J-S26041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
ARTHUR SPAIN,                             :
                                          :
                  Appellant               :     No. 3413 EDA 2014

           Appeal from the Judgment of Sentence September 5, 2014
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0011239-2013

BEFORE:      OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MAY 16, 2016

      Arthur Spain (Appellant) appeals from the September 5, 2014

judgment of sentence of five to ten years’ imprisonment imposed following

numerous convictions for, inter alia, aggravated assault and conspiracy to

commit aggravated assault. After review, we affirm Appellant’s judgment of

sentence in part, vacate in part, and remand for resentencing.

      The trial court set forth the relevant factual background of this case as

follows.

            On July 1, 2013, at approximately 11:00 p.m., Michael
      Mucerino [the complainant] was at home, with his grandson,
      Ryan Spivey (“Ryan”) when he heard girls fighting/arguing up
      the street. The fight/argument worked its way down the street,
      to the front of Mr. Mucerino’s house. Looking out his front door
      window, Mr. Mucerino saw a girl being badly attacked by a group
      of females that were each hitting the girl, at different times. Mr.
      Mucerino, who was 62 years old, called the police. He then went
      outside and stood on his front porch, where he saw a group of


*Retired Senior Judge assigned to the Superior Court.
J-S26041-16


     females throw the girl against the hood of a van. The girl was
     lying on the ground and she looked unconscious. Mr. Mucerino
     walked off the porch, to look at the girl. He was concerned that
     the group of females was going to kill her.

           When Mr. Mucerino came off the porch, the group of
     females initially backed off and walked away. They then turned
     around and started hollering at Mr. Mucerino.          Two of the
     females were yelling, “[m]ind your own business. Get in the
     house. She’s getting what she deserves.” At that point, a white
     vehicle pulled up and three black males exited the vehicle. All
     three males walked towards Mr. Mucerino.             A male with
     dreadlocks and a red shirt walked in front and the other two
     males walked behind him. The females were yelling, “Get him.
     Get him.” Mr. Mucerino was looking around to see who the
     males were supposed to get, when he was punched in the face.
     Five seconds later, he got punched again. At this point, his
     upper pallet shattered; his teeth were floating inside his mouth.

           Mr. Mucerino believed that the first two punches were
     delivered by the male with dreadlocks and the red shirt; he was
     the first male to reach Mr. Mucerino and the closest to Mr.
     Mucerino. After the second punch, Mr. Mucerino put his arms up
     and he tried to get into his house. However, he got grabbed and
     thereafter, he was hit 20 to 25 times, primarily in the face. He
     could not see who was hitting him; he [was] covering up, trying
     to protect himself. Ryan eventually grabbed Mr. Mucerino and
     pulled him into the house. The males tried to get into the house,
     to continue the attack but, for some reason— possibly the arrival
     of the police— they broke off. Mr. Mucerino went to the sink and
     at that point, the police arrived. Mr. Mucerino was bleeding
     profusely. While talking to the police, Mr Mucerino went to clear
     his nose and as he did, a body part came out of his nose.

             The police took Mr. Mucerino to the hospital, where he
     underwent a CAT scan. He was then transferred to Temple
     Hospital. After being released from the hospital, Mr. Mucerino
     underwent surgery— his nasal passage was replaced and four
     metal plates were implanted in the upper part of his mouth. He
     is still recuperating from the surgery. He also sustained multiple
     other fractures, in the facial area, that had to heal on their own.
     He had to have his eye checked for floating fragments. He had
     to have his glasses repaired because they were broken in the


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      incident. He has pain every day. His teeth are misaligned and
      his mouth is deformed. He has difficulty eating, breathing and
      talking. The doctors recommended that his jaw be re-broken, to
      straighten everything …

            At trial, Ryan pointed to [Appellant] and identified him as
      one of the aforementioned three males.           Ryan described
      [Appellant] and the other two males, as they [appeared] on July
      1, 2013— [Appellant] had dreadlocks and he was wearing a red
      T-shirt … Ryan also identified [Appellant] as the first person to
      take action.

