J-S65019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NADIR DELOATCH                             :
                                               :
                       Appellant               :   No. 2083 EDA 2016

             Appeal from the Judgment of Sentence May 11, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0004338-2015,
                            CP-51-CR-0004339-2015


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 29, 2018

       Nadir Deloatch appeals from the judgment of sentence imposed on May

11, 2016, in the Court of Common Pleas of Philadelphia County. The trial

judge found Deloatch guilty at Docket No. 4338-2015 of robbery, possession

of firearms prohibited, firearms not to be carried without a license, theft by

unlawful taking – movable property, receiving stolen property, carrying

firearms in public in Philadelphia, possession of an instrument of crime, simple

assault, and recklessly endangering another person.1 The trial judge found

Deloatch guilty at Docket No. 4339-2015 of robbery, theft by unlawful taking

– movable property, receiving stolen property, possession of an instrument of
____________________________________________


118 Pa.C.S. §§ 3701(a)(1)(ii), 6105(a)(1), 6106(a)(1), 3921(a), 3925(a),
6108, 907(a), 2701, and 2705, respectively.
J-S65019-17



crime, simple assault, and recklessly endangering another person.2 Deloatch

was sentenced to serve two concurrent terms of four and one-half to nine

years’ imprisonment, followed by five years’ probation.3 Deloatch claims (1)

the trial court erred in denying his pretrial motion to exclude out-of-court and

in-court identifications of Deloatch, (2) the trial court erred in denying the

motion to suppress a firearm, paper money, and coins, (3) the trial court erred

in denying Deloatch’s motion in limine to exclude the mention of coins

recovered by police, (4) the identification evidence was insufficient to sustain

the guilty verdicts, (5) the verdicts were against the weight of the evidence,

and (6) the sentence imposed constitutes an abuse of discretion by the trial

court. 4, 5 Based upon the following, we affirm.

        The trial court has detailed the procedural history of this case, and we

need not restate it herein. See Trial Court Opinion, 4/20/2017, at 1-3. The



____________________________________________


2 18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), 3925(a), 907(a), 2701, and 2705,
respectively.

3  The trial court imposed the concurrent sentences of 4½-9 years’
imprisonment followed by five years’ probation on the robbery charge at
Docket No. 4338-2015 and the robbery charge at Docket No. 4339-2015. The
trial court found the theft by unlawful taking charge at each docket merged
with the robbery charge. The trial court ordered no further penalty on the
remaining charges at the respective dockets.

4 Deloatch preserved these claims by timely complying with the order of the
trial court to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.

5   We have reordered Deloatch’s issues to address the pretrial rulings first.

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trial court has summarized the facts underlying Deloatch’s convictions, as

follows:

      On February 17, 2015 at approximately 8:25 PM, [Deloatch]
      entered a Hess gas station convenience store located at 330 Grays
      Ferry in Philadelphia holding a revolver with a silver barrel and
      black handle. He was wearing a mask, dark jacket, gray hoodie,
      blue jeans, and black shoes. Natacha Azor and Ayodeji Adeoye
      (Complainants) were each standing behind a cash register in the
      store. [Deloatch] walked straight towards the cash registers with
      the gun pointed at the Complainants. He told Azor to stay still and
      Adeoye to “hurry up and give [him] all the money in the register.”
      [Deloatch] spent approximately five to six minutes inside the store
      during the robbery and took money and a cell phone from
      Complainants.

