J-A30022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID TATE

                            Appellant                No. 2725 EDA 2013


          Appeal from the Judgment of Sentence September 13, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006069-2011


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 17, 2014

        Appellant, David      Tate, appeals from the   September      13, 2013

aggregate judgment of sentence of eight and one-half to 17 years’

imprisonment, after he entered an open guilty plea to one count each of

firearms not to be carried without a license, carrying firearms in public in

Philadelphia, and possession of firearm prohibited.1 After careful review, we

affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

              On January 8, 2011, in the City and County of
              Philadelphia, [Appellant] was stopped in his
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6106(a)(1), 6108, and 6105(a)(1), respectively.
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            automobile    on   11th  and     Thompson     Street.
            [Appellant] was observed attempting to hide a .40
            caliber Glock handgun between the console and the
            front passenger seat. The handgun was loaded with
            15 live rounds and a ballistics test determined the
            weapon to be operable. As a result of a prior murder
            conviction, [Appellant] was ineligible to possess a
            firearm.

                   Testimony elicited during the sentencing
            hearing provided th[e trial] court with a sufficient
            understanding of [Appellant], his crimes, and his
            personal background, so that a proper sentence
            could be fashioned, one which 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
            the community, and the rehabilitative needs of
            [Appellant].

Trial Court Opinion, 2/25/14, at 2.

      On June 9, 2011, the Commonwealth filed an information charging

Appellant with the above-mentioned offenses.        On September 5, 2012,

Appellant entered an open guilty plea to all charges. On February 6, 2013,

the trial court imposed an aggregate sentence of eight and one-half to 17

years’ imprisonment.    Specifically, the trial court sentenced Appellant to

three and one-half to seven years’ imprisonment for firearms not to be

carried without a license and five to ten years’ imprisonment for possession

of a firearm prohibited, with both sentences to run consecutively to each

other.   The trial court imposed no further penalty for carrying firearms in

public in Philadelphia. On February 15, 2013, Appellant filed a timely post-

sentence motion.     On February 19, 2013, Appellant filed an untimely

supplemental post-sentence motion.      On March 19, 2013, the trial court

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entered an order vacating Appellant’s sentence and scheduling a hearing.2

The trial court conducted a resentencing hearing on September 13, 2013, at

the conclusion of which the trial court re-sentenced Appellant to the same

sentence it had imposed on February 6, 2013.           On September 20, 2013,

Appellant filed a timely notice of appeal.3

        On appeal, Appellant presents the following issue for our review.

              Did the [trial] court abuse its discretion in sentencing
              [Appellant] in the aggravated range of the
              sentencing guidelines by improperly emphasizing
              conduct for which [Appellant] had been acquitted
              and conduct for which [Appellant] had been charged
              but not yet convicted, while not giving proper weight
              to [Appellant]’s positive conduct, background, work
              history and family support, resulting in a manifestly
              excessive sentence for the crime of gun possession?

Appellant’s Brief at 4.


____________________________________________
2
  We note the language of the trial court’s order is confusing.          The trial
court’s order states the following.

              AND NOW, this 19th day of March, 2013, after
              consideration of the Order Vacating Denial of Motion
              for Reconsideration of Sentence by the Attorney for
              the Defendant it is ORDERED that the Order Vacating
              Denial of Motion For Reconsideration of Sentence is
              GRANTED.

              Listed for status on 5/17/13 in courtroom 608. …

Trial Court Order, 3/19/13, at 1. Given the procedural posture of this case,
after the trial court filed this order, we believe the trial court meant to
vacate Appellant’s sentence pending a hearing on his post-sentence motion.
3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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      We first note that Appellant’s sole issue on appeal pertains to the

discretionary aspects of his sentence.     See Appellant’s Brief at 7.    It is

axiomatic that in this Commonwealth “[t]here is no absolute right to appeal

when challenging the discretionary aspect of a sentence.” Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation omitted). When an

appellant forwards an argument pertaining to the discretionary aspects of

the sentence, this Court considers such an argument to be a petition for

permission to appeal.    Commonwealth v. Buterbaugh, 91 A.3d 1247,

1265 (Pa. Super. 2014) (en banc) (citation omitted). In order to reach the

merits of a discretionary sentencing issue, this Court is required to conduct a

four-part analysis to determine whether a petition for permission to appeal

should be granted.

            (1) [W]hether appellant has filed a timely notice of
            appeal, Pa.R.A.P. 902, 903; (2) whether the issue
            was properly preserved at sentencing or in a [post-
            sentence motion], Pa.R.Crim.P. [720]; (3) whether
            appellant’s brief has a fatal defect, Pa.R.A.P.
            2119(f); and (4) whether there is a substantial
            question that the sentence appealed from is not
            appropriate under the Sentencing Code, 42
            [Pa.C.S.A.] § 9781(b).

