J-S74020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ROBERT AATIF AUSTIN

                            Appellant                 No. 2782 EDA 2015


              Appeal from the Judgment of Sentence June 3, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013799-2010


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                             FILED JANUARY 23, 2017

        Robert Aatif Austin appeals from the judgment of sentence entered

June 3, 2015, in the Philadelphia County Court of Common Pleas, which was

made final by the denial of post-sentence motions on July 28, 2015.       On

April 8, 2015, the trial court, sitting without a jury, convicted Austin of

aggravated assault, conspiracy to commit aggravated assault, possessing a

firearm prohibited, carrying a firearm without a license, and carrying a

firearm on a public street.1 The court imposed an aggregate sentence of ten

to 20 years’ incarceration, followed by 15 years’ probation. The sole issue

on appeal is a challenge to the discretionary aspects of sentencing. After a
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a), 903(c), 6105(a)(1), 6106(a)(1), and 6108.
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thorough review of the submissions by the parties, the certified record, and

relevant law, we affirm the judgment of sentence.

     The trial court set forth the factual history as follows:

           On May 23, 2010, at about 1:30 a.m., Ms. Diane Pahan
     and two friends named “Bell” and Hiroshi Miwa were in the Old
     City area of Philadelphia getting out of a car when they heard
     gunfire and immediately ducked. Ms. Pahan thereafter saw two
     men run by her, one of whom was armed with a silver handgun
     and was wearing an orange t-shirt and the other a white t-shirt
     and the other a white t-shirt.2 Upon seeing the two men Ms.
     Pahan got back into the car with her two friends where they
     were soon joined by a man later identified as George Morse, the
     complainant herein, who was bleeding profusely from his
     abdomen and leg and asked to be taken to a hospital. Ms.
     Pahan and her friends immediately took him to a nearby hospital
     where Ms. Pahan returned Morse’s cell phone to friends of his.
     Ms. Pahan believed Morse was unarmed.

     ____________________
        2
            Ms. Miwa did not see the second male.

     ____________________

            The complainant, a Philadelphia Corrections Officer at the
     time of the incident, testified that on the night of the incident, at
     about 1:15 a.m., he and three acquaintances named Tyreek
     Stiles, “Marcus,” and “Ryell” went to Old City to attend a party at
     a Hyatt Hotel located there. When the men couldn’t gain entry
     they walked to Front Street toward their car, which was parked
     near Walnut Street, they encountered [Austin] and a second
     male staring intently at them.         The second male, Nyfeese
     Saunders, made a smart remark to Morse and the men with him.
     Morse asked Saunders, “What’s the problem?,” after which they
     began arguing.

           During the argument, [Austin] tried to get Saunders to
     leave.   [Austin], however then began arguing with Tyreek.
     [Austin] then told Saunders that he believed that Morse was a
     corrections officer and that they should leave after which
     [Austin] and Morse shook hands.      Saunders though began

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     fighting with Tyreek and Morse told Saunders that he wasn’t
     going to hit anyone and that if he wanted to get “physical” he
     could do so with him.

           After Morse said that he took off a necklace he was
     wearing at which time both [Austin] and Saunders took out
     automatic handguns and began shooting at Morse, who was shot
     a couple of times as he ran down the street attempting to avoid
     injury.3 Morse however was struck several times and fell next to
     a car from where he saw the two assailants run by him. He then
     noticed three people in a car across the street one of whom
     offered to take him to a hospital. He got into their car and they
     took him to Jefferson Hospital where he underwent several
     operations for gunshot wounds to his arms, legs, and abdomen.
     During the operations, two fired projectiles were recovered from
     his body, both of which were turned over to the police.

     ____________________
       3
         Morse testified that he did not see [Austin] fire his gun;
       only take it out.

     ____________________

            On May 26, 2010, Morse gave an interview to police.
     During the interview, he identified a photograph of Saunders.
     He thereafter was interviewed again and on July 2, 2010, Morse
     participated in another photographic identification session.
     During it he selected a photograph of [Austin] from a photo
     array. Morse indicated that he was unarmed during the affray.
     Later on the day of the shooting police went to a residence in
     Southwest Philadelphia to apprehend [Austin]. When police
     arrived, [Austin] ran into the residence at which time a SWAT
     team was called. Upon entering the residence police did not
     locate [Austin] therein.

