J-S60013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD ANTHONY GREEN, III                 :
                                               :
                       Appellant               :   No. 1426 MDA 2018

         Appeal from the Judgment of Sentence Entered March 2, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0004755-2014


BEFORE:      SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                           FILED FEBRUARY 18, 2020

        Appellant, Leonard Anthony Green, III, appeals from the judgment of

sentence entered following his convictions of six counts of recklessly

endangering another person (“REAP”), and one count each of carrying a

firearm without a license, possession of a firearm by a minor, and third-degree

murder.1 We affirm.

        On June 14, 2014, Appellant, who was fourteen years old, shot a firearm

into a vehicle containing seven people. One of the victims died as a result of

a gunshot wound. On January 11, 2017, Appellant pled guilty to the crimes

stated above. On March 2, 2017, the trial court sentenced Appellant to serve


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2705, 6106(a)(1), 6110.1(a), and 2502(c), respectively.
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an aggregate term of incarceration of twenty-two years and ten months to

forty-seven years. On November 2, 2017, Appellant filed a petition pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. On May

30, 2018, the PCRA court reinstated Appellant’s post-sentence and appellate

rights.

      On June 11, 2018, Appellant filed a post-sentence motion in which he

sought reconsideration and/or modification of his sentence.      On August 2,

2018, the trial court held a hearing on the motion and denied Appellant’s post-

sentence motion. Appellant then filed this timely appeal. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY NOT
      CONSIDERING OR GIVING PROPER WEIGHT TO MITIGATING
      FACTORS IN IMPOSING UPON THE APPELLANT AN AGGREGATE
      SENTENCE OF 22 YEARS 10 MONTHS TO 47 YEARS.

Appellant’s Brief at 4.

      Appellant challenges the discretionary aspects of sentencing.          “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. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)

(citation omitted). An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

      [W]e 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

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

omitted; brackets in original).

      Whether a particular issue constitutes a substantial question about the

appropriateness of sentence is a question to be evaluated on a case-by-case

basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

As to what constitutes a substantial question, this Court does not accept bald

assertions of sentencing errors.    Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006). An appellant must articulate the reasons the

sentencing court’s actions violated the sentencing code. Id.

      Herein, the first three requirements of the four-part test are met.

Appellant brought an appropriate appeal, raised the challenge in a post-

sentence motion, and included in his appellate brief the necessary concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

      In his Rule 2119(f) statement, Appellant argues that the trial court

abused its discretion by failing to consider certain factors pertaining to his age

and thus failed to fashion a sentence that appropriately addressed Appellant’s


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rehabilitative needs. Appellant’s Brief at 8. This Court has found a substantial

question exists where there is an allegation that the sentencing court failed to

consider the factors set forth in 42 Pa.C.S. § 9721(b).2 See Commonwealth

v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (concluding that the appellant

raised a substantial question where it was alleged that the trial court failed to

properly consider the factors set forth in 42 Pa.C.S. § 9721(b)). Therefore,

Appellant has raised a substantial question. As such, we will review the merits

of Appellant’s sentencing claim. Nevertheless, we conclude that Appellant is

entitled to no relief, as the record reveals that the court did consider

Appellant’s rehabilitative needs.

       It is undisputed that 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. Fullin, 892 A.2d at 847. In

this context, an abuse of discretion is not shown merely by an error in

judgment.     Id.   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.




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2 We note that the factors to be considered under 42 Pa.C.S. § 9721(b) include
the protection of the public, gravity of offense in relation to impact on victim
and community, and rehabilitative needs of the defendant. Commonwealth
v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).

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       The sentencing judge has broad discretion in determining the proper

penalty, and this Court accords the sentencing court great deference, as it is

the sentencing court that is in the best position to view a defendant’s

character, displays of remorse, defiance, or indifference, and the overall effect

and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.

2007) (quotations and citations omitted).3        As previously noted, when

imposing a sentence, the sentencing court must consider “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.” 42 Pa.C.S. § 9721(b). As we have stated, “[A] court is required


____________________________________________


3   The Walls Court instructed the following:

       In making this “unreasonableness” inquiry, the General Assembly
       has set forth four factors that an appellate court is to consider:

       (d) Review of the record—In reviewing the record the appellate
       court shall have regard for:

              (1) The nature of the circumstances of the offense and
              the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to observe
              the    defendant,    including   any     pre-sentence
              investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

       42 Pa.C.S.A. § 9781(d).

Walls, 926 A.2d at 963.


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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). “In particular, the court should refer to the defendant’s prior criminal

record, his age, personal characteristics and his potential for rehabilitation.”

Id. In addition, “[o]ur Supreme Court has determined that where the trial

court is informed by a pre-sentence report, 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.”

Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).

      Our review of the record reflects that, at the time of Appellant’s

sentencing, the trial court had received and reviewed a presentence report.

