J-S75036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NORMAN BOWEN,                              :
                                               :
                       Appellant               :      No. 3445 EDA 2017

            Appeal from the Judgment of Sentence October 2, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009387-2016,
             CP-51-CR-0009389-2016, CP-51-CR-0009391-2016,
             CP-51-CR-0009396-2016, CP-51-CR-0009404-2016,
             CP-51-CR-0009406-2016, CP-51-CR-0009408-2016,
              CP-51-CR-0009414-2016, CP-51-CR-0010116-2016

BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2019

       Norman Bowen (“Bowen”) appeals from the judgment of sentence

imposed, at seven separate docket numbers1 following his open guilty plea to

robbery, burglary, and related offenses. We affirm.

       During his guilty plea hearing, Bowen agreed to the following recitation

of facts:

       [Regarding CP-51-CR-0009387-2016,] on June 29, 2016,
       [Bowen] conspired with codefendant, Anthony Campbell
       [(“Campbell”)], and another … to commit a home invasion robbery
       at 4226 Lancaster Avenue. This property houses a Chinese
       restaurant on the first floor and a residence on the second.
       [Bowen and Campbell], each armed with a small black firearm,
       pointed their weapons at Ertai Lan … and Zhining Chang, … both
____________________________________________


1 The charges at docket numbers CP-51-CR-0009389-2016 and CP-51-
0009391-2016 were nolle prossed before Bowen entered a guilty plea.
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     who [sic] lived in the home, demanding money. [Bowen and
     Campbell] tied Mr. Lan’s and Mr. Chang’s hands with belts, [and]
     forcibly took money, [a] computer, and an iPhone.[FN]

         [FN] The Commonwealth also submitted that Bowen had
         previously been convicted for possession with intent to
         deliver, rendering him ineligible to possess a firearm.

     …

     [Regarding CP-51-CR-0009396-2016,] [o]n August 1, 2016,
     [Bowen] conspired with [] Campbell to commit a home-invasion
     robbery at 724 South 52nd Street. The property houses a Chinese
     restaurant on the first floor and a residence on the second.
     [Bowen and Campbell], each armed with a firearm, bound Xiuzhen
     Wang … and her 13-year-old son, Vinny Zhang[,] … while
     threatening them at gunpoint. They were tied with an extension
     cord and phone wire. [Bowen and Campbell] took jewelry, an
     Xbox, cigarettes, cash, and a jar of coins. …

     …

     [Regarding CP-51-CR-0009404-2016,] [] on June 6, 2016,
     [Bowen] conspired with … Campbell[] to commit a home-invasion
     robbery at 6200 Vine Street. The property houses a Chinese
     restaurant on the first floor and a residence on the second.
     [Bowen and Campbell] forcibly entered the restaurant, taking
     money, cigarettes, cigars, [and] other items from the store.
     [Bowen and Campbell] attempted to make entry into the
     residence where the complainants were sleeping but failed to
     force[] open the door. Police were called and ultimately arrived
     at that location after [Bowen and Campbell] left.

     …

     [Regarding CP-51-CR-0009406-2016,] [] on July 28, 2016, Bowen
     and … Campbell[] conspired to commit a home-invasion robbery
     at 6000 Master Street. This property houses a Chinese restaurant
     on the first floor and a residence on the second. The two forcibly
     entered through a rear security door[,] causing damage to the
     premises while wearing masks and gloves. Once inside, they
     forcibly entered the residence where the victims, Shuisang Huang
     [(“Huang”)], … Neng Lin [(“Lin”)], … and their nine-year-old
     daughter … were sleeping. [Bowen and Campbell], both armed

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     with firearms, woke [up Lin and Huang]. … [Bowen and Campbell]
     demanded money. [] Huang and [] Lin were both pistol-whipped
     about the head. [] Huang was struck three times. [Bowen and
     Campbell] demanded money[,] and bounded [sic] and gagged []
     Huang, tying her about the hands and feet[,] and placing a pair of
     pants in her mouth. The two initially brought [] Lin downstairs
     with them in order to direct him where to find the money, then
     ultimately returned [Lin] upstairs and tied him by the hands and
     feet. [Bowen and Campbell] ransacked the entire home, including
     the businesses and bedrooms of [] Huang and [] Lin[,] and the
     bedroom of their … daughter [], who did wake up during that
     incident and [saw] an armed man ransacking her room. [Bowen
     and Campbell] took[] approximately[] $3,000 in cash, numerous
     pieces of jewelry that were taken from [] Huang’s person as well
     as her bedroom[,] and the video security system that had been
     installed in the restaurant. [] Lin and [] Huang suffered injuries
     to their heads as a result of being struck with the firearms….

