J-S08021-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAKAR HAMPTON                              :
                                               :
                       Appellant               :   No. 988 WDA 2019

         Appeal from the Judgment of Sentence Entered April 25, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0010328-2017


BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUIM BY: McCAFFERY, J.                           FILED MARCH 20, 2020

       Dakar Hampton (Appellant) appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his bench

trial conviction of robbery.1 Appellant contends the evidence was insufficient

to support the verdict and the court abused its discretion by imposing a

manifestly excessive sentence. We affirm.

       The trial court summarized the evidence presented at trial:

       On August 12, 2017, David Brody [(Victim)] was working as a
       doorman and bellman at the Fairmont Pittsburgh [H]otel in the
       Market Square section of the City of Pittsburgh. During the
       evening on that day, [Victim] was moving BMW bicycles from the
       outside of the hotel to the inside of the hotel. The BMW bicycles
       were maintained at the Fairmont [H]otel for guests’ usage to
       permit them to enjoy bicycle rides around the City of Pittsburgh.
____________________________________________


1 18 Pa.C.S. § 3701(a)(1)(ii) (person is guilty of robbery if, in course of
committing theft, he threatens another with or intentionally puts him in fear
of immediate serious bodily injury.)
J-S08021-20


      According to [Victim], the BMW bicycles were high-end bicycles
      and were very valuable. As [Victim] was bringing the bicycles in
      for the night, [Appellant], wearing a dark hoodie and ski goggles,
      approached [Victim] and put his hand on one of the bicycles.
      [Victim] addressed [Appellant] by saying, “No, you can’t take
      that.” [Victim] pulled the bicycle away from [Appellant]. As
      [Victim] pulled the bicycle away, [Appellant] lifted his hoodie and
      displayed what appeared to be a firearm to [Victim. Victim] was
      able to observe the firearm from the handle to the trigger. The
      barrel of the firearm was down inside the waistband of
      [Appellant’s] pants. According to [Victim], the firearm appeared
      to be a real firearm. As [Victim] carried the bicycle into the hotel,
      [Appellant] walked away and pointed toward [Victim], making a
      hand gesture replicating the firing of a gun.

              After moving the bicycles into the hotel, [Victim] telephoned
      the police. Within ten to fifteen minutes, police officers responded
      to the general area where the incident occurred. Not far from the
      hotel, the police officers encountered [Appellant]. He was wearing
      a blue hoodie and had black ski goggles with red lenses on his
      head. He was wearing a black bandana around his neck. The
      police officers exited their police vehicle. Due to the fact that the
      initial report to them was that the actor involved in the incident at
      the Fairmont [H]otel may have been armed, one officer had his
      weapon drawn and one officer was holding his taser. The officers
      ordered [Appellant] to lay on the ground and [Appellant]
      complied. He was then placed in custody. A paintball gun was
      located in [Appellant’s] pants. At trial, [Victim] identified the ski
      goggles as the goggles worn by [Appellant] and the paintball gun
      as the gun he observed on [Appellant] during the incident at the
      Fairmont [H]otel.

Trial Ct. Op., 10/28/19, at 1-2.




                                      -2-
J-S08021-20


       The Commonwealth charged Appellant with, inter alia, robbery.2      On

January 18, 2018, this case proceeded to a bench trial. Appellant did not

testify and presented no evidence. The court convicted Appellant of robbery.

       On April 25, 2018, after reviewing a presentence investigation report

(PSI), the court sentenced Appellant to 5 to 10 years’ imprisonment, and a

consecutive three years’ probation. On May 4, 2018, Appellant filed a post-

sentence motion, which was denied on June 26, 2018.

