J-S28002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FRANK LUCAS,

                        Appellant                    No. 831 EDA 2015


        Appeal from the Judgment of Sentence December 19, 2014
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0007008-2010


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 01, 2016

     Frank Lucas appeals from the judgment of sentence of seven to fifteen

years incarceration followed by two years probation.      The sentence was

imposed after Appellant pled guilty to possession of a controlled substance

with intent to deliver (“PWID”) graded as a first-degree felony, possession of

a firearm by a person not to possess, and possession of an instrument of

crime (“PIC”). We affirm.

     We set forth the pertinent facts of the crimes in a previous appeal:

           Officer Simon Murray responded to a radio call at
     approximately 2:30 a.m. on April 9, 2010. Arriving at 104 West
     Sparks Street, Officer Murray observed a woman running down
     the street screaming that a male was stabbed. The officer
     discovered [Lucas] on the front steps of the address, covered in
     blood. It was later learned that the woman who ran down the
     street had stabbed [Lucas].      Officer Murray called for an
     ambulance, and his partner arrived. Seeing copious amounts of

* Retired Senior Judge assigned to the Superior Court.
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     blood leading into the home, Officer Murray entered to check for
     other potential victims. The officer first traveled upstairs into a
     front bedroom, but did not locate anyone. He then moved to the
     middle bedroom, which was locked. Officer Murray did not
     attempt to enter and instead entered a back bedroom and found
     another individual. He sent that person outside and continued
     into the basement, following a blood trail. Officer Murray noticed
     blood on a washer and dryer and opened the dryer. A strong
     odor of marijuana permeated from the dryer and a large duffel
     bag was located inside. Police then ceased their search, secured
     a search warrant, and recovered the duffel bag.           The bag
     contained eleven ziplock bags of [ten pounds of] marijuana.
     Also located within the residence was a firearm and drug
     paraphernalia.

Commonwealth v. Lucas, 64 A.3d 271 (Pa.Super. 2013) (unpublished

memorandum at 1-2), appeal denied, 572 A.3d 601 (Pa. 2013).

     Appellant filed an omnibus pre-trial motion, seeking to suppress the

seized evidence. The motion was granted, and, on appeal, we reversed. Id.

After remand, Appellant tendered an open guilty plea on October 6, 2014, to

PWID, persons not to possess, and PIC. The court ordered preparation of a

presentence report, and the matter proceeded to sentencing on December

19, 2014. At that time, Appellant had been incarcerated since 2011 in state

prison based upon convictions occurring during the pendency of the

Commonwealth’s appeal.

     In mitigation of his sentence, Appellant first argued that, given that he

was fifty years old, he was done with criminal activities.   He also outlined

that, since his imprisonment, he completed vocational and educational

programs, a drug and alcohol treatment program, and anger management



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and parenting skills classes. Additionally, Appellant received above-average

performance ratings on prison job assignments and participated in religious

activities.   Finally, Appellant noted that he had many family members to

support him if he was released from jail.       When Appellant proffered the

certificates of completion for the various programs, the sentencing court

indicated that it believed that Appellant had completed them so that it did

not need to review the documents, and it also stated that it was familiar with

the various programs mentioned by Appellant. N.T. Sentencing, 12/19/14,

at 15-16.

      The court refused Appellant’s request that he receive “a sentence

below the guidelines.” Id. at 15. It explained that the presentence report

indicated that Appellant “is a dope salesman who likes to – who carries

guns, and that’s all there is to it.”     Id. at 14.   The court likewise was

disinclined to believe that Appellant would cease to engage in criminal

activities due to his advanced age. It explained:

                    He’s way past the age of ceasing criminality. He’s 11
              years past the age when people stop. He’s a career
              criminal. He will remain a career criminal if I send him
              back on the streets.

                    I don’t care how much support he has, how much
              he’s done. He’s doing everything he can to get out of jail.
              He’s a career criminal, and there’s nothing that you can
              give me to disabuse me of that. I’ve seen his record. I’ve
              seen his prior record score, and that’s who he is. And he’ll
              come back out and he’s going to sell dope again.
                    ....



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                   [H]e’s going to sell dope because that’s what he
              does. That’s who he is. That’s his job. That’s his
              occupation. His occupation is dope sales.

Id. at 14.

       Thereafter, the court ascertained the applicable guideline ranges.

Appellant’s counsel stated that the PWID had an offense gravity score of

seven, the weapons offense’s offense gravity score was ten, and Appellant’s

prior record score was five.        Under the applicable guidelines, the standard

range sentence for the weapon’s conviction was five to six years in jail and

for the PWID it was two to two-and-one half years imprisonment.1

       Appellant exercised his allocution rights for a significant period.

Appellant’s wife, daughter, and cousin then spoke to the court in mitigation

of sentence.     The court indicated that it was merging the PIC offense and

would not impose a sentence on it.               The court elected to impose two

standard range sentences: two to five years on the PWID and a consecutive

term of five to ten years on the firearm’s offense, for a total of seven to

fifteen years. It also imposed a two year probationary term that could be

served concurrently with any parole time granted to Appellant.




____________________________________________


1
  Appellant’s crimes were committed in 2010 so that the applicable
guidelines are the sixth edition enacted on June 3, 2005.



