J-S48039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :      IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
              v.                               :
                                               :
JAYLAUN COLEMAN,                               :
                                               :
                    Appellant                  :           No. 37 WDA 2016

            Appeal from the Judgment of Sentence December 4, 2015
                in the Court of Common Pleas of Mercer County,
               Criminal Division, No(s): CP-43-CR-0000586-2015

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED JULY 29, 2016

        Jaylaun Coleman (“Coleman”) appeals from the judgment of sentence

imposed following his conviction of two counts of robbery.1 We affirm.

        On March 26, 2015, Coleman sent Tyrone Cornish (“Cornish”) a text to

come over to Coleman’s house. Upon Cornish’s arrival, Coleman informed

Cornish that he “planned to get some money in [Coleman’s] pocket.” They

then left the house and walked around for a while until Coleman suggested

that they rob the George Street Market. Cornish attempted to talk Coleman

out of the robbery.

        Coleman and Cornish then entered the market.            Coleman began

waving around a gun and ordered Clifford Grear (“Grear”), an employee

working the register, to give him money.           The owner of the market then

appeared, slapped his hand on the table, and moved toward Coleman and



1
    See 18 Pa.C.S.A. § 3701(a)(1)(ii), (iv).
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Cornish. Coleman and Cornish fled the market. They were later caught and

arrested. Coleman was fifteen years old at the time of arrest.

     The Commonwealth charged Coleman with two counts of robbery.

Following a preliminary hearing he was held for trial on both. Coleman filed

a Motion for Decertification, seeking to remove his case to the juvenile

system.   Following a decertification hearing, the trial court denied the

Motion.

     The Commonwealth amended the criminal Information to include the

charge of a minor not to possess a firearm. The case proceeded to a jury

trial. At the conclusion of the Commonwealth’s case, Coleman was acquitted

of the minor not to possess a firearm charge. The jury subsequently found

Coleman guilty on both robbery charges.     On December 4, 2015, the trial

court imposed an aggregate sentence of 22 months to 7 years in prison.

Coleman filed a Post-Sentence Motion, which was denied.

     Coleman filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement.

     On appeal, Coleman raises the following issues for our review:

     1. [Whether] [t]he trial court erred when it denied Coleman’s
     Motion for Decertification when it ruled that Coleman did not
     show by a preponderance of the evidence [that] he was
     amenable to treatment in the juvenile justice system[?]

     2. [Whether] [t]he trial court erred when it denied Coleman’s
     Motion for judgment of acquittal when the Commonwealth failed
     to produce evidence necessary to prove an element of
     robbery[?]



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      3. [Whether] [t]he trial court erred when it issued a clearly
      unreasonable sentence to Coleman for [r]obbery [,] resulting in
      a 22 month to 7[-]year jail sentence[,] in violation of a
      fundamental norm where a sentence of confinement should
      address a defendant’s rehabilitative needs[?]

Brief for Appellant at 7-8 (issues numbered).

      In his first claim, Coleman challenges the trial court’s denial of his

Motion for Decertification. Id. at 20. Coleman argues that the testimony of

Dr. Albert Scott (“Dr. Scott”), a juvenile corrections counselor for over forty

years, regarding Coleman’s mental illness and medical conditions and failure

of the adult prison system to address Coleman’s needs, are sufficient to

justify decertification. Id. at 23-29, 30. Coleman additionally argues that

his unidentified and untreated mental illnesses are the cause of his

uncooperative behavior and failed prior attempts at rehabilitation. Id. at 28.

      When evaluating a decertification decision, our standard of review is as

follows:

      The ultimate decision of whether to certify a minor to stand trial
      as an adult is within the sole discretion of a decertification court.
      Commonwealth v. Sanders, 814 A.2d 1248, 1251 (Pa. Super.
      2003). This Court will not overturn a decision to grant or deny
      decertification absent a gross abuse of discretion. Id. at 1250.
      An abuse of discretion is not merely an error of judgment but
      involves the misapplication or overriding of the law or the
      exercise of a manifestly unreasonable judgment based upon
      partiality, prejudice, or ill will.           Commonwealth v.
      Pennington, 751 A.2d 212, 218 (Pa. Super. 2000).

Commonwealth v. Brown, 26 A.3d 485, 493 (Pa. Super. 2011).

