            Moreover, 42 Pa.C.S.A. § 9721(b) provides that the
            trial court must disclose, on the record, its reasons
            for imposing the sentence.




                                         -4-
J. S69023/14


Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa.Super. 2004)

(citations and internal quotation marks omitted).     “[T]he sentencing judge

must state of record the factual basis and specific reasons which compelled

him or her to deviate from the guideline ranges. When evaluating a claim of

this type, it is necessary to remember that the sentencing guidelines are

advisory only.” Griffin, supra at 8, citing Eby, supra.

      Here, PWID carried an offense gravity score (“OGS”) of 7; appellant’s

prior record score (“PRS”) was 5. (Notes of testimony, 8/9/13 at 4.) The

statutory maximum was 30 years.        (Id.)   The standard range was 24 to

30 months, plus or minus 6 months. (Id.) Therefore, appellant’s sentence

of 5 to 15 years was outside the aggravated range of the sentencing

guidelines.

      At sentencing, the trial court gave several reasons for going beyond

the guidelines. Appellant’s PRS of 5 did not fully reflect his criminal history,

which included juvenile adjudications for robbery and PWID. (Id. at 15.) In

2003, at age 16, appellant pled guilty in adult court to aggravated assault

and possession of an instrument of a crime. As the trial court observed, a

defendant’s PRS is capped at 5 but appellant had actually accumulated more

than 5 points.    (Id.)   Therefore, the trial court did not “double count”

appellant’s PRS as appellant claims on appeal.

      In addition, the trial court noted that appellant had repeatedly failed to

comply with conditions of supervision.     (Id.)   Despite serving state time,



                                     -5-
J. S69023/14


appellant had failed to rehabilitate. In fact, appellant was on probation for

PWID when he committed the instant offense.          (Id. at 15-16.)   In 2011,

appellant received a lenient sentence of time served to 23 months plus

3 years’ probation for PWID, and obviously did not “get the message.” (Id.)

Appellant had failed to demonstrate that he could turn his life around. (Id.

at 16.)

      The trial court was well aware of mitigating evidence including

appellant’s difficult upbringing.   (Id. at 14.)   The trial court also had the

benefit of a pre-sentence investigation report. (Id.) “Where the sentencing

judge had the benefit of a pre-sentence report, it will be presumed that he

was aware of relevant information regarding appellant’s character and

weighed those considerations along with the mitigating statutory factors.”

Commonwealth v. Fullin, 892 A.2d 843, 849-850 (Pa.Super. 2006),

quoting Commonwealth v. L.N., 787 A.2d 1064 (Pa.Super. 2001).              The

trial court put ample reasons on the record for its upward deviation from the

guidelines. Appellant’s discretionary aspects of sentencing claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/12/2014



                                      -6-
