J-S18021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DARNELL BASON

                            Appellant                 No. 3718 EDA 2015


        Appeal from the Judgment of Sentence dated November 6, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006896-2010
                                         CP-51-CR-0006898-2010
                                         CP-51-CR-0006947-2010

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                FILED MAY 24, 2017

        Appellant, Darnell Bason, appeals from the judgment of sentence

entered on November 6, 2015, in the Philadelphia County Court of Common

Pleas, following this Court’s remand to the trial court to re-sentence

Appellant for his trial convictions for one count each of robbery – threat of

immediate serious injury, possession of an instrument of crime with intent,

escape, and robbery of a motor vehicle, and for two counts of criminal

conspiracy relating to each of the robbery charges.1 We affirm.

        The facts of this case are as follows:

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
   18 Pa.C.S. §§ 3701(a)(1)(ii), 907(a), 5121(a), 3702(a), 903(a)(1),
respectively.
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     Complainant Steven Evans testified that at approximately 1:00
     in the morning on April 29, 2010 he was “hacking”, i.e. working
     as an unlicensed taxicab driver, near 52nd and Market Streets in
     Philadelphia. Mr. Evans’s vehicle was a green Chevrolet Blazer
     (Blazer). Mr. Evans was hailed by two males and he drove them
     to the intersection of 57th and Haverford. One of the men was
     [Appellant], who sat in the back seat while the other man sat in
     the front seat. After parking the car, the man in the front seat
     pulled out a knife and told Mr. Evans: “get out, I'm taking the
     car.” [Appellant] pulled out a gun and also told Mr. Evans to
     “get out.” Mr. Evans got out and Defendant and the other man
     drove away in the vehicle.

     Philadelphia police officer Andre Howard testified that he and his
     partner Officer Nick Louis were the first to arrive at the location
     of the carjacking and meet with Mr. Evans, at which point they
     put out a “flash” describing the stolen vehicle. Philadelphia
     police detective Matthew Farley testified that at 9:00 that
     morning he showed Mr. Evans a photo spread, and Mr. Evans
     picked out a photo of [Appellant] from the array.

     Complainant Edward Burse testified that at approximately 6:30
     on the morning of April 29, 2010 he was walking to work at the
     Mercy Medical Center Hospital on 53rd Street and Cedar Avenue
     in Philadelphia when he suddenly heard a “loud screeching” and
     saw a green Blazer run a light and pull up quickly to the side of
     the curb. A man ran up behind him, saying “give me your
     money.” A struggled ensued, during which the assailant poked
     at Mr. Burse with a knife, until [Appellant] appeared and pointed
     a gun at him and said “You're taking too long, give me the
     money, give me the money.” Mr. Burse surrendered his wallet
     and the two drove away in the Blazer.

     After the attack Mr. Burse proceeded to the Hospital and called
     the police, who arrived shortly after and took his statement.
     When the officers learned that potential suspects had been
     apprehended Mr. Burse was driven to the scene and asked to
     identify the men. Mr. Burse testified that he recognized the two
     men as his assailants, and when shown a picture of [Appellant]
     (Commonwealth Exhibit 8) at trial he identified him as being one
     of the attackers.

     Philadelphia police officer Malik Abdulhadi testified that on April
     29, 2010 he was called to the area of the Mercy Medical Center

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     Hospital to interview the complainant Edward Burse. Officer
     Abdulhadi relayed the information he collected from Mr. Burse
     over the radio and shortly after he received information that a
     suspect had been apprehended. Officer Abdulhadi transported
     Mr. Burse to the scene. Officer Abdulhadi testified that upon
     arriving Mr. Burse identified [Appellant] as one of the individuals
     who robbed him.

     Philadelphia police officer Anthony Washington testified that on
     April 29, 2010 he was working a midnight to 8:00 a.m. shift in
     the 18th District of Philadelphia. Officer Washington was on patrol
     in a marked police car with his partner Officer Denia Starks when
     at approximately 6:15 a.m[.] he received a robbery in progress
     call “for 54th and Cedar involving two black makes inside of a
     green Chevy Blazer SUV.” Approximately fifteen minutes later
     the officers observed a green Blazer and turned on their
     overhead lights in order to get the vehicle to stop. At this point
     the Blazer backed into a parking spot and the driver fled on foot.
     Officer Washington pursued the driver, [Appellant], who pulled a
     black handgun from his waistband and threw it under a parked
     car. Because there was a young girl on the street Officer
     Washington retrieved the gun before continuing his chase.
     [Appellant] ran down an alleyway which Officer Washington
     knew to have only one other exit, at which time [Appellant] was
     taken into custody by other police officers. Officer Washington
     was shown a photograph of [Appellant] at trial and identified him
     as the driver of the Blazer he had pursued.

