J-S80008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                          Appellee

                     v.

ALPHONSO ABRAMS,

                          Appellant                   No. 994 EDA 2018


    Appeal from the Judgment of Sentence Entered December 20, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0000815-2017

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 05, 2019

      Appellant, Alphonso Abrams, appeals from the judgment of sentence of

an aggregate term of 4 to 8 years’ incarceration, followed by 12 years’

probation, imposed after he pled guilty to various offenses including robbery

and criminal conspiracy. Appellant solely challenges the discretionary aspects

of his sentence. After careful review, we affirm.

      The trial court summarized the facts and procedural history of

Appellant’s case, as follows:
             On October 13, 2016, the complainant, seventeen-year-old
      Khomari Styles, was walking home from Overbrook High School
      when he was approached by four males. One of the males pulled
      out a black firearm, pointed it at the complainant and then
      demanded that the complainant hand over everything he had in
      his possession. During this confrontation, the four males removed
      a cellphone from the complainant’s possession and one asked the
      complainant if he “wanted to get shot?” The complainant’s father
      called the police, and the complainant provided a description of
      the four men who had approached him. When officers responded
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     to the location where the incident occurred they observed four
     males, including … [Appellant], standing around a vehicle.
           The police officers identified the vehicle as being registered
     under [Appellant’s] name and recovered two firearms from that
     vehicle, a black 9 MM Smith & Wesson with an obliterated serial
     number loaded with five (5) live rounds and a silver .32 caliber
     revolver loaded with three (3) live rounds, along with the
     complainant’s cell-phone. [Appellant] did not possess a license to
     carry either of those firearms. [Appellant] was arrested on
     October 13, 2016, and charged with Robbery, Conspiracy,
     Carrying a Firearm Without a License[,] and related offenses.
                                     ***
           On August 10, 2017, [Appellant] entered an open guilty plea
     before this [c]ourt to one (1) count of Robbery (18 Pa.C.S. §
     3701), one (1) count of Conspiracy (18 Pa.C.S. § 903), one (1)
     count VUFA - Possession of a Firearm with Manufacturer Number
     Altered (18 Pa.C.S. § 6110.2), two (2) counts VUFA - Carrying a
     Firearm without a License (18 Pa.C.S. § 6106), two (2) counts
     VUFA - Carrying a Firearm in Public in Philadelphia (18 Pa.C.S. §
     6108), one (1) count of Possessing an Instrument of Crime (18
     Pa.C.S. § 907), one (1) count of Theft by Unlawful Taking (18
     Pa.C.S. § 3921), one (1) count of Receiving Stolen Property (18
     Pa.C.S. § 3925), one (1) count of Terroristic Threats (18 Pa.C.S.
     § 2706), one (1) count of Simple Assault (18 Pa.C.S. § 2701), and
     one (1) count of Recklessly Endangering Another Person (18
     Pa.C.S. § 2705).
           Following a hearing on December 20, 2017, this [c]ourt
     sentenced [Appellant] to four (4) to eight (8) years of
     incarceration followed by twelve (12) years of probation for
     Robbery, twenty (20) years of probation for Conspiracy, four (4)
     to eight (8) years of incarceration plus two (2) years of probation
     for VUFA - Possession of a Firearm with Manufacturer Number
     Altered, seven (7) years of probation for VUFA - Carrying a
     Firearm without a License, seven (7) years of probation for VUFA
     - Carrying a Firearm without a License, five (5) years of probation
     for VUFA - Carrying a Firearm in Public in Philadelphia, five (5)
     years of probation for VUFA - Carrying a Firearm in Public in
     Philadelphia, and five (5) years of probation for Possessing
     Instruments of Crime. This [c]ourt ordered that all periods of
     incarceration and probation to run concurrently to the sentence
     for Robbery, resulting in an aggregate sentence of four (4) to eight



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       (8) years of incarceration followed by twelve (12) years of
       probation.
             On December 29, 2017, [Appellant] filed a Motion for
       Reconsideration of Sentence, which was denied by this [c]ourt on
       March 8, 2018. On April 26, 2018, this [c]ourt issued an order
       pursuant to Pa.R.A.P. 1925(b), requiring [Appellant] to file a
       Concise Statement of Matters Complained of on Appeal within
       twenty-one days. On May 17, 2018, [Appellant] requested an
       extension, as not all notes of testimony were available, and this
       [c]ourt granted that extension on May 29, 2018. On June 20,
       2018, [Appellant] filed a Concise Statement….