           When a case goes directly to criminal division, the juvenile
      has the option of requesting treatment within the juvenile
      system through a transfer process of “decertification.”       In


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     determining whether to transfer such a case from criminal
     division to juvenile division, the child shall be required to
     establish by a preponderance of the evidence that the transfer
     will serve the public interest.

Sanders, 814 A.2d at 1250 (citations and quotation marks omitted).

     The following factors are to be considered when deciding whether a

juvenile should be transferred:

     (A) the impact of the offense on the victim or victims;

     (B) the impact of the offense on the community;

     (C) the threat to the safety of the public or any individual posed
     by the child;

     (D) the nature and circumstances of the offense allegedly
     committed by the child;

     (E) the degree of the child’s culpability;

     (F) the adequacy and duration of dispositional alternatives
     available under this chapter and in the adult criminal justice
     system; and

     (G) whether the child is amenable to treatment, supervision or
     rehabilitation as a juvenile by considering the following factors:

           (I) age;
           (II) mental capacity;
           (III) maturity;
           (IV) the degree of criminal sophistication exhibited by the
           child;
           (V) previous records, if any;
           (VI) the nature and extent of any prior delinquent history,
           including the success or failure or any previous attempts
           by the juvenile court to rehabilitate the child;
           (VII) whether the child can be rehabilitated prior to the
           expiration of the juvenile court jurisdiction;



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            (VIII) probation or institutional report, if any;
            (IX) any other relevant factors.

42 Pa.C.S.A. § 6355(a)(4)(iii)(A)-(G).

      A decertification court must consider all the factors set forth in section

6355; however, the court need not address, seriatim, the applicability and

importance of each factor and fact in reaching its decision. Sanders, 814

A.2d at 1251; Commonwealth v. Jackson, 723 A.2d 1030, 1033-34 (Pa.

1999).     Additionally, when evaluating the lower court’s decision, the

reviewing court must presume that the lower court carefully considered the

entire record. Sanders, 814 A.2d at 1251.

      During Coleman’s decertification hearing, Coleman’s expert, Dr. Scott,

testified to Coleman’s mental health. N.T., 07/21/15, at 7. After evaluating

Coleman, Dr. Scott found that Coleman had “Bipolar I Disorder, unspecified,

with psychotic features; Conduct Disorder - Adolescent Onset Type; Specific

Learning   Disability   with   impairment   of   mathematics,   calculation   and

problems with math reasons; cannabis use disorder, moderate; delusional

disorder, persecutory type aggression problems.”         Id. at 17.    Dr. Scott

urged that, although an individual cannot be formally diagnosed with an

antisocial or narcissistic personality disorder until they are 18, Coleman’s

personality was evolving into that. Id. Dr. Scott opined that he felt that the

adult prison system could not and would not meet Coleman’s psychiatric

needs. Id. at 22. However, Dr. Scott admitted that he did not have access

to Coleman’s juvenile records in formulating his opinion. Id. at 29.


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      Joshua Leskovac (“Leskovac”), Coleman’s juvenile probation officer’s

supervisor, testified that Coleman had many opportunities within the

juvenile system to attend rehabilitation programs or classes and take

medications, but Coleman refused all of them.        Id. at 41-42, 44, 48-52.

Leskovac concluded by stating that as long as a juvenile refuses to

cooperate with treatment options, the juvenile justice system will be

unsuccessful. Id. at 73.

      Here, while the decertification court shared Dr. Scott’s concern

regarding Coleman’s placement in the adult correctional system, the court

relied on Leskovac’s testimony that Coleman had failed to comply with

numerous programs in the juvenile system.              Id. at 82; see also

Commonwealth v. Johnson, 517 A.2d 1311, 1316 (Pa. Super. 1986)

(stating that it is for the fact-finder to determine credibility of witnesses and

they are “free to reject it, accept it, or give it some weight between the

two”).

      Further, the decertification court analyzed the factors set forth in 42

Pa.C.S.A. §6355(a)(4)(iii)(A)-(G), including inter alia, Coleman’s age, mental

capacity, maturity level, the fact that Coleman’s criminality appears to be

escalating, and the impact on the victims and the community.          See N.T.,

07/21/15, at 66-84.     Because we cannot reweigh the evidence, and the

court considered the various section 6355 factors, we conclude that the

decertification court did not abuse its discretion in denying Coleman’s Motion



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for Decertification.   See Commonwealth v. Ruffin, 10 A.3d 336, 339-40

(Pa. Super. 2010) (concluding that denial of decertification was proper

where the juvenile had committed actions that were those of an adult, had

been given multiple opportunities for rehabilitation but kept re-offending,

and, according to a probation officer, there were no juvenile programs that

would be suitable for the juvenile as he had exhausted his treatment plans).