     Sergeant Kenneth Flaville testified that after the two suspects
     who had been driving the Blazer were taken into custody he
     conducted a search of the vehicle and found in its interior a
     wallet belonging to Edward Burse. Officer Starks testified that
     while Officer Washington was chasing [Appellant] she detained
     the passenger of the Blazer. The passenger had not attempted
     to flee. Officer Starks later conducted an investigation on the
     vehicle and determined that neither [Appellant] nor the
     passenger was the owner of the Blazer.

     Philadelphia police officer Ronald Browne testified that he
     transported [Appellant] to police headquarters, but prior to
     entering the building, [Appellant] “made kind of a motion and a
     noise like he was injured.” Officer Browne asked [Appellant]
     what was wrong and as he opened the door [Appellant], whose
     left arm was free from his handcuffs, began to run. He was

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     chased by Officer Browne and other officers in the vicinity.
     Officer Browne tackled [Appellant], who fell on Officer Browne’s
     hand and broke it. [Appellant] struggled with the officers after
     he was tackled, “flailing around” and kicking at the officers
     before he could be put in handcuffs again. . . . [Appellant] was
     released from custody and placed on house arrest on January 3,
     2012. . . .

     Philadelphia police officer Yvette Rawls-Guyton testified that she
     worked for the pretrial unit of the First Judicial District and that
     that on Friday, May 11, 2012 she was notified by the “Warrant
     Unit” that [Appellant’s] electronic monitoring strap had been
     tampered with. In response Officer Rawls-Guyton placed a
     phone call to the address where [Appellant] had been living, but
     the person who answered the call was unable to provide
     information regarding [Appellant’s] whereabouts. Officer Rawls-
     Guyton testified that she was notified by Sergeant Michael Roth
     of the “Warrant Unit”, who had gone to [Appellant’s] home to
     investigate, that [Appellant] was missing and that his electronic
     monitoring equipment had been recovered.

Trial Ct. Op., 11/20/13, at 3-8 (footnote omitted) (citations to the record

omitted).

     On January 9, 2013 [Appellant] was sentenced to consecutive
     periods of confinement at a State Correctional Institution of 5 to
     10 years on the charge of Robbery - Threatens Serious Bodily
     Injury and 1 to 5 years on the charge of Conspiracy at CP-51-
     CR-0006896-2010, 1 to 2 years on the charge of Escape at CP-
     51-CR-0006898-2010, 5 to 10 years on the charge of Robbery of
     Motor Vehicle and 1 to 5 years on the charge of Conspiracy at
     CP-51-CR-0006947-2010, for a total period of confinement of 13
     to 32 years.

Id. at 2. “The [trial] court imposed the mandatory minimum sentence for

the robbery [– threat of immediate serious injury] conviction and the

robbery of a motor vehicle conviction pursuant to 42 Pa.C.S. § 9712.”

Commonwealth v. Bason, No. 344 EDA 2013, at 2, 2014 WL 10753721, at

*1 (Pa. Super., Dec. 11, 2014) (unpublished memorandum).

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      In Appellant’s direct appeal, this Court “vacate[d] the judgment of

sentence and remand[ed] for resentencing without consideration of any

mandatory minimum sentence as provided by section 9712.”         Bason, No.

344 EDA 2013, at 6, 2014 WL 10753721, at *3 (citing Alleyne v. United

States, 133 S.Ct. 2151 (2013); Commonwealth v. Newman, 99 A.3d 86

(Pa.Super. 2014) (en banc) (holding 42 Pa.C.S. § 9712 unconstitutional),

appeal denied, 121 A.3d 496 (Pa. 2015)).

      On November 6, 2015, [Appellant] was resentenced, in
      accordance with the order of the Superior Court, to the same
      period of confinement without considering mandatory minimums,
      [Appellant] was sentenced to consecutive periods of confinement
      at a State Correctional Institution of 5 to 10 years on the charge
      of Robbery and 1 to 5 years on the related charge of Conspiracy,
      1 to 2 years on the charge of Escape, 5 to 10 years on the
      charge of Robbery of Motor Vehicle and 1 to 5 years on the
      related charge of Conspiracy, for a total period of confinement of
      13 to 32 years.