     …

     [Regarding CP-51-CR-0009408-2016,] [o]n July 31[], 2016,
     [Bowen and Campbell], along with Sharif Mogley [(“Mogley”)],
     conspired to commit a home-invasion robbery at 6047 Market
     Street. The property houses a laundromat on the first floor and a
     residence on the second. [Bowen], along with [] Campbell,
     forcibly entered the business and ultimately the second floor
     residence[,] where Meiuy Chen [(“Chen”)] … and her children, Xia
     Lin [(“Xia”)] … and Rung Lin [(“Rung”),] … were asleep. [] Chen
     and [Xia] were sleeping in the same room. [Rung] was sleeping
     in another room. The complainants were awoken and had guns
     pointed to their head[s]. [Xia] and [] Chen were both bound by
     their hands and feet[,] face[] down[,] while [Bowen and
     Campbell] took jewelry, $2,000, two computers, a box of tokens,
     [and] a large amount of change.

     …

     [Regarding CP-51-CR-0009419-2016,] on July 20, 2016, [Bowen]
     conspired with [] Campbell and Mogley to commit a home-
     invasion robbery at 5150 North 5th Street. [Bowen], along with []
     Campbell, selected that location prior to that incident and labeled
     that as a property they thought would be easy and successful for
     a home-invasion gunpoint robbery. On that date, [] Bowen was
     not physically present, but during all of these incidents, a vehicle

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       owned by [] Bowen was used by [] Campbell. Additionally, phone
       records of [] Campbell indicated multiple calls surrounding this
       incident from a phone number that belonged to [] Bowen’s
       girlfriend before, during and after this incident. [] Mogley and []
       Campbell entered that house, which is a property that houses a
       Chinese restaurant on the first floor and a residence on the
       second. … And on the date of this incident, [Bowen], along with
       [] Mogley, forcibly entered the property. The complainant, Xin Wu
       … hid within the house with his wife, watching on the camera as
       … Mogley and [] Campbell took[] approximately[] $9,000 in cash
       as well as cigarettes and jewelry from the complainant’s home.

       …

       [Regarding CP-51-CR-0010116-2016,] [o]n June 9, 2016,
       [Bowen] and … Campbell[] conspired to commit a home-invasion
       gunpoint robbery at 1023 West Ruscomb Street. This property
       houses a Chinese restaurant on the first floor and a residence on
       the second floor. [Bowen and Campbell], each armed with
       firearms, forcibly entered the property where the complainants,
       Yong Zhenyu, … Bizhong Liu, … and their ten-year-old daughter …
       were sleeping. [Bowen and Campbell] pointed the guns at the
       complainants and demanded property, taking[] approximately[]
       $10,000, jewelry, cigarettes, a computer, cell phones, iPads and
       frozen shrimp.

N.T., 7/12/17, at 12-29 (footnote added; some paragraph breaks omitted).

       On July 12, 2017, Bowen pled guilty, on separate dockets, to twelve

counts of robbery, eight counts of conspiracy, five counts each of burglary,

false imprisonment and possession of an instrument of crime (“PIC”), four

counts of possession of firearms prohibited, and one count each of theft by

unlawful taking, aggravated assault, criminal attempt, and firearms not to be

carried without a license.2 The trial court deferred sentencing and ordered a


____________________________________________


218 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 3502(a)(1), 907, 2903, 6105, 3921(a),
2702, 901, 6106.

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pre-sentence investigation report (“PSI”). The trial court sentenced Bowen to

an aggregate term of 34 to 68 years in prison.

       Bowen filed a timely Motion to Reconsider, which the trial court denied.

Bowen thereafter filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

       On appeal, Bowen raises the following question for our review:

       Is the sentence imposed unduly harsh and greater than that which
       would be consistent with protection of the public, the gravity of
       [Bowen’s] conduct as it relates to the impact on the life of others
       in the community, and the rehabilitative needs of [Bowen], and
       did the trial court [fail] to take into account all mitigating and
       relevant and necessary factors to be considered by a sentencing
       court (including [Bowen’s] age[,] rehabilitative needs, mental
       illness, drug addiction, acceptance of responsibility, remorse, and
       his allocution); that is, is confinement in a state correctional
       facility for the term imposed [] not the least restrictive sentence
       necessary to effectuate the aims of the Pennsylvania’s [sic]
       sentencing laws?

Brief for Appellant at 4.

       Bowen’s claim challenges the discretionary aspects of his sentence.3

“Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,

170 (Pa. Super. 2010).          Prior to reaching the merits of a discretionary

sentencing issue,

       [this Court conducts] a four-part analysis to determine: (1)
       whether appellant has filed a timely notice of appeal, see
____________________________________________


3Bowen’s open guilty plea does not preclude a challenge to the discretionary
aspects of his sentence. See Commonwealth v. Brown, 982 A.2d 1017,
1019 (Pa. Super. 2009).