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      Appellant filed a timely motion to modify his sentence, which was

denied.   This appeal followed.     Appellant raises the following issue on

appeal:

            Did the trial court err, and abuse its discretion, in imposing
      a consecutive aggregate sentence of 7 to 15 years incarceration
      plus 2 years consecutive probation in that said sentence was
      unreasonable, excessive, and did not consider any of the
      mitigation evidence presented by Appellant?

Appellant’s brief at 2.

      This contention concerns the discretionary aspects of the sentence

imposed. A defendant does not enjoy an automatic right to direct review of

the discretionary aspects of a sentence. Commonwealth v. Haynes, 125

A.3d 800 (Pa.Super. 2015). Instead, our jurisdiction is invoked only when a

four-part test is satisfied: 1) the appeal must be timely; 2) the issue has to

have been preserved in a motion to reconsider or by objection at sentencing

as well as in response to an order to file a Pa.R.A.P. 1925(b) statement; 3)

the appellate brief must contain the statement required by Pa.R.A.P.

2119(f); and (4) that statement has to raise the existence of a substantial

question that the sentence is not appropriate under the Sentencing Code.

Id.

      In this case, the appeal was timely, and the contention was preserved

in a post-sentence motion to modify and in Appellant’s Pa.R.A.P. 1925(b)

statement. Also, Appellant’s brief contains a Pa.R.A.P. 2119(f) statement of

reasons for allowance of appeal from the discretionary aspects of his

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sentence. Therein, he maintains that the court violated the provisions of the

Sentencing Code by failing to consider all of the factors outlined in 42

Pa.C.S. § 9721(b), and, in particular, his age, family history, and

rehabilitative needs.    Appellant’s brief at 3.      This position raises the

existence of a substantial question.          42 Pa.C.S. § 9721(b) (when

determining whether to impose a sentence of imprisonment, the court must

follow the precept that the sentence of confinement must be “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.”); Commonwealth v. Dodge, 77 A.3d 1263, 1273

(Pa.Super. 2013) (finding that defendant’s “claim that the sentencing court

disregarded rehabilitation and the nature and circumstances of the offense in

handing down its sentence presents a substantial question for our review”);

Commonwealth v. Riggs, 63 A.3d 780 (Pa.Super. 2012) (averment that

trial court failed to consider factors outlined in § 9721(b) raised a substantial

question). We therefore will review Appellant’s contention.

      It is settled that “the trial court has broad discretion in sentencing a

defendant, and concomitantly, the appellate courts utilize a deferential

standard of appellate review in determining whether the trial court abused

its discretion in fashioning an appropriate sentence.”     Commonwealth v.

Pasture, 107 A.3d 21, 27 (Pa. 2014). The rationale behind according trial

courts this broad discretion is “that the sentencing court is in the best

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position to measure various factors and determine the proper penalty for a

particular offense based upon an evaluation of the individual circumstances

before it.”     Id. (citation and quotation marks omitted).        First, “the

sentencing court sentences flesh-and-blood defendants and the nuances of

sentencing decisions are difficult to gauge from the cold transcript used upon

appellate review.”    Id.   Additionally, “the sentencing court enjoys an

institutional advantage to appellate review, bringing to its decisions an

expertise, experience, and judgment that should not be lightly disturbed.”

Id.

      Appellant’s averment is that his sentence was unreasonable and

excessive because the court did not consider any of the mitigation evidence

he presented.    We observe that the sentencing court had the benefit of a

pre-sentence report. In light of the court’s use of a pre-sentence report, we

are required to presume that the “sentencing judge was aware of the

relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.”   Id. at 28 (citation

omitted). The sentencing court listened to Appellant’s lengthy allocution, the

evidence regarding his prison activities, and the testimony of Appellant’s

relatives. As our Supreme Court so eloquently stated in Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added):

            Where pre-sentence reports exist, we shall continue to
      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed

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     those considerations along with mitigating statutory factors. A
     pre-sentence report constitutes the record and speaks for itself.
     In order to dispel any lingering doubt as to our intention of
     engaging in an effort of legal purification, we state clearly that
     sentencers are under no compulsion to employ checklists or any
     extended or systematic definitions of their punishment
     procedure. Having been fully informed by the pre-sentence
     report, the sentencing court's discretion should not be disturbed.
     This is particularly true, we repeat, in those circumstances where
     it can be demonstrated that the judge had any degree of
     awareness of the sentencing considerations, and there we will
     presume also that the weighing process took place in a
     meaningful fashion. It would be foolish, indeed, to take the
     position that if a court is in possession of the facts, it will
     fail to apply them to the case at hand.

     The sentencing court was well aware of all the mitigation evidence now

relied upon by Appellant; therefore, we presume that it weighed that proof.

It merely did so in a manner that Appellant did not want, and it rejected his

request that he not receive any prison term at all.    However, we are not

permitted to re-weigh the sentencing factors. Commonwealth v. Macias, 2

968 A.2d 773, (Pa.Super. 2009). Moreover, the sentence in question was

within the standard range of the guidelines, and cannot be considered

excessive or unreasonable. Commonwealth v. Corley, 31 A.3d 293, 298

(Pa.Super. 2011) (“As we indicated in Commonwealth v. Moury, 992 A.2d

162, 171 (Pa.Super. 2010), where the sentencing court imposed a standard-

range sentence with the benefit of a pre-sentence report, we will not

consider the sentence excessive.”).     Hence, we must reject Appellant’s

position on appeal.

     Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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