      At approximately 8:30 PM Complainants used the panic-button
      inside the store to contact police. Officer Raymond Sima arrived
      at the Hess Station in response to a call over police radio that a
      robbery alarm was set off. The Complainants informed him that
      [Deloatch] fled south after the robbery. Officer Sima put this
      information over the police radio. At approximately 8:33 PM,
      Officers Christopher Bartolo and Kathryn McChord of the
      Philadelphia Police Department heard Officer Sima’s flash
      information over police radio that a black male with medium
      complexion approximately 5’7” tall wearing a dark jacket and blue
      pants with a firearm had robbed a convenience store located near
      the 3300 block of Grays Ferry Avenue in Philadelphia. Officers
      Bartolo and McChord were patrolling at the intersection of Napa
      and Dickinson Street in a police vehicle when they saw [Deloatch],
      who matched the flash description, walking south on Napa Street.
      When the officers tried to speak with [Deloatch], he
      immediately ran away, continuing south on Napa Street.
      Officer McChord exited the vehicle and chased [Deloatch] on foot.
      As she chased him, McChord observed coins falling from his
      pockets and [Deloatch] holding his waistband. Officer
      McChord lost her footing during the chase and fell, losing sight of
      [Deloatch] as he continued down Napa Street towards Tasker
      Street.

      Officer Travis Clark, responding to the radio call, met
      Officer McChord immediately after she lost sight of

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      [Deloatch]. Officer Clark began searching the area and
      found a handgun loaded with six bullets on the street next
      to a parked car in front of 3104 Tasker Street. In addition,
      Officer Palmiero found wrapped coins and loose change recovered
      from the 1500 block of Napa Street.

      Officer Heng observed a suspect near Hollywood and McKean that
      substantially matched the flash information, but the suspect was
      not wearing a dark jacket. After Officer Heng stopped the suspect,
      both Complainants were taken to identify him. At approximately
      9:40 PM, [Deloatch] was taken out of a police car in handcuffs and
      put under a spotlight in front of Complainants. [Deloatch] did not
      say anything. Both Complainants immediately identified
      [Deloatch] as the person who robbed the convenience store earlier
      that night. They recognized [Deloatch’s] eyes, eyebrows, the skin
      above his eyebrows, body type, skin color, blue jeans, and black
      shoes.

Trial Court Opinion, 4/20/2017, at 3-5 (footnotes omitted) (emphasis in

original).

      In the first issue, Deloatch contends the trial court erred in denying the

pretrial motion to exclude the two victims’ out-of-court and in-court

identifications of him. He claims the victims only had a few minutes to observe

the perpetrator while focusing on the gun, and only being able to see eyes,

nose and a tiny section of the perpetrator’s hand. See Deloatch’s Brief at 17.

He argues the victims stated the perpetrator wore a dark jacket, which he did

not have. Id. He further contends the confrontation was unduly suggestive

because he was under arrest in a police car, surrounded by police and flashing

dome lights, with a light focused on him. Id.

      “Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings


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are supported by the record and whether the legal conclusions drawn from

those facts are correct.” Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.

Super. 2003) (citation and internal citation omitted). Our scope of review is

limited to the evidence presented at the suppression hearing. In the Interest

of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013).

      In reviewing the propriety of identification evidence, the central
      inquiry is whether, under the totality of the circumstances, the
      identification was reliable. The purpose of a “one on one”
      identification is to enhance reliability by reducing the time elapsed
      after the commission of the crime. Suggestiveness in the
      identification process is but one factor to be considered in
      determining the admissibility of such evidence and will not warrant
      exclusion absent other factors. As this Court has explained, the
      following factors are to be considered in determining the propriety
      of admitting identification evidence: the opportunity of the witness
      to view the perpetrator at the time of the crime, the witness’
      degree of attention, the accuracy of his prior description of the
      perpetrator, the level of certainty demonstrated at the
      confrontation, and the time between the crime and confrontation.
      The corrupting effect of the suggestive identification, if any, must
      be weighed against these factors. Absent some special element of
      unfairness, a prompt “one on one” identification is not so
      suggestive as to give rise to an irreparable likelihood of
      misidentification.

Id. at 976 (citation and internal citations omitted).

