J-A33031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   Appellee                :
                                           :
                   v.                      :
                                           :
ARTHUR PHILLIPS,                           :
                                           :
                   Appellant               :      No. 767 WDA 2016

             Appeal from the Judgment of Sentence April 21, 2016,
              In the Court of Common Pleas of Allegheny County,
             Criminal Division, at No(s): CP-02-CR-0002048-2013

BEFORE:      LAZARUS, SOLANO, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 31, 2017

        Arthur Phillips (Appellant) appeals from the judgment of sentence

entered on April 21, 2016, following a resentencing hearing pursuant to this

Court’s opinion remanding Appellant’s case for resentencing.1 Upon review,

we affirm.

        The trial court summarized the pertinent factual and procedural history

underlying Appellant’s case as follows.

              [Appellant] proceeded to a jury trial on February 20, 2014,
        February 21, 2014[,] and February 24, 2014, after which he was
        convicted of robbery, aggravated assault, criminal conspiracy
        and flight to avoid apprehension. [The trial court] imposed a
        term of imprisonment of not less than 10 nor more than 20
        years relative to the conviction of robbery. [Appellant] received
        a consecutive term of not less than 2 years nor more than 4
        years relative to the conviction for aggravated assault.
        [Appellant] received a consecutive term of not less than 1 year
        nor more than 2 years relative to the conviction for criminal

1
    Commonwealth v. Phillips, 129 A.3d 513 (Pa. Super. 2015).

*Retired Senior Judge assigned to the Superior Court.
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      conspiracy[. Appellant] received a sentence of not less than 1
      year nor more than 2 years relative to the conviction for flight to
      avoid apprehension, consecutive to all preceding sentences. The
      aggregate sentence of imprisonment imposed on [Appellant] was
      not less than 14 years nor more than 28 years. A timely appeal
      followed.

            [Appellant] raised a number of issues on appeal. [Through
      an opinion dated December 14, 2015,] the Superior Court
      reversed [Appellant’s] conviction for flight to avoid apprehension
      and remanded the case for resentencing.

            Upon resentencing, [the trial court] sentenced [Appellant]
      to a term of imprisonment of not less than 10 nor more than 20
      years relative to the conviction of robbery. [Appellant] received
      a consecutive term of not less than one year nor more than two
      years relative to the conviction of aggravated assault.        No
      further penalty was imposed relative to the conviction for
      criminal conspiracy. The aggregate sentence of imprisonment
      was not less than 11 years nor more than 22 years.

Trial Court Opinion, 6/22/2016, at 1-2 (unnecessary capitalization omitted).

      Appellant filed a post-sentence motion arguing that the trial court

failed to provide sufficient reasons for Appellant’s sentence at count 1,

robbery, and double counted factors already subsumed in the guidelines.

Post-Sentence Motions, 4/27/2016, at 5 (unnumbered).           Appellant also

averred that he had made “rehabilitative progress” since being incarcerated,

and cited several mitigating factors, which Appellant argued warranted a

reduction in his sentence.    Id. at 3-5 (unnumbered).      That motion was

denied. This appeal followed, wherein Appellant’s sole issue challenges the

discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right.       An appellant
      challenging the discretionary aspects of his [or her] sentence




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      must invoke this Court’s jurisdiction by satisfying a four-part
      test:

          We conduct a four-part analysis to determine: (1) whether
          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
          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.[] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant timely filed a post-sentence motion in which he

requested a modification of his sentence, as well as a timely notice of

appeal.   Additionally, Appellant included a 2119(f) statement in his brief.

However, before reaching the merits of the issues Appellant raised, we must

first examine if the issues presented were properly preserved. “Objections

to the discretionary aspects of a sentence are generally waived if they are

not raised at the sentencing hearing or in a motion to modify the sentence

imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013).

