J-S17015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ROY M. SMITH,

                         Appellant                   No. 4089 EDA 2017


       Appeal from the Judgment of Sentence Entered May 11, 2017
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0003869-2016


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 3, 2019

      Appellant, Roy M. Smith, appeals from the judgment of sentence of an

aggregate term of 7 to 22 years’ imprisonment, imposed after he was

convicted of one count each of possession of a firearm by prohibited person

(18 Pa.C.S. § 6105(a)(1)), firearm not to be carried without a license (18

Pa.C.S. § 6106(a)(1)), and carrying a firearm on public streets or public

property in Philadelphia (18 Pa.C.S. § 6108). Appellant solely challenges the

discretionary aspects of his sentence. We affirm.

      The underlying facts of this case have been summarized by the trial

court as follows:

      On April 1, 2016, at approximately 2:05 a.m., Lieutenant Medina
      (first name not given) was on routine patrol and stopped at a
      traffic light at the 4700 block of Bleigh and Torresdale Avenues in
      Northeast Philadelphia when he observed [Appellant] adjust his
      pants[,] thereby causing a silver handgun to fall from his
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       waistband. [Appellant] then picked up the firearm and put it back
       into his waistband. Lieutenant Medina radioed for back-up and
       effectuated an arrest of [Appellant]. A David Industries .32 caliber
       semiautomatic gun loaded with one magazine of six live rounds
       was recovered from [Appellant]. It was later revealed that
       [Appellant] had been intoxicated and had earlier attempted to get
       into a bar when the firearm had dropped out of his pants. No
       injuries to patrons had resulted.

Trial Court Opinion (“TCO”), 6/18/18, at 2 n.1.

       On March 13, 2017, Appellant entered an open plea of nolo contendere

to the crimes stated supra. The trial court accepted his plea and deferred

sentencing pending a pre-sentence investigation (“PSI”) report and mental

health evaluation. Id. at 1-2. Appellant was sentenced to an aggregate term

of 7 to 22 years’ imprisonment on May 11, 2017.1 On May 22, 2017, Appellant

filed a motion for reconsideration of his sentence, which was denied by the

trial court on November 16, 2017.

       Appellant filed a timely notice of appeal on December 18, 2017, followed

by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Herein, Appellant presents the following sole issue

for our review:

       Did not the lower court err and abuse its discretion by imposing
       an unreasonable and excessive sentence, taking into
       consideration the circumstances of the case, where [Appellant]
       pled no contest to the offenses and where the court imposed


____________________________________________


1  Appellant was sentenced to consecutive terms of 3½ to 10 years’
incarceration on the charge of possession of a firearm by a prohibited person,
2½ to 7 years’ incarceration on the charge of carrying a firearm without a
license, and 1 to 5 years’ incarceration on the charge of carrying a firearm on
a public street or public property in Philadelphia. Id. at 2 n.2.

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      consecutive sentences for essentially the same criminal act of
      possession of a firearm?

Appellant’s Brief at 3.

      Appellant’s single 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 sentence 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).

      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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and internal quotations omitted).

      Here, it is clear that Appellant has satisfied the first three requirements

of the four-part Moury test. Appellant filed a timely notice of appeal, properly

preserved his claim in his post-sentence motion, and included a separate,

concise Rule 2119(f) statement in his appellate brief in compliance with the

Pennsylvania Rules of Appellate Procedure.         We, therefore, proceed to

determine whether Appellant has raised a substantial question to meet the

fourth requirement of the Moury test.


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      As we explained in Moury:

      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.

Id. at 170 (citations and internal quotations omitted). “[T]his Court does not

accept bald assertions of sentencing errors. An appellant must articulate the

reasons the sentencing court’s actions violated the sentencing code.”     Id.

(internal citations omitted).

      In his Rule 2119(f) statement, Appellant broadly contends that his

aggregate sentence is “excessive under the circumstances of [his] case[.]”

Appellant’s Brief at 12. While he acknowledges that each individual sentence

is within the statutory sentencing guidelines, Appellant argues that his

maximum aggregate sentence far exceeds the maximum sentence that could

have been imposed for any one of the individual charges for which he was

convicted. Appellant also suggests that his maximum sentence is extreme

“for what was essentially one act,” which constituted “a nonviolent possessory

offense.” Id. at 12-13.