      Deloatch’s argument attempts to minimize the opportunity and ability

the victims had to observe the perpetrator, and to emphasize his police

custody at the time of the out of court identification. However, this argument

fails, given the detailed description of the perpetrator in the flash information

that substantially matched how Deloatch appeared when the police spotted

him on the street. See N.T., 2/12/2016 (suppression hearing) (mislabeled


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2/24/2016), at 16 (Officer Bartolo testifying Deloatch “fit the flash”

information).     See also id. at 15, 38 (flash information of a black male,

medium complexion, about 5’7”, with a mask, blue jeans, a dark jacket and a

black handgun).       Moreover, the detailed flash information describing the

perpetrator defeats Deloatch’s argument that the police identification

procedure used for the victims to identify Deloatch was unduly suggestive and

unreliable. Therefore, we conclude the trial court properly denied this aspect

of Deloatch’s suppression motion. See N.T., 2/29/2016 (suppression findings

of fact and conclusions of law), at 11-15. Accordingly, Deloatch’s first claim

warrants no relief.

         In his second issue, Deloatch contends “[t]he trial court erred in denying

[the] motion to suppress the firearm as there was no reasonable suspicion or

probable cause to approach, chase or otherwise force [Deloatch] to abandon

any alleged contraband.” Deloatch’s Brief at 21.6 He argues police did not

have reasonable suspicion or probable cause to stop him because “[a]lthough

[Deloatch] matched some of the flash information, it was substantially

inconsistent, as well. [Deloatch] had no mask nor any dark jacket on.” Id.

at 21.

         The principles that guide our review are, as follows:

         Article I, § 8 of the Pennsylvania Constitution and the Fourth
         Amendment of the United States Constitution afford protections
____________________________________________


6 Deloatch does not mention “the paper money and coins recovered” as stated
in his Statement of the Questions Involved. See Deloatch’s Brief at 8.

                                           -6-
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      against unreasonable searches and seizures. Among the
      protections is the requirement that an officer have reasonable
      suspicion before an investigatory stop.

      Our [S]upreme [C]ourt has interpreted Article I, § 8 protection
      more broadly than the Fourth Amendment and has found that a
      seizure occurs when an officer gives chase. Under Pennsylvania
      law, any items abandoned by an individual under pursuit are
      considered fruits of a seizure. Those items may only be received
      in evidence when an officer, before giving chase, has at least the
      reasonable suspicion necessary for an investigatory stop. Stated
      another way, when one is unconstitutionally seized by the police,
      i.e., without reasonable suspicion or probable cause, any
      subsequent flight with the police in pursuit continues the seizure
      and any contraband discarded during the pursuit is considered a
      product of coercion and is not admissible against the individual.

In re M.D., 781 A.2d 192, 196 (Pa. Super. 2001) (citation, internal citations,

and quotation marks omitted).

      Here, the trial court rejected Deloatch’s claim, explaining that police did

have reasonable suspicion to stop him:

      In our case, matching flash information gave the officers
      reasonable suspicion to stop [Deloatch] as he walked down the
      street. On February 17, 2015, at approximately 8:30PM, the police
      received a radio call that a robbery had taken place at the Hess
      Station located at 3300 Grays Ferry Avenue in Philadelphia. The
      suspect was described as wearing a dark jacket, blue jeans, and
      black shoes. Officers first spotted [Deloatch] on Napa Street four
      blocks south of the Hess Station. He was wearing a dark jacket,
      blue jeans, and black shoes. [Deloatch] closely matched the flash
      information describing the robbery suspect. It was reasonable for
      officers to stop [Deloatch] since a robbery had occurred and
      [Deloatch] generally matched the flash of the suspect.