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

      In the case sub judice, Appellant has filed a timely notice of appeal

and has included a Rule 2119(f) statement in which he raises two distinct

sub-issues. First, Appellant argues that the trial court abused its discretion


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by “fail[ing] to give proper consideration to the mitigating evidence of

[Appellant]’s work and family history.”             Appellant’s Brief at 7.        Second,

Appellant      avers   the   trial   court     abused   its    discretion   by   improperly

considering conduct for which he had been charged but not convicted and

conduct for which he had been acquitted. Id.

          Appellant’s first argument regarding the trial court’s failure to consider

certain mitigating circumstances was not presented to the trial court at

either sentencing proceeding or in any of the post-sentence motions he

filed.4    Therefore, we deem this argument waived on appeal for failure to

preserve it below.        See Trinidad, supra.            Appellant’s remaining issues

concerning the trial court’s alleged consideration of acquitted and charged

conduct were raised at one of the sentencing proceedings below. See N.T.,

2/6/13, at 6, 40-45; N.T., 9/13/13, at 16.                    As a result, we proceed to




____________________________________________
4
   We disagree with the Commonwealth’s assertion that Appellant was
required to file another post-sentence motion within ten days of being
resentenced. See Commonwealth’s Brief at 7, 7 n.6. As Appellant was
given the exact same sentence, his arguments on appeal necessarily
complain about the discretionary aspects of that same sentence. Therefore,
we may consider any argument raised on the record at either sentencing
proceeding or in Appellant’s first timely post-sentence motion. See, e.g.,
Pa.R.Crim.P. 720, cmt. (stating, “[o]nce a sentence has been modified or
reimposed pursuant to a motion to modify sentence under paragraph
(B)(1)(a)(v) … a party wishing to challenge the decision on the motion does
not have to file an additional motion to modify sentence in order to preserve
an issue for appeal, as long as the issue was properly preserved at the time
sentence was modified or reimposed[]”).



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determine whether Appellant has raised a substantial question for our

review.

     “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71

A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d

75 (Pa. 2013).    “A substantial question exists 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.” Id. (citations omitted). “Additionally, we cannot look beyond the

statement of questions presented and the prefatory 2119(f) statement to

determine whether a substantial question exists.”       Commonwealth v.

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012).

     In the case sub judice, Appellant avers that the trial court improperly

considered conduct for which Appellant had been acquitted, and conduct for

which Appellant had been accused but not convicted. Appellant’s Brief at 7.

We conclude that these allegations of the trial court considering improper

factors raise a substantial question for our review. See Commonwealth v.

Dowling, 990 A.2d 788, 792 (Pa. Super. 2010) (stating, “[a]ppellant’s claim

the trial court relied on an improper factor raises a substantial question

permitting review[]”) (citation omitted). We will therefore proceed to review

the merits of Appellant’s two remaining sub-issues.


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      We begin by noting our well-settled standard of review.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, 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.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)

(citations omitted).

      In this case, Appellant alleges that the trial court improperly took into

account conduct of Appellant for which he was never convicted.

            Here, at sentencing, the [trial] court overemphasized
            two separate instances of unproven criminal conduct
            on the part of [Appellant] that should not have been
            at issue in this case. First the [trial] court weighed
            heavily the evidence of an arrest for [Appellant]’s
            alleged assistance in a straw purchase of a firearm.
            However, the charges against [Appellant] were
            dismissed by a judge at a preliminary hearing, as the
            evidence against him was so incredibly lacking.
            Second, the [trial] court considered a pending case
            against [Appellant] for an alleged stabbing.
            [Appellant] had not been convicted of any offense
            related to that incident at the time of sentencing.

Appellant’s Brief at 8-9 (internal citations omitted).   As a general matter,

this Court has explained that “[a] judge may consider unadjudicated arrests

in sentencing a defendant, so long as the arrests are not regarded as

establishing criminal conduct, and even arrests that result in acquittals, if




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the judge is aware of the acquittal.” Commonwealth v. Bowers, 25 A.3d

349, 356 (Pa. Super. 2011), appeal denied, 51 A.3d 837 (Pa. 2012).

      At the first sentencing hearing, Appellant objected to the trial court

considering a video surveillance tape showing his presence in a gun store.

N.T., 2/6/13, at 25. The video shows Appellant assisting someone in making

a straw purchase of a gun. Id. According to the Commonwealth, “[t]hree

days later … [the gun was] found on the bathroom floor at the Beaumont

Lounge … [a]nd [Appellant] is outside that door.”             Id.      Also, the

Commonwealth pointed to an incident involving a stabbing, and showed a

photograph of the complainant “patched up and hooked up to tubes[.]” Id.

at 41. Appellant argues it is the consideration of this evidence that entitles

him to resentencing. Appellant’s Brief at 8-9.