Trial Court Opinion (TCO), 9/8/2015 at unpaginated 2-5 (footnotes and

citations removed).

      On July 3, 2014, Appellant was arrested for his role and charged with

inter alia, aggravated assault, attempted burglary, conspiracy to commit

aggravated assault, criminal mischief, simple        assault,   and recklessly

endangering another person. On May 22, 2014, Appellant waived his right

to a jury trial and proceeded to a bench trial. On that same day, the trial

court found Appellant guilty of the aforementioned crimes. On September 5,

2014, the trial court sentenced Appellant to a term of incarceration of five to

ten years for aggravated assault, and a concurrent term of five to ten years

for conspiracy to commit aggravated assault.       No further penalties were

assessed as to the remaining crimes.     Appellant timely filed post-sentence

motions challenging the weight and sufficiency of the evidence, as well as a

motion for modification of sentence on September 12, 2014.         All motions




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were denied following a hearing held on November 25, 2014. This timely-

filed appeal followed.1

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

        When it imposed an aggregate term of total incarceration in a
        state institution for a period of 5 to 10 years, did not the [trial]
        court abuse its discretion and impose an unduly harsh,
        manifestly     excessive   and    unreasonable    punishment      in
        contravention of the general standards set forth by 42 Pa.C.S.[]
        § 9721, because it failed to adequately examine and consider
        [Appellant’s] background, character and rehabilitative needs and
        [Appellant’s] mitigation evidence, and improperly weighed
        against those factors the seriousness of the complainant’s
        injuries, which was already accounted for in the offense gravity
        score?

        Did not the [trial] court abuse its discretion by sentencing
        [Appellant] to a term of total incarceration in a state institution
        for a period of 5 to 10 years for the charge of conspiracy, where
        the sentence exceeded the aggravated range for that offense
        under the sentencing guidelines and the court failed to state
        adequate reasons for sentencing above the aggravated range?

Appellant’s Brief at 3.

        Appellant’s questions challenge 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


1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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          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).

       The record reflects that Appellant timely filed a notice of appeal and

that   Appellant   preserved    the   issues    by   timely   filing   a   motion   for

reconsideration of his sentence.      Moreover, Appellant has included in his

brief a statement pursuant to Pa.R.A.P 2119(f).          We now turn to consider

whether Appellant has presented substantial questions for our review.

       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.”     Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

       In his 2119(f) statement, Appellant asserts that the trial court failed to

“adequately    examine    and    consider      the   background,       character    and

rehabilitative needs and the [Appellant’s] mitigation evidence.” Appellant’s



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Brief at 16. This Court has long held that a trial court’s failure to consider

adequately mitigating factors does not raise a substantial question.      See

Commonwealth v. Disalvo, (“[T]his Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

a substantial question for our review.”) (quoting Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010)).

      While the trial court’s failure to consider adequately mitigating factors

does not raise a substantial question for our review, Appellant’s averment

that the trial court double counted the injuries of the victim by improperly

weighing “the seriousness of the [victim’s] injuries, which [were] already

accounted for in the offense gravity score,” does. See Commonwealth v.

Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (“When fashioning a

sentence, a sentencing court may not ‘double count’ factors already taken

into account in the sentencing guidelines.”) See also Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa.Super. 2005) (finding appellant raised a

substantial question for the Court’s review when claiming that the trial court

“considered factors already included in the guidelines.”).

      Appellant contends that the trial court erred in focusing on the degree

of the injury suffered by the victim when it imposed a sentence of

incarceration in the aggravated range because the guidelines assigned an




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offense gravity score of 11,2 taking into account that the victim suffered

serious bodily injury. Appellant avers that the trial court’s reliance on the

victim’s injuries and the failure to weigh all additional factors such as

protection of the public, the gravity of the offense, and the rehabilitative

needs of Appellant was an abuse of discretion.

      Upon review of the record, this Court finds the trial court did not

double count the victim’s injuries.   As correctly cited by Appellant, serious

bodily injury is defined as “bodily injury which creates a substantial risk of

death or which causes serious permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ.” 18 Pa.C.S.