      It is also important to note that the investigating officers did not
      force [Deloatch] to abandon the money and firearm he was
      carrying just because they approached him. Their actions were
      not coercive. In In re M.D., [781 A.2d 192, 196 (Pa. Super.
      2001),] when officers asked the [a]ppellant to stop, he fled
      instead. Notwithstanding, the court held that the officers did not

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      coerce the [a]ppellant to abandon incriminating evidence simply
      because their approach caused him to flee. Similarly, when the
      officers approached [Deloatch] on Napa Street, he voluntarily
      abandoned his firearm and money. His actions gave the police
      further suspicion that he committed the crime. Just as
      importantly, the officers had reasonable suspicion to stop
      [Deloatch] because he matched the description of the robber. As
      the officers did not act improperly when they simply asked
      [Deloatch] to approach, his contention that incriminating evidence
      should be suppressed is unreasonable.

Trial Court Opinion, 4/20/2017, at 9-10.           See also N.T., 2/29/2016

(suppression findings of fact and conclusions of law), at 8-11.

      Based on our review, we conclude there is no basis upon which to disturb

the trial court’s determination. The trial court’s findings are supported by the

suppression record and we agree with the trial court’s legal conclusions. See

Moye, supra. Deloatch looked substantially similar to the description of the

perpetrator reported in the police flash. Accordingly, police had reasonable

suspicion to stop him.    Therefore, we reject Deloatch’s claim that the trial

court erred in denying his motion to suppress the firearm.

      Nor do we find merit in Deloatch’s third claim that the trial court erred

in denying his motion in limine to exclude mention of coins recovered that

were never placed on an evidentiary property receipt.

      The admissibility of evidence “rests within the sound discretion of the

trial court, and therefore, we will reverse [the] trial court’s decision . . . only

if the appellant sustains the heavy burden to show that the trial court has

abused its discretion.”   Commonwealth v. Christine, 125 A.3d 394, 398

(Pa. 2015) (citation and quotations omitted).

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      It is important to point out that, here, the Commonwealth did not seek

to introduce the coins into evidence. Accordingly, there was no need for the

Commonwealth to establish chain of custody with an evidentiary property

receipt. See In re D.Y., 34 A.3d 177, 185 (Pa. Super. 2011) (“Chain-of-

custody refers to the manner in which evidence was maintained from the time

it was collected to its submission at trial[.]”). Furthermore, as the trial court

aptly reasoned:

      [T]he coins were documented on the officers’ crime scene log even
      though there was no property receipt.30 Therefore, the Court
      chose not to prevent the Commonwealth from mentioning the
      coins. [Deloatch] was also granted ample opportunity to cross-
      examine the officers on this point. Given the circumstances, the
      probative value of the evidence outweighed its prejudicial
      impact.31

         30   N.T., February 24, 2016, at 7.

         31[Deloatch] further claims since the coins were not on a
         property receipt he did not have the opportunity to inspect
         them. However criminal defendants do not have an
         automatic right to inspect all evidence in possession of the
         prosecution. Had [Deloatch] formally asked the Court to
         give him an opportunity to inspect the coins either before
         or during trial, the Court may have granted his requests.
         Finally, even if the Court had excluded the coinage as
         evidence, the Commonwealth was still able to establish
         that [Deloatch] possessed paper currency. [Deloatch’s]
         guilt was established by the paper contraband alone.
         Therefore, the Court did not err when it denied [Deloatch’s]
         motion in limine to exclude the coins.

Trial Court Opinion, 4/20/2017, at 11-12. Based on our review, we discern

no abuse of discretion in the trial court’s ruling.       Therefore, we reject

Deloatch’s third claim.


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      Next, Deloatch argues the evidence was insufficient to sustain the guilty

verdicts because “there was no corroborating evidence that [Deloatch]

committed any of the elements of the crimes as it was not proven beyond a

reasonable doubt that [Deloatch] was present at the scene of the crime or

possessed any proceeds from the robbery, and where the witnesses incredibly

identified [Deloatch] when the perpetrator wore a mask.” Deloatch’s Brief at

17.

