J-S68037-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
            v.                             :
                                           :
CHANTHA J. TOK,                            :
                                           :
                   Appellant               :            No. 748 EDA 2014

           Appeal from the PCRA Order entered on March 7, 2014
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0015023-2009

BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 26, 2014

      Chantha J. Tok (“Tok”) appeals the Order dismissing his Petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      The PCRA court set forth the relevant factual and procedural history in

its Opinion, which we adopt for the purpose of this appeal. See PCRA Court

Opinion, 5/22/14, at 1-3.

      On appeal, Tok raises the following issue for our review:

      Is [Tok] entitled to post-conviction relief in the form of the grant
      of leave to file a post-sentence motion nunc pro tunc in the
      nature of a motion for reconsideration of sentence[,] or a
      remand for an evidentiary hearing as a result of the ineffective
      assistance of trial counsel for failing to file and litigate a post-
      sentence motion in the nature of a motion for reconsideration of
      sentence[,] as requested by [Tok]?

Brief for Appellant at 4.
J-S68037-14


             We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Additionally, to succeed on an ineffectiveness claim, a petitioner must

demonstrate by the preponderance of the evidence that

      (1) [the] underlying claim is of arguable merit; (2) the particular
      course of conduct pursued by counsel did not have some
      reasonable basis designed to effectuate his interests; and (3) but
      for counsel’s ineffectiveness, there is a reasonable probability
      that the outcome of the proceedings would have been different.

Commonwealth v. Ali, 10 A.3d 282, 291 (Pa. 2010). A failure to satisfy

any prong of the test for ineffectiveness will require rejection of the claim.

Commonwealth v. Martin, 5 A.3d 177, 183 (Pa. 2010).                 Counsel is

presumed to be effective and the burden is on the appellant to prove

otherwise. Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).

      On appeal, Tok contends that he was prejudiced by his trial counsel’s

failure to file a post-sentence motion for reconsideration of sentence, as Tok

requested, because the sentence imposed by the trial court was clearly




                                  -2-
J-S68037-14


unreasonable.1   Brief for Appellant at 34.   Tok asserts that, had his trial

counsel filed such a motion, the outcome would have been different, as his

sentence would have been reduced.      Id. Tok claims that he sent his trial

counsel a letter nine days after his sentencing wherein he requested that

counsel “take some sort of post-sentencing action with regard to the

sentence imposed” and “to appeal this whole thing.”     Id. at 35-36.2    Tok

asserts that his trial counsel was obligated to comply with Tok’s request to

challenge the sentence imposed by filing a post-sentence motion, and to


1
  Tok purports to challenge the discretionary aspects of his sentence.
However, for us to reach the merits of such an issue, four prerequisites must
be met:

    1) the issue must be specifically preserved in a timely motion to
    modify sentence; 2) a timely notice of appeal must be filed; 3) the
    issue must be set forth in the issues to be raised on appeal in the
    statement of questions presented; and 4) the issue must be
    included within a concise statement of reasons for allowance of
    appeal which demonstrates a substantial question that the
    sentence imposed was not appropriate under the Sentencing Code.

Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997) (citations
and footnote omitted, emphasis added); see also Commonwealth v.
Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005) (declining to address the
merits of the appellant’s challenges to the discretionary aspects of his
sentence where such challenges were not specifically preserved in his post-
sentence motion to modify sentence).
2
   Notably, the record is devoid of any affidavit or certification from trial
counsel confirming his receipt of such a letter, or explaining why he did not
file a post-sentence motion on Tok’s behalf, and Tok has offered no
explanation for its absence. See Commonwealth v. Roney, 79 A.3d 595,
607 (Pa. 2013) (rejecting appellant’s speculative ineffectiveness claims
because the appellant did not proffer affidavits from his trial counsel
concerning what actions he took or failed to take, and did not provide an
explanation as to why such an affidavit could not be procured).


                                 -3-
J-S68037-14


thereafter file an appeal upon the denial of the post-sentence motion. Id. at

36.   Tok argues that his trial counsel’s failure to file and litigate a post-

sentence motion raises a genuine issue of material fact that mandated an

evidentiary hearing, and that the PCRA court improperly dismissed his

Petition without granting him an evidentiary hearing. Id. at 38.

