J-S23021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAQUAN JORDAN

                            Appellant                 No. 1324 EDA 2015


           Appeal from the Judgment of Sentence December 12, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008439-2013


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 17, 2016

        Jaquan Jordan appeals from the judgment of sentence imposed

December 12, 2014, in the Philadelphia County Court of Common Pleas. The

trial court sentenced Jordan to an aggregate term of four to 12 years’

imprisonment, following his conviction of firearms not to be carried without a

license, carrying firearms on public streets or public property in Philadelphia,

and possessing an instrument of crime (“PIC”).1            On appeal, Jordan

challenges only the discretionary aspects of his sentence. For the reasons

set forth below, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    See 18 Pa.C.S. §§ 6106, 6108, and 907, respectively.
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      The facts underlying Jordan’s arrest and convictions are summarized

by the trial court as follows:

            In the days leading up to April 11, 2013, a group of high
      school students associated with the Lansdowne section of
      Philadelphia, and a group of high school students associated with
      the Wynnefield section of Philadelphia, had an escalating series
      of conflicts. On April 11, Basil Harrison from Wynnefield was
      going to fight Anthony White, known as “Tone,” from Lansdowne
      as the next step in this conflict.

            At approximately 3:30 in the afternoon, a group from
      Wynnefield, which included Harrison, Tyler Blango, and Rahim
      Pleasant, congregated at the Tustin Playground, in the outfield of
      the baseball diamond, where a group from Lansdowne was
      already present. [Jordan] and Stanley Postell were present with
      the students from Lansdowne. [Jordan] was wearing a green
      shirt. By the time Blango arrived at the playground, he had
      been told that Postell was going to have a gun. Approximately
      30 students were present on the playground, forming a circle
      around the fight location. Although Harrison and Tone were
      supposed to fight, Tone backed out of the fight for an unknown
      reason. Instead, Daquan Briscoe stepped in for Harrison while
      [Jordan] stepped in for Tone.

             While [Jordan] and Briscoe were fighting, Postell, Blango,
      and [another male] got into a verbal argument. During this
      argument, Postell drew his gun and shot at Blango and the
      crowd. Thereafter, Blango pulled his gun and attempted to
      return fire, but Blango’s gun did not work. Upon the shots being
      fired, the spectators watching the fight began to flee from the
      area.

            During the resultant firefight, [Jordan] also drew a firearm
      and extended his arm, appearing to fire towards 60th Street.
      [Jordan] left the playground via the 60th Street exit. Eyewitness
      Sharletta Ambey saw [Jordan] with the firearm and followed
      [him] in her car as he left the playground. Ambey confronted
      [Jordan] on the street, stating that she saw what he had done
      and that she would be reporting him. [Jordan] then told Ambey
      to “get out of his face before he [shot her].” [Jordan] then left
      Ambey, who continued to follow [him] to his home. Ambey
      flagged down a responding police officer, who detained [Jordan].


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             An initial search of [Jordan’s] home did not produce the
       firearm that [Jordan] possessed. Police also failed to recover
       any fired cartridge cases.      However, while [Jordan] was in
       custody at the police Homicide Unit, [he] informed Wilmer Colon,
       another individual in police custody, that he had thrown the
       firearm out of his house through the back window. [Jordan]
       further stated that he “hop[ed] [he] didn’t hit anybody and that
       he “only had one round.” Shortly after hearing this information,
       Colon provided a statement to police. Police then returned to
       [Jordan’s] home and searched the backyard, where they
       recovered a black .22 caliber revolver. The revolver was loaded
       with one live round in the cylinder.

Trial Court Opinion, 5/26/2015, at 2-4 (record citations and footnotes

omitted).

       Both Postell and Blango were injured during the gunfire, and one of

the spectators, Bernard Scott, was shot and killed.    On June 28, 2013, a

grand jury returned an indictment against Jordan on the above-stated

charges, as well as additional charges of murder (first and third degree),

attempted murder, aggravated assault, criminal conspiracy, and recklessly

endangering another person (“REAP”).2 His case proceeded to trial, and on

September 26, 2014, a jury returned a guilty verdict on the firearms

offenses and PIC, but acquitted him on the charges of murder, attempted

murder, aggravated assault and conspiracy.

       On December 12, 2014, the trial court sentenced Jordan to a term of

three to seven years’ imprisonment for carrying a firearm without a license,
____________________________________________


2
 See 18 Pa.C.S. §§ 2505, 901, 2702, 903, and 2705, respectively.          The
REAP charge was nol prossed prior to trial.




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a consecutive term of one to five years’ imprisonment for carrying a firearm

on a public street in Philadelphia, and a concurrent term of four months to

two years’ imprisonment for PIC - an aggregate sentence of four to 12 years’

imprisonment.      Each of the individual sentences were imposed within the

aggravated range of the sentencing guidelines.3       On December 14, 2014,

Jordan filed a post-sentence motion seeking modification of his sentence.

The trial court denied Jordan’s motion on March 30, 2015, and this timely

appeal followed.4

       Jordan’s sole issue on appeal challenges the discretionary aspects of

his sentence. He contends the trial court abused its discretion by sentencing

him in the aggravated range of the guidelines, without giving proper

consideration to certain mitigating factors, such as his age, his lack of a prior

record, and the fact no one was harmed by his actions. See Jordan’s Brief

at 12. Moreover, Jordan argues the trial court improperly inferred that his
____________________________________________


3
   Jordan’s prior record score was a zero. See N.T., 12/12/2014, at 4.
Therefore, the sentencing guideline ranges for his convictions were as
follows: (1) Section 6106 charge (offense gravity score of nine), 12 to 24
months’, plus or minus 12; (2) Section 6108 charge (offense gravity score of
five), restorative sanctions to nine months’, plus or minus three; (3) PIC
(offense gravity score of three), restorative sanctions to one month, plus or
minus three. See id. at 5. See also Trial Court Opinion, 5/26/2015, at 5
n.7.
4
  On April 30, 2015, the trial court ordered Jordan to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Jordan
complied with the court’s directive, and filed a concise statement on May 20,
2015.