      Our standard of review of a sufficiency claim is well settled:

      Our standard for evaluating sufficiency of the evidence is whether
      the evidence, viewed in the light most favorable to the
      Commonwealth [as verdict winner], is sufficient to enable a
      reasonable [factfinder] to find every element of the crime beyond
      a reasonable doubt. [T]he entire trial record must be evaluated
      and all evidence actually received must be considered, whether or
      not the trial court's rulings thereon were correct. Moreover, [t]he
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Finally, the trier of fact, while passing
      upon the credibility of witnesses and the weight to be afforded the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Shull, 148 A.3d 820, 844 (Pa. Super. 2016) (citation

omitted).

      Regarding the sufficiency of evidence of identification, the Pennsylvania

Supreme Court has instructed:

      Proof beyond a reasonable doubt of the identity of the accused as
      the person who committed the crime is essential to a conviction.
      The evidence of identification, however, needn’t be positive and
      certain in order to convict, although any indefiniteness and
      uncertainty in the identification testimony goes to its weight.


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Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973) (citations

omitted).

       Based on our review, we conclude that Deloatch’s claim that the

evidence was insufficient to prove he was the perpetrator warrants no relief.

Deloatch seeks to have this Court review the evidence in the light most

favorable to him. However, our standard of review requires us to view the

evidence     in   the    light    most   favorable    to   the     verdict-winner,    the

Commonwealth. See Shull, supra. Here, the two victims positively identified

Deloatch, at the time of the crimes and at trial, as the person who committed

the crimes charged. At the scene, their identification was immediate.                See

N.T., 3/4/2016, at 21; N.T., 3/7/2016, at 17-18. At trial, their identification

was unequivocal.        See N.T. 3/4/2016, at 17; N.T., 3/7/2016, at 14-15.

Moreover, there was overwhelming circumstantial evidence that Deloatch was

the   perpetrator,      namely,    the   victims’    description    of   their   assailant

substantially matched Deloatch,7 police observed coins falling from Deloatch’s

____________________________________________


7 The flash information for the suspect – which came from the victims – was
a black male, about 5’7”, medium complexion, wearing a mask, a dark jacket
and blue jeans and a black handgun. N.T., 3/4/2016, at 28-29. One police
unit spotted a male that matched the description. Id. at 28. See also N.T.,
2/12/2016 (suppression hearing) (mislabeled 2/24/2016), at 15, 38. (All of
the testimony and exhibits from the suppression hearing were incorporated
into the evidence at the non-jury trial, see N.T., 3/7/2016, at 30.) When
Officer Christopher Bartolo observed Deloatch, he was walking at a brisk pace,
and was wearing a dark jacket, and blue jeans. N.T., 2/12/2016, at 16.
Officer Bartolo further stated Deloatch was wearing a dark jacket with a gray
hoodie. Id. at 21. However, when Deloatch was apprehended, he was not



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pockets as he fled, and police recovered wrapped coins and loose change from

the street where Deloatch had fled, and also located a gun on the street where

Deloatch was seen heading by police.               Accordingly, Deloatch’s sufficiency

claim fails.

       Deloatch also challenges the weight of the evidence.                 However, this

claim has been waived for appellate review.

       It is well settled that a defendant must present his challenge to
       the weight of the evidence to the trial court for a review in the first
       instance. See Pa.R.Crim.P. 607(A); Commonwealth v. Griffin,
       2013 PA Super 70, 65 A.3d 932, 939 (Pa. Super. 2013).
       Thereafter, appellate review of a weight claim is a review of the
       exercise of discretion, not of the underlying question of whether
       the verdict is against the weight of the evidence.

Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa. Super. 2016) (citation

omitted), appeal denied, 163 A.3d 403 (Pa. 2016).                  “[A] weight of the

evidence claim must be preserved either in a post-sentence motion, by a

written    motion     before    sentencing,    or     orally   prior   to    sentencing.”

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (citations

omitted). See Pa.R.Crim.P. 607.