      However, the trial court noted that it did not consider any of the

above-mentioned evidence as criminal conduct.            Trial Court Opinion,

2/25/14, at 5-6. Specifically, the trial court explained the rationale for its

sentence as follows.

            [T]his court clearly indicated–on the record–after a
            lengthy sentencing hearing what was and was not
            consider[ed] when fashioning a sentence for
            [Appellant]. Specifically, in reference to the video
            from the firearms dealer and [the] open aggravated
            assault case, this court stated:

                  THE COURT: It’s not a question of criminal
                  violation; he’s on bail for having a .40 [c]aliber
                  gun illegally, because he can’t have a gun. So
                  he goes into the gun shop and he helps
                  somebody purchase it. It’s not a question of if

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              he violated the law per se by going in there.
              But, perhaps, that somebody–and you are
              arguing it’s only for protection, and he’s a good
              person, I’m hearing all that.        There is a
              dichotomy here, and we will deal with that at
              the end. But, he goes into the gun shop and
              helps somebody purchase a gun.

              MR. HETZNECKER (Defense Counsel):            Bad
              judgment. I agree.

              THE COURT: Well, that goes to the issue of
              sentencing and character. And you are asking
              me to take into account, which I should, all the
              good things he’s done. All the help he has
              done. I heard from the stepfather and mother,
              all the thing he does for the family. I can also
              take into account that an individual with a prior
              murder conviction for shooting somebody, and
              [who] is facing a very serious gun possession
              case, while on bail in that case, went into a
              gun shop with somebody.

              MR. HETZNECKER: If that is the extent of it
              without the other background information.
              Now you do have the background information.
              What I did not appreciate was that the
              Commonwealth presenting a snapshot which
              was an inaccurate portray [sic] on the case
              presented at trial, including the fact that the
              motion to suppress, outside the Beaumont
              Lounge was granted.

              THE COURT:       I’m not interested in the
              Beaumont Lounge issue. What was relevant is
              that he was in a gun shop and assisting
              somebody in purchasing a gun, which is not a
              violation of the law and is not here to be
              considered a criminal act, but as an issue of
              character and behavior and conduct while on
              bail.

                                 […]


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                  THE COURT: I don’t know what drives you, I
                  don’t know what happened to you in the past.
                  I read the mental health, read the presentence
                  report, all of this is a tragedy. Tragedy for
                  you, your family and the community. But the
                  gun violence is also a tragedy for people. I
                  don’t know why you didn’t learn from the
                  murder conviction, I don’t know why, despite
                  other incidents before my case you didn’t
                  learn. I hope that you will learn from this, but
                  really it’s up to you, and I hope that when you
                  come out, you will understand that you got to
                  walk away from criminal behavior. If someone
                  angers you, you have to walk away. You can’t
                  have anything else to do with guns. In your
                  car, in a house, on the street, in the gun shop,
                  or anything else. Because of your background
                  and because of what occurred, guns are toxic
                  to you, radioactive. And you cannot be around
                  guns. Mr. Hetznecker made a very eloquent
                  argument on your behalf. The problem is that
                  your history is the problem. And I think you
                  understand that. And that’s the basis of my
                  sentence.       I considered the presentence,
                  mental health, prior record score, arguments
                  of counsel, letters that were presented and the
                  appropriate and relevant evidence about what
                  occurred before.       I did not consider the
                  Beaumont Lounge, that was a not guilty, and
                  that’s not the issue and the car incident is only
                  for the fact that the parole board did violate
                  you, and you were in a car with guns. And, in
                  terms of your current case, that’s only an issue
                  regarding your being on bail at the time,
                  getting arrested.

Trial Court Opinion, 2/25/14, at 5-6, quoting N.T., 2/6/13, 35-36, 57-58

(emphasis in original).

      After careful review, we conclude Appellant is not entitled to relief.

Our review of the sentencing hearing reveals that the trial court did not


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consider either incident “as establishing criminal conduct[.]”      Bowers,

supra.   Furthermore, consistent with Bowers, the trial court was made

aware of, and acknowledged, Appellant’s acquittal.      Furthermore, as to

Appellant’s pending case, the trial court stated that it was only considering

its existence to show that Appellant was arrested while he was released on

bail for the case at bar.   Trial Court Opinion, 2/25/14, at 6.   There is no

indication that the trial court based the instant sentence on any actual

acquitted charge or uncharged criminal conduct.    As a result, we conclude

the trial court did not abuse its discretion in sentencing Appellant in this

case. See Raven, supra.

     Based on the foregoing, we conclude Appellant’s sole issue on appeal

does not entitle him to relief. Accordingly, the trial court’s September 13,

2013 judgment of sentence is affirmed.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2014




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