J-A19036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellant              :
                                         :
            v.                           :
                                         :
LEROY McCAIN                             :           No. 3000 EDA 2016

            Appeal from the Judgment of Sentence May 11, 2016
            in the Court of Common Pleas of Philadelphia County,
             Criminal Division, No(s): CP-51-CR-0007290-2013

BEFORE: BENDER, P.J.E., DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED OCTOBER 18, 2017

      The Commonwealth of Pennsylvania appeals from the judgment of

sentence imposed following Leroy McCain’s (“McCain”) convictions of

aggravated assault, conspiracy, simple assault, persons not to possess

firearms, firearms not to be carried without a license, carrying a firearm on

public streets in Philadelphia, and recklessly endangering another person. 1

We vacate McCain’s judgment of sentence, and remand for resentencing.

      In its Opinion, the trial court set forth the relevant facts underlying

this appeal as follows:

             On May 4, 2013, Anthony Rodriguez [(“Anthony”)] was
      selling cell phones at a vending stand near 5th [Street] and
      Lehigh    Avenue    in  Philadelphia.     Wilfredo  Rodriguez
      [(“Wilfredo”)], who owned the stand, was also working there at
      that time. Anthony was selling a certain phone on commission
      for an associate named Mikey. That day, an unnamed buyer
      drove up to the stand and bought the cell phone from Anthony.


1 See 18 Pa.C.S.A. §§ 2702, 903, 2701, 6105(a)(1), 6106(a)(1), 6108,
2705.
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     Later that day, the buyer returned and complained that the
     phone he had bought was fake. Anthony replied that he no
     longer had the buyer’s purchase money. [Anthony] asked the
     buyer to give him a day to get his money back, and the buyer
     replied that he would be back.

           At some point afterward, the buyer returned to the stand
     and began fighting with Anthony. The buyer had a companion
     with him, a tall, thin young man.         Wilfredo engaged the
     companion in a fight while the buyer fought with Anthony.
     During the altercation, the companion called over to [McCain],
     who was on the other side of Lehigh Avenue. [McCain] came
     over, and the companion urged him to pull out his firearm.
     Anthony and Wilfredo saw [McCain] pull a gun out of his jacket
     or waistband and began yelling, “Don’t do it, don’t do it.”
     [McCain] pointed his gun at Anthony, seemed to hesitate, and
     then fired three times at the ground near Anthony. The bullet
     ricocheted off the cement and struck Wilfredo in the foot.

            On May 7, 2013, Detective [Samuel] Gonzalez [(“Detective
     Gonzalez”)] took a statement from Anthony in which Anthony
     identified [McCain] as the shooter from a photo array. At trial,
     Detective Gonzalez entered into evidence images from a
     surveillance video from the pawn shop across the street. The
     image shows “an older male with a – type of dark colored
     baseball cap, appears he’s wearing glasses … dark colored
     checkered shirt … either black or blue, dark blue, blue and white
     … with dark color possibly, dark color pants.” This matched the
     description provided by Anthony, which was a “black male, about
     five-ten … stocky build … looked older, maybe around 50 years
     old … wearing glasses and a blue baseball cap … wearing [a]
     black jacket, blue jeans, and he had [] black and white
     sneakers.”

           Counsel[] stipulated that, had Detective Dusak been
     called, he would have testified to blood discovered at the gas
     station near that location and two .45 caliber FCCs (fire cartridge
     casings) in the area near the pumps towards Lehigh Avenue.
     Officer [Gregory] Welsh would testify that the FCC 1 and FCC 2
     were fired from the same firearm. The detectives executed a
     search warrant at [McCain’s] residence and recovered a baseball
     cap. Counsel[] further stipulated that [McCain] was 55 at the
     time of arrest and did not have a valid license to carry a firearm.



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      [McCain] was ineligible to possess a firearm due to a prior
      conviction.

Trial Court Opinion, 12/6/16, at 2-3 (citations to record omitted).