      In support of his ineffectiveness claim, Tok contends that the trial

court’s aggregate sentence of 30 to 60 years in prison is unreasonable and

manifestly excessive, and does not reflect a proper consideration of Tok’s

history, character and condition. Id. at 28-29. Tok claims that there is no

evidence in the record with regard to his background that would warrant the

imposition of the maximum sentence for third degree murder and attempted

murder.    Id. at 29.    Rather, Tok asserts, the sentence imposed was

impermissibly based solely on the nature and circumstance of the crime. Id.

      Tok also contends that the trial court failed to consider or give

adequate weight to certain factors, including, inter alia, Tok’s age; his

problems with unacceptance due to his Asian descent; the absence of

parental presence or support early in his life; his development of a tic at an

early age; his developmental delays; his problems at school due to a

possible learning disability and lack of parental support; his possible brain

damage due to multiple head injuries; his development of Tourette’s

Syndrome; his abuse of drugs and alcohol; his problems with impulse




                                  -4-
J-S68037-14


control; his affiliation with gangs as a means of gaining acceptance; his

acceptance of responsibility and his expression of remorse. Id. at 29-30.

      Additionally, Tok asserts that the trial court failed to satisfy the factors

set forth in 42 Pa.C.S.A. § 9725 when imposing a sentence of total

confinement. Brief for Appellant at 31. Tok claims that the trial court failed

to state its basis for imposing a sentence in excess of the aggravated range

of the Sentencing Guidelines for certain of his offenses, in violation of 42

Pa.C.S.A. § 9721 and 204 Pa.Code § 303.1 (deadly weapon enhancement),

and failed to state any sufficient reasons for imposing the sentence, in

violation of Pa.R.Crim.P. 704(C)(2).3        Brief for Appellant at 31.       Tok

contends that the sentence imposed by the trial court is not consistent with

the protection of the public, the gravity of the offense as it relates to the life




3
  A claim that a sentencing court failed to state adequate reasons on the
record for the sentence imposed has been held to raise a substantial
question. See Commonwealth v. Krysiak, 535 A.2d 165, 168 (Pa. Super.
1987). Pursuant to 42 Pa.C.S.A. § 9721(b):

      In every case in which the court imposes a sentence for a felony
      or misdemeanor, the court shall make as a part of the record,
      and disclose in open court at the time of sentencing, a statement
      of the reason or reasons for the sentence imposed . . . Failure to
      comply shall be grounds for vacating the sentence and
      resentencing the defendant.

42 Pa.C.S.A. § 9721(b). However, where the sentencing judge had the
benefit of a presentence report, it will be presumed that he was aware of
relevant information regarding appellant’s character and weighed those
considerations along with the mitigating statutory factors. Commonwealth
v. Devers, 546 A.2d 12, 18 (Pa. 1988).


                                   -5-
J-S68037-14


of the victim and on the community, and Tok’s rehabilitative needs, as

required by 42 Pa.C.S.A. § 9721(b). Brief for Appellant at 31.

      Finally, Tok claims that the trial court erred when it applied the deadly

weapon enhancement of the Sentencing Guidelines for some of his crimes,

including attempted murder. Id. at 32. Tok asserts that he entered a guilty

plea to the crime of attempted murder as an accomplice or co-conspirator,

since he did not shoot Vonthean Vonn (“Vonn”). Id. Tok argues that the

deadly weapon enhancement does not apply to him because he did not use

the weapon in the commission of the crime of attempted murder of Vonn.

Id. at 33.

