J-S70020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
RAPHAEL SPEARMAN,                        :
                                         :
                  Appellant              :   No. 79 EDA 2015

             Appeal from the Judgment of Sentence July 5, 2012,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0015911-2010

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED NOVEMBER 30, 2015

       Raphael Spearman (“Spearman”) appeals from the July 5, 2012

judgment of sentence entered by the Philadelphia County Court of Common

Pleas following his open guilty plea to carrying a firearm without a license

(“6106”) and carrying a firearm on the public streets in Philadelphia

(“6108”).1 The trial court sentenced Spearman to two and a half to six years

of incarceration for the 6106 conviction and two to five years of incarceration

for the 6108 conviction, with the sentences running consecutive to each

other and consecutive to any other sentence Spearman was then serving.

On appeal, Spearman challenges the trial court’s exercise of discretion in

fashioning his sentence. For the reasons that follow, we affirm.




1
    18 Pa.C.S.A. §§ 6106, 6108.


*Retired Senior Judge assigned to the Superior Court.
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       As Spearman addresses the sole issue raised on appeal to his

sentence, a full recitation of the factual and procedural history of the case is

unnecessary.      Spearman pled guilty to the two crimes with which the

Commonwealth charged him on June 5, 2012.           On July 5, 2012, the trial

court held a sentencing hearing. The trial court stated on the record that it

reviewed    the   Commonwealth’s     sentencing   memorandum,      Spearman’s

mental health evaluation, the presentence investigation report, and the

sentencing guideline report.2    N.T., 7/5/12, at 5.    Counsel for Spearman

detailed the history of Spearman’s childhood, which included being born

addicted to crack cocaine; placement in the dependency system at age nine

because of physical and emotional abuse; the death of his grandmother

(who was the only stable parental figure he had) when he was twelve;

severe mental health problems (including seven documented suicide

attempts) beginning at or around age thirteen; and an adjudication of

delinquency when he was seventeen. Id. at 7-11. Following his discharge

from a state facility and successful completion of probation, Spearman “was

no longer under the purview of the [f]amily [c]ourt and no longer receiving

any medication or [mental health] treatment,” and shortly thereafter, began

his involvement in the adult criminal justice system. Id. at 11.

       Counsel for Spearman also informed the court that while incarcerated,

Spearman has been stabbed four times and “continues daily to find himself


2
    None of these documents appears in the certified record on appeal.


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defending his life.”   Id. at 17.     Counsel believed this stemmed from

Spearman giving the Commonwealth an August 2010 statement (which he

later recanted) regarding an open homicide investigation.       Id. at 17-18.

Spearman’s mother testified on his behalf as well, confirming her history of

addiction, and seeking mercy for her son by the trial court. Id. at 15-16.

      In its presentation at sentencing, the Commonwealth painted a

different picture of Spearman.    The prosecutor stated that Spearman was

arrested three times as a juvenile, failed on probation, and required

placement in four different facilities because of his aggressive and

threatening behavior towards staff. Id. at 22, 24. He was ultimately placed

in a state facility for delinquent juveniles and was arrested for the instant

firearms violations within a year of the conclusion of supervision by the

juvenile court. Id. at 22, 24-25. In 2011, he assaulted staff in a treatment

facility and brought a weapon into a correctional facility. Id. at 25-26.

      Furthermore, the firearm Spearman possessed in this case was used to

commit the murder he witnessed.       Initially, Spearman told police that the

perpetrator of the murder gave the gun to him to hide. Id. at 26. While

incarcerated, however, Spearman sent an affidavit to the prosecutor trying

the murder case stating that he was responsible for the murder.3 Id. at 27.




3
   The Commonwealth stated that no one in the District Attorney’s Office
believes that Spearman was the one who committed the murder. N.T.,
7/5/12, at 27.


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       The    Commonwealth      presented    testimony    from   Officer   Anthony

Solomon of the Philadelphia Police Department.           Officer Solomon testified

that over the past six years, he has become familiar with Spearman through

contacts he has had with him on the street.        Id. at 32.     Officer Solomon

knew Spearman to associate with gang members and to frequent an area

known for gang activity.      Id. at 32-33.    He testified to his training and

experience, which largely concentrated on street gangs and organized crime,

and his knowledge about the formation and background of a particular sect

of the Bloods, 252, the gang to which, in his belief, Spearman belonged. Id.

at 36-40. He further explained that if a person claimed to be a Blood, but

the person was not in fact a member of the gang, the Bloods “will issue an

order to have [that person] killed.” Id. at 38-39.