      Following a bench trial, McCain was convicted of the above-mentioned

crimes.    The trial court deferred sentencing and ordered a pre-sentence

investigation report (“PSI”).         On May 11, 2016, the trial court sentenced

McCain to an aggregate term of 11½ to 23 months in prison, with immediate

parole to house arrest, followed by 7 years of reporting probation and 50

hours of community service. The trial court did not grant McCain credit for

time served.

      On      May    18,     2016,    the    Commonwealth     filed    a     Motion   for

Reconsideration of Sentence, which was denied by operation of law on

September 16, 2016. The Commonwealth subsequently filed a timely Notice

of Appeal and a Pa.R.A.P. 1925(b) Concise Statement of errors complained

of on appeal.

      The Commonwealth raises the following issue for our review: “Did the

[trial] court abuse its discretion where it failed to protect the public from a

violent, unrepentant, career felon and offered flawed reasons for its extreme

deviation from the sentencing guidelines in imposing a lenient sentence of

house arrest for shooting a victim with an illegal firearm?” Commonwealth’s

Brief at 4.

      The Commonwealth argues that the trial court abused its discretion by

imposing      a   sentence    below    the    mitigated   range   of   the   sentencing


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guidelines.2 Id. at 14. The Commonwealth points to McCain’s substantial

record (which includes convictions for, inter alia, robbery, rape, aggravated

assault and possession of a firearm by a convicted felon), as well as his

classification as a repeat felony offender.    Id.    The Commonwealth claims

that the trial court’s sentence fails to protect the public from a violent

criminal.   Id. at 16.    Additionally, the Commonwealth challenges the trial

court’s classification of the shooting as an “accidental injury,” and argues

that McCain’s conviction of aggravated assault precludes a determination

that the resulting injury was accidental.      Id. at 17.    The Commonwealth

claims that the trial court trivialized Wilfredo’s injury by characterizing it as a

wound to his foot.       Id. at 18; see also id. (wherein the Commonwealth

states that the bullet shattered Wilfredo’s shin bone; the injury required

surgical repair and the implantation of a metal rod and several screws; and,

as a result of the injury, Wilfredo suffers from chronic pain and numbness,

walks with a limp, and trips over himself).          Further, the Commonwealth

argues that the instant offense is a violent escalation from McCain’s 2000

conviction of possession of a firearm by a convicted felon.        Id. at 19, 24.


2 The parties agreed that for persons not to possess firearms, the offense
gravity score was 10 (which makes it a “Level 5” offense under the
Sentencing Guidelines), and for aggravated assault, the offense gravity
score was 8. Additionally, McCain was designated as a repeat felony
offender. The trial court calculated the standard range sentence based on
the persons not to possess firearms offense, for which the Sentencing
Guidelines recommends a minimum sentence of 72 to 84 months in prison,
plus or minus 12 months for the aggravated/mitigated range. See 204 Pa.
Code § 303.16(a).


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The Commonwealth additionally notes that McCain tested positive for PCP

approximately two months after sentencing, and has failed to provide

evidence that he is working, as required under the terms of his parole. Id.

at 9 n.1, 20.

      The Commonwealth challenges the discretionary aspects of the

sentence imposed by the trial court. “It is well-settled that, with regard to

the discretionary aspects of sentencing, there is no automatic right to

appeal.” Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. Super.

2010).

      An appellant challenging the discretionary aspects of [a]
      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.A. § 9781(b).

                                   ***

      The determination of what constitutes substantial question must
      be evaluated on a case-by-case basis. 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks, brackets and some citations omitted).


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      Here, the Commonwealth filed a timely Notice of Appeal and preserved

its issue in its Motion for Reconsideration of Sentence. The Commonwealth

also included a Rule 2119(f) Statement in its brief, wherein it argues that

McCain’s sentence fails to protect the public, and is an extreme and

unreasonable departure from the mitigated range of the sentencing

guidelines.    Commonwealth’s Brief at 11-12.                The Commonwealth’s

argument raises a substantial question. See Commonwealth v. Kenner,

784 A.2d 808, 811 (Pa. Super. 2001) (holding that the Commonwealth

raised a substantial question where it alleged that defendant’s sentence was

excessively lenient, and provided specific reasons why the sentence violated

sentencing    norms).    We   will    therefore   consider    the   merits   of   the

Commonwealth’s claim.

