J-S21040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

TYRONE CHAMBERLAIN,

                          Appellant                     No. 561 EDA 2015


          Appeal from the Judgment of Sentence January 13, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002370-2014

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                   FILED FEBRUARY 23, 2016

      Appellant Tyrone Chamberlain appeals the judgment of sentence

entered by the Honorable Giovanni Campbell on January 13, 2015, in the

Court of Common Pleas of Philadelphia County. Following our review of the

record, we affirm.

      The relevant facts and procedural history are as follows: Officer James

Craig was patrolling the Philadelphia Housing Authority in the area of 1516

Judson Way with his partner Officer Matthew Smyth at approximately 8:15

p.m. on December 6, 2013.       Officer Craig had patrolled that area frequently

throughout the prior eighteen months during which time he recovered

firearms approximately eight times. Officers specifically targeted the 7th, 9th,

16th, and 18th floors of the Judson Building as they were known for drug

sales, and Officer Craig had made narcotics arrests and recovered drugs

from those floors in the past. N.T., 11/7/14, at 5-8.

*Former Justice specially assigned to the Superior Court.
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      On December 6, 2013, Officers Craig and Smyth entered the Judson

Building and proceeded to opposite ends of the 7th floor where they observed

Appellant standing in the hallway. As Appellant turned his body away from

Officer Craig, the latter noticed a black and silver semi-automatic firearm

protruding from the right side of Appellant’s waistband.       Id. at 12, 20.

Officer Craig ordered Appellant to stop and put his hands on the wall.

Appellant complied, but when Officer Craig approached him, Appellant

quickly turned back towards the officer, pushed him and ran south down the

hallway toward Officer Smyth who was near an elevator. Id. at 14-15, 20-

21. As he did so, Appellant pulled the firearm from his waistband. Officers

took him to the ground and handcuffed him which caused the gun to fall to

the floor and slide a few feet toward the elevator.   Id. at 15, 17, 21. The

parties stipulated that the gun was loaded and operable.        Id. at 26-27.

Other individuals were in the vicinity at the time of the scuffle.   Id. at 16-

17.

      Following a non-jury trial, Appellant was convicted of one count of

Carrying firearms on public streets or public property in Philadelphia, 18

Pa.C.S.A. § 6108. At the sentencing hearing held on January 13, 2015, the

parties agreed that the offense gravity score was five and the prior record

score was two; thus, a guideline-range sentence was three to fourteen

months, plus or minus three months, and a maximum sentence was two and

one-half to five years in prison. N.T., 1/13/15, at 10. The Commonwealth

also indicated that Appellant previously had been on probation due to a 2008

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juvenile adjudication for possession of controlled substances with intent to

deliver, and he also had a prior juvenile adjudication for possession of

controlled substances in 2010.   Id. at 6, 8, 9.   At the time of the instant

offense, Appellant had been on bail as an adult for a 2011 arrest for

possession of a firearm and possession of controlled substances with intent

to deliver.   Id. at 8-9.   The Commonwealth recommended that the trial

court impose a sentence of two years to four years of incarceration to be

followed by one year of probation.

      Defense counsel urged the trial court to consider the fact that

Appellant had not challenged the officers’ observations and agreed to a

waiver trial. Id. at 7. Counsel also indicated Appellant had had a difficult

childhood but presently had familial support and a daughter; he had lost an

infant child when he was eighteen years old.       Id. at 6.   While counsel

acknowledged Appellant had been in trouble with the law in the past, he

stated Appellant is demonstrated he is able to comply with the law. Id. at

6-7. Appellant then expressed his remorse for his actions to the trial court.

Id. at 14.