§ 2301.   While it did note the extensive, life-changing injuries suffered by

the victim, the trial court spoke at length during sentencing about the nature

of the crime and the impact the crime had on both the victim and his family.

At sentencing, the trial court stated that the way the victim was beaten was

the “most brutal” he had seen in his three years on the bench.           N.T.

9/5/2014 at 24-25.    Specifically, the trial court noted that the victim was

beaten after he risked his own well-being to pull to safety a woman whom he

saw being “pummeled on the street” in front of his home. Id. at 25. For




2
  The offense gravity score was assigned due to Appellant’s conviction of
aggravated assault where serious bodily injury occurred. See 204 Pa. Code
§ 303.15.


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those “heroic efforts” the trial court found the Appellant and his friends beat

the victim, a man in his 60s, “to a pulp.” Id.

      Appellant fails to make a cognizable argument, or cite any authority to

support the contention that the individual nature of the crime, the age of the

victim, the impact to the victim and his family, and the events surrounding

the incident are incorporated as factors that comprise the guidelines. See

Commonwealth v. Wall, 926 A.2d 957, 967 (Pa. 2007) (holding that the

defendant “offered no legitimate basis to presume” that individual factors of

the case “are subsumed within the sentencing guidelines”).       Furthermore,

we note that the trial court ordered and received a pre-sentence report (PSI)

prior to sentencing.3   “[W]here the sentencing judge had the benefit of a

PSI, it will be presumed that he or she was aware of the relevant information

regarding the defendant's character and weighed those considerations along

with mitigating statutory factors.”    Commonwealth v. Boyer, 856 A.2d

149, 154 (Pa. Super. 2004).4          We are not persuaded by Appellant’s


3
 The trial court stated that prior to sentencing, the court “considered the PSI
report, the sentencing guidelines, facts of the case, the information provided
to the [trial court] at the sentencing hearing, including [Appellant’s]
counsel’s reading of character evidence proffered by members of the
community and a family friend, the Commonwealth’s reading of victim
impact evidence proffered by the victim[’s] grandson, the testimony of the
victim’s wife and the testimony of [Appellant], who elected to allocate [sic]”.
TCO, 9/8/2015, at unpaginated 13.
4
 At sentencing, the trial court noted the impact the crime had on the victim
and his family. N.T., 9/5/2014 at 25. The trial court also found Appellant’s
apology at sentencing to be “disingenuous and proffered for the sole purpose
of obtaining mercy” and that Appellant’s statement at sentencing “that he

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argument that the trial court double counted the victim’s injuries when

imposing Appellant’s sentence, as the record indicates otherwise. No relief

is due.

      Lastly, Appellant argues that the trial court abused its discretion by

failing to state adequate reasons on the record for sentencing Appellant to a

concurrent five to ten year sentence for conspiracy, which is above the

aggravated range of his sentencing guidelines.       Such a claim raises a

substantial question.   See Commonwealth v. Garcia-Rivera, 983 A.2d

777, 780 (Pa. Super. 2009) (“This [C]ourt has found that a claim the trial

court failed to state its reasons for deviating from the guidelines presents a

substantial question for review.”).

      Regarding the merits of Appellant’s claim, we are guided by this

Court’s opinion in Commonwealth v. Byrd, 657 A.2d 961 (Pa. Super.

1995).    In Byrd, the trial court stated, on the record, its reasons for

sentencing Byrd in the aggravated range of the sentencing guidelines.

However, the record reflected that the trial court actually sentenced Byrd in

excess of the aggravated range. Thus, on appeal to this Court, Byrd argued

that the trial court abused its discretion by misapplying the sentencing

guidelines and by failing to provide sufficient reasons for sentencing him

outside of the guidelines.


thought he was doing the right thing, protecting his family” “demonstrated
to the [c]ourt that [Appellant] did not, or could not, appreciate the
criminality of his conduct.” TCO, 9/8/2015, at unpaginated 14.

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     This Court responded to Byrd’s argument as follows.

          While deviation from the guidelines is permitted, the
     Sentencing Code requires that the court place of record its
     reasons for such deviation. The Superior Court has held that

       [a]t the minimum, the court must indicate that it
       understands the sentencing guideline range, in those cases
       in which the court deviates from the guidelines.