       Appellant filed a notice of appeal on July, 13, 2018.    However, on

February 14, 2019, this Court dismissed the appeal because appellate counsel

failed to file a brief on Appellant’s behalf.    Commonwealth v. Hampton,

1023 WDA 2018 (order) (Pa. Super. 2/14/19). On April 9, 2019, Appellant

filed a timely, pro se Post Conviction Relief Act3 petition (PCRA). The court

appointed present counsel to represent Appellant.        On May 17, 2019,

Appellant filed an amended PCRA petition requesting reinstatement of his

post-sentencing and appellate rights. The court granted this petition. On May

31, 2019, Appellant filed a post-sentence motion nunc pro tunc challenging

the sufficiency of evidence and the discretionary aspects of sentencing, which




____________________________________________


2 The Commonwealth had also charged Appellant with possession of an
instrument of crime, 18 P.C.S. § 907(b), and possession of marijuana, 35 P.S.
§ 780-113(a)(31), but these charges were withdrawn prior to trial.

3   42 Pa.C.S. §§ 9541-9546.

                                           -3-
J-S08021-20


the court denied. On June 27, 2019, Appellant timely filed both a notice of

appeal and a Pa.R.A.P. 1925(b) statement of issues on appeal.

       Appellant presents two issues for our review:

    1. Did the trial court err in denying Appellant’s post sentencing
       motions since Appellant’s robbery-threatening serious bodily
       injury [18 Pa.C.S. § 3701 (a) (1) (ii)] conviction was not
       supported by sufficient evidence since Appellant simply and briefly
       put his hand on the bicycle[, N.T., 1/18/18, at 19], Appellant
       never uttered a word during the entire encounter, [Victim] told
       Appellant “that he couldn’t take the bike” [id., Victim] continued
       to wheel the bicycle into the hotel and Appellant did not thereafter
       make any attempt to take the bicycle[, N.T. at 21]; the incident
       involving the bicycle ended at that point and any further actions
       by Appellant may have constituted terroristic threats toward
       [Victim] but Appellant was only charged with one count of robbery
       and not terroristic threats or any other crime related to [Victim]
       or the bicycle. Appellant’s action of briefly putting his hand on the
       bicycle and uttering no words could have been interpreted in a
       multitude of ways, but was not sufficient to prove him guilty,
       beyond a reasonable doubt, of an attempted robbery accompanied
       by a threat of serious bodily injury (an attempt to take the bicycle
       by force from [Victim], with accompanying threats of serious
       bodily injury)?

    2. Did the trial court err in denying Appellant’s post sentencing
       motions since Appellant's sentence of 5-10 years’ state
       imprisonment, regardless of the sentencing guidelines, was
       manifestly excessive since the factual scenario regarding the
       crime only involved Appellant briefly placing one hand on a
       bicycle, with no further attempt at taking the bicycle?

Appellant’s Brief at 7.4




____________________________________________


4 We remind counsel, “The statement of questions involved must concisely
state the issues to be resolved . . . without unnecessary detail.” See Pa.R.A.P.
2116(a).

                                           -4-
J-S08021-20


      Appellant avers the evidence is insufficient to convict him of robbery,

contending he never made any legitimate attempt to steal the bicycle and did

not communicate any threats to Victim. Appellant claims “[a]ll he did . . . was

place his hand on a bicycle that [Victim] was rolling back into the hotel.”

Appellant’s Brief at 13. Appellant claims he “never uttered a word during the

encounter, and [Victim], who is a well-built, very muscular bodybuilder, nearly

6’ tall, 225 pound, . . . healthy young man,” was never touched or injured

during the entire encounter. Id., citing N.T., 1/18/18, at 19. Appellant also

reasons “[t]he incident involving the bike ended at that point” and his

subsequent conduct may have, at most, established terroristic threats, a crime

not charged. Id. at 13.

      Our standard of review is well-settled:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Walker, 139 A.3d 225, 229 (Pa. Super. 2016) (citations

omitted). Pursuant to Section 3701(a)(ii) of the Pennsylvania Crimes Code,

“[a] person is guilty of robbery if, in the course of committing a theft, he . . .

threatens another with or intentionally puts him in fear of immediate serious

bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii). “Serious bodily injury” is defined

as “[b]odily injury which creates a substantial risk of death or which causes

                                      -5-
J-S08021-20


serious, permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S § 2301.