      Based on Appellant’s Rule 2119(f) statement, we conclude that

Appellant has failed to raise a substantial question. Appellant does not claim

that any of the individual sentences imposed for his three convictions were

excessive or in violation of the sentencing code. His excessiveness claim is

solely premised, rather, on the fact that the court imposed his sentences


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consecutively. “Under 42 Pa.C.S.[] § 9721, the court has discretion to impose

sentences consecutively or concurrently and, ordinarily, a challenge to this

exercise of discretion does not raise a substantial question.” Moury, 992 A.2d

at 171.      See also Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa.

Super. 2018) (noting that this Court has consistently recognized that

excessiveness claims premised on the imposition of consecutive sentences do

not raise a substantial question for our review).               “The imposition of

consecutive, rather than concurrent, sentences may raise a substantial

question in only the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes and

the length of imprisonment.” Moury, 992 A.2d at 171-72 (emphasis added).

Instantly,    Appellant    has    failed   to    demonstrate   that   such   extreme

circumstances exist.2

       Appellant was convicted of three distinct firearms charges, for illegally

possessing a loaded gun on the public streets of Philadelphia, while intoxicated

and attempting to enter a bar. Appellant is not entitled to a “volume discount”

on his multiple convictions by the imposition of concurrent sentences. See
____________________________________________


2 Appellant’s citation to Commonwealth v. Dodge, 957 A.2d 1198 (Pa.
Super. 2008), in support of his position that his challenge to the
consecutiveness of his sentences raises a substantial question for the purpose
of appellate review is inapposite. The defendant in Dodge was sentenced to
an aggregate term of 58½ to 124 years’ imprisonment after he was convicted
of numerous, largely property offenses. While the challenge to the sentencing
court’s exercise of discretion in Dodge was viewed as raising a substantial
question, the facts in the present case simply do not inure such a finding. See
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010)
(recognizing Dodge as an “extreme case”).

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Commonwealth v. Foust, 180 A.3d 416, 434-35 (Pa. Super. 2018).              The

record also indicates that Appellant has an extensive history of violent crime.

Based on the foregoing, we do not consider Appellant’s sentence to be unduly

harsh and, therefore, we conclude that Appellant has failed to raise a

substantial question.

      Even if we were to determine that Appellant has raised a substantial

question, we would conclude his allegations are meritless.

      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.

                                      ***
      When imposing a sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In particular, the court should refer to the defendant’s
      prior criminal record, his age, personal characteristics and his
      potential for rehabilitation. Where the sentencing court had the
      benefit of a [PSI] report … , 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.     Further, where a sentence is within the
      standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal

citations and quotation marks omitted).




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       Instantly, Appellant acknowledges that his three convictions do not

merge for sentencing purposes.3 Yet, Appellant insists that “the lower court

punished [him] three times for what was essentially one act—possession of a

handgun.”      Appellant’s Brief at 17.        Contrarily, as stated supra, each of

Appellant’s convictions required proof of elements separate and distinct from

possessing a firearm, i.e., conviction of an enumerated offense, lack of a valid

license, carrying a firearm on the public streets or public property of

Philadelphia. Thus, Appellant’s argument would be deemed meritless.

       “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.

Generally, 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.” Radecki, 180 A.3d at


____________________________________________


3 Pursuant to 42 Pa.C.S. § 9765, “[n]o crimes shall merge for sentencing
purposes unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
the other offense.” See also Commonwealth v. Dixon, 997 A.2d 368, 381-
82 (Pa. Super. 2010) (affirming that sentences for violations of Section
6105(a) and Section 6106(a) are not appropriate for merger, whereas each
section contains a statutory element that the other does not: “Under § 6105,
the Commonwealth need not prove that the defendant lacks a valid license.
Rather, it must only prove that [the defendant] was convicted of an
enumerated offense. Similarly, Section 6106(a) contains a statutory element
that § 6105(a) does not: namely, lack of a valid license.”). Moreover, a
violation of Section 6108 requires a defendant to carry a weapon on the public
streets or public property of Philadelphia, a requirement not present under
Sections 6105 or 6106. See Commonwealth v. Baldwin, 985 A.2d 830,
83-34 (Pa. Super. 2009); 18 Pa.C.S. §§ 6105, 6106, 6108. Thus, merger is
prohibited in this case.

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470 (internal citations and quotation marks omitted).        An appellant is not

entitled to a “volume discount” for his crimes by having all sentences run

concurrently. See Commonwealth v. Hoag, 65 A.2d 1212, 1214 (Pa. Super.

1995).

      Not only did the trial court have the benefit of a PSI in the instant

matter, it expressly stated that it considered all of the appropriate relevant

factors in the following portion of its Rule 1925(a) opinion:

      Appellant had … a prior record score of five (5) and was sentenced
      to an aggregate minimum of seven (7) years of imprisonment for
      carrying a firearm when he was ineligible, unlicensed, and in
      Philadelphia. The aggregate sentence was within the range
      recommended by the guidelines and the statute.

