J-S70009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KALEEM TYLER

                            Appellant                  No. 169 EDA 2014


            Appeal from the Judgment of Sentence August 27, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012079-2012,
                           CP-51-CR-0014542-2011


BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED DECEMBER 02, 2014

        Kaleem Tyler appeals from his judgment of sentence imposed in the

Court of Common Pleas of Philadelphia County after he entered open pleas

of guilty to aggravated assault, attempted murder and two counts of

possession of instruments of crime (PIC).1 Upon review, we affirm.

        These charges stem from two incidents in which Tyler shot two

different individuals.      At Tyler’s guilty plea hearing before the Honorable



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Tyler was charged at two separate docket numbers.          The pleas to
aggravated assault and one count of PIC were entered at docket number CP-
51-CR-0014542-2011, and the pleas to attempted murder and PIC related to
docket CP-51-CR-0012079-2012.
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Paula Patrick, counsel for the Commonwealth recited the facts of the cases

as follows:

      Your Honor, on [docket number] 12079-2012, this occurred on
      August 28th, 2011 approximately 4:40 p.m. in the area of the
      400 block of 64th Street here in the city and county of
      Philadelphia.

      Your Honor, at that date, time, and location, the complainant in
      this case who was later identified as Justin Brown was sitting on
      his steps when [Tyler] approached him walking up 64th and
      Callowhill. As [Tyler] approached [Brown], [Tyler] pulled out a
      dark colored gun from his – concealed on [Tyler’s] person and
      began shooting at [Brown].

      While [Tyler] fired multiple shots at [Brown], several of these
      shots struck [Brown]. He was struck in the back of both legs,
      and he was also struck in the thigh and suffered serious bodily
      injury that required him to be rushed to the hospital and receive
      treatment for those gunshot wounds. [Brown] described [Tyler]
      as firing five to eight shots in his direction.

                                    ...

      On [docket number] 14542-2011, this happened on October
      18th, 2011 at approximately 11:40 p.m. A[t] that time the
      complainant was in the area outside of a bar called Pleasures
      Lounge at 58th and Master Streets here in the city and county of
      Philadelphia.

      The complainant identified as [Marlon Pennicott] as well as a
      friend . . . later identified as Jamal Palmer were involved in a
      verbal altercation with [Tyler] outside of that bar. After the
      altercation broke up, [Pennicott and Palmer] began walking away
      from [Tyler]. They were headed towards their parked car.
      [Tyler] followed them. He was carrying a dark black colored
      handgun on his person.

      [Tyler] as he approached [Pennicott] began firing that weapon
      [at Pennicott]. One of those shots struck [Pennicott] in his left
      buttock region of his body. As [Pennicott] fell to the ground,
      [Tyler] stood over him and was racking the handgun that was in
      his possession numerous times pointing it at [Pennicott] and

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       eventually [Pennicott] was able to get away from [Tyler]. This
       incident was witnessed by a security guard who was working at
       the bar, witnessed this and was able to also describe to police
       what he observed that day.

N.T. Guilty Plea, 6/27/13, at 15-18.

       Tyler was arrested separately and charged with numerous offenses

stemming from each incident.           On June 27, 2013, he entered open guilty

pleas to the above offenses; the Commonwealth nolle prossed the remaining

charges. The trial court ordered a pre-sentence investigation and, on August

27, 2013, Tyler appeared for sentencing.           At docket number CP-51-CR-

0014542-2011, the trial court imposed a sentence of 7 ½ to 15 years on the

aggravated assault conviction and 2½ to 5 years for PIC, to run

concurrently.      At docket number CP-51-CR-0012079-2012, Tyler was

sentenced to 15 to 30 years for attempted murder and 2½ to 5 years for

PIC, to run concurrently to each other and the charges imposed at the other

docket.2

       Tyler filed a post-sentence motion for reconsideration of his sentence

on September 6, 2013.           The motion was denied by operation of law on




____________________________________________


2
  Tyler was also resentenced for a violation of probation at the same
hearing. On that case, docketed at CP-51-CR-0016179-2009, Tyler was
sentenced to serve the balance of his prior sentence, which was 11½ to 23
months’ incarceration, to run concurrently to the newly imposed sentences.




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January 7, 2014. Tyler filed a timely notice of appeal 3 on January 8, 2014,

followed by a court-ordered Rule 1925(b) statement of errors complained of

on appeal.