           [Austin] was eventually arrested.    Following [Austin]’s
     arrest, a lineup was scheduled. It was canceled because in the
     view of the police officer who was going to conduct the lineup,
     [Austin] changed his appearance between the day of his arrest
     and the date the lineup was scheduled.

           An investigation of the scene where the assailants were
     standing when they shot Morse resulted in the collection of

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       numerous spent shell casings, Morse’s watch, which had been
       shot off of his wrist, a bullet jacket, and lead fragments[.]
       Photographs were also taken, some of which depicted bullet
       strike marks.

              All of the ballistic evidence was later examined by Police
       Officer Gregory Walsh of the Philadelphia Police Department’s
       Firearms Identification Unit. That examination revealed that two
       different guns were fired at the scene.

Trial Court Opinion, 12/21/2015, at 2-4.

       Austin was charged with, inter alia, the above-stated crimes. Austin’s

bench trial began on April 7, 2015. The following day, the court convicted

Austin of the offenses set forth above. On June 3, 2015, the court imposed

the following sentence: (1) a term of ten to 20 years’ imprisonment for the

aggravated assault conviction; (2) a term of ten years’ probation for the

conspiracy conviction; and (3) a consecutive term of 5 years’ probation for

the possession of a firearms prohibited offense. The court did not impose a

further penalty with respect to the remaining claims.     Austin filed a post-

sentence motion to reconsider his sentence,2 which was denied on July 28,

2015. This appeal followed.3


____________________________________________


2
     Specifically, Austin alleged his sentence was excessive under the
circumstances and constituted an abuse of discretion. See Austin’s Motion
to Reconsider Sentence, 6/11/2015.
3
   On September 2, 2015, the trial court ordered Austin to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Austin filed a concise statement on September 17, 2015. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 21, 2015.



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      In his sole issue on appeal, Austin claims he is entitled to a new

sentencing hearing because the trial court abused its discretion by

sentencing him in excess of the aggravated range of the sentencing

guidelines where there were no aggravating factors warranting such a

sentence. Austin’s Brief at 3.

      As presented, Austin’s issue challenges the discretionary aspects of his

sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002)

(explaining argument that sentence is manifestly excessive challenges

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. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citations

and quotation marks omitted). To reach the merits of a discretionary issue,

this Court must determine:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

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

(footnotes omitted).

      Here, Austin filed a timely notice of appeal and included the requisite

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Moreover, his

post-sentence motion was timely filed.        Therefore, we may proceed to

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determine whether Austin has presented a substantial question that the

sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).

       With respect to whether an issue presents a substantial question, we

are guided by the following:

       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis.                See
       Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
       (Pa. Super. 2007). “A substantial question exits only when the
       appellant advances a colorable argument that the sentencing
       judge’s actions were either: (1) inconsistent with a specific
       provision of the Sentencing Code; or (2) contrary to the
       fundamental norms which underlie the sentencing process.”
       Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
       2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
       quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).              Moreover, this Court has

previously “held that a substantial question is raised where an appellant

alleges the sentencing court erred by imposing an aggravated range

sentence       without      consideration        of   mitigating   circumstances.”

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012), appeal

denied, 64 A.3d 630 (Pa. 2013).4


____________________________________________


4
  See also Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super.
2008) (substantial question presented with respect to “a claim that the
sentencing court imposed an unreasonable sentence by sentencing outside
the guidelines”) (citation omitted), appeal denied, 980 A.2d 606 (Pa. 2009).



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       Here, Austin asserts:         “[The trial court] focused primarily, if not

exclusively, on [the] Assistant District Attorney’s misconstrued testimony

and other irrelevant considerations, [so that] the Court abused its

discretion.” Austin’s Brief at 14-15. To the extent that Austin’s argument

amounts to a claim that the trial court erred by imposing an aggravated

range sentence without consideration of mitigating circumstances, we find

he has raised a substantial question and will proceed to an examination of

his argument on appeal.5

       The standard of review for a claim challenging a discretionary aspect

of sentencing is well-established:

             Sentencing is a matter vested in the sound discretion of
       the judge, and will not be disturbed on appeal absent a manifest
       abuse of discretion. An abuse of discretion is not shown merely
       by an error in judgment. 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.



