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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

LEON LAMONT ALLEN,

                          Appellant                 No. 1328 MDA 2015


             Appeal from the Judgment of Sentence June 15, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001153-2014


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 11, 2016

       Leon Lamont Allen appeals from the judgment of sentence of six to

fifteen years imprisonment that the trial court imposed after it convicted

Appellant at a nonjury trial of robbery and possession of an instrument of

crime (“PIC”). We affirm.

       The following evidence produced by the Commonwealth supported the

convictions in question. At approximately 7:15 p.m. on February 9, 2014,

the victim, Trisha Magilton, went to her boyfriend’s residence, which was

located in a condominium complex at 1525 North Front Street, Harrisburg.

After entering the lobby of the building through the locked door by using

either a key or a key pad, Ms. Magilton pressed the elevator button, and

then she heard a knock on the front door.

*
    Retired Senior Judge assigned to the Superior Court.
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        Appellant was standing outside, and Ms. Magilton opened the door

slightly to ascertain what he wanted.       At trial, the victim testified that

Appellant then “shoved his hands in, had a gun, and demanded my purse.”

N.T. Nonjury Trial, 4/6/15, at 9.    Due to confusion and fear, Ms. Magilton

screamed and hesitated, but, after Appellant “shook the gun at [her] and

demanded it a couple times,” she “slid the purse over to [Appellant] on the

floor[.]” Id. Appellant reached into the lobby, grabbed the orange purse,

and fled. The victim stated the gun was black.

        Ms. Magilton ran upstairs to her boyfriend’s fifth-floor condominium

and contacted police, giving them a description of Appellant and his clothing.

Shortly thereafter, police transported the victim to the corner of Second and

Reily   Streets,   which   was   approximately   one   block   away   from   the

condominium complex. Appellant was standing in front of a police vehicle,

and the victim identified him as the perpetrator of the crime. Ms. Magilton

was then taken to a Lexus and viewed her purse on the backseat.

        United States Marshal Luis Rodriguez testified as follows. On February

9, 2014, he was employed by the Harrisburg Police Department and was on

routine patrol when, at 7:20 p.m., he heard a broadcast that an armed

robbery had occurred on the 1500 block of North Front Street.          Marshal

Rodriguez, who was on the corner of Second and Reily Streets, began

searching the area, and immediately saw Appellant, who matched the

description of the perpetrator. Appellant was exiting a Lexus with another

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individual.   Marshal Rodriguez radioed for backup, and he and two other

officers detained Appellant.

      The victim was brought to the area and positively identified both

Appellant as the person who robbed her at gunpoint, and her purse in the

Lexus that he had just exited.    Police then contacted the vehicle’s owner,

who gave them consent to search it. In addition to the purse, police found a

black Airsoft gun that was altered to look like a Beretta and various items

from Ms. Magilton’s purse.

      Appellant was sentenced on June 15, 2015. The pre-sentence report,

to which Appellant had no corrections, outlined a significant criminal history.

In addition to four juvenile delinquency adjudications, his adult offenses

resulted in a prior record score of four. The offense gravity score was ten

for the armed robbery, resulting in a standard-range sentence of forty-eight

to sixty months.    The PIC, with an offense gravity score of three, had a

standard-range sentence of three to fourteen months incarceration.         The

Commonwealth did not invoke a mandatory minimum sentence.                  The

sentencing court imposed an aggravated-range sentence on the armed

robbery of six to fifteen years imprisonment and a concurrent standard-

range sentence of one to two years in jail for PIC.

      This appeal followed denial of Appellant’s motion to modify the

sentence.     Appellant complied with the trial court’s directive to file a

Pa.R.A.P. 1925(b) statement, and this matter is ready for review. Appellant

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raises this contention: “Whether the trial court erred in denying Appellant’s

Post-Sentence Motion where his sentence is excessive and unreasonable and

constitutes too severe a punishment in light of Appellant’s rehabilitative

needs, the gravity of the offense, and what is needed to protect the public?”