      Here, the PCRA court set forth the applicable law and, after addressing

each of Tok’s claims raised on appeal, determined that they are without

merit. See PCRA Court Opinion, 5/22/14, at 3-9. We agree and adopt the

sound reasoning of the PCRA court for the purpose of this appeal. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2014




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                            PHILADELPHIA COURT OF COMMON PLEAS
                                  CRIMINAL TRIAL DIVISION

COMMONWEALTH
                                                                                    CP-51-CR-0015023-2009

                    v.                                                              Superior Court No.
                                                                                    748 EDA2014

CHANTHATOK                                                                                               FILED
                                                                                                           MAY'222014
Sarmina,].
May 22, 2014
                                                                                                   .Criminal AppealS Unit
                                                                                                  First Judicial District of PA
                                                         OPINION

PROCEDURAL HISTORY

           On January 24, 2011, Chantha Tok (hereafter, petitioner/ entered into a non-negotiated

guilty plea2 to murder of the third degree (F-1), conspiracy (F-1), attempted murder (F-1), firearms

not to be carried without a license (F-3), carrying firearms on public streets or public property in

Philadelphia (M-1), and possessing instruments of crime (PIC) (M-1).3 Sentencing was deferred until

April 20, 2011, on which date this Court sentenced petitioner to' an aggregate term of not less than

30 years nor more than 60 years imprisonment. 4 Petitioner did not file post-sentence motions.



1   Petitioner was represented by Francis Carmen, Esquire and Susan Ricci, Esquire at his plea.

2On that same date, petitioner's original co-defendant, Robert Chin (Chin), also entered into a non-negotiated guilty
plea as to CP-SI-CR-0015024-2009. Chin pled guilty to murder of the third degree (F-l), conspiracy (F-l), attempted
murder (F-l), firearms not to be carried without a license (F-3), carrying firearms on public streets or public property in
Philadelphia (M-l), and possessing instrwnents of crime (PIC) (M-l). 18 Pa.C.S. §§ 2502(c), 903, 901 (a), 6106(a)(I),
6108, and 907(a).

3   18 Pa.C.S. §§ 2502(c), 903, 901 (a), 6106(a)(1), 6108, and 907(a).

4As to the conviction for murder of the third degree, petitioner was sentenced to a term of not less than 20 years nor
more than 40 years imprisonment. As to the conviction for conspiracy, petitioner was sentenced to a concurrent term of
not less than 15 years nor more than 40 years imprisonment. As to the conviction for attempted murder, petitioner wa's
sentenced to a consecutive term of not less than 10 years nor more than 20 years imprisonment. As to each of the
convictions for firearms not to be carried without a license, carrying a firearm on the public streets in Philadelphia and
PIC, petitioner received concurrent sentences of not less than one year nor more than five years imprisonment. Notes
of Testimony (N.T.) 4/20/2011 at 92-93. This Court imposed the identical sentences on co-defendant Chin. I.d., at 92.
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          On January 3, 2012, petitioner filed a timely pro se petition pursuant to the Post-Conviction

Relief Act (PCRA).s Counsel was appointed6 and, on June 25, 2012, filed an amended petition. On

September 27,2013, the Commonwealth filed a motion to dismiss. On October 3, 2013, petitioner

filed a reply to the Commonwealth's motion to dismiss, and on October 23, 2013, supplemented

that filing with a Supplemental Amended Petition. On December 12, 2013, after considering the

pleadings and conducting an independent review, this Court sent petitioner notice pursuant to

Pa.R.Crim.P. 907 (907 Notice) of its intent to dismiss his petition without a hearing. PCRA counsel

did not respond to this Court's 907 Notice and, on March 7,2014, this Court formally dismissed the

petition. This timely appeal followed.




           Shortly before 8 PM on October 14, 2009, Tona Yann (Yann), Chin, and petitioner got into
           Chin's 1992 Honda Accord; Chin entered the driver's seat, Yann took the front passenger's
           seat, and petitioner sat in the back seat. With the headlights off, Chin drove from 109
           Wentz Street, Philadelphia, PA to' a pool hall located around the comer at Front and Olney
           Streets. As their car approached the pool hall, a man named Vonthean Vonn ry onn) walked
           across the street, crossing in front of Chin's car before sitting in his own vehicle. Chin's car
           was positioned next to Vonn's car, facing the opposite direction; thus, the driver's side of
           Vonn's car was facing the driver's side of Chin's car. From the driver's seat, Chin yelled out
           to Vonn, ''What set you bang?" Vonn then heard another voice from Chin's car, yelling,
           "Shoot him!" in Cambodian. Chin then pulled out a gun and fired at least six times in
           Vonn's direction. One of the bullets grazed Vonn's right arm, which had been placed on the
           steering wheel when Chin opened fire.

