J-S68027-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                   Appellee                 :
                                            :
            v.                              :
                                            :
ROBERT GRAY,                                :
                                            :
                   Appellant                :   No. 2480 EDA 2014

            Appeal from the Judgment of Sentence March 7, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0015175-2008

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED DECEMBER 07, 2015

      Robert Gray (“Gray”) appeals from the judgment of sentence entered

following   his   convictions   of   third-degree   murder,   robbery,   criminal

conspiracy, and possessing instruments of crime. Gray pled guilty to these

crimes and presently he challenges only the sentence imposed on these

convictions. For the following reasons, we affirm.

      The trial court aptly summarized the facts as follows:

            On March 31, 2008, approximately 5 PM, Decedent,
            Nicholas Pisano, and Joshua McDonald were inside
            Decedent's home at 356 North Front Street,
            Philadelphia, PA when Yushwa Alwan arrived.
            Decedent and Alwan engaged in short conversation
            and Alwan left. Decedent had approximately six
            pounds of marijuana hidden in his apartment and
            Alwan knew the drugs were there. Alwan solicited
            the cooperation of [Gray] and co- conspirator Joseph
            Harville (aka Zazzy) to rob Decedent. [Gray]
            cooperated with the police from the time of his arrest
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          and gave a full statement and confession.        [Gray]
          told detectives:

              "Zazzy [] called   me up on my cell and asked
              me what I was      doing. I decided to go down
              meet and them      both on Francis Street where
              his grandmother    lives."

              "I got to Francis Street, I parked and hung out
              a little while that’s when [Alwan] starts talking
              about this dude that had all this weed. He said
              he just left the boy’s house and the guy had
              like ten pounds of weed in the dryer. He said
              the boy had a lot of money in the Nike box in
              the back room where the dog was at. [Alwan]
              was like we should roll on the boy. He said the
              guy was a punk and we wouldn’t have to do
              nothing but scare the boy. We all agreed and
              then [Alwan] gave Zazzy the gun."

          The co- conspirators purchased a pizza which they
          planned to use as a rouse to gain entry into the
          apartment by staging a pizza delivery. They planned
          for [Gray] to conduct the actually robbery. Police
          investigators later found [Gray’s] fingerprints on the
          box containing the pizza. [Gray’s] statement
          continued:

              “I parked the car under the bridge around the
              corner from the boy's house, then me and
              Zazzy and [Alwan] walked around to the
              house. [Alwan] walked a little bit behind and
              showed us where the house is at, then he
              stayed back while me and Zazzy went to the
              dude’s house. I walked up the steps first and
              Zazzy was behind me. I still had the pizza with
              me and when Zazzy rang the doorbell he says
              ‘delivery.’ The guy inside opens the door and
              says wrong bell, you want the back. He had a
              bible in his hand and said like two more times,
              you want the back. He’s like I’m telling you,
              you got the wrong apartment it happens all the
              time, you want the back door. I said, no, I



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               want some weed. He was like, you definitely
               got the wrong house. That’s when Zazzy
               comes up from behind me with the gun and
               pushes passed me. He knocked the pizza box
               out of my hand when he pushed me. As Zazzy
               pushed by me the guy must have seen the gun
               because he looked shocked.”

            [Zazzy] shot Decedent once in the stomach causing
            his death. When McDonald observed Decedent being
            confronted he retrieved a gun from under the couch
            where he was seated and chased [Zazzy] and [Gray]
            out of the apartment and onto nearby Callowhill
            Street.

            Decedent was transported to Hahnemann Hospital
            where he was pronounced dead. Dr. Greg McDonald
            performed an autopsy of Decedent’s remains and
            concluded that he died as a result of a single
            gunshot wound to the abdomen and that the manner
            of death was homicide. Commonwealth v.
            Harville, CP-51-CR-009496 -2008; 1944 EDA 2011,
            N.T. 6/29/2011 [at] 52.

Trial Court Opinion, 11/24/14, at 1-2.

      As noted above, Gray pled guilty to aforementioned crimes, and the

trial court sentenced him to an aggregate term of thirty-five to seventy

years of incarceration.1      Gray filed a post-sentence motion, which was

denied on July 26, 2014. This appeal followed.

      Gray presents the following two issues challenging the sentence

imposed by the trial court:



1
   More specifically, the trial court sentenced Gray to twenty to forty years
for third-degree murder, ten to twenty years for conspiracy, five to ten years
for robbery, and two and a half to five years for PIC. All sentences except
the PIC sentence were ordered to run consecutively.