       Using pictures he previously took of Spearman’s tattoos,4 Officer

Solomon explained the meaning behind each tattoo and its significance in

terms of the Bloods’ culture:

             A tattoo over Spearman’s eyebrows that says “sex $ murder,”
              which Officer Solomon stated is a marking of the Bloods (id. at
              38, 42);

             A bullseye with crosshairs in the center filled in red (the Bloods’
              color) and a teardrop filled in red, which Officer Solomon
              understood to mean either the individual took a life or lost
              someone close to them (id. at 39, 42-43);

             A tattoo on one eyelid that says “2$2,” which Officer Solomon
              said stands for 252 (id. at 37, 45);


4
    The pictures were not included in the certified record on appeal.


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            A tattoo on his other eyelid that says “LIE,” which Spearman told
             Officer Solomon means “loyalty is everything” (id. at 45);

            On his right hand, a spider web with “brazy boy,” which Officer
             Solomon believed meant “crazy boy,” but Bloods use the letter
             “b” instead of “c” in words to show disrespect for the Crips, their
             rival gang (id. at 38, 45-46);

            A five-pointed star, which Officer Solomon stated is indicative of
             Blood membership (id. at 39, 47);

            The name “Mark Tart,” a member of the Bloods who was killed
             by an off-duty police officer during an attempted robbery of the
             officer (id.);

            “Live by the trigger” and “die by the trigger” on the inside of
             Spearman’s fingers (id.);

            “One Hunt Down” (for Huntington Street), “S block” (for Stanley
             Street), “19132” (the zip code), and “NP” (for North
             Philadelphia) on Spearman’s left arm and “29 Street” on his
             thumb, all of which refer to the area the 252 Bloods congregate
             (id. at 48);

            “NP gunman” and “Blood, money” (id.);

            “Homey boys” on Spearman’s fingers, which Spearman told
             Officer Solomon stands for “homicide boys” (id. at 48, 52).

     Officer Solomon testified that the night he spoke with Spearman and

took the above pictures, the tattoos on Spearman appeared to be fresh. Id.

at 50.   Spearman reportedly told Officer Solomon that he was upset that

people with whom he was affiliated, another gang known as “Team A,” had

killed his friend, Anwar Ashmore (“Ashmore”), and he and others decided to

break from Team A to form a gang of their own. Id. at 50-51. Spearman

explained to Officer Solomon that he covered up several Team A-related



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tattoos to turn them into Blood tattoos – e.g., the spider web previously only

had an “A” in the middle, which he changed to say “brazy boy,” and the

teardrop tattoo that he filled in red – and added new tattoos to distance

himself from Team A.     Id. at 51, 53-54.   Officer Solomon had pictures of

Spearman prior to Ashmore’s murder that corroborated this explanation. He

also had pictures of Spearman with Ashmore (prior to his murder) and

others, one of whom allegedly killed Ashmore. Id. at 54-55.

      The Commonwealth also showed a music video posted on YouTube,

the internet address for which was not stated on the record at sentencing.

See id. at 58-61; 76. The trial court summarized the video as having been

put together by another artist and depicting Spearman and others who were

mentioned during the sentencing hearing “dealing with guns, drugs and

other activities[.]” Id. at 76-77.

      Spearman exercised his right to allocution and apologized for his

actions that brought him into court. Id. at 65. He asked the trial court not

to judge him by the actions taken by his neighbors or by his tattoos. Id. He

explained that he is a tattoo artist and in an urban rap group, not a gang,

and that the gang-related tattoos are “just a costume,” likening himself to

rapper Lil Wayne.    Id. at 65-66, 72-74.    The trial court questioned him

about the possibility of being killed for impersonating a gang member, to

which Spearman replied that he “let them know” that he’s not a gang

member and “didn’t think it would be this, like, very important.” Id. at 67-



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68. The trial court further questioned him about being in possession of the

firearm used to kill Ashmore, but Spearman stated that although he wanted

to respond, he did not want to respond that day. Id. at 68-70.

      The trial court then handed down Spearman’s sentence. In so doing,

it stated the following:

               I’ve heard the extensive testimony at the
            sentencing hearing. I’ve considered the presentence
            mental health reports.        I’ve considered the
            Commonwealth’s        sentencing      memorandum.
            Considered the presentation made by counsel [for
            Spearman],    as    well  as    the   testimony   of
            [Spearman]’s mother, and all the background
            information   that’s   been    provided    regarding
            [Spearman]’s history both as a juvenile, the
            commitments, incarceration, as well as an adult.

