J-S23019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRIS LAWRENCE                             :
                                               :
                       Appellant               :   No. 3539 EDA 2016

              Appeal from the Judgment of Sentence July 1, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0008435-2013,
                           CP-51-CR-0008752-2013


BEFORE:      SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 01, 2018

        Appellant Chris Lawrence appeals from the judgments of sentence to

serve an aggregate 27½ to 55 years’ imprisonment imposed following his

convictions in the above-captioned cases.              Appellant challenges the

discretionary aspects of his sentence. For the reasons that follow, we affirm

in part, but vacate the sentences on one count of aggravated assault and two

counts of violations of the Uniform Firearms Act (VUFA).

        The trial court set forth the facts in CP-51-CR-0008435-2013 (8435-

2013) as follows:

        On May 14, 2013, around 12:40 a.m., Police Officer Thomas
        Schaffling heard gunshots in the area of the 2500 block of North
        5th Street[, Philadelphia]. About 20 seconds later, Mr. Ryan Benes
        pulled up driving a white utility truck [in front] of the Number One
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*   Former Justice specially assigned to the Superior Court.
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        Chinese Store. Officer Schaffling and his partner entered the store
        and saw a black male on the floor, later identified as Mr. Montez
        Perrin. The officers also observed another black male leaned
        against the wall to the left who had blood dripping from his hand
        identified as Mr. William Floyd. The officers first believed Mr. Perrin
        was deceased, however, he suddenly took a gasp of air. The
        officers then decided to load Mr. Perrin into a police cruiser and
        take him to the hospital. Eventually, when the officers were
        securing the scene, another man, Nicholas Sicard, came walking
        off Lawrence Street with a gunshot wound from the incident.

Trial Ct. Op., 10/31/17, at 2-3.           Appellant was charged with numerous

offenses,    including    attempted      murder,   aggravated    assault,   robbery,

conspiracy, firearms not to be carried without a license (VUFA 6106), and

carrying a firearm on a public street (VUFA 6108).1

        In CP-51-CR-0008752-2013 (8752-2013), Appellant was charged with

one count of possession of a firearm by a prohibited person (VUFA 6105). 2

Although the facts underlying that conviction are not detailed in the record,

the criminal complaint states that the date of the offense was May 17, 2013,

which was the date of Appellant’s arrest for the robberies.

        On July 12, 2013, the Commonwealth filed an information in 8435-2013

charging Appellant with twenty-two counts.           The information contained a

notice that the Commonwealth intended to pursue “second-strike” mandatory

minimum sentences under 42 Pa.C.S. § 9714 for attempted murder,


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1  18 Pa.C.S. §§ 901(a), 2702, 3701(a)(1)(i), 903, 6106, and 6108,
respectively.

2   18 Pa.C.S. § 6105.



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aggravated assault, and           robbery      counts.3   On July   17, 2013, the

Commonwealth filed an information in 8752-2013 charging Appellant with a

single count of VUFA 6105.

        Appellant proceeded to a jury trial in 8435-2013. On April 25, 2016, a

jury found Appellant of guilty of one count each of attempted murder,

conspiracy, VUFA 6106 and VUFA 6108, and three counts each of aggravated

assault, and robbery. The trial court held a separate nonjury trial in 8752-

2013 and, on April 29, 2016, found Appellant guilty of one count of VUFA

6105.

        On July 1, 2016, the trial court, in 8435-2013, sentenced Appellant to

15 to 30 years’ incarceration for the attempted murder of Perrin4 and

mandatory 10 to 20 years’ incarceration each for the remaining three counts

of robbery and aggravated assault.5             The sentences for the robberies and

____________________________________________


3 Of relevance to this appeal, 42 Pa.C.S. § 9714(a)(1) requires the imposition
of a ten-year mandatory minimum sentence upon a second conviction of a
crime of violence. We add that mandatory minimum sentences based on prior
convictions do not violate Alleyne v. United States, 570 U.S. 99 (2013).
See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015).

4 At sentencing, the parties agreed that the jury rendered a verdict finding
that the attempted murder caused serious bodily injury.                 See
Commonwealth v. Barnes, 167 A.3d 110, 121 (Pa. Super. 2017) (en banc).

5 The trial court stated at the sentencing hearing that it merged the count of
aggravated assault as to Perrin into the count of attempted murder. However,
the written sentencing order states that it imposed a concurrent sentence on
that count.