           As noted above, in every case where sentence has
       been imposed, the court then must make as part of the
       record and disclose in open court at the time of
       sentencing, a statement [of] the reasons for the sentence.
       However, the Sentencing Code imposes an additional
       requirement where the sentence is outside the guidelines
       and that is there must be a contemporaneous written
       statement of the reasons for deviation from the guidelines.
       Where the trial judge deviates from the sentencing
       guidelines ... he must set forth on the record, at
       sentencing, in the defendant’s presence, the permissible
       range of sentences under the guidelines and, at least in
       summary form, the factual basis and specific reasons
       which compelled the court to deviate from the sentencing
       range.     The Act states that failure to provide an
       appropriate contemporaneous written statement shall be
       grounds for vacating the sentence and resentencing the
       defendant. In the instant case the court did not advise the
       defendant what the sentencing guidelines provided as far
       as the range of sentence, and did not state why he
       deviated from the sentencing guidelines.

           [Byrd’s] sentencing transcript reveals that the sentencing
     court failed to set forth in [his] presence the permissible range
     of sentences under the guidelines.          Moreover, while the
     sentencing court did provide reasons for the sentence imposed,
     these reasons were advanced to support a sentence in the
     aggravated range. Nowhere did the court indicate that it was in
     fact sentencing [Byrd] outside of the guidelines and provide a
     contemporaneous statement of its reasons for such deviation….




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Byrd, 657 A.2d at 963-64 (citations omitted). For these reasons, this Court

vacated Byrd’s sentence and remanded to the trial court for resentencing.

     Here, it is uncontested that Appellant was sentenced outside the

aggravated range for conspiracy to commit aggravated assault, as both the

trial court5 and the Commonwealth6 acknowledge the above-guideline

sentence. At the beginning of Appellant’s sentencing hearing, the trial court

properly stated the standard, mitigated, and aggravated ranges for

aggravated assault.   N.T., 9/5/2014 at 5.   However, the trial court never

mentioned what the ranges were for Appellant’s conspiracy conviction. 7 In

other words, the court failed to set forth in Appellant’s presence the

permissible range of sentences under the guidelines.

     Moreover, while the trial court provided reasons for the sentence it

imposed, those reasons were advanced to support a sentence in the

aggravated range. Id. at 26 (“I am in agreement with the DA that nothing


5
  See TCO, 9/8/2015 at unpaginated 12 (“[The trial court] imposed … a
concurrent sentence of five 5 [sic] to 10 years’ incarceration for conspiracy
(beyond the aggravated range)”).

6
  See Commonwealth’s Brief at 5 (“The [trial court] properly explained its
concurrent, above guideline range sentence for criminal conspiracy …”)
7
  Appellant had a prior record score of zero and Appellant’s conspiracy to
commit aggravated assault conviction carried a gravity score of 10. Thus,
the sentencing guidelines dictate that: the standard minimum sentence in
this case is 22-36 months of imprisonment; the mitigated range is 10 to 22
months of imprisonment; and the aggravated range is 36-48 months of
imprisonment. 204 Pa.Code § 303.16(b).



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but an aggravated sentence in this case is needed.”).       Furthermore, after

defense counsel questioned the sentence as outside the guideline range, the

trial court reiterated its position that it was sentencing Appellant within the

guidelines.    See N.T., 9/5/2014 at 27, (“I said it’s aggravated. It’s

aggravated for all the reasons I have given.”)      Yet, the court sentenced

Appellant to five to ten years’ incarceration for conspiracy to commit

aggravated assault, which falls outside of the aggravated range. The court

never stated that it was sentencing Appellant outside of the aggravated

range nor did it provide a contemporaneous reason for such a deviation.

      For these reasons, we vacate Appellant’s judgment of sentence in part

and remand for resentencing as to conspiracy to commit aggravated assault.

We affirm the judgment of sentence in all other respects.

      Judgment of sentence affirmed in part and vacated in part.          Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/16/2016


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