      We review the trial court’s sentencing determination for an abuse of

discretion. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). “An

abuse of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. (citation omitted).

      The Sentencing Code provides that

      the [trial] court shall follow the general principle that the
      sentence imposed should call for confinement that is consistent
      with the protection of the public, the gravity of the offense as it
      relates to the impact on the life of the victim and on the
      community, and the rehabilitative needs of the defendant.



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42 Pa.C.S.A. § 9721(b). The trial court must also consider the sentencing

guidelines. See id. Additionally, when a court imposes a sentence, it must

provide a contemporaneous statement of the reasons supporting its

sentence.   See id.; see also Commonwealth v. Feucht, 955 A.2d 377,

383 (Pa. Super. 2008) (stating that “whether or not there is a departure

from the guidelines, a court imposing sentence for a felony or misdemeanor

shall make part of the record, and disclose in open court during sentencing,

a statement of the reasons for the sentence.”).   Section 9781(d) provides

that, when reviewing a sentence, we must consider the following:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.

     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).        This Court may conclude that a sentence is

unreasonable based upon a review of the factors set forth in Section

9781(d), or based upon a finding that the trial court did not give proper

consideration to the general sentencing standards stated in Section 9721(b).

Walls, 926 A.2d at 964; see also 42 Pa.C.S.A. § 9781(c)(3) (directing this

Court to vacate a sentence and remand for resentencing where “the

sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.”).



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     Here, the trial court stated its intention to impose a sentence

drastically below the recommended guidelines:

     I listened to the attorneys today. I also listened to you as well.
     I reviewed all the reports that were generated for this hearing.
     I’ve also had an opportunity now to review the letters that your
     attorney passed up to me today. I do feel that you were turning
     your life around and you had been doing positive things, and
     that’s been indicated from the pastor as well as your employer.
     I think you worked there for twenty[-]plus years, I think the
     letter indicated. Yeah, for over twenty years, you know. So that
     does mean something that you were able to be a productive
     citizen. However, a crime was committed where unfortunately
     someone was shot as a result of what you did, so I have to
     consider that as well. I am going to depart from the guidelines
     and what I’m going to do on the aggravated assault [charge] is
     that I am going to give you a sentence of [11½ to 23 months,]
     followed by five years of reporting probation. That’s to be
     served on house arrest. You will not get any time credit. And
     I’m going to give you a concurrent sentence on the [persons not
     to possess firearms charge] of [11½ to 23 months,] followed by
     five years [of probation]. And then on the [carrying a firearm on
     public streets in Philadelphia charge,] I’ll just give you a
     consecutive two years of reporting probation. And the reason
     why I deviated as such is because I took into consideration that
     you had already been in custody for eighteen months and I’m
     not giving you time credit for that eighteen months you served,
     and I also looked at the eighteen months that you had been on
     house arrest and continued to work. … And a condition also is
     that you maintain employment, because I know that this is a
     financially difficult situation for your family and they depend on
     you so that your mother’s house is not lost. … I am also going to
     order that you perform fifty hours of community service to give
     back to this community in which[,] unfortunately[,] you took
     something when you did the shooting, so let’s do something
     positive in the community as a result[,] and it looks like you’re
     already doing that. … I will waive your probationary fee so that
     you can dedicate it to rebuilding your life, but I want to be very
     clear to you that if there is any kind of violation[,] this sentence
     will go away and you will be upstate for what the District
     Attorney has asked. Okay? So this is your last shot and I trust
     that you will go out there and be productive.



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N.T. (Sentencing), 5/11/16, at 19-22 (paragraph breaks omitted); see also

Trial Court Opinion, 12/6/16, at 8 (noting that McCain’s “most severe

charges are second-degree felonies”).     Upon review, we conclude that the

sentence is unreasonable, in light of the factors outlined in Section 9781(d).