           Immediately after shooting at Vonn, Chin drove away. With the car's headlights still off, the
           1992 Honda Accord approached 136 West Fisher Avenue - the residence of Nathaniel
           Lopez (Lopez) and Annette Flores (Flores). Lopez and Flores had just returned home;
           Lopez was standing outside of his car, locking it. Flores noticed that Chin's car was in
           operation with its lights off; she yelled towards the car, instructing the driver to turn the
           lights on. As the 1992 Honda Accord pulled up next to Lopez and Flores, Chin passed the
           gun to petitioner, who was still seated in the back seat. Petitioner pointed the gun out of the



542 Pa.c.S. §§ 9541-9546.

6   Mitchell Strutin, Esquire, was appointed to represent petitioner on collateral attack.

7 This Court recites the facts underlying petitioner's convictions as presented by ADA McCaffery at petitioner's plea.
 N.T. 1/24/2011 at 29-38.

                                                                2
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        rear passenger side window arid fired twice at Lopez, striking him in the chest. The bullet
        traveled through Lopez's ribs, lungs, and heart, killing him.

LEGAL ANALYSIS

        Petitioner raises a single issue on appeal. s

1. Trial counsel was ineffective for failing to file and litigate a post-sentence motion
requesting reconsideration of the sentence imposed by this Court.

        Petitioner contends that trial counsel was ineffective for failing to fIle and litigate a post-

sentence motion requesting reconsideration of sentence.

        Petitioner claims that on April 29, 2011, nine days after sentencing, petitioner '1.7!ote to hjs

attorney, Susan Ricci, Esquire, asking her "to appeal this whole thing." Supplemental Amended

Petition, 10/23/2013 at Exhibit A. However, Ms. Ricci did not fIle post-sentence motions within

the 10-day period. Petitioner argues that counsel was ineffective for failing to fIle that motion for

two reasons: (a) this Court had not properly considered petitioner's personal history and character;

and (b) this Court failed to state a suffIcient basis for sentencing petitioner beyond the aggravated

range for attempted murder. Amended Petition, 6/25/2012 at ~~ 52,65; Reply to Commonwealth's

Motion to Dismiss, 10/3/2013 at 3-4.

         To succeed on a claim of ineffective assistance of counsel for failing to fIle post-sentence

motions, petitioner bore the burden to demoristrate each prong of the Strickland9 ineffective

assistance of counsel test. Commonwealth v.Reaves, 923A.2d 1119, 1132 (pa. 2007); see also

Commonwealth v. Liston, 977 A.2d 1089, 1092 (pa. 2009) ("The failure to @e post-sentence

motions does n'ot fall within the ambit of situations where a defendant alleging ineffective assistance

 of counsel need not prove prejudice to obtain relief."). Accordingly, petitioner had to prove that (1)

 the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or


 8This Court has rephrased petitioner's issue as articulated in his Statement of Errors Complained of on Appeal Pursuant
 to Pa.R..A.P. 1925(b) (1925(b) Statement) for ease of disposition.

 9466 U.S. 668 (1984).

                                                           3
                                                                                           Circulated 11/07/2014 11:54 AM




failUre to act; and (3) petitioner suffered prejudice as a result of counsel's error, such that the result

of the proceeding would have been different absent such error. Commonwealth v. Fears, 86 A.3d

795,804 cPa. 2014) (citations omitted). "Failure to prove any prong of this test will defeat an

ineffectiveness claim." rd., citing Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 cPa. 2000).

    (a) Trial counsel was ineffective for failing to file post-sentence motions. challenging this
        Court's failure to properly weigh petitioner's personal history and character.

        Petitioner's first sub-claim is that trial counsel was ineffective for failing to file post-sentence

motions in light of this Court's failure to properly weigh petitioner's personal history and character.