      A conviction under Section 3701(a)(1)(ii) is contingent upon the
      type of bodily harm threatened. The Commonwealth need not
      prove a verbal utterance or threat to sustain a conviction under
      Section 3701(a)(1)(ii).     It is sufficient if the evidence
      demonstrates aggressive actions that threatened the victim’s
      safety. For the purposes of Section 3701(a)(1)(ii), the proper
      focus is on the nature of the threat posed by an assailant and
      whether he reasonably placed a victim in fear of “immediate
      serious bodily injury.”

Commonwealth v. Ouch, 199 A.3d 918, 923–24 (Pa. Super. Ct. 2018)

(citations & quotation marks omitted). Further, “the threat posed by the

appearance of a firearm is calculated to inflict fear of deadly injury, not merely

fear of ‘serious bodily injury.’” Commonwealth v. Hopkins, 747 A.2d 910,

914 (Pa. Super. 2000).

      In addressing the sufficiency claim, the trial court noted the evidence

clearly established Appellant attempted to grab the bicycle. Trial Ct. Op. at

5. In fact, Appellant appears to concede this point. However, the trial court,

sitting as the finder of fact, found that when Victim showed resistance,

Appellant contemporaneously flashed a firearm located in his waistband.

Appellant further made a hand gesture simulating the firing of a gun toward

Victim as Appellant fled the scene. The trial court explained these actions

constituted ample evidence that Appellant intended to place Victim in fear of

being seriously injured. Id.; See Ouch, 199 A.3d at 923. The fact that the

item used in this crime was not a real firearm, i.e. a paintball gun, does not


                                      -6-
J-S08021-20


negate the threat calculated to inflict fear of deadly injury to Victim. Id.; see

also, Hopkins 747 A.2d at 914.         Accordingly, Appellant’s first issue fails.

      Next, Appellant challenges the discretionary aspects of his sentence. He

claims the sentence imposed was manifestly excessive because it was

“disproportionate to the offense of the simple act of briefly putting one’s hand

upon a bicycle and making no attempts take the bicycle.” Appellant’s Brief at

9. Again, Appellant’s argument rests solely on this rather one-sided recitation

of facts, rejected by the trial court. Appellant also contends the trial court did

not provide sufficient reasons for the excessive sentence.

      A discretionary aspects of sentencing claim is not appealable as of right,

but   “must    be     considered   a    petition   for   permission    to   appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation

omitted). Before we reach the merits of a discretionary sentencing issue, this

Court must determine:

      (1) whether the appeal is timely; (2) whether Appellant preserved
      his issue; (3) whether Appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence[, See Pa.R.A.P.
      2119(f)]; and (4) whether the concise statement raises a
      substantial question that the sentence is appropriate under the
      sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013)

(citation omitted).

      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 judges’ actions were either: (1) inconsistent

                                        -7-
J-S08021-20


      with a specific provision of the Sentencing Code; or (2) contrary
      to the fundamental norms which underlie the sentencing process.”

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

omitted). “Our inquiry must focus on the reasons for which the appeal is

sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Commonwealth v. McNabb, 819

A.2d 54, 56 (Pa. Super. 2003) (citations omitted). “[A]n excessive sentence

claim—in conjunction with an assertion that the court failed to consider

mitigating factors—raises a substantial question.”        Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc).          Furthermore,

“[a]n allegation that the sentencing court did not adequately set forth its

reasons   on   the   record”   likewise   presents   a   substantial   question.

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.1999).