      While the buyer and the companion fought with Anthony and Wilfredo,

McCain positioned himself across the street.          At the urging of the

companion, McCain shot his firearm, which he possessed illegally, toward

Anthony and Wilfredo. As a result, Wilfredo suffered serious injuries, which

required surgery and physical therapy, and which have caused him long-

term pain. See N.T., 2/16/16, at 84-87.

      We observe that a PSI was prepared and reviewed by the trial court

prior to sentencing.3 The PSI reveals that McCain’s juvenile record includes

3 arrests and one adjudication of delinquency. Additionally, McCain’s adult

criminal history includes 20 arrests, which resulted in 7 convictions,

including, inter alia, robbery, rape, simple assault, and a federal firearms

offense, and 10 total commitments. McCain also incurred 9 parole/probation




3  Generally, the existence of a PSI creates a presumption that “the
sentencing judge 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). However, the presumption is rebuttable. Commonwealth v.
Moore, 617 A.2d 8, 13 (Pa. Super. 1992) (concluding that sentencing court
misapplied the guidelines and remanding for resentencing despite the
existence of a PSI, where the court “failed to properly analyze the four
factors delineated in [Section 9781(d)] and did not correctly consider and
weigh all relevant factors[.]” (citation omitted)).


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violations, 6 of which resulted in revocation. The PSI recommends specific

prison programs, and provides additional conditions that should be imposed

if McCain is placed on probation or parole.

      The Sentencing Guidelines recommend a standard term of 72-84

months in state prison for a repeat felony offender with an offense gravity

score of 10. The trial court imposed a sentence of 11½ to 23 months, with

immediate parole to house arrest, and 7 years of probation. This sentence is

drastically below even the mitigated guidelines range, and ignores the

Sentencing Guidelines recommendation that Level 5 offenses correspond to

state prison terms, rather than other forms of restrictive intermediate

punishment.

      Based upon the circumstances of this case and McCain’s significant

criminal history, which includes violent crimes and a federal firearms

offense, and displays his inability to abide by the terms of less restrictive

punishments, we conclude that McCain’s sentence is unreasonably lenient,

and an abuse of the trial court’s discretion.     See Commonwealth v.

Wilson, 946 A.2d 767, 770 (Pa. Super. 2008) (concluding that sentence of

11½ to 23 months in prison, followed by 7 years of probation for robbery

was unreasonably low, based on the nature of the crimes, the defendant’s

past aggressive conduct and continuing threat to the public, and the injuries

suffered by the victims); see also Commonwealth v. Daniel, 30 A.3d 494,

497, 499 (Pa. Super. 2011) (concluding that a sentence of 11½ to 23



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months in prison, with immediate parole eligibility, and 5 years of

probation—which was only 25% of the lowest standard range—imposed

following defendant’s conviction of aggravated assault and possession of an

instrument of crime was excessively lenient in light of the factors outlined in

Section 9781(d)); Kenner, 784 A.2d at 811-12 (concluding that a prison

term of 11½ to 23½ months, plus 8 years of probation, following

defendant’s guilty plea to aggravated assault was excessively lenient, where

victim suffered severe injuries, and the trial court did not sufficiently justify

its “radical departure from our sentencing guidelines”).      Further, the trial

court’s stated reasons for deviating from the Sentencing Guidelines (i.e.,

McCain’s work history, his time served in custody and on house arrest, and

the court’s belief that McCain is “turning his life around”) fall short of

justifying a less-than-mitigated sentence under the circumstances of this

case.   See Commonwealth v. Robertson, 874 A.2d 1200, 1213 (Pa.

Super. 2005) (stating that “[i]f the sentencing court imposes a sentence that

deviates   significantly   from   the   guideline   recommendations,    it   must

demonstrate that the case under consideration is compellingly different from

the ‘typical’ case of the same offense or point to other sentencing factors

that are germane to the case before the court.”); see also Kenner, 784

A.2d at 812.    Accordingly, we vacate McCain’s judgment of sentence, and

remand for resentencing.




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      Judgment of sentence vacated.   Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/18/17




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