      In imposing a sentence of two and one-half years to five years in

prison, the trial court stated it had considered the arguments of the parties,

the Presentence Investigation Report (“PSI”), the Sentencing Guidelines, and

Appellant’s allocution after which it explained its reasons for sentencing

Appellant as follows:




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             I find that [Appellant] while visibly displaying the gun was
      defiant of authority by running through the police officer after he
      was seen.       I find the circumstances of [Appellant’s] arrest
      disturbing. Not only in that respect, but in the fact that he’s
      walking around the hallways of the projects with a gun visibly
      displayed.
             I also find as an aggravator that at that time, he was on
      bail for another case and he had a prior gun case. I do agree
      with the Commonwealth that this show [sic] a persistence and
      defiance of authority. That should be noted.
             I recognize that there are witnesses in the courtroom to
      support him.
             And the sentence will be two and a half to five years[’]
      incarceration, credit for time served. While on supervision, he’ll
      be subject to random urinalysis, anger management classes, job
      training. He’s to be actively seeking employment or be verifiably
      employed. And he’s to enroll in an educational program. That’s
      it.

Id. at 15.

      On January 23, 2015, Appellant filed his Post-Sentence Motion for

Reconsideration of Sentence, and he filed an Amended Post-Sentence Motion

for Reconsideration of Sentence on February 4, 2015.            Therein, Appellant

argued that in imposing a maximum sentence as allowed by law and one

that was nearly twice the aggravated range sentence, the court failed to

properly     weigh   mitigating   factors   or   take   into   account   Appellant’s

rehabilitative needs. Following a hearing, the trial court denied the Motions

on February 6, 2015, and the instant timely appeal followed.

      On March 11, 2015, the trial court ordered Appellant to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant filed the same on April 1, 2015. On July 20, 2015, the trial court

filed its Memorandum Opinion.

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

            Did not the trial court err and abuse its discretion in
      imposing a statutory maximum sentence that was manifestly
      excessive and unreasonable in that: it was nearly twice the
      upper limit of the aggravated range of the sentencing guidelines;
      it exceeded the Commonwealth’s recommended sentence; and it
      was disproportionately based on the gravity of the offense,
      which the court improperly assessed by relying on factors that
      are not atypical in firearms cases, and also by relying on “facts”
      not established at trial or sentencing?

Brief for Appellant at 3.

      This issue presents a challenge to the discretionary aspects of

Appellant’s sentence, and one’s right to appeal the discretionary aspects of

his   sentence is not absolute. See Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa.Super. 2004), appeal denied, 860 A.2d 122 (Pa. 2004). To

reach the merits of a discretionary issue, this Court must determine:


      (1)   whether appellant has filed a timely notice of appeal; (2)
            whether the issue was properly preserved at sentencing or
            in a motion to reconsider and modify sentence; (3)
            whether appellant's brief has a fatal defect; and (4)
            whether there is a substantial question that the sentence
            appealed from is not appropriate under the Sentencing
            Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011)

(footnotes and citation omitted).

      Herein, Appellant filed a notice of appeal, preserved the issue in a

post-sentence motion, and included the requisite Statement of Reasons for

Allowance of Appeal from Discretionary Aspects of Sentence pursuant to

Rule 2119(f) in his appellate brief. Brief for Appellant at 7-10. Therefore,

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he is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence, and we may proceed to determine

whether he has presented a substantial question that his sentence is not

appropriate under the Sentencing Code. Commonwealth v. Edwards, 71

A.3d 323, 330 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).

     In considering whether Appellant’s issue presents a substantial

question, we are guided by the following:

     The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. A substantial
     question exits 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. at 330 (citations and quotation marks omitted).

     Appellant    claims   that   his   sentence,     which   exceeded   the

Commonwealth’s recommended sentence and the aggravated range of the

sentencing guidleines, was unreasonable and manifestly excessive because

the sentencing court did not consider mitigating factors, misrepresented the

evidence and failed to provide adequate reasons on the record for imposing

a statutory maximum sentence. Brief for Appellant at 12-20.     We note that

a bald claim of an excessive sentence does not generally raise a substantial

question. See Commonwealth v. Dodge, 77 A.3d 1263, 1269 (Pa.Super.