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aggravated assault were ordered to run concurrently to each other but

consecutive to the sentence for attempted murder.              The court further

sentenced Appellant to concurrent terms of 3½ to 7 years’ incarceration for

VUFA 6106, and 2½ to 5 years’ incarceration for VUFA 6108. The trial court

applied the deadly weapon used enhancement6 (DWE-used) to all of the

counts in 8435-2013, including the two VUFA counts.

        The trial court also sentenced Appellant to 2½ to 5 years’ incarceration

for VUFA 6105 in 8752-2013, to run consecutively to the sentences imposed

in 8435-2013. Id. The resulting aggregate sentence for both cases was 27½

to 55 years’ incarceration. Id.

        Appellant filed timely post-sentence motions in both cases arguing, in

relevant part, that the trial court failed to consider mitigating circumstances

at sentencing. Appellant further suggested that the trial court’s aggregate

sentence exceeded the sentencing guideline applicable to attempted murder.

The trial court denied Appellant’s motion by operation of law on November 2,

2016.

        On November 9, 2016, Appellant filed timely notices of appeal in both

cases. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

        In its Rule 1925(a) opinion, the trial court stated, in relevant part, that

the aggregate sentence imposed was not excessive. Trial Ct. Op., 10/31/17,

at 20-21. The court indicated that it considered the sentencing guidelines and

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6   See 204 Pa. Code §§ 303.10(a), 303.17(b).

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weighed Appellant’s age, background, rehabilitative needs, and the testimony

offered at the sentencing hearing. Id. at 21.

      Appellant raises a single question for our review:

      Did the trial court commit an abuse of discretion because it
      imposed a sentence that was excessive under the circumstances
      given that the honorable court did not consider Appellant’s
      mitigating circumstances?

Appellant’s Brief at 4.

      Appellant contends that the trial court’s sentence was excessive and that

the court failed to consider mitigating factors. Appellant’s Brief at 20. He

further claims that the sentencing court focused solely on the seriousness of

the crime in fashioning the sentence. Id. Finally, Appellant asserts that the

sentencing court provided no explanation for why a sentence of this particular

length was warranted, nor did it offer any reasons for the sentence “other

than to say [the court] chose a sentence that was approximately halfway

between what defense counsel and the prosecutor suggested would be an

appropriate aggregate sentence.” Id. at 30-31.

      The Commonwealth counters that the trial court did not abuse its

discretion in sentencing Appellant.   In support, the Commonwealth argues

that “the sentencing court had no alternative but to impose mandatory

minimum sentences 42 Pa.C.S. § 9714(a)(1), (d) for [Appellant]’s robbery,

aggravated assault, and conspiracy convictions” and that Appellant has failed

to   show    that   his   aggregate   sentence    is   manifestly   excessive.

Commonwealth’s Brief at 8.


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      The Commonwealth, however, observes that although the trial court

stated that it intended to merge the count of aggravated assault as to Perrin

with the count of attempted murder, the written sentencing order states that

the court imposed a concurrent sentence of 10 to 20 years’ imprisonment.

The Commonwealth also notes that the trial court erred in using the DWE to

calculate the sentencing ranges for VUFA 6106 and 6108 because “the deadly

weapon enhancement does not apply to [VUFA].” Id. at 12-13 (citing 204 Pa.

Code § 303.10(a)(3)(viii)). Regardless, the Commonwealth suggests because

the court imposed the sentences for those counts concurrently, the sentences

may be vacated without affecting the overall sentencing scheme. Id. at 13.

      The issues raised by Appellant implicate the discretionary aspects of the

trial court’s sentence. It is well-settled that a challenge to the discretionary

aspects of sentencing is not automatically reviewable as a matter of right.

Commonwealth v. McNear, 852 A.2d 401, 407 (Pa. Super. 2004). To reach

the merits of a discretionary issue, this Court must determine whether the

appellant: (1) preserved the issue either by raising it at the time of sentencing

or in a post-sentence motion; (2) filed a timely notice of appeal; (3) set forth

a concise statement of reasons relied upon for the allowance of his appeal

pursuant to Pa.R.A.P. 2119(f); and (4) raises a substantial question for our

review. Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).

      Appellant has timely appealed and included a Rule 2119(f) statement in

his brief. Appellant also timely filed post-sentence motions that preserved his

claim that the trial court failed to consider mitigating factors.      However,

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Appellant’s post-sentence motion did not raise a claim that the trial court’s

statement for imposing the sentence was inadequate, and Appellant did not

object at the sentencing hearing.     Therefore, this claim is waived.     See

Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal”); Commonwealth v. Reeves 778 A.2d

691, 692-93 (Pa. Super. 2001) (noting waiver is appropriate where the

appellant failed to provide the trial court with an opportunity to consider the

claim or correct its error).