Trial Court Opinion (TCO), 7/19/18, at 1-3 (citations to the record omitted).

On July 19, 2018, the trial court issued its Rule 1925(a) opinion.

       Herein, Appellant states one claim for our review:

       Did not the trial court err and abuse its discretion when it imposed
       a manifestly excessive and clearly unreasonable aggravated
       sentence based solely on the seriousness of the offense while
       giving insufficient consideration of [Appellant’s] significant
       mitigation [factors]?

Appellant’s Brief at 3.1

____________________________________________


1  We observe that Appellant’s Rule 1925(b) statement did not set forth his
present arguments that the court focused only on the gravity of his offense,
and that it failed to account for the mitigating factors in this case when
fashioning Appellant’s term of incarceration. See Appellant’s Rule 1925(b)
Statement, 6/20/18, at 1-2 (unnumbered) (stating, in pertinent part, that
“[t]he sentence of 4 to 8 years of incarceration plus 12 years of probation
imposed in this matter was an abuse [of] … discretion and [a] violation of
general sentencing principles, as it was manifestly excessive and [a] clearly
unreasonable sentence in excess of what was necessary to address the gravity
of the offense, the protection of the community, and [A]ppellant’s
rehabilitative needs”). However, the trial court’s Rule 1925(b) order did not
inform Appellant “that any issue not properly included in the Statement timely
filed and served … shall be deemed waived.” Pa.R.A.P. 1925(b)(3)(iv).
Instead, the court’s order merely directed Appellant to file his concise
statement within 21 days, and informed him that the “[f]ailure to comply with



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       Appellant’s issue constitutes a challenge to the discretionary aspects of

his sentence.

       Challenges to the discretionary aspects of sentencing do not
       entitle an appellant to review as of right. Commonwealth v.
       Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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.A. § 9781(b).

       Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
       appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 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. Mann, 820
       A.2d 788, 794 (Pa. Super. 2003), appeal denied, 574 Pa. 759, 831
       A.2d 599 (2003).

       The determination of what constitutes a substantial question must
       be evaluated on a case-by-case basis. Commonwealth v. Paul,
       925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
       exists “only when the appellant advances a colorable argument
       that the sentencing judge's actions were either: (1) inconsistent
____________________________________________


this directive may be construed as a waiver of all objections to the Order,
Ruling or any other matter.” Trial Court Order, 4/26/18, at 1. Because the
court’s order omitted the required language set forth in Rule 1925(b)(3)(iv),
we decline to deem Appellant’s sentencing claim waived. See Greater Erie
Indus. Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222,
225 (Pa. Super. 2014) (en banc) (holding that, “[i]n determining whether an
appellant has waived his issues on appeal based on non-compliance with
[Rule] 1925, it is the trial court’s order that triggers an appellant’s
obligation[;] … therefore, we look first to the language of that order”)
(citations omitted).

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      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”
      Sierra, supra at 912–13.

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

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

      Here, Appellant filed a timely notice of appeal, and he also filed a post-

sentence motion for reconsideration of his sentence in which he preserved his

sentencing issue for our review. Additionally, Appellant has included a Rule

2119(f) statement in his brief to this Court. See Appellant’s Brief at 8-9. We

conclude that the claim he sets forth therein — that his aggravated-range

sentence is excessive because the court focused only on the gravity of the

offense and ignored the mitigating factors in this case — constitutes a

substantial question for our review. See Commonwealth v. Hyland, 875

A.2d 1175, 1183-84 (Pa. Super. 2005). Therefore, we will address the merits

of Appellant’s sentencing challenge.

      In doing so, we begin by recognizing our well-settled standard of review:

             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.

Id. at 1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.

Super. 1999) (en banc) (internal quotation marks and citations omitted)). We

are also mindful that,



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      “[i]n fashioning [a] sentence, a judge is obligated ‘to 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.’” Commonwealth v. Monahan, 860 A.2d 180,
      184 (Pa. Super. 2004). “[A] court is required to consider the
      particular circumstances of the offense and the character of the
      defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
      (Pa.Super.2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
      (2005) (citing Commonwealth v. Burns, 765 A.2d 1144
      (Pa.Super.2000), appeal denied, 566 Pa. 657, 782 A.2d 542
      (2001)). “In particular, the court should refer to the defendant’s
      prior criminal record, his age, personal characteristics and his
      potential for rehabilitation.” Griffin, supra. See also
      Commonwealth v. Wise, 848 A.2d 932 (Pa. Super. 2004),
      appeal denied, 581 Pa. 676, 863 A.2d 1146 (2004) (holding
      sentencing court abused its discretion in utilizing thirteen-year-
      old DUI conviction to justify imposing aggravated-range sentence
      following subsequent DUI conviction).