      Appellant’s 2119(f) statement set forth the following issues: (1) the

trial court erred in failing to provide a contemporaneous written statement to

justify Appellant’s sentence to count 1, robbery, which exceeded the

aggravated range, and failed to recite Appellant’ sentencing guidelines,

which is required when sentencing Appellant outside the guidelines, and (2)

the trial court erred by double counting the gravity of the offense,




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Appellant’s criminal history, and his use of deadly weapon during the

commission of the crime. Appellant’s Brief at 14-16.

      Upon review, Appellant’s first issue is not in his post-sentence motion.

Nor did, Appellant raise this issue at his sentencing hearing.          Therefore,

Appellant has not preserved this issue, and it is waived. Commonwealth v.

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding discretionary aspects

claims not raised at sentencing or in a post-sentence motion are not subject

to our review, even if raised in 1925(b) statement and addressed in the trial

court’s 1925(a) opinion).

      Even if we were to address the merits of his claim, Appellant would not

be entitled to relief.   First, Appellant is correct that 42 Pa.C.S. § 9721(b),

requires the trial court to issue a written contemporaneous statement

justifying the imposition of a sentence outside the guideline range.           This

Court has held that a “judge’s statement of reasons for the sentence made

of   record   at   sentencing   in   the    defendant’s   presence   constitutes   a

‘contemporaneous written statement,’ within the meaning of the act.”

Commonwealth v. Royer, 476 A.2d 453, 457 (Pa. Super. 1984).                  Here,

the record is clear that the trial court set forth its reasons for sentencing

Appellant on the record at Appellant’s resentencing hearing. Furthermore,

Appellant acknowledges that the trial court set forth reasons on the record

for sentencing Appellant outside the guideline range, since the trial court’s

reasoning is an integral part of Appellant’s first argument, namely that the




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trial court’s reasoning amounted to double counting of factors already taken

into consideration in the guidelines. Appellant’s Brief at 20-23.

      Furthermore, Appellant has failed to provide this Court with any case

law to support his argument that a trial court, upon resentencing, must

again reiterate the sentencing guidelines. Not only has Appellant failed to

convince this Court that an error was made, we note that

      while we continue to suggest that “prior to sentencing outside
      the guidelines, [the trial court] would do well to specifically
      articulate the guideline range of sentences,” we recognize that
      such a recitation is not uniformly necessary to establish “that the
      court was aware of, and considered, the guidelines[.]”
      Accordingly, we hold that when imposing sentence, a trial court
      has rendered a proper “contemporaneous statement” under
      section 9721(b) of the Sentencing Code, so long as the record
      demonstrates with clarity that the court considered the
      sentencing guidelines in a rational and systematic way and made
      a dispassionate decision to depart from them.

Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999) (citations

and quotations omitted).

      We now consider Appellant’s remaining argument. He argues that the

trial court double counted factors already subsumed in the guidelines. The

Commonwealth concedes that Appellant’s issue raises a substantial question

for our review. 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




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review when claiming that the trial court “considered factors already

included in the guidelines”).

      Appellant contends that the trial court erred “by strictly relying on

factors already taken into account by the sentencing guidelines to justify its

sentence.”   Appellant’s Brief at 16.    Specifically, Appellant argues the trial

court “relied on [Appellant’s] prior criminal history and the gravity of the

offense as the sole bases for its sentence.” Id. at 20. Appellant avers that

the trial court’s reliance on these factors, as well as Appellant’s use of an

AK-47 during the commission of the home invasion, which had already

elevated Appellant’s guidelines under the deadly weapon enhancement, was

an abuse of discretion.

      The trial court provided the following analysis.

             The sentencing record reflects that [the trial court]
      considered the presentence report [(PSI)], the testimony
      presented at trial and at resentencing and all other relevant
      factors.1    [Appellant] did not object to the substance of
      information contained in the [PSI].        The sentencing record
      reflects that in imposing the sentence [the trial court] considered
      that [Appellant’s] conduct in this case was very violent. [The
      trial court] considered the impact on the victim, Mr. Sharpley.
      [Appellant’s] conduct was part of a violent home invasion. [The
      trial court] considered that [Appellant] took an AK-47 and fought
      with Mr. Sharpley as Mr. Sharpley was fighting for his life.