       Here, Deloatch did not file a written post-sentence motion, nor did he

challenge the weight of the evidence either prior to or during his sentencing

hearing. Therefore, the trial court did not consider whether the verdict was


____________________________________________


wearing a dark jacket. Id. at 22. During arrest processing, Deloatch indicated
he was 5’7” and weighed 120 pounds. See N.T., 3/4/2016, at 45.



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against the weight of the evidence, and, consequently, waiver applies to this

claim.8

       The final issue is a challenge to the discretionary aspects of the

sentence.     A challenge to the discretionary aspects of a sentence is not

absolute, but rather, “must be considered a petition for permission to appeal.”

Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citation and

internal citation omitted). To reach the merits of a discretionary issue, this

Court must determine:

       whether the appeal is timely; (2) whether Appellant preserved
       [the] issue; (3) whether Appellant's brief includes a concise
       statement of the reasons relied upon for allowance of appeal with
       respect to the discretionary aspects of sentence; and (4) whether
       the concise statement raises a substantial question that the
       sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)

(citation omitted).

       Deloatch complied with the procedural requirements for this appeal by

presenting an oral post-sentence motion seeking modification of his

sentence,9 and a subsequent notice of appeal, and by including in his appellate

____________________________________________


8 We note the fact that Deloatch included this claim in his Pa.R.A.P. 1925(b)
statement and the trial court addressed the claim in its opinion did not
preserve the issue for our review absent the filing of an earlier motion. See
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009), cert. denied,
559 U.S. 1111 (2010).

9 Following the May 11, 2016, sentence, the Commonwealth filed a motion for
reconsideration of sentence and, on May 26, 2016, at a hearing on the motion,



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brief   a   statement     of   reasons    relied   upon   for   appeal   pursuant   to

Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P.

2119(f).10 Therefore, we must determine whether he has raised a substantial

question justifying our review.

        A defendant raises a substantial question when he “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. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (citation omitted), appeal

denied, ___ A.3d ___ (Pa. October 10, 2017).

        Here, Deloatch cites 42 Pa.C.S. § 9721(b) (“the 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”).           See Deloatch’s Brief at 26-27.

Deloatch claims the trial court’s sentence “did not properly consider

[Deloatch’s] youth and likelihood of complete rehabilitation, his being the


____________________________________________


Deloatch also orally objected to his sentence. See N.T., 5/26/2016. On June
1, 2016, the trial court denied both motions. See N.T., 6/1/2016, at 3.

10 While Deloatch has ostensibly included a separate Rule 2119(f) statement
in his amended brief, it simply states relevant legal tenets, and the statement
of reasons relied upon for appeal is mistakenly combined with the argument
of the claim. We will overlook this misstep, however, as it is one of form, not
substance.

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father of a young boy, and [Deloatch’s] showing of remorse and acceptance

of responsibility at sentencing, and familial support.” Deloatch’s Brief at 27.

He also contends the trial court should have used the standard guidelines (36-

48 months +/-12) at sentencing rather than the deadly weapons/used

enhancement (54-66 months +/-12). See id. We conclude Deloatch presents

a substantial question for our review. See Commonwealth v. Buterbaugh,

91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (“[A]rguments that the

sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721

does present a substantial question[.]”); Commonwealth v. Phillips, 946

A.2d 103, 112 (Pa. Super. 2008) (“A substantial question is raised where an

appellant alleges his sentence is excessive due to the sentencing court’s error

in applying the deadly weapon enhancement.”). Therefore, we will proceed

to review the discretionary aspects of Deloatch’s sentence.

      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. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

      At sentencing, the trial court justified its sentence, stating:

      It’s a very serious charge. I could have easily gone higher. But I
      can’t go too low, because he needs to understand the


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     consequences of his actions. He simply can’t go out there and stick
     up people with loaded guns. It’s inappropriate.

     And you’re 22, but the bottom line is, you have to be responsible
     for your own actions and your conduct.         … [Y]ou need to
     understand, before you go and stick somebody up with a loaded
     gun, what the consequences of your actions are.