Trial Ct. Op., 9/1/16, at 2-3 (footnote omitted). Appellant’s new sentence

thus had the same length of incarceration as the original sentence that we

vacated in 2014. Appellant appeals from that sentence.

      Appellant now raises one issue for our review:

      Did not the trial court err as a matter of law and violate the
      principles of discretionary sentencing when, at [A]ppellant’s re-
      sentencing, it merely re-imposed [A]ppellant’s manifestly
      excessive original sentence of 13 to 32 years incarceration
      without giving any individualized consideration to [A]ppellant’s
      personal history, rehabilitative needs and background, and which
      was in excess of what was necessary to address the gravity of
      the offense, the protection of the community, and [A]ppellant’s
      rehabilitative needs?

Appellant’s Brief at 3.

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J-S18021-17


       When appealing the discretionary aspects of a sentence, an
       appellant must invoke the appellate court’s jurisdiction by
       including in his brief a separate concise statement demonstrating
       that there is a substantial question as to the appropriateness of
       the sentence under the Sentencing Code. Pa. R.A.P. 2119(f).[ 2]
       . . . The determination of what constitutes a 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. Glass, 50 A.3d 720, 726-27 (Pa. Super. 2012)

(citations and internal quotation marks omitted), appeal denied, 63 A.3d

774 (Pa. 2013).

       Appellant included a Rule 2119(f) statement in a separate section of

his brief, as required by the Appellate Rules. See Appellant’s Brief at 7-9.

There, Appellant stated that the trial court “reimposed [A]ppellant’s original

sentence of 13 to 32 years of confinement, without any explanation for

imposition of the same manifestly excessive sentence in the absence of the

applicability of any mandatory minimum sentences” and “failed to conduct

any semblance of an individualized consideration of [A]ppellant’s personal

history, rehabilitative needs and background in fashioning his sentence.” Id.

at 7. Appellant continued that “[t]his Court should grant allowance of appeal
____________________________________________
2
  It is also necessary for Appellant to have preserved the issue in the trial
court and to have filed a timely appeal. Commonwealth v. Colon, 102
A.3d 1033, 1042-43 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa.
2015). Appellant’s appeal was timely filed, and he preserved his challenge
to the discretionary aspects of sentencing in his post-sentence motion and in
his Pa.R.A.P. 1925(b) statement.


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J-S18021-17


from the discretionary aspects of sentence because the trial court violated

the express provisions of the Sentencing Code and imposed an excessive

sentence, contrary to the fundamental norms which underlie the sentencing

process.” Id. (citing Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.

2002)). He added:

        the sentencing court failed to carefully consider all relevant
        factors as set forth in Section 9721(b) of the Sentencing Code
        (Title 42).[3] Specifically, the sentence imposed far surpassed
        that required to protect the public, the community’s interests,
        and failed to address [A]ppellant’s personal history and
        rehabilitative needs.

Id. at 8.

        Appellant’s    argument       raises   a   substantial   question.      See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super.) (en

banc) (“[a]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 . . . present a substantial question”

(quotations and citation omitted)), appeal denied, 104 A.3d 1 (Pa. 2014).

Hence, we will consider the substantive merits of his sentencing claim.

        Our standard of review is as follows:

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on appeal
____________________________________________
3
    42 Pa.C.S. § 9721(b) states, in relevant part:

        [T]he 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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      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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).         “A sentencing court

need not undertake a lengthy discourse for its reasons for imposing a

sentence or specifically reference the statute in question, but the record as a

whole must reflect the sentencing court’s consideration of the facts of the

crime and character of the offender.”    Commonwealth v. Schutzues, 54

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

      In addition:

      Where pre-sentence reports exist, we shall continue to presume
      that the sentencing judge was aware of relevant information
      regarding the defendant’s character and weighed those
      considerations along with mitigating statutory factors. A pre-
      sentence report constitutes the record and speaks for itself. In
      order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court’s discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, “[w]here

the sentencing judge had the benefit of a pre-sentence report, it will be

presumed that he was aware of relevant information regarding appellant’s

character and weighed those considerations along with the mitigating




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statutory factors.” Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa.

Super. 2006).