This claim fails, as this Court consulted petitioner's pre-sentence investigation, evaluating mitigating

factors in petitioner's past prior to sentencing petitioner.

        As a sentencing court is required to consider both "the particular circumstan.ces of the

offense and the character of the defendant," imposing a sentence without having considered both

the circumstances of the offense and the defendant's character would be in contravention of

Pennsylvania law. Commonwealth v. Griffm, 65 A.3d 932, 937 cPa. Sup er. 2013).

        In imposing sentence, a trial court is required to consider the particular circumstances of the
        offense and the character of the defendant. The trial court should refer to the defendant's
        prior criminal record, age, personal charactenstics, and potential for rehabilitation.
        However, where the sentencing judge had the benefit of a presentence investigation
        report, it will be presumed that he or she was aware of the relevant information'
        regarding the defendanes character and weighed those considerations along with
        mitigating statutory factors. Additionally, the sentencing court must state its reasons for
        the sentence on the record. 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-sentence report; thus properly consideritig and
        weighing all relevant factors.

 Commonwealth v. Boyer, 856 A.2d 149, 154 cPa.Super. 2004) (emphasis added).

         In Commonwealth v. Fowler, the Superior Court faced a challenge to the discretionary

 aspects of sentencing. 893 A.2d 758, 766 (pa.Super. 2006). Prior to sentencing the defendant, the

 sentencing court stated, "I've read the presentence investigation report and I've listened to

 everything that was stated today and I've read the submissions, as r indicated previously. I've also

                                                      4
                                                                                   Circulated 11/07/2014 11:54 AM



considered the fact that [appellant] has pled to this charge." Id. The Superior Court rejected the

challenge to the discretionary aspects of sentencing, finding that the sentencing court's reference to

the presentence report invoked a presumption that the court properly weighed mitigating factors:

"Since the sentencing court had and considered a presentence report, this fact alone was adequate to

support the sentence, and due to the court's explicit reliance on that report, we are required to

presume that the court properly weighed the mitigating factors present in the case." Id. (emphasis

added); see also Commonwealth v. Jones, 942 A.2d 903, 908 (pa.Super. 2008) ("Our supreme court

has held that where the trial court is apprised by a pre-sentence report, it is presumed that the court

is aware of all appropriate sentencing factors and considerations, and that where the court has been

so informed, its discretion should not be disturbed.").

        Here, petitioner contends that this Court based petitioner's sentence entirely on the offense

committed, failing to weigh mitigating factors. Petitioner specifies the followillg factors as having

been absent from this Court's consideration:

        (1) Petitioner's age at the time of the incident (he was 19).
        (2) That petitioner "may have experienced problems with being accepted due to his Asian
             descent." Id. at ~ 57.
        (3) Petitioner's parents were absent from his early life.
        (4) Petitioner developed a tic at an early age.
        (5) Petitioner experienced developmental delays.
        (6) Petitioner experienced problems at school because of a "possible learning disability" and
             "absence of parental support." Id.
        (7) Petitioner "may have sustained brain damage due to mild head injuries."
        (8) Petitioner was ridiculed and teased at school.
        (9) Petitioner was in special education classes.
        (10) Petitioner suffered from Tourette's syndrome.
        (11) Petitioner suffered from "impulse control problems."
        (12) Petitioner abused drugs and alcohol.
        (13) Petitioner's gang affiliation was "an attempt to gain acceptance."
        (14) Petitioner's employment history.
        (15) "The possible involvement of alcohol in the incident."
         (16) Petitioner's expression of remorse.
         (17) Petitioner's acceptance of responsibility.
         (18) Petitioner's "adjustment to prison life."



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       Prior to sentencing petitioner, this Court expressly noted that it considered petitioner's

presentence investigation report:

       THE COURT: Well, I reviewed everything that was submitted. And that included the
       presentence investigation; the mental health evaluation for each defendant; the computation
       of the prior record score, which as I've already indicated, the prior record score for each of
       them is a zero; and everything that was submitted both by the defense as well as by Ms.
       McCaffery.