2013) (en banc), appeal denied, 91 A.3d 161 (Pa. 2014). However, this

Court has held that a claim of excessiveness in conjunction with a claim that


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the sentencing court did not consider mitigating factors presents a

substantial question. See Commonwealth v. Gonzalez, 109 A.3d 711, 731

(Pa.Super.     2015)    (citing   Dodge,    supra    at   1272);      see   also

Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.Super. 2015). We will

therefore address the merits of Appellant's claim and in doing so note that:

        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.

Gonzalez, supra, 109 A.3d at 731 (citation omitted).

        Despite the recommendations set forth in the Sentencing Guidelines,

trial courts retain broad discretion in sentencing matters and may sentence a

defendant outside of those Guidelines. “The only line that a sentence may

not cross is the statutory maximum sentence.” Commonwealth v. Yuhasz,

923 A.2d 1111, 1118-19 (Pa. 2007) (citations and quotations omitted).

        The sentencing court had the benefit of a PSI herein. In such cases,

this Court has stated that “we can assume the sentencing court was aware

of relevant information regarding the defendant's character and weighed

those     considerations    along    with   mitigating    statutory     factors.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.Super. 2010).

        In his appellate brief, although Appellant does not contest that his

sentence falls within the statutory maximum under Pa.C.S.A. § 106(a)(5),

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he avers the trial court “ignored all mitigating evidence, focus[ed] solely on

punishment and retribution, and, relied on facts not of record” when

sentencing him.    Brief for Appellant at 9.     In support of this contention,

Appellant states the trial court highlighted factors that “are not atypical in

firearms cases” and erroneously determined Appellant’s behavior revealed a

defiance of authority because he had been perusing the hallways of the

housing development with a gun visibly displayed. Id. at 15-16.        Appellant

further faults the trial court for taking issue with several of the allegations

set forth in his post-sentence motions and for stressing that trial courts are

not required to blindly adhere to the Sentencing Guidelines       Id. at 17-18.

Appellant maintains the trial court’s bias and “disproportionately high”

sentence are grounds for reversal. Id. at 19-20. We disagree.

      At the post-sentence motion hearing held on February 6, 2015, the

trial court did express its frustration with allegations set forth in Appellant’s

motions for reconsideration of sentence. However, it specifically recognized

those filings had been drafted by defense counsel and pointed to places in

the transcripts which refuted them.      N.T., 2/6/15, at 11.    The trial court

went on to reiterate its belief that in the instant matter, the aggravating

factors   surrounding   Appellant’s   behavior   on   December   6,   2013,   far

outweighed any mitigating ones.

      Appellant otherwise has failed to demonstrate that his sentence was

manifestly excessive because the trial court failed to consider mitigating


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factors.   As discussed above, at sentencing, the trial court acknowledged

having reviewed the PSI, considered Appellant’s expression of remorse,

entertained defense counsel’s pleas for a mitigated sentence, and noted the

presence of family in the courtroom.            Nevertheless, the trial court noted

Appellant’s prior record of juvenile adjudications for crimes involving drugs.

The court was particularly disturbed by the fact that Appellant had been on

bail for a firearms offense when, while holding a firearm, he pushed aside a

police officer attempting to apprehended him in the hallway of an apartment

complex known for its drug activity and presence of weapons as passersby

watched.    It was for these reasons the trial court imposed the statutory

maximum sentence.          See Trial Court Opinion, filed 7/20/15 at 4-5.

Appellant’s contentions to the contrary, the trial court was mindful of

Appellant’s rehabilitative needs as is evinced in its provision that while on

supervision,   he   will   be   subject   to    random   urinalysis,   attend   anger

management classes, receive job training, and enroll in an educational

program. N.T., 1/13/15, at 15.

      In light of the foregoing, we find the sentencing court did not abuse its

discretion or enter a manifestly unreasonable sentence. See Zeigler, supra

at 662 (holding sentence not manifestly unreasonable where sentencing

court considered PSI, details of crime, and explained reasons for sentence);

see also Moury, supra at 171. As Appellant's claim lacks merit, we affirm

his judgment of sentence.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2016




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