             Moreover, the transcribed record reflects that the
      recommended sentencing guidelines and all relevant sentencing
      factors as required by 42 Pa.C.S. § 9721(b) had been duly
      considered before imposition of sentence. Having previously
      directed the completion of [a PSI] from the Philadelphia Probation
      Department and [a] [m]ental [h]ealth [e]valuation by the First
      Judicial District Mental Health Unit on the date of entry of the plea,
      this [c]ourt incorporated and referenced thorough consideration
      [all] of the data contained within each assessment. The protection
      of the public as well as the gravity of the offense as it relates to
      the impact on the community were prioritized. Furthermore, this
      [c]ourt factored into its decision, Appellant’s rehabilitative needs
      or prospects of rehabilitation.

                                      ***

            In the instant matter, individualized[,] consecutive[,]
      standard[-range] sentences upon [Appellant] were imposed only
      after careful consideration of all relevant sentencing factors
      including the paramount need for protection of the public, the
      gravity of the offense, and Appellant’s poor prospect of
      rehabilitation…. The imposition of consecutive terms for separate
      crimes with different statutory elements of proof constituted a
      proper exercise of sentencing discretion.


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TCO at 8-10.

      The following colloquy of the court, during which it was addressing

Appellant at the close of the sentencing hearing, further evidences its proper

consideration of the appropriate factors before sentencing Appellant:

      THE COURT: I did review all of the reports in reference to you,
      sir, and I took particular note with respect to the somewhat
      unusual factual scenario that brought you before this [c]ourt. I’m
      very, very concerned about you because based upon the
      information provided to me, … it’s apparent to me that you are a
      potential danger both to yourself as well as to other folks around
      you. And your contact with the criminal system has been over a
      long period of time and[,] at times[,] quite violent, which is
      obviously a concern.

      You have a significant history of mental health since your teen
      years. At various points in time, you were diagnosed [with] either
      post-traumatic stress … and/or bipolar disorder. You reported to
      the evaluators a horrendous experience growing up.           Your
      substance abuse and alcohol abuse included … daily use[] of
      alcohol to an extreme degree, marijuana, cocaine. The fact that
      at age 48 you began smoking K2 because you were on probation
      to hide it is indicative of what’s going on with you.

      I did note some of your arrests were because you were so
      intoxicated. Your juvenile record began in 1982 at the age of 15
      for which you were … adjudicated delinquent of … rape, which was
      extremely violent. I note with some dismay that there was no
      following immediate commitment of you. They simply placed you
      on intensive probation.

      Your adult record began in 1988[,] shortly thereafter[,] at the age
      of 21. You have had 21 arrests, 6 convictions, 4 commitment[s],
      1 commitment on contempt of court – that’s the least of your
      difficulties – and 1 conviction of [a] summary offense. The
      conviction for the aggravated assault did involve your use of [a]
      straight razor to slash the victim’s head, face, and chest requiring
      50 stitches to close and severe blood loss [was] suffered.

      Within your incarceration, … I note that there were at least two
      misconducts, including threatening an employee with harm for
      which you received [] 60 days of disciplinary custody. Your

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      respective moves throughout the prison system are noted. The
      probation officer noted that you are a significant risk for incurring
      future offenses and violating whatever conditions are imposed by
      the [c]ourt. I think that’s putting it mildly. You have previously
      violated the court supervision with absconding and continued
      arrests and/or convictions.

                                      ***
      You’re too old for this.
                                      ***

      I mean, you’re now 49 years old, sir. I note with some great deal
      of dismay the lengthy time period. I’m not talking to a young fella
      at the age of 15 who is a thing of the past. I’m talking to a 49-
      year-old man. The last thing you should have been near is a
      firearm, let alone trying to get into a bar with one.

      The risk and catastrophe matter…. Well, long story short, my
      prevailing thought process at this point in time has to be
      protection of the public from you.

      I note that this offense occurred while you were under supervision
      at Horizon House to the extent as described by your caseworker.
      That wasn’t good enough.

N.T. Sentencing, 5/11/17, at 17-20.

      After careful review of the record, we are convinced that the court

fashioned an individualized sentence taking into account all of the statutory

factors, the above-stated circumstances of Appellant’s current case, and his

criminal history, as well as the significant risk that Appellant poses to public

safety when not incarcerated. Thus, we would ascertain no abuse of discretion

in the ultimate sentence imposed by the court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/19




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