                                    ****

     The reason for the sentence is because, like I said, you are young.
     I do believe that there’s a lot of redeeming value in you. You seem
     like a pretty nice young man overall. You’re pretty articulate. My
     hope is that you go to school and learn a trade so that when you
     come out you can be a productive citizen. I think you will.

N.T., 5/11/2016, at 27-28, 29.    The trial court also explained, “under the

circumstances[,] I’m protecting society.” Id. at 30.

     Furthermore, in response to Deloatch’s Pa.R.A.P. 1925(b) statement,

trial court expounded:

     [W]hen sentencing a defendant, the trial court must consider
     certain circumstances regarding the offense and the defendant’s
     character. Com[monwealth] v. Boyer, 2004 Pa. Super. 303,
     856 A.2d 149, 154 (Pa. Super. 2004). However, if the sentencing
     judge has considered the presentence investigation report, it will
     be presumed that he was aware of and considered all of the
     relevant circumstances in determining the appropriate sentence.
     Id.

     While the sentencing court has discretion in these respects, it has
     “no discretion to refuse to apply the deadly weapons enhancement
     when it is appropriate”. Com. v. Raybuck, 9[1]5 A.2d 125[,129]
     (Pa. Super. 2006). Under Pennsylvania code when an offender
     uses a deadly weapon, including a firearm, in a way that threatens
     or injures another individual they are subject to the deadly
     weapon enhancement in sentencing. 204 Pa. Code §
     303.10(a)(2)(i).

     Here the record shows that the Court considered many factors
     before it sentenced [Deloatch] including his age, severity of the

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      crime, potential for education, ability to be rehabilitated, and the
      fact he has a young child. The Court noted [Deloatch] is only 22
      years old which is young. He was arrested for burglary at the age
      of 16. He has two marijuana convictions one of which was
      Possession with Intent to Distribute. It seems he had a fairly
      stable childhood as both of his parents were present in his life, his
      father spoke during sentencing, and there is no evidence of abuse.
      At sentencing [Deloatch] told the trial judge he plans to go to
      school for a computer technician program. Considering all
      circumstances the trial judge sentenced [Deloatch] to four and a
      half to nine years in jail followed by five years’ probation.
      [Deloatch] recognized this range was not outside the maximum
      punishment allowed for this type of offense because his
      suggestion was a prison term of two to nine years. Therefore
      nothing about this sentence reveals manifest abuse by the trial
      judge. In fact, the Court heard [Deloatch’s] motion to reconsider
      after the sentencing hearing, but it upheld the initial sentence.

      [Deloatch] argued the minimum range of the sentence should be
      lower. The minimum range was given pursuant to the sentencing
      guidelines with the used deadly weapon enhancement. It is clear
      [Deloatch] used a firearm to threaten the Complainants.
      Therefore, the deadly weapon enhancement applies to
      [Deloatch’s] sentencing and the incarceration term given by the
      Court was appropriate. The fact still remains this was a violent
      robbery committed with a firearm and there were two victims. The
      trial judge reiterated his initial sentencing was already fair. Clearly
      none of the actions by the trial judge in this case rise to the level
      of abuse of discretion.

Trial Court Opinion, 4/20/2016, at 21-22.

      Based on our review of the record, and applying our deferential standard

of review, we find no abuse of discretion in this sentencing decision. The trial

court was aware of all mitigating circumstances and justified its sentence with

a full explanation of all relevant sentencing factors. Furthermore, the trial

court properly applied the deadly weapon/used enhancement since the record

shows Deloatch used the weapon to threaten the victims while committing the


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robbery. See, Shull, supra, 148 A.3d at 832 (Pa. Super. 2016) (defendant’s

“mere possession of a gun transcended to his use of the gun” when he

removed gun from under his clothing and pointed it at victim’s face during

attempted robbery). Accordingly, we affirm.

     Judgment of sentence affirmed.

     Judge Musmanno joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/18




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