             1
               Though not at issue in this appeal, it is clear that
             [the trial court] considered mitigating information at
             resentencing. [The trial court] credited [Appellant]
             with what the [court] believed to be positive changes
             in [Appellant] since he was incarcerated in this case.
             [The trial court] reduced the original sentence
             relative to the [a]ggravated [a]ssault conviction to
             not less than one nor more than two years. [The




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           trial court] reduced the original sentence on the
           [c]onspiracy conviction to no further penalty.

     [The trial court] exhibited concern that society should be
     protected from [Appellant] due to the “outright dangerous,
     intentional[,] and knowing” conduct in this case.            The
     presentence report reflected that [Appellant] was on probation
     on one case and parole on another case at the time of the
     incident. [The trial court] believed that [Appellant’s] conduct
     demonstrated that he could not conform his own conduct to the
     dictates to the law and he had a propensity to harm others. This
     presentence report noted that prior rehabilitative efforts of
     county supervision had not dissuaded [Appellant] from
     committing other violent crimes. In [the trial court’s] view,
     [Appellant’s] violent conduct continued to escalate despite all of
     the efforts that were made to rehabilitate him. His own conduct
     further demonstrated his ignorance of his obligations to the
     community and his own family.

          Further, [the trial court] was convinced that the sentence
     imposed in this case would have a deterrent effect on
     [Appellant] and on others inclined to commit similar offenses.

Trial Court Opinion, 6/22/2016, at 8-9 (footnote omitted).

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

double count Appellant’s prior criminal history. The trial court did speak at

length   about   Appellant’s   prior   convictions,   how   prior   attempts   of

rehabilitation proved futile, and how Appellant’s escalating conduct was

undeterred by prior arrests and sentences. See N.T., 4/21/2016, at 41-42

(“[Appellant’s] past demonstrates that he promises [the trial court] all the

time he will be a good guy and follow the rules, then he does something

worse the next time. If you look at his criminal history, he kept doing worse

things. None of the arrests had any good impact on him. The next time he

got arrested was for something worse than the last.”). While the trial court




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indicated it did see some change in Appellant, resulting in a reduction in

Appellant’s aggregate sentence, the court found Appellant’s confinement

necessary for the protection of the public.

             I have to say, and I’m saying for the record, that I do
      believe [Appellant] is a little different person now than when I
      encountered him the last time on this case and when I
      sentenced him [] on other cases. … The problem with what you
      are asking for … is that now all of that comes a little too late in
      the scheme of things. [Appellant] is constantly ignoring his
      duties to the community, to his own family, to his own children.
      His conduct continued to escalate through all of the efforts that
      were made to rehabilitate him. Now he finally got a very severe,
      stiff sentence, which he deserved, now suddenly he is making all
      of these changes in this relatively short time.

Id. at 43-44.

      Furthermore, nowhere in the record does it reflect that the trial court

imposed its sentence based upon the fact that Appellant was armed with an

AK-47 when he entered Mr. Sharpley’s home.           To the contrary, the trial

court set forth the facts in the context of detailing Appellant’s crime and his

complete disregard for the safety of others. Id. at 30-31, 38 (“Only because

Mr. Sharpley was able to fight off his attacker, [] was he able to come in this

courtroom and tell us about it.       Under a [same] but slightly different

scenario, Mr. Sharpley would be dead having been on the wrong end of the

bullet of [Appellant’s] AK-47. … We are not talking about [Mr. Sharpley]

fighting for his life in a fist fight, we are talking about fighting for his life

when the other guy has an AK-47.”).




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

authority to support the contention that the individual nature of the crime,

the impact to the victim, 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”). Additionally, we note that the

trial court reviewed Appellant’s PSI prior to sentencing.        “[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).

      We are not persuaded by Appellant’s argument that the trial court

double counted the gravity of the offense, Appellant’s use of a deadly

weapon or his prior criminal history when imposing Appellant’s sentence, as

the record indicates otherwise. No relief is due.

      In light of the foregoing, we discern no abuse of discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 1/31/2017




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