____________________________________________


5
   In his brief, but not set forth in the argument section, Austin implies “the
Commonwealth made an inflammatory and clearly impermissible sentencing
argument which certainly served no other purpose but to inflame the Court.”
Austin’s Brief at 8. However, Austin fails to explain how this testimony was
inflammatory.      Furthermore, we note that in the transcript from the
sentencing hearing, a sidebar was taken after the alleged inflammatory
comment was made, which was not transcribed and therefore, we have no
knowledge of what discussion took place between the court and the parties
regarding the matter. N.T., 6/3/2015, at 11. Accordingly, we find this claim
to be waived and underdeveloped and need not address it further.



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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

     Moreover, when imposing a sentence, the sentencing court is required

to “consider” the Sentencing Guidelines, but the Guidelines are “merely one

factor among many that the court must consider in imposing a sentence.”

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

     When reviewing a sentence outside of the guideline range, the
     essential question is whether the sentence imposed was
     reasonable. Commonwealth v. Walls, 592 Pa. 557, 567, 926
     A.2d 957 (Pa. 2007). An appellate court must vacate and
     remand a case where it finds that “the sentencing court
     sentenced outside the sentencing guidelines and the sentence is
     unreasonable.”   42 Pa.C.S.A. § 9781(c)(3).       In making a
     reasonableness determination, a court should consider four
     factors:

           (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.A. § 9781(d). A sentence may be found unreasonable
     if it fails to properly account for these four statutory factors. A
     sentence may also be found unreasonable if the “sentence was
     imposed without express or implicit consideration by the
     sentencing court of the general standards applicable to
     sentencing.” Walls, 592 Pa. at 569. These general standards
     mandate that a sentencing court impose a sentence “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).

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Sheller, 961 A.2d at 190-191. Furthermore,

     [i]n every case where a sentencing court imposes a sentence
     outside of the sentencing guidelines, the court must provide in
     open court a contemporaneous statement of reasons in support
     of its sentence.        42 Pa.C.S.A. § 9721; see also
     Commonwealth v. Eby, 2001 PA Super 287, 784 A.2d 204,
     205-206 (Pa. Super. 2001).

        The statute requires a trial judge who intends to sentence
        a defendant outside of the guidelines to demonstrate on
        the record, as a proper starting point, [its] awareness of
        the sentencing guidelines. Having done so, the sentencing
        court may deviate from the guidelines, if necessary, to
        fashion a sentence which takes into account the protection
        of the public, the rehabilitative needs of the defendant,
        and the gravity of the particular offense as it relates to the
        impact on the life of the victim and the community, so long
        as [it] also states of record the factual basis and specific
        reasons which compelled [it] to deviate from the guideline
        range.

     Commonwealth v. Gibson, 716 A.2d 1275, 1276-1277 (Pa.
     Super. 1998) (internal quotations omitted).

                                      …

     “[O]ur Supreme Court has indicated that if the sentencing court
     proffers reasons indicating that its decision to depart from the
     guidelines is not un reasonable, we must affirm a sentence that
     falls outside those guidelines.” Id. (citations omitted, emphasis
     in original).

Bowen, 55 A.3d at 1263-1264.

     Turning to the present matter, at sentencing, the court indicated that

it had reviewed the presentence investigation report (“PSI”).            N.T.,




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6/3/2015, at 17.6       Austin had a prior record score of four and an offense

gravity score of 11. Id. at 2.

       The court heard from the Commonwealth, who stated the victim was

shot eight times, specifically describing the victim’s injuries as follows:

            [The victim] was basically crucified. On his wrist, there is
       a mark on each wrist. There is a mark on each leg. He was shot
       in the knees.     This is someone who, again, it is like an
       assassination attempt and to say [Austin] is less culpable
       [because he originally tried to break up the fight], I disagree.

Id. at 7-8. The Commonwealth further noted Austin was under federal and

county supervision for two unrelated cases when he committed the present

offense.   Id. The Commonwealth also mentioned Austin had incurred five

infractions while he was in custody for the present incident, and twice he

had been disciplined with a finding of guilt. Id. at 11-12.