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      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, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

      Here, Bowen filed a timely Notice of Appeal and raised his sentencing

claim in a timely Motion to Reconsider. Bowen also included a separate Rule

2119(f) Statement in his brief.      Accordingly, we will review Bowen’s Rule

2119(f) Statement to determine whether he has raised a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d

323, 330 (Pa. Super. 2013) (citations omitted). “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.” Id. (citations omitted).

      In his Rule 2119(f) Statement, Bowen argues that the trial court’s

imposition of consecutive sentences resulted in an excessive aggregate

sentence. Brief for Appellant at 35. Bowen points out that all seven robberies

and attempted robberies were part of one ongoing scheme. Id. Bowen also

claims that the trial court failed to consider certain mitigating factors, including

his history of mental illness and an expensive drug addiction (which, according

to Bowen, was the impetus for his involvement in the robberies). See id. at



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35-36.   Bowen additionally argues that he “accepted responsibility for his

actions, expressed remorse, and apologized to the victims.” Id.

      This Court has held that a “challenge to the imposition of [] consecutive

sentences as unduly excessive, together with [a] claim that the court failed to

consider [the appellant’s] rehabilitative needs and mitigating factors upon

fashioning its sentence, presents a substantial question.” Commonwealth

v. Swope, 123 A.3d 333, 340 (Pa. Super. 2015). Additionally,

      [i]n determining whether a substantial question exists, this Court
      does not examine the merits of whether the sentence is actually
      excessive.    Rather, we look to whether the appellant has
      forwarded a plausible argument that the sentence, when it is
      within the guideline ranges, is clearly unreasonable.
      Concomitantly, the substantial question determination does not
      require the court to decide the merits of whether the sentence is
      clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013). Because

Bowen’s argument raises a substantial question, we will consider the merits

of his claim.

      Our standard of review of a challenge to the discretionary aspects of a

sentence is well settled:

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

Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007).



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      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.” 42 Pa.C.S.A. § 9721(b). The trial court

must also consider the Sentencing Guidelines.               See id.; see also

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (stating

that “[w]hen imposing a sentence, the [trial] court is required to consider the

sentence ranges set forth in the Sentencing Guidelines….”).

      Initially, we note that the sentencing transcripts are not included in the

certified record, nor is there any indication on the docket that Bowen filed a

request for transcripts.   Pennsylvania Rule of Appellate Procedure 1911(a)

requires an appellant to request and pay for any transcript necessary to permit

resolution of the issues raised on appeal. Pa.R.A.P. 1911(a). “[A]ny claims

that cannot be resolved in the absence of the necessary transcript … must be

deemed waived for the purpose of appellate review. It is not proper for [] the

… Superior Court to order transcripts[,] nor is it the responsibility of the

appellate courts to obtain the necessary transcripts.”       Commonwealth v.

Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (citations omitted).

      We will nevertheless consider the merits of Bowen’s claim. Here, the

record reflects that the trial court had the benefit of a PSI, which the trial court

stated it had considered, in addition to Bowen’s mental health records and his

rehabilitative needs, prior to imposing its sentence.        Trial Court Opinion,

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12/21/17, at 7; see also Commonwealth v. Ventura, 975 A.2d 1128, 1135

(Pa. Super. 2009) (stating that “where the trial court is informed by a [PSI],

it is presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.”). Moreover, in its Opinion, the trial court indicated

that it had reviewed Bowen’s “upbringing, educational background, and

criminal history, the latter of which revealed that [Bowen] had, as an adult,

fifteen prior convictions and eight commitments.        [The trial c]ourt also

considered [Bowen’s] age and long history of violations, which included nine

violations of probation or parole.” Trial Court Opinion, 12/21/17, at 7-8. The

trial court also specifically pointed to testimony by Bowen and his co-

conspirator that they “specifically target[ed] and preyed on Chinese-American

business owners, believing that Asians kept money at home instead of a bank,

and that Asians would be less likely to report the crimes.”          Id. at 9.

Additionally, the trial court reviewed the applicable Sentencing Guidelines for

each offense. See id. at 8-9, 10. Upon review, we discern no abuse of the

trial court’s discretion, nor do we find Bowen’s aggregate sentence excessive

under the circumstances.4

____________________________________________


4 The consecutive nature of Bowen’s sentences, without more, does not
necessitate the conclusion that Bowen’s aggregate sentence is manifestly
excessive. See Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011) (stating that “[g]enerally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”)
(citation omitted).

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/19




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