      Appellant’s Rule 2119(f) statement challenges the trial court’s failure to

consider mitigating factors and an attendant claim that the sentence was

excessive. Appellant’s assertion that the aggregate sentence was excessive,

however, amounts to little more than a challenge to the consecutive nature of

(1) the 15-to-30 year sentence for attempted murder, (2) the mandatory 10-

to 20-year sentences for the remaining aggravated assaults and robberies,

and (3) the 2½-to-5 year sentence for VUFA 6105. Such a challenge ordinarily

does not raise a substantial question where, as here, there were multiple

victims of Appellant’s crimes and separate criminal incidents.             See

Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018).

Nevertheless, “an excessive sentence claim—in conjunction with an assertion

that the court failed to consider mitigating factors—raises a substantial

question.” See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.

2015) (en banc) (citation omitted). Therefore, we will consider Appellant’s




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arguments that the aggregate sentence was excessive and that the trial court

failed to consider mitigating factors.

       “Sentencing is a matter vested within the discretion of the trial court

and will not       be   disturbed absent       a manifest abuse         of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citing

Commonwealth v. Johnson, 967 A.2d 1001 (Pa. Super. 2009)). “An abuse

of   discretion   requires    the   trial   court   to   have   acted   with   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. (citing Commonwealth v. Walls,

926 A.2d 957 (Pa. 2007)).

       Where a sentence is imposed within the guidelines, we may only reverse

the trial court if we find that the circumstances of the case rendered the

application of the guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c).

Our review of the reasonableness is based upon the factors contained in 42

Pa.C.S. § 9781(d), and the trial court’s consideration of the general sentencing

standards contained in 42 Pa.C.S. § 9721(b).7              See Commonwealth v.

Baker, 72 A.3d 652, 663 (Pa. Super. 2013).
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7 Section 9721(b) states that “the sentence imposed should call for
confinement that is consistent with 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).

Section 9781(d) provides:




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       In fashioning a sentence, the trial court is required to consider the

particular circumstances of the offense and the character of the defendant.

See Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009);

42 Pa.C.S. § 9721(b)).        The court should reference “the defendant’s prior

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

Id. Although “[a] sentencing court need not undertake a lengthy discourse

for its reasons for imposing a sentence, . . . the record as a whole must reflect

the sentencing court’s consideration of the facts of the crime and character of

the offender.” Crump, 995 A.2d at 1283. Further, this Court has held that

“where the sentencing judge had the benefit of a pre-sentence investigation

report [(PSI)], it will be presumed that he or she was aware of the relevant

information     regarding    the    defendant’s   character   and   weighed   those

considerations along with mitigating statutory factors.” Ventura, 975 A.2d

at 1135.
____________________________________________


       In reviewing the record, the appellate court shall have regard for:

       (1) The nature and 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 presentence investigation.

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

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).




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       As to Appellant’s claim that the trial court failed to consider mitigating

factors, a review of the sentencing transcript indicates that the trial court was

aware of all relevant factors. The court had the benefit of a PSI, and we can

presume that the court read and considered the contents of the report.8 See

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992); Ventura,

975 A.2d at 1135. Moreover, the sentencing transcript reveals that the court

heard: (1) testimony from Appellant’s mother; (2) a statement from the

mother of Appellant’s children; (3) the results of Appellant’s mental health

evaluation and diagnosis of bipolar disorder; and (4) information regarding

Appellant’s age and background.            See N.T., 7/1/17, at 6-12.   Therefore,

Appellant’s assertion that the trial court failed to consider mitigating factors

warrants no relief.9

       As to Appellant’s claim that the aggregate sentence was excessive, the

trial court was well aware of the nature and circumstances of the offenses.


____________________________________________


8 We note that the PSI was not included in the record. However, the court
indicated in its Rule 1925(a) opinion that the PSI mentioned Appellant’s age
and discussed his difficult upbringing and mental health history, among other
factors. See Trial Ct. Op., 10/31/17, at 21.

9  Indeed, the trial court’s sentence was below the Commonwealth’s
recommendation of a statutory maximum sentence for attempted murder.
Moreover, the trial court, which imposed a concurrent sentence for robbery as
to robbery of Perrin, rejected the Commonwealth’s argument that consecutive
sentences were appropriate because the robbery and attempted murder
constituted separate acts. Cf. Commonwealth v. Payne, 868 A.2d 1257,
1262-63 (Pa. Super. 2005) (holding that robbery resulting in serious bodily
injury did not merge with aggravated assault causing serious bodily injury).