N.T., 3/2/17, at 9-10, 25.      The trial court also heard statements from

Appellant’s mother and his grandfather. Id. at 10-17. The trial court then

heard Appellant’s allocution.   Id. at 17-20.    Further, the trial court heard

argument from Appellant’s counsel.      Id. at 20-24.    Immediately following

Appellant’s allocution and prior to announcing the judgment of sentence, the

trial court gave a detailed account of Appellant’s personal and criminal history,

the instant crimes and their impact upon the community, and Appellant’s

rehabilitative needs. Id. at 25-36.

      The trial court further elaborated its reasoning for imposition of the

specific sentence upon Appellant in its written opinion, as follows:


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            In this case [Appellant] murdered another young man for
     calling him a name. Notes of Testimony, 3/2/17 at 33). He killed
     him by firing his pistol twice, at close range, into a parked car that
     was crowded with six other young people. (Id).

            [Appellant] raises issue with the [c]ourt considering the
     multiple write-ups [Appellant] received while incarcerated in the
     York County prison, but did not acknowledge on the record that
     [Appellant] received no write-ups from October 2016 to March 2,
     2017. The [c]ourt acknowledged this period of time at the hearing
     on [Appellant’s] post sentence motion (Notes of Testimony,
     4/2/18 at 9), and found that a 5 month period of time in
     comparison to the rest of [Appellant’s] lengthy span of misconduct
     was not a significant period of demonstrated rehabilitation so as
     to disturb his adjudged sentence. (N.T. at 11). In fact, this
     argument cuts two ways. While it is true that [Appellant] did not
     receive any prison write-ups for that 5 month period, it reveals
     that he is capable of controlling himself and behaving when he
     chooses to, but he in turn continues to choose to misbehave,
     which he has done frequently. [Appellant] committed this crime
     at the age of 14 and was incarcerated for over 2 years prior to his
     sentencing, and continued to display the same immaturity and
     aggressive behavior in jail he had exhibited prior to this offense.
     In comparison to the whole picture of [Appellant’s] life, the [c]ourt
     considered this 5 month period as not significant as his multiple
     infractions over an extended period.

           [Appellant] also argues that the [c]ourt did not give proper
     weight considering the principles outlined by the United States
     Supreme Court in Miller v. Alabama, 567 US 460 (2012).1
     However, Miller v. Alabama does not apply to the case at hand.
     Miller v. Alabama concerned sentences of life without the
     possibility of parole. Here, [Appellant] was not sentenced to life,
     but 22 years’ 10 months’ to 47 years’. Even so, the [c]ourt did
     take into consideration [Appellant’s] youth and immaturity, and
     the well-recognized fact that young male brains continue to
     develop well into their 20’s. (N.T. at 11). The [c]ourt during
     [Appellant’s] sentencing thoroughly discussed its need to balance
     the rehabilitative needs of [Appellant] with the need for
     punishment and deterrence, all while taking into consideration
     [Appellant’s] youth and immaturity. (Notes of Testimony, 3/2/17
     at 31-32).




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            1 In his Statement of Matters Complained, [Appellant]
            refers to a Supreme Court case “United States v. Miller
            (addressing juvenile life sentences).” The [c]ourt
            interprets this as a reference to Miller v. Alabama, the
            United States Supreme Court case that forbid
            mandatory life sentences without the possibility of
            parole for juvenile offenders.

             [Appellant] further argues that the [c]ourt erred in
      considering voluntary intoxication and diminished capacity an
      aggravating factor for [Appellant]. [Appellant] argues that given
      his age and decision making, the fact that he was under the
      influence of illegal drugs at the time of the incident should have in
      fact been a mitigating factor. However, much like the fact
      [Appellant] showed a small 5 month period of restraint while
      incarcerated, this argument cuts both ways. The fact that
      [Appellant] was intoxicated makes the disposition of the case
      appropriate as a third degree murder rather than a first degree.
      Yet, it was [Appellant’s] conscious choice to take the drugs in his
      system. He was obviously aware that he had a loaded firearm on
      his person, and he compounded that danger by ingesting mind
      altering illegal substances. He created an inherently dangerous
      situation by consciously choosing to combine drugs with firearms
      and put those around him at risk by making this choice.

            [Appellant] has a natural inclination towards violence.
      During his life he has been presented many opportunities to
      reform his behavior, which he has continually rejected. In fact,
      while [Appellant] notes that he completed the Violence Prevention
      Program at the York County Prison, two days after he completed
      the program he assaulted another inmate. In light of [Appellant’s]
      violent character and lack of rehabilitative potential, and in light
      of the overall effect and nature of the crime on society as well as
      the need to protect society, [Appellant’s] sentence was not
      manifestly unreasonable.

Trial Court Opinion, 4/15/19, at 3-5.

      We conclude that the reasons the trial judge offered for the sentence

imposed were sufficient to conclude that the trial court properly considered all

relevant factors in fashioning Appellant’s sentence. Also, because the trial


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court had been fully informed and relied upon the presentence report, N.T.,

3/2/17, at 25, we conclude that the trial court did not abuse its discretion in

imposing the instant sentence.    Ventura, 975 A.2d at 1133. Accordingly,

Appellant’s claim that the trial court failed to contemplate relevant factors in

considering Appellant’s rehabilitative needs and imposing the sentence lacks

merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/18/2020




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