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conviction of PIC “indicated the jury had concluded that [Jordan] fired the

weapon” when, in fact, the jury acquitted him of the murder and assault

charges. Id. at 11.   The result, Jordan asserts, was a manifestly excessive

sentence. Id.

     “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.

Super. 2007) (citation omitted).    To reach the merits of a discretionary

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; 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, 329-330 (Pa. Super. 2013)

(citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

     Jordan complied with the procedural requirements for this appeal by

filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether Jordan has raised a substantial question justifying

our review.




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      A substantial question exists when an appellant sets forth “a colorable

argument that the sentence imposed is either inconsistent with a specific

provision of the Sentencing Code or is contrary to the fundamental norms

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa. Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009)

(citation omitted).      “[A]n allegation that the sentencing court failed to

consider mitigating factors generally does not raise a substantial question for

our review.”     Commonwealth v. Rhoades, 8 A.3d 912, 918-919 (Pa.

Super. 2010), appeal denied, 25 A.3d 328 (Pa. 2011), cert. denied, 132

S.Ct. 1746 (U.S. 2012).          However, an “excessive sentence claim[ ] in

conjunction with an assertion that the court did not consider mitigating

factors[,]”    does    present    a   substantial   question   for   our   review.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015), quoting Commonwealth v.

Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (en banc), appeal denied, 91

A.3d 161 (Pa. 2014).        Moreover, a claim that the trial court considered

improper factors when imposing an aggregate range sentence also raises a

substantial question. Commonwealth v. Stewart, 867 A.2d 589, 592 (Pa.

Super. 2005).         Accordingly, because we find Jordan’s claims raise a

substantial question, we proceed to an examination of his argument on

appeal.




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     When     considering   a   challenge   to   the   discretionary   aspects   of

sentencing, we must bear in mind the following:

     Sentencing is a matter vested in the sound discretion of the
     judge, and will not be disturbed on appeal absent a manifest
     abuse of discretion. 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.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).           Moreover, where, as

here, the trial court had the benefit of a pre-sentence investigation report,

we will presume the court was “aware of all appropriate sentencing factors

and considerations.” Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.

Super. 2010) (citation omitted).

     In the present case, the trial court reviewed Jordan’s presentence

investigation report and, accordingly, was aware of the mitigating factors

Jordan cites. Moreover, the court specifically stated: “Nobody is going to be

punishing [Jordan] for the murder of Mr. Scott or, for that matter, attempted

murder of Tyler Blango or aggravated assault of Tyler Blango.”               N.T.,

12/12/2014, at 6. The court further assured defense counsel:

     The record should be completely clear that all of us accept and
     will abide by the jury’s verdict, most importantly me because I’m
     sentencing [Jordan], and I will not be sentencing him and I
     realize he has been found not guilty for conspiracy to commit
     murder, for murdering Mr. Scott, for the attempted murder of
     Mr. Blango and for the aggravated assault of Mr. Blango.


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Id. at 7-8.

      Nevertheless, the trial court determined that the circumstances of

Jordan’s conviction presented “aggravating factors,” specifically, the fact

that Jordan brought a loaded firearm to a fight at a playground. Id. at 14-

15. The court explained: “That takes it well beyond what is contemplated

by the sentencing guidelines within the heartland of those guidelines.” Id.

at 15. We find no reason to disagree.

      Furthermore, contrary to Jordan’s assertion, the trial court did not

improperly find that Jordan fired his gun during the fight. See Jordan’s Brief

at 13. In making this accusation, Jordan cites to the following comments by

the trial court at the sentencing hearing:

            Now, it’s entirely possible the jury concluded that [Jordan]
      wasn’t involved in the conspiracy – they did conclude that – and
      therefore he’s not culpable under a conspiratorial liablity theory
      for Tyler Blango.     We only submitted serious bodily injury
      caused, for instance, and a reasonable juror on that panel could
      have concluded that he didn’t shoot the person so he didn’t
      cause any serious bodily injury, but he was trying to shoot at
      him or somebody else.         And I think that that’s the only
      conclusion one can reach consistent with the PIC result was that
      he was intending to use that gun in the playground for a criminal
      purpose and to shoot someone. I don’t know what else you’d
      use a gun for.

N.T., 12/12/2014, at 7.   Taken in context, the trial court’s comments reveal

the court simply acknowledged the jury’s guilty verdict on the charge of PIC

indicated that Jordan possessed the firearm with the intent to use it

criminally. See N.T., 12/12/2014 at 6 (“In this case, the jury could well

have and did conclude that he had [the] intention to use the gun for a


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criminal purpose, took it to a playground, used it for a criminal purpose.”).

Indeed, the jury was instructed that to convict Jordan of PIC, they had to

find, inter alia, that he possessed the firearm “with the intent to attempt or

to commit a crime with it.”     N.T., 9/23/2014, at 270.      While the court

suggested the jury could have found Jordan discharged his firearm, it

certainly did not rely upon this fact in imposing sentence.    See id. at 15

(“This is not a mere possession of a gun. It’s a possession of a gun brought

to a playground where a fight was being contemplated.”). We find the trial

court’s reliance on the unique facts of this case to support an aggravated

sentence was appropriate and reasonable, and the sentence imposed was

not manifestly excessive.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016




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