Appellant’s brief at 5.

      A defendant does not enjoy an automatic right to direct review of the

discretionary aspects of a sentence. Commonweath v. Haynes, 125 A.3d

800 (Pa.Super. 2015). Instead, our jurisdiction is invoked only when a four-

part test is satisfied: 1) the appeal must be timely; 2) the issue has to be

preserved in a motion to reconsider or by objection at sentencing as well as

in response to an order to file a Pa.R.A.P. 1925(b) statement; 3) defendant’s

appellate brief must contain the statement required by Pa.R.A.P. 2119(f);

and (4) that statement has to raise the existence of a substantial question

that the sentence is not appropriate under the Sentencing Code. Id.

      In this case, the appeal was timely, and the contention was preserved

in a post-sentence motion to modify and in Appellant’s Pa.R.A.P. 1925(b)

statement. Also, Appellant’s brief contains a Pa.R.A.P. 2119(f) statement of

reasons for allowance of appeal from the discretionary aspects of his

sentence. Appellant maintains that the sentence is so manifestly excessive

as   to   constitute   too   severe   a   punishment,   and   he   relies   upon

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011), In that

decision, we stated, “A claim that a sentence is manifestly excessive such

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that it constitutes too severe a punishment raises a substantial question.”

Accordingly, we will review the merits of Appellant’s averment.

        It is well established that “the trial court has broad discretion in

sentencing a defendant, and concomitantly, the appellate courts utilize a

deferential standard of appellate review in determining whether the trial

court    abused   its   discretion   in   fashioning   an   appropriate   sentence.”

Commonwealth v. Pasture, 107 A.3d 21, 27 (Pa. 2014).                  The rationale

behind according trial courts this broad discretion is “that the sentencing

court is in the best position to measure various factors and determine the

proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.”          Id. (citation and quotation marks

omitted). First, “the sentencing court sentences flesh-and-blood defendants

and the nuances of sentencing decisions are difficult to gauge from the cold

transcript used upon appellate review.”         Id.    Additionally, “the sentencing

court enjoys an institutional advantage to appellate review, bringing to its

decisions an expertise, experience, and judgment that should not be lightly

disturbed.” Id.

        Appellant makes scant effort to develop his sentencing claim.

Appellant’s brief at 11-12. Instead, he recites a litany of what he labels as

mitigating factors. Specifically, he relies upon his trial testimony, which was

rejected by the fact-finder, that “an unknown male had left the victim’s

purse and BB gun in Appellant’s car when that unknown male initially tried

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to sell the purse to Appellant.” Id. at 11. Appellant then points out that the

pre-sentence report established that he obtained his GED, completed two

semesters of community college, and was gainfully employed when he

committed this crime.

      Thus, Appellant appears to suggest that the court did not weigh those

factors.   However, since the sentencing court had the benefit of a pre-

sentence report, we must presume that the “sentencing judge was aware of

the relevant information regarding the defendant's character and weighed

those considerations along with mitigating statutory factors.”      Pasture,

supra at 28 (citation omitted); accord Commonwealth v. Devers, 546

A.2d 12 (Pa. 1988)

      To the extent that Appellant is asking us to re-weigh the sentencing

factors and remand for imposition of a more lenient sentence based upon

what he views as mitigating facts, we are not permitted to do so.      As we

have observed, “We cannot re-weigh the sentencing factors and impose our

judgment in the place of the sentencing court.”         Commonwealth v.

Macias, 968 A.2d 773, 778 (Pa.Super. 2009) (citing Commonwealth v.

Walls, 926 A.2d 957 (Pa. 2007). Since Appellant does not provide any

cogent support for his position that his sentence was so manifestly excessive

as to constitute too severe a punishment, we must reject it.

      Judgment of sentence affirmed.

      Judge Lazarus Joins this Memorandum.

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     Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2016




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