____________________________________________


6
    We note the PSI was not included the certified record. Nevertheless,
“where the sentencing court had the benefit of a presentence investigation
report (‘PSI’), we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Moury, 992 A.2d 162, 171 (Pa. Super. 2010), quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotations omitted). “The
sentencing judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has been
informed by the pre-sentencing report; thus properly considering and
weighing all relevant factors.” Commonwealth v. Ventura, 975 A.2d
1128, 1135 (Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d
161 (Pa. 2009).



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      Lastly, the Court heard allocution from Austin, in which he denied

shooting the victim and stated he was just trying to break up the altercation.

Id. at 15.

      At the conclusion of the hearing, the court set forth its rationale for the

sentence:

      The recollection that I have in this case is that you and your co[-
      ]conspirator were out to kill this complainant the way you shot
      him.    You have two guns firing at an unarmed man, a
      correctional officer, fleeing down the street but for the grace of
      God, for the good grace of God, this complainant would be dead
      and you would be facing life without parole.

            I didn’t see anything about breaking it up. I think it was
      an incident, which is just like many incidents in this city, a little
      spark goes off and suddenly we have to use our guns because
      we are big, bad guys.

            Robert Austin, on CR-13799, on the charge of aggravated
      assault, the sentence of the Court, going above the guidelines, 9
      years with deadly weapon enhancement, I am going 1 year
      above it, which is an increase but still within the guidelines, plus
      or minus, I am sentencing you to 10 to 20 years to a state
      correctional facility, on Count 10.        On Count 8, criminal
      conspiracy, I am sentencing you to 10 years[’] probation
      consecutive to the sentence I just imposed on Count 10. On
      Count 1, possession of a firearm by person prohibited from
      carrying a firearm, Section 6105 of the Uniform Firearms Act, I
      am sentencing you to 5 years[’] probation consecutive to the
      sentences imposed.       No further punishment on the other
      sentences.

Id. at 15-17.

      In the Rule 1925(a) opinion, the trial court further explained its

rationale for a departure from the guidelines:

           Under these [sentencing] standards, the sentence imposed
      was not unreasonable or an abuse of discretion because all of

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     the factors above were considered when this Court fashioned its
     sentence.     This Court reviewed pre-sentence reports and
     carefully considered the facts of the case, which showed that
     [Austin] fired numerous shots at an unarmed man on a busy
     Philadelphia street following a minor dispute. It was only due to
     the actions of persons not involved in the matter, who took the
     complainant to the hospital that the complainant did not expire.
     In doing so, [Austin] demonstrated that he is a danger to the
     community and that a lengthy criminal sentence was necessary
     to protect the public. Given all of the foregoing, it is suggested
     that the instant claim be deemed lacking in merit because it is
     clear that the sentence imposed herein was not unreasonable,
     did not constitute an abuse of discretion, and that the Court
     considered all of the required factors in fashioning [Austin]’s
     sentence. See Commonwealth v. Griffin, 804 A.2d 1 (Pa.
     Super. 2002) (where a judge who makes a discretionary
     sentencing decision has been fully informed of pertinent facts,
     his discretion should not be disturbed).

Trial Court Opinion, 12/21/2015, at 9.

     Based upon our standard of review, we conclude the trial court did not

abuse its discretion in sentencing Austin outside the guideline range.

Contrary to Austin’s argument, it is evident from the sentencing hearing and

the Rule 1925(a) opinion that the court did indeed consider the required

factors under Section 9781(d).      Moreover, the court acknowledged its

understanding of the sentencing guidelines, and did articulate a sufficient

statement of reasons for sentencing Austin one year above the aggravated

range.

     Furthermore, the court indicated it had reviewed and relied on the PSI.

See Moury, 992 A.2d at 171. The court also articulated its concern for the

protection of the community, including the victim.   The court emphasized

the reckless nature of Austin’s actions on the night in question. The court

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provided further explanation for the sentence imposed in its Rule 1925(a)

opinion, and these additional comments support its decision.    Accordingly,

Austin has not demonstrated that his sentence was “unreasonable.”        42

Pa.C.S. § 9781(c)(3).     Therefore, Austin’s discretionary sentencing claim

fails, and we affirm the judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




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