        I've listened to everything that's been articulated here today, including the statements of .
        both defendants. And we know what the guidelines state.

N.T. 4/20/2011 at 89-90.

        As this Court considered petitioner's presentence investigation report, it must be presumed

that this Court weighed mitigating factors relevant to petitioner's character. Accordingly,

petitioner's first sub-clalln lacked arguable 1l1erit and failed.

        (b) Trial counsel was ineffective for failing to file post-sentence motions, alleging that this
        Court failed to state a sufficient basis for sentencing petitioner beyond the aggravated range
        for attempted murder.

        Petitioner's second sub-clalln is that trial counsel was ineffective for failing to file post-

sentence motions, alleging that this Court failed to .state a sufficient basis for sentencing petitioner

beyond the aggravated range for attempted murder. As this Court did not impose an

"unreasonable" sentence, petitioner cannot show that he was prejudiced by counsel's failure to

object and his clalln fails.

        In order to prove that counsel's failure rises to the level of prejudice, a PCRA petitioner

challenging discretionary aspects of sentencing bears the burden to prove that an appellate court

reviewing the sentence would find it to be "unreasonable." Commonwealth v. Lawrence, 960 A.2d

 473,479 (pa.Super. 2008). The reasonableness of a sentence is informed by the Sentencing

 Guidelines. Commonwealth v. Sheller, 961 A.2d 187, 190 (pa.Super. 2008) ("When imposing a

 sentence, the sentencing court is required to consider the sentence ranges set forth in the Sentencing

 Guidelines, but it [is] not bound by the Sentencing Guidelines.").

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           A court may depart from the guidelines "if n,ecessary, 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."

rd., quoting Commonwealth v. Eby, 784 A.2d 204,206 (pa.Super. 2001).

            The sentencing court in Sheller imposed a sentence in excess of the applicable aggravated

range by six months. rd. at 191.. Reviewing the reasonableness of this departure, the Superior Court

found that the sentencing court elected to exceed the aggravated range of the Sentencing Guidelines

because of (a) the trauma imposed on the victim's family; (b) children were left without a mother; (c)

the shooting was committed at close range; and (d) the crime has caused extreme hardship to others.

rd. The Superior Court determined that the sentencing court's reliance on those factors - the

impact on the victim~s relatives, as well as the fact that the crime was committed in the family home

while the victim's twelve-year old daughter was present - did not constitute an abuse of discretion, .

and the sentence was not "unreasonable." . rd. at 192.

            Similarly, in Lawrence, the petitioner received a sentence in excess of the Sentencing

Guidelines. Looking to the factors enumerated in § 9721 (b) 10 and § 9781 (d) 11 of the Sentencing



10    § 9721 (b) of the Sentencing Code provides, inter alia, the following:

             [T]he court shall follow the general principle 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. The court shall also consider
             any guidelines for sentencing adopted by the Pennsylvania Corri.mi.ssion on Sentencing and .taking effect
             pursuant to § 2155 (relating to publication of guidelines for sentencing). In every case in which the court
             imposes a sentence for a felony or misdemeanor, the court shall make as part of the record, and disclose in
             open court at the time of sentencing, a statement of the reason or reason's for the sentence imposed. In every
             case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania
             Commission on Sentencing pursuant to § 2154 (relating to adoption of guidelines for sentencing) and made
             effective pursuant to § 2155, the court shall pwvide. a contemporaneous written statement of the reason or
             reasons for deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and.
             resentencing the defendant.

 II   § 9781 (d) provides:

 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.
 (FN cont'd ... )                                                         .

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Code as part of its inquiry into the reasonableness of the sentence, the Lawrence Court "made a

detem1ination that Lawrence's aggressive and assacltive behavior, his use and abuse of alcohol and

cocaine, his lack of remorse and his prior criminal history, mandated a sentence of total confinement

and one that required the imposition of statutory maximum sentences." Id. As the sentence

accounted for the need to protect society, the impact on the victim's family and society, the nature

and circumstances of the offense, the petitioner's criminal history and personal characteristics, the

sentence was not "unreasonable" and trial counst!l's failure to object did not prejudice the petitioner.