     Here, the trial court explained:

     In reimposing [Appellant]’s sentence on November 6, 2015, the
     [c]ourt fully reviewed the record from the January 9, 2013
     sentencing, including the presentence investigation report,
     arguments of counsel, as well as testimony from both the
     [Appellant] and [Appellant]’s grandmother. In 2013, arguing
     that [Appellant] cut his electronic monitor when he was released
     on house arrest and failed to appear for trial, the Commonwealth
     recommended a sentence of 26 to 52 years.                        The
     Commonwealth also noted that [Appellant] had been on juvenile
     probation numerous times, and that the nature of his current
     offenses were particularly harmful due to the multiple victims
     and a police officer who broke his hand while apprehending
     [Appellant]. On reimposing [Appellant]’s sentence and referring
     to its decision in 2013, the court noted, “I gave him a break. I
     gave him -- a 13-year minimum was a break.                It was in
     consideration of his age...” “Because of his youth and his lack of
     prior record for violent crime.” In resentencing [Appellant], the
     Court has properly considered the factors of [Appellant]’s
     history, rehabilitative needs, and background.
     ...
     [A]ll sentences imposed by the [trial c]ourt were well within the
     range of the sentencing guidelines.                The guidelines
     recommended a minimum sentence of 54 to 66 months plus or
     minus 12 for each robbery count, a maximum penalty the same
     as robbery for each conspiracy count, and a maximum penalty of
     7 years for escape. The sentences imposed for each individual
     conviction were all within the guidelines, but the [trial c]ourt ran
     them consecutively, totaling a period of confinement of 13 to 32
     years.
     ...
     [T]he [trial c]ourt had the original PSI report from [Appellant]’s
     January 9, 2013 sentencing.          This report, in addition to
     arguments of counsel and testimony of [Appellant]’s witnesses
     made at the 2013 sentencing, sufficiently apprised the [trial
     c]ourt    of   the    circumstances    surrounding     [Appellant]’s
     convictions.    [Appellant]’s counsel was also able to make
     argument to the [c]ourt in 2015 that during his time in state
     custody he had exhibited good behavior.           The [c]ourt was

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J-S18021-17


      sufficiently aware of [Appellant]’s personal history and because
      the circumstances of the [Appellant]’s crime had not changed
      during the period of his confinement, there was no need for an
      updated presentence investigation report.

Trial Ct. Op., 9/1/16, at 5-6, 8-9 (citing N.T., 1/9/13, at 3, 20-23, 25; N.T.,

11/6/15, at 9, 12, 16).

      We conclude that by considering the PSI, testimony from Appellant’s

first sentencing hearing, and counsel’s arguments from both sentencing

hearings, the trial court created a proper record and rendered its sentence

fully informed by it. See Devers, 546 A.2d at 18; Fullin, 892 A.2d at 849–

50.   Thus, the trial court considered Appellant’s character – including his

youth, his prior criminal history, and good behavior while incarcerated; his

rehabilitative needs, including his earlier actions while on house arrest and

his failure to reform while on juvenile probation; and the impact of his

actions on his victims and on the community and public, including his lack of

violent behavior.   See 42 Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 99.

The trial court also had reviewed the sentencing guidelines, which take into

account the gravity of the offenses. N.T., 1/9/13, at 3; see 42 Pa.C.S. §

9721(b). Accordingly, the trial court properly reviewed all of the requisite

factors required by the Sentencing Code. Having done so, we conclude that

the trial court did not abuse its discretion in imposing the sentence that it

selected.

      The record does not support the conclusion that “the sentencing court

ignored or misapplied the law, exercised its judgment for reasons of

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J-S18021-17


partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable

decision.” Zirkle, 107 A.3d at 132. Appellant argues that “[t]he trial court

did not take the re-sentencing hearing seriously in the slightest, stating

during the call of the list, ‘So you’re here for me to say [that] I [can] impose

the same sentence, but I’m not doing it on the basis of a mandatory

minimum?’”    Appellant’s Brief at 14 (quoting N.T., 11/6/15, at 4).        We

acknowledge that the trial court’s comment was flippant, but that does not

make the sentence improper so long as the trial court considered all of the

appropriate factors and applied them in a correct way to reach an

appropriate sentence. As we have held, the trial court properly considered

Appellant’s character, his rehabilitative needs, the gravity of his offenses,

and the impact of his actions on his victims and on the community and

public. We therefore discern no basis upon which to conclude that the trial

court did not take the re-sentencing hearing seriously.

      Judgment of sentence affirmed.

      Judge Panella joins the memorandum.

      Judge Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017

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