Id. at 1184. Finally, where as here, the court sentenced within the guidelines,

we may reverse only if application of the guidelines is clearly unreasonable.

See 42 Pa.C.S. § 9781(c)(2).

      Presently, Appellant argues that the court’s decision to impose a

sentence for his robbery conviction that is at the top end of the aggravated-

range of the sentencing guidelines was an abuse of discretion. According to

Appellant, the court focused only on the gravity of the offense and disregarded

the mitigating factors in this case, which Appellant summarizes, as follows:

            On October 14, 2016, when he committed this crime,
      [Appellant] was a young man, only 21 years old. [Appellant] was
      not the one with the gun: he was not the instigator. He did what
      so many young people do who are with their friends and caught
      up with the wrong peer group: he went along with the group and
      he made a bad decision. By the time he stood before the court
      for sentencing, he had reconsidered those ties and reaffirmed his


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      commitment to the job, the family and the fiancée he had waiting
      for him to get out.

             Despite his youth, when he was arrested, [Appellant] had
      already been working full time for two years in his father’s
      construction business. In furtherance of that career in the family
      business, he had been certified in home improvement at Orleans
      Technical Institute. By the time of his sentencing, [Appellant] had
      spent more than a year in jail, and had taken that time to make
      positive changes. He obtained his G.E.D. while in jail. Also, his
      father testified that they spoke every day while [Appellant] was in
      jail, and described his development of sincere remorse for his
      crimes and his understanding of the negative influences in his peer
      group that led him to commit these crimes. When the time came,
      [Appellant] accepted responsibility and pleaded guilty to every
      charge without negotiation. In light of this mitigation, such an
      aggravated sentence is clearly unreasonable.

Appellant’s Brief at 14-15.

      Appellant further argues that the court’s sentencing decision in this case

is nearly identical to that of the trial court in Hyland, which this Court found

to be an abuse of discretion. In Hyland, the court’s “comments indicate[d]

the sentencing court focused exclusively on [the a]ppellant’s failed attempt to

blame the accident on [another person], the seriousness of the offense, and

[the a]ppellant’s need for rehabilitation.   The court virtually ignored [the

a]ppellant’s lack of any prior criminal record, his age, … his personal

characteristics, and his life situation.” Hyland, 875 A.2d at 1185.

      The record in this case demonstrates that it is distinguishable from

Hyland, in that the court did consider the mitigating circumstances discussed

by Appellant.   The court heard lengthy arguments from defense counsel

detailing those factors and, before imposing Appellant’s sentence, the court

stated that it had considered them. See N.T. Sentencing Hearing, 12/20/17,


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at 4-6, 7-8, 11. In its opinion, the court reiterates that it took into account

the following mitigating factors: Appellant’s acceptance of responsibility, “that

his family is supportive of his rehabilitation, that he is employed with his family

business[,] and that he has completed his G.E.D.” TCO at 7 (citation omitted).

However, the court found that these mitigating factors were outweighed by

the seriousness of Appellant’s offense, his rehabilitative needs, and the need

“to deter him from further crime.” N.T. Sentencing at 12. The trial court

explains in its opinion that the circumstances of this case “deviate from those

of a normal Robbery because the victim was a student walking home from

school[,]” and it stresses that “children going to school should be protected

from individuals who would lie in wait to rob them at gunpoint.” TCO at 7

(citing N.T. Sentencing at 13).

      Given this record, we reject Appellant’s argument that the court focused

only on the seriousness of his offense and disregarded the mitigating

circumstances in this case. Moreover, the sentence imposed by the court is

not ‘clearly unreasonable,’ especially considering that the court imposed

concurrent, probationary sentences for all of Appellant’s other offenses,

except for one firearm conviction, for which Appellant received a concurrent

term of incarceration. Thus, we are compelled to conclude that Appellant’s

sentencing claim is meritless.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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