       Tyler raises one issue for our review:

       Was [Tyler’s] sentence of fifteen to thirty years of incarceration
       manifestly excessive and an abuse of discretion, where the
       sentencing guidelines overstated the seriousness of the offenses,
       and where the sentencing court failed to properly consider
       [Tyler’s] background, acceptance of responsibility, and other
       mitigating circumstances?

Brief of Appellant, at 3.

       Tyler’s claim implicates the discretionary aspects of his sentence,

which are not appealable as of right. Rather, an appellant challenging the

sentencing court’s discretion must invoke this Court’s jurisdiction by

satisfying a four-part test.       Commonwealth v. Prisk, 13 A.3d 526 (Pa.

Super 2011).

       We conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
____________________________________________


3
  In her Pa.R.A.P. 1925(a) opinion, Judge Patrick asserts that Tyler’s notice
of appeal was untimely filed and should be quashed. Citing Pa.R.A.P.
903(a), the court states that Tyler was required to file his notice of appeal
within thirty days of the date his judgment of sentence was entered. In
recommending quashal, however, Judge Patrick ignores the provisions of
Pa.R.Crim.P. 702, governing the time for filing appeals in criminal cases
where post-sentence motions are filed. Here, Tyler filed post-sentence
motions which were not acted upon by Judge Patrick and, as a result, were
denied by operation of law pursuant to Rule 720(B)(3)(a) on January 7,
2014. Tyler filed his notice of appeal on January 8, 2014, well within the
time period imposed under Rule 720(A)(2)(b). Accordingly, Tyler’s appeal is
timely and we may address its merits.



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      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).


Id. at 532 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)).    An appellate court will find a “substantial question” and

review the decision of the trial court only where an aggrieved party can

articulate clear reasons why the sentence imposed by the trial court

compromises the sentencing scheme as a whole.            Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987).

      Here, Tyler has included a Rule 2119(f) statement in his brief, in which

he claims that, “under the particular circumstances of [his] case, [Tyler’s

sentence] overstated the seriousness of the offenses to which [he] pled

guilty.” Brief of Appellant, at 11. Tyler further alleges that “the trial court

failed to take into account relevant provisions of the Sentencing Code, gave

excessive weight to [Tyler’s] prior record by ‘double counting’ offenses that

were already included in [his] prior record score, and failed to consider the

mitigating circumstances presented as well as [Tyler’s] rehabilitative needs.”

Id.

      We find Tyler’s claim to be somewhat curious, given that the trial court

actually sentenced him in the standard and mitigated ranges of the

Sentencing Guidelines. Tyler would have us find that the “circumstances of

[his] case” are such that the mitigated range sentence “substantially


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overstated the seriousness” of the attempted murder conviction under

docket number CP-51-CR-0012079-2012. Tyler and his counsel presumably

present this argument in all earnestness, despite the fact that, while on

probation for a firearms violation, he approached an individual who was

sitting on his own steps and, unprovoked, fired five to eight shots at him,

striking his victim in the back of both legs and the thigh, and caused him to

suffer “serious bodily injury that required him to be rushed to the hospital

and receive treatment[.]”    N.T. Guilty Plea, 6/27/13, at 16.      For this

unprovoked attack with a deadly weapon, Tyler received a mitigated range

sentence. Yet he finds even this sentence excessive, cavalierly downplaying

its seriousness by arguing that “the complainant was shot in a non-vital part

of the body, in a manner that was not calculated or likely to be fatal; [and

Tyler] declined further opportunity to inflict death or additional

injury.” Brief of Appellant, at 17 (emphasis added).

     We decline to find that his claim presents a substantial question for

our review. Moreover, we find that the court did not impermissibly “double

count” Tyler’s prior record in imposing sentence. While the court did note

Tyler’s “extensive criminal history,” N.T. Sentencing, 8/27/13, at 29, the

court also noted Tyler’s propensity to commit further crimes, the impact of

his life choices on society and his bad character.     The court was also in

possession of, and reviewed, Tyler’s presentence report.      Where a pre-

sentence report exists, we presume that the sentencing judge was aware of

the relevant information regarding the defendant’s character and weighed

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those      considerations     along    with     mitigating    statutory   factors.

Commonwealth v. Walls, 926 A.2d 957, 967 n.7 (Pa. 2007).

        For all the above reasons, Tyler is entitled to no relief.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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