                                 *    *    *

               Mr. Spearman, I understand you were damaged
            from what has happened to you in your life. But
            there also comes a time when the dangers to the
            community has to be strongly considered. In your
            case, I hope that you’ll use the time in state prison
            to do what you’re saying you want to do, to
            fundamentally deal with whatever problems you
            have and make whatever changes you need to.
            Otherwise, you’re going to come back to state prison
            for the rest of your life from having killed someone
            or be dead yourself.

               What you’ve gotten involved in, what you’ve been
            doing may be a product of what happened to you
            from the time of birth being crack addicted and
            everything else that occurred. I don’t think the
            Commonwealth disputes that.        But what you’ve
            done, both in juvenile facilities and as an adult[,]
            make you very dangerous on the street right now.




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               You’re a relatively young man. The sentence is
            not going to get you out in the near term, but it will
            get you out where you will be able to have a lot of
            your life left. What you make of your life will really
            be yours; none of us, your mother, your attorney,
            myself, nobody else.

                                  *    *    *

               I appreciate your taking programs. There’s a lot
            of programs in the state prison that can help you. I
            hope you’ll take advantage of every one. Learn a
            trade, further education, counseling, whatever it is
            that you need to deal with anger that’s in you, and
            everything else that occurred that brought you to
            where you’re at.

Id. at 81-85.

      Spearman filed a timely motion to reconsider his sentence, arguing

that his sentence was excessive based on its consecutive nature and the trial

court’s failure to properly consider mitigating factors. The trial court denied

the motion by operation of law on November 20, 2012.

      On January 4, 2013, Spearman filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”). The PCRA court appointed counsel, who

filed an amended petition.      On December 29, 2014, the PCRA court

reinstated Spearman’s direct appeal rights.     Thereafter, Spearman filed a

timely notice of appeal and a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). On May 7, 2015, the trial court filed

a responsive opinion pursuant to Pa.R.A.P. 1925(a).




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      On appeal, Spearman raises one issue for our review:               “Does

[Spearman]’s [] 6108 sentence constitute an abuse of discretion and should

the matter be remanded for resentencing?”       Spearman’s Brief at 4.    This

issue raises a challenge to discretionary aspects of Spearman’s sentence.

               Before we reach the merits of this issue, we must
            engage in a four part analysis to determine: (1)
            whether the appeal is timely; (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. The third and fourth of these
            requirements arise because Appellant’s attack on his
            sentence is not an appeal as of right. Rather, he
            must petition this Court, in his concise statement of
            reasons, to grant consideration of his appeal on the
            grounds that there is a substantial question. Finally,
            if the appeal satisfies each of these four
            requirements, we will then proceed to decide the
            substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014)

(citations omitted), appeal denied, 109 A.3d 678 (Pa. 2015).

      As stated above, Spearman filed a timely notice of appeal following the

reinstatement of his direct appeal rights and filed a timely motion to

reconsider his sentence.     He includes in his brief on appeal a concise

statement pursuant to Pa.R.A.P. 2119(f) wherein he purports to raise two

substantial questions. First, he points to his sentence of two to five years of

incarceration for 6108, which is double the aggravated guideline sentence,

and the trial court’s decision to run the sentence consecutively to his


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sentence for 6106. Spearman’s Brief at 9. He asserts that “[t]his sentence

is inconsistent with 4[2] Pa.C.S.A. 9721(b) and contrary to the fundamental

norms which underlie the sentencing process generally[, as t]he sentencing

court did not properly explain how the sentence imposed was consistent with

the protection of the public or how the sentence would serve [Spearman]’s

rehabilitative needs. Id. Our review of the record reveals that Spearman

failed to preserve this issue in his post-sentence motion to reconsider his

sentence,    and   thus   has   waived   it   for   purposes   of   appeal.   See

Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015),

appeal denied, 119 A.3d 351 (Pa. 2015).

      Second, Spearman asserts that the length of his sentence for 6108,

coupled with its consecutive nature, results in a manifestly excessive

sentence, as Spearman pled guilty and accepted responsibility for his

actions.    Spearman’s Brief at 9.   Although preserved in his post-sentence

motion, we nonetheless deny review, as Spearman fails to raise a

substantial question for our review. As stated by our Supreme Court,

             [O]nly where the appellant’s Rule 2119(f) statement
             sufficiently articulates the manner in which the
             sentence violates either a specific provision of the
             sentencing scheme set forth in the Sentencing Code
             or a particular fundamental norm underlying the
             sentencing process, will such a statement be deemed
             adequate to raise a substantial question so as to
             permit a grant of allowance of appeal of the
             discretionary aspects of the sentence.




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Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). In his 2119(f)

statement, Spearman fails to state with any specificity which section of the

Sentencing Code or the fundamental norm the trial court violated by issuing

this allegedly excessive sentence. See Spearman’s Brief at 9.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




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