Id. at 479-80.

         In this case, this Court sentenced petitioner to a term of n~ less than. 120 months nor more
                                                                                                  .


than 240 months imprisonment for attempted murder, which was 21 months beyond the aggravated

range. 12 This Court was guided by the general principles that the sentence imposed should be

consistent with the protection of the public, the gravity of the offense as it relates to the victim and

the community, as well as the rehabilitative needs of the offender. As to the principle that the

sentence should reflect concern for public safety, tllls Court found it relevant that petitioner and his

co-conspirators were targeting innocent victims without any provocation, warnIDg or reason. In its

"Guideline Sentence Form," this Court stated that "[t]he victim, an innocent target, was shot [] six



 (FN cont'd ... )
         (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.

 12 The aggravated range here was 81-99 months. The range prescribed by the sentencing guidelines for an individual
 without a prior record score, who is convicted of attempted murder (without serious bodily injury) - and the deadly
 weapon enhancement (DWE) for possession is applied - is 69 months to 87 months, plus-or-minus 12 months. 204
 Pa.Code §§ 303.15; 303.17a. The DWE/Possession Matrix applies when the offender "possessed a deadly weapon
 during the commission of the current offense." 204 Pa.Code § 303.10(a)(1). "An offender has possessed a deadly
 weapon if any of the following were on the offender's person or within his immediate physical control: (i) any
 firearm (as defined in 42 Pa.C.S. § 9712) whether loaded or unloaded[.]" 11 Where an offender has knowledge of the
 existence of a weapon and "could easily have been given or taken the gun at any moment," the deadly weapon
 enhancement for possession applies to him. Commonwealth v. Phillips, 946 A.2d 103, 114 (pa.Super. 2008), citing
 CQmmQnwealth v. Pennington, 751 A.2d 212, 216-17 (pa.Super. 2000). The DWE/PossessiQn applied to petitioner, as
 he was in the immediate vicinity of Chin when Chin fired six shots at Vonn, and could have taken the gun at any
  moment. In fact, Chin turned and passed the gun tQ petitioner shortly after shooting at Vonn.

                                                           8
                                                                                        Circulated 11/07/2014 11:54 AM




times at close range, with some bullets piercing his clothing." See Exhibit A, Guideline Sentence

Form, 4/28/2011 at 2. As to the principle that the sentencing court should consider the gravity of

the offense as it relates to the victim, this Court was persuaded by the fact 'that six gunshots were

fired at V onn, one of which grazed his skin, and another of which went through the headrest where

he was seated. N.T. 4/20/2011 at 50-51. That bullet missed Vonn's head by a matter of inches. As

ADA McCaffery stated during argument at the sentencing hearing, "Mr. Vonn will probably never

walk to his car again alone at night and not think about that white Honda pulling up to him and

C],i'1 firLfJ.g at him, bullets piercing his clothes, pounding into his car, and through the headrest." Id.

at 51. And as to the principle that the sentence should reflect the rehabilitative needs of the

offender, this Court considered petitioner's susceptibility to peer pressure when in ap unstructured

environment. Without family, petitioner turned to gangs for acceptance. rd. at 17. Although he

 had been a productive member of society at the age of 16, working six days per week, for 12 hours

 per day, he joined the CBC gang and committed random acts of extreme vicilence, "trying to fit in."

 Id. at 19. Even after the shootings on October 14, 2009, petitioner succumbed to the group

 mentality, and returned to the pool hall "just to go have some more fun." Id. at 87. Concerned by'

 petitioner's weakness in the face of peer pressure, this Court found that the structure of prison

 would be better suited for petitioner's rehabilitative needs.

         As this Court's decision to impose a sentence in excess of the aggravated guideline range had

, significant support, this sentence was not "unreasonable." Accordingly, petitioner was not

 prejudiced by counsel's failure to object at the time of sentencing. For the foregoing reasons, this

 Court decision to deny and dismiss petitioner's PCRA petition should be affirmed.

                                                          BY THE COURT:




                                                          M. TERESA SARMINA                       J.
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