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Appellant and two co-conspirators robbed three individuals (Perrin, Sicard,

and Floyd) inside a Chinese food store. Appellant and his co-conspirators took

$250 and an iPhone from Sicard and an iPhone from Perrin. When a fight

broke out during the robbery, one of Appellant’s co-conspirators fled the store.

However, Appellant and his remaining co-conspirator fired more than sixteen

shots inside the store, striking Perrin six times and nearly killing him. Both

Sicard and Floyd were also shot. In light of these circumstances, we cannot

conclude that the aggregate sentence was clearly unreasonable or excessive.

       Lastly, we address the two issues raised by the Commonwealth.10 First,

the trial court stated its intent to merge the count for the aggravated assault

of Perrin into the sentence for the attempted murder of Perrin. See N.T.,

7/1/17, at 21-22.       The written sentencing order, however, states that the

court imposed a concurrent ten-to-twenty year sentence on the count of

aggravated assault as to Perrin. Merger implicates the legality of a sentence

and may be addressed by this Court sua sponte. Commonwealth v. Kelly,

78 A.3d 1136, 1146 (Pa. Super. 2013).              Aggravated assault is a lesser-

included offense of attempted murder, and it merges for sentencing purposes

when it is premised on the same act. Commonwealth v. Hilliard, 172 A.3d

5, 13 (Pa. Super. 2017) (citing Commonwealth v. Anderson, 650 A.2d 20,

24 (Pa. 1994)). Accordingly, because the charges of aggravated assault and
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10 We appreciate the Commonwealth’s candor, as the appellee, in raising
possible sentencing issues to this Court’s attention, notwithstanding the fact
that Appellant did not raise these claims.


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attempted murder committed against Perrin stemmed from the same act,

those crimes merge for sentencing purposes. Therefore, we vacate the ten-

to-twenty year sentence for aggravated assault as to Perrin.

       Second, the Commonwealth notes that the trial court improperly applied

the DWE-used guidelines to the VUFA 6106 and VUFA 6108 convictions in

8435-2013. We agree. The Sentencing Guidelines provide that “[t]here shall

be no Deadly Weapon Enhancement for . . . [v]iolations of the Pennsylvania

Uniform Firearms Act.”        204 Pa. Code § 303.10(a)(3)(viii).   Therefore, we

accept the Commonwealth’s invitation to vacate the VUFA sentences for VUFA

6106 and VUFA 6108.11
____________________________________________


11There is no indication that the trial court applied the DWE-used matrix to
the separate charge of VUFA 6105 in 8752-2013. Unlike the VUFA counts in
8435-2013, which were related to other crimes involving the use of a deadly
weapon, the VUFA 6105 was the sole count in 8752-2013. Moreover, the
court’s sentence of 2½ to 5 years imprisonment for VUFA 6105 was below the
mitigated range sentence suggested by the basic sentencing matrix.

We acknowledge that Appellant’s 2½-to-5-year sentence for VUFA 6106 fell
far below the mitigated range sentence called for by the DWE-used matrix,
and approximately six months below a mitigated range sentence under the
standard matrix. Nevertheless, because the trial court purported to apply the
DWE-used matrix to this offense, its application of the Sentencing Guidelines
may be deemed a basis for vacating a sentence. See 42 Pa.C.S. § 9781(c)(1)
(“The appellate court shall vacate the sentence and remand the case to the
sentencing court with instructions if it finds . . . the sentencing court
purported to sentence within the sentencing guidelines but applied the
guidelines erroneously”).

We acknowledge that although a misapplication of the Sentencing Guideline
constitutes “legal error,” it does not constitute a non-waivable challenge to
the “legality of sentence” warranting sua sponte review.                 See
Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc).



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       In sum, we conclude that Appellant’s sentencing claims are meritless.

However, the concurrent sentence for aggravated assault as to Perrin and the

concurrent sentences for VUFA 6106 and 6108 in 8435-2013 should be

vacated. Because vacating these sentences does not affect the trial court’s

overall sentencing scheme, there is no need to remand for resentencing.

       Judgment of sentence affirmed in part. The sentences for aggravated

assault as to Perrin, VUFA 6106, and VUFA 6108 in 8435-2013 are vacated.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/18




____________________________________________


Here, however, the Commonwealth has called our attention to the error, and
we have considered it in this appeal for the reasons set forth above.

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