      In his second claim, Coleman contends that the trial court erred in

denying his Motion for judgment of acquittal where the Commonwealth failed

to produce sufficient evidence necessary to prove robbery.          Brief for

Appellant at 31.   Coleman argues that the Commonwealth failed to prove

that Coleman’s entry into the store was for the purpose of theft. Id. at 32.

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence, and all reasonable inferences deducible
      therefrom, viewed in the light most favorable to the
      Commonwealth as verdict winner, are sufficient to establish all of
      the elements of the offenses beyond a reasonable doubt. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence.        The facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence, but the question of
      any doubt is for the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa. Super. 2000)

(citations omitted).



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     The Crimes Code defines robbery, in relevant part, as follows:

                             *     *     *

     (1) a person is guilty of robbery if, in the course of committing a
     theft, he:

                             *     *     *

     (ii) threatens another with or intentionally puts him in fear of
     immediate serious bodily injury;

                             *     *     *

     (iv) inflicts bodily injury upon another or threatens another with
     or intentionally puts him in fear of immediate bodily injury;

                             *     *     *

     (2) An act shall be deemed “in the course of committing a theft”
     if it occurs in an attempt to commit theft or in flight after the
     attempt or commission.

18 Pa.C.S.A. § 3701.

     Here, Coleman sent a text to Cornish, asking him to come to

Coleman’s home. N.T., 02/25/16, at 22. Once Cornish reached Coleman’s

home, Coleman informed Cornish that Coleman “planned to get some money

in his pocket.” Id. at 24. They left the house and walked for a while, until

they reached the George Street Market.         Id. at 27.     After Coleman

suggested that they rob the market, the two then entered the market

wearing masks, and Coleman waived a gun, asking an employee for money.

Id. at 28, 31. The owner then appeared, and Coleman and Cornish fled the

market. Id. at 32.




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     Furthermore, employees Grear, Eihab Jamal and Ali Omar testified that

Coleman entered the store wearing a mask and carrying a weapon.         N.T.,

02/25/16, at 57-66. The employees stated that Coleman pointed a gun at

Grear, while requesting money from the cash register. See id.

     Viewing the evidence in a light most favorable to the Commonwealth,

as the verdict winner, we conclude that when Coleman entered the store,

waved a gun around and demanded money, he intended to commit a theft.

Thus, the evidence is sufficient to show that Coleman committed a robbery.

See Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa. Super. 2007)

(concluding that evidence was sufficient to support robbery conviction where

victim testified that defendant entered bar, put gun to her neck, and

demanded money).

     In his final claim, Coleman challenges 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. Moury, 992

A.2d 162, 170 (Pa. Super. 2010).        Prior to reaching the merits of a

discretionary sentencing issue,

     [this Court conducts] 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, see 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).




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         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.

Moury, 992 A.2d at 170 (quotation marks and some citations omitted).

         Here, Coleman filed a timely Notice of Appeal, raised his claims in a

timely Post-Sentence Motion, and included a Rule 2119(f) statement in his

brief.     However, Coleman’s claim that the trial court did not properly

consider his age or rehabilitative needs does not raise a substantial question.

See Commonwealth v. Berry, 785 A.2d 994, 997 (Pa. Super. 2001)

(concluding that a claim that the sentencing court did not consider

rehabilitative needs of juvenile defendant tried as an adult did not raise a

substantial question for purposes of appeal).        Thus, we cannot address

Coleman’s sentencing claim.2

         Judgment of sentence affirmed.




2
  We note that the trial court had the benefit of a pre-sentence investigation
report. See N.T., 12/04/15, at 7; see also Commonwealth v. Boyer, 856
A.2d 149, 154 (Pa. Super. 2004) (stating that “where the sentencing judge
had the benefit of a presentence investigation report, 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”). The trial court also considered the Victim
Impact Statements, the Sentencing Guidelines, Coleman’s prior criminal
history, the seriousness of the crimes, and Coleman’s age in rendering the
sentence. N.T., 12/04/15, at 7-10.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2016




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