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            1. Did the [trial] court abuse its discretion in
               sentencing [Gray] to the statutory maximum for
               third[-]degree murder after failing to consider
               [Gray’s] actions in taking responsibility for his
               behavior and cooperating with law enforcement,
               and after failing to consider or discuss [Gray’s]
               potential and need for rehabilitation, thus
               resulting in a manifestly excessive sentence?

            2. Did the [trial] court abuse its discretion by
               sentencing [Gray] outside of the guidelines for
               conspiracy without stating sufficient reasons of
               record for doing so?

Gray’s Brief at 4.

      We begin by noting that Gray did not include his second issue in his

Pa.R.A.P. 1925(b) statement of matters complained of on appeal. See Rule

1925(b) Statement, 10/24/14, at 1-3.       It is well settled that issues not

included in a court-ordered statement of matters complained of are waived

for purposes of appeal. Commonwealth v. Jackson, 10 A.3d 341, 347 n.4

(Pa. Super. 2010); Pa.R.A.P. 1925(b)(4)(vii).      Our Supreme Court has

repeatedly reiterated that this is a bright-line rule and that “in order to

preserve their claims for appellate review, appellants must comply whenever

the trial court orders them to file a [s]tatement of [m]atters [c]omplained of

on [a]ppeal pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.

1925(b) statement will be deemed waived.” Commonwealth v. Castillo,

888 A.2d 775, 780 (Pa. 2005); see also Commonwealth v. Hill, 16 A.3d

484, 494 (Pa. 2011). Here, the lower court ordered Gray to file a statement




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of matters complained of on appeal. Trial Court Order, 9/9/14. Gray failed

to include this issue therein, and so we must find that it has been waived.

      Gray’s remaining issue challenges the discretionary aspects of the

sentence imposed on his third-degree murder conviction. “Challenges to the

discretionary aspects of sentencing do not entitle an appellant to review as

of right.” Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011)

(citation omitted).

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test: (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, 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. Evans, 901 A.2d
            528, 533 (Pa. Super. 2006).

Id.

      Gary’s appeal was timely filed. Although not replicated verbatim, Gray

raised substantially the same issue in his post-sentence motion. See Motion

for Reconsideration of Sentence Pursuant to Pa.R.Cr.P. 720, 3/17/14, ¶¶ 6,

8, and so we will find that he has properly preserved it for appeal. Gray has

included a statement pursuant to Pa.R.A.P. 2119(f) in his brief, and so we

turn to the final aspect of this inquiry: whether Gray has established a




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substantial question that this sentence is not appropriate under the

Sentencing Code.

      In his Rule 2119(f) statement, Gray states that “his statutory

maximum     sentence    for   third-degree   murder   was   contrary   to   the

fundamental norms of the sentencing process because he was afforded no

consideration for the fact that he took responsibility for his actions and

cooperated with the police.”    Gray’s Brief at 8.    With this claim, Gray is

complaining that the trial court failed to give adequate consideration to

certain mitigating factors that he believes would militate in favor of a

reduced sentence.    “[T]his Court has held on numerous occasions that a

claim of inadequate consideration of mitigating factors does not raise a

substantial question for our review.” Commonwealth v. Swope, __ A.3d

__, 2015 WL 5439772 at *4 (Sept. 16, 2015); see also Commonwealth v.

Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015).2




2
   We recognize that a claim that the trial court failed to consider mitigating
factors in conjunction with an excessiveness claim may present a
substantial question so as to invoke our review. See Caldwell, 117 A.3d at
770. Gray does not raise an excessiveness claim in conjunction with this
allegation; he simply alleges that the trial court abused its discretion
because it did not consider this factor. Gray’s Brief at 8. However, even if
Gray had specifically coupled this claim with an allegation of excessiveness,
we would find that he is due no relief. The record reveals that the trial court
did, in fact, take Gray’s cooperation and acceptance of responsibility into
account. N.T., 3/7/14, at 21-22. It also reveals, however, that Gray’s
“cooperation” consisted of agreeing to testify against his co-conspirators in
conformance with his statement to the police, but at each trial he recanted
his statement. Id. at 12-13, 17-18.


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      Gray also states that the trial court abused its discretion because “the

court did not consider the rehabilitative needs of [Gray].” Gray’s Brief at 8.

This allegation also fails to raise a substantial question so as to invoke our

review. Commonwealth v. Griffin, 65 A.3d 932, 936, appeal denied, 76

A.3d 538 (Pa. 2013).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/7/2015




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