      Appellant complied with the procedural requirements for this appeal by

filing a timely post-sentence motion nunc pro tunc and notice of appeal. In

his appellate brief, Appellant includes a statement of reasons relied upon for

appeal pursuant to Pa.R.A.P. 2119(f).     See Edwards, 71 A.3d at 329-30;

Appellant’s Brief at 9.   Furthermore, his claims, that the sentence was

disproportionate to his crimes and the trial court did not provide sufficient

reasons for the excessive sentence, raise substantial questions invoking this

Court’s jurisdiction. See Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en

banc).    Furthermore, “[a]n allegation that the sentencing court did not

adequately set forth its reasons on the record” likewise present a substantial

                                     -8-
J-S08021-20


question. Commonwealth v. Brown, 741 A.2d at 735; Brown, 741 A.2d at

735.   Thus, we consider the merits of Appellant’s claim.

       [T]he proper standard of review when considering whether to
       affirm the sentencing court’s determination is an abuse of
       discretion. . . . [A]n abuse of discretion is more than a mere error
       of judgment; thus, a sentencing court will not have abused its
       discretion unless the record discloses that the judgment exercised
       was manifestly unreasonable, or the result of partiality, prejudice,
       bias or ill-will. . . .

Moury, 992 A.2d at 169-70 (citation omitted).

       Where the sentencing court had the benefit of a presentence
       investigation report (“PSI”), 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.

Id at 171 (citations omitted).

       “Our Supreme Court has determined that where the trial court is
       informed by a [PSI], it is presumed that the court is aware of all
       appropriate sentencing factors and considerations, and that where
       the court has been so informed, its discretion should not be
       disturbed.” “The sentencing judge can satisfy the requirement
       that reasons for imposing sentence be placed on the record by
       indicating that he or she has been informed by the [PSI], thus
       properly considering and weighing all relevant factors.”

Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa. Super. Ct.

2018), appeal denied, 202 A.3d 41 (Pa. 2019).

       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 sentencing court should refer to
       the defendant’s prior criminal record, his age, personal
       characteristics, and his potential for rehabilitation.”

Moury, 992 A.2d at 171 (citations omitted).

                                      -9-
J-S08021-20


         Here, the trial court explained:

               The record in this case supports the sentence imposed by
         this Court. Notably, the sentence imposed was near the low end
         of the standard range of the sentencing guidelines. This Court
         reviewed the presentence report and considered the contents of
         that report in imposing sentence. This Court was persuaded that
         the sentence imposed was appropriate because [Appellant] was
         serving a probationary sentence for a separate offense that had
         been imposed by this Court just three weeks prior to the
         [Appellant’s] commission of the robbery in this case. [Appellant]
         had been involved in unlawful conduct at the Fairmont Hotel in the
         past. This Court also considered the effect [Appellant’s] actions
         had on [V]ictm. [V]ictim testified that he was traumatized by the
         events that occurred during the robbery. Based on the
         circumstances of this case, this Court believed that a county jail
         sentence was not appropriate. In this Court's view, a standard
         range sentence was the appropriate sentence. Accordingly, the
         sentence should not be disturbed.

Trial Ct. Op. at 7-8.

         The trial court weighed the information in the PSI concerning Appellant’s

criminal history, and thus we presume it was aware of all appropriate

sentencing factors and considerations.          See Edwards, 194 A.3d at 638;

Moury, 992 A.2d at 175. At the time he committed the crime, Appellant was

on probation for three additional cases, one of which occurred at the Fairmont

Hotel.     The court based its sentence in part upon Appellant’s probationary

status. See McNabb, 819 A.2d at 57. Further, Appellant’s argument does

not specify a violation of any fundamental norm or a specific provision of the

Sentencing Code; rather, Appellant merely reiterates his challenge to the

sufficiency of the evidence based upon his selective version of facts in arguing

for a lesser sentence. See id. at 56. The record demonstrates the trial court


                                       - 10 -
J-S08021-20


considered all statutory and mitigating factors in fashioning its sentence.

Accordingly, Appellant is not entitled to relief.

      Judgment of sentence affirmed.



      Judge Olson joins this memorandum.

      Judge Musmanno files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2020




                                      - 11 -
