J-A14007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

WILLIAM EUGENE HENDERSON,

                         Appellant                     No. 3064 EDA 2016


     Appeal from the Judgment of Sentence Entered February 19, 2016
               In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0004423-2015


BEFORE: BENDER, P.J.E., BOWES, J., and SHOGAN, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 14, 2017

      Appellant, William Eugene Henderson, appeals from the judgment of

sentence of an aggregate term of 11½ to 23 months’ incarceration, followed

by 2 years’ probation, imposed after he pled guilty to single counts of

possessing an instrument of crime (PIC) and simple assault, and two counts

each of recklessly endangering another person (REAP) and summary

harassment.     On appeal, Appellant solely challenges the discretionary

aspects of his sentence. After careful review, we affirm.

      The trial court set forth the facts of this case as follows:

         On May 4th of 2015 at approximately 9:00 a.m., [Trooper
         Jeffrey Hand of the Pennsylvania State Police] was
         dispatched to I-95 southbound in the area of Woodhaven
         Road, Bristol Township, Bucks County, for a report of shots
         fired at another vehicle. [Trooper Hand] interviewed the
         victim identified as Keith Hadfield. Mr. Hadfield stated he
         had just picked up his daughter from her sitter and was en
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          route to his residence in Philadelphia via State Route 413
          and I-95 south.

          [Mr.] Hadfield related that he had accidentally cut off
          another vehicle while he was merging onto the ramp on
          State Route 413 to I-95. He said the other vehicle, driven
          by [Appellant], proceeded to pull alongside his vehicle….
          [Appellant] point[ed] a handgun at him through the open
          passenger side window. [Mr.] Hadfield further related that
          [Appellant] … fired one round at him through that window.
          [Mr.] Hadfield said he immediately slowed down because
          he thought he had been shot.

        N.T. [Plea/Sentencing Hearing,] 2/19/16, [at] 6-7.

          Police [stopped] [Appellant’s] vehicle and [recovered] a
          silver starter pistol[1] from within the vehicle. The driver of
          the vehicle was identified as [Appellant]. After receiving
          Miranda[2] rights[,] … [Appellant] admitted to firing the
          weapon at the victim because the victim had cut him off.

        N.T. [Post-Sentence Motion Hearing,] 8/30/16, [at] 4-5.

Trial Court Opinion (TCO), 11/21/16, at 1-2.

        Appellant was arrested and charged with various offenses.                 On

February 19, 2016, he entered a guilty plea to the above-stated crimes and

was sentenced that same day.            Specifically, for Appellant’s PIC conviction,

he received a term of 11½ to 23 months’ incarceration, followed by 24

months’ probation. For his convictions of simple assault and REAP, he was



____________________________________________


1
  A ‘starter pistol’ is apparently a blank handgun typically used to commence
athletic races. However, Mr. Hadfield informed authorities that he believed it
was an authentic firearm. N.T. Post-Sentence Motion Hearing, 8/30/16, at
6.
2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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sentenced to concurrent terms of 2 years’ probation. Appellant received no

further penalty for his summary harassment convictions.

      Appellant filed a timely post-sentence motion for reconsideration of his

sentence, which the court denied after conducting a hearing. Appellant then

filed a timely notice of appeal, and he also timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement. Herein, Appellant raises

one issue for our review:

      A. Did the trial court abuse its discretion when it departed from
      the guidelines, disregarding mitigating evidence?

Appellant’s Brief at 4.

      Appellant’s issue challenges the discretionary aspects of his sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court's jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see 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. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the                 sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).


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       The determination of what constitutes a substantial question
       must be evaluated on a case-by-case basis. Commonwealth v.
       Paul, 925 A.2d 825, 828 (Pa. Super. 2007). 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.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

       Here, Appellant has satisfied the first three requirements for obtaining

review of his sentencing claim. Thus, we must assess whether he presents a

substantial question for our review in his Rule 2119(f) statement. Therein,

Appellant essentially contends that the court failed to consider mitigating

factors when imposing a term of incarceration for his PIC conviction that is

outside of the aggravated guideline range.        We consider this claim as

constituting a substantial question for our review. See Commonwealth v.

Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (en banc) (“Appellant’s

claim that the court erred by imposing an aggravated range sentence

without consideration of mitigating circumstances raises a substantial

question.”) (citation omitted).

       In assessing the merits of Appellant’s sentencing claim, we recognize

that

       the proper standard of review when considering whether to
       affirm the sentencing court's determination is an abuse of
       discretion. Commonwealth v. Smith, 543 Pa. 566, 673 A.2d
       893, 895 (1996) (“Imposition of a sentence is vested in the
       discretion of the sentencing court and will not be disturbed
       absent a manifest abuse of discretion.”). As stated in Smith, an


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      abuse of discretion is more than a mere error of judgment; thus,
      a sentencing court will not have abused its discretion unless “the
      record discloses that the judgment exercised was manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-
      will.” Id. In more expansive terms, our Court recently offered:
      “An abuse of discretion may not be found merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous.” Grady v. Frito–Lay, Inc., 576 Pa. 546, 839
      A.2d 1038, 1046 (2003).

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

      Where, as here, a trial court imposes a term of incarceration outside of

the Sentencing Guidelines, we must “assess whether the sentencing court

imposed a sentence that is ‘unreasonable.’” Id. at 963 (citing 42 Pa.C.S. §

9781(c), (d)). Pertinent to that inquiry, we consider:

      (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. § 9781(d). Additionally, “a sentence may also be unreasonable if

the appellate court finds that the sentence imposed was without express or

implicit consideration by the sentencing court of general standards applicable

to sentencing found in [42 Pa.C.S. §] 9721, i.e., the protection of the public;

the gravity of the offense in relation to the impact on the victim and the

community; and the rehabilitative needs of the defendant.”        Walls, 926

A.2d at 964 (citing 42 Pa.C.S. § 9721(b)).



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      With this background in mind, we will assess Appellant’s claim that the

trial court abused its discretion in fashioning his PIC sentence, which was

above the aggravated range of the guidelines.           According to Appellant,

“[t]he court failed to provide any weight [to] his immediate cooperation with

the police upon being stopped, his waiving his Miranda rights and full

confession at the scene, his waiving of his rights to unlawful search and

seizure and allowing the item [the gun] to be recovered immediately, and

[his] prompt acceptance of responsibility before the court….”         Appellant’s

Brief at 14-15. Appellant argues that instead of considering these mitigating

circumstances, the court “decided to rely heavily and almost exclusively on a

juvenile case of which it had no underlying factual basis, that constituted

speculation, and the fact that there were two people, a father and child, in

the car[,] suggesting that there could have been two sentences.” Id. at 15.

Finally, Appellant complains that the court “double counted the underlying

charges and facts, and failed to state sufficient reasons that were not

already contemplated in the sentencing recommendations when it departed

from the [g]uidelines.” Id. at 15.

      Appellant’s arguments are wholly unconvincing.        Initially, Appellant’s

bald assertion that the court ‘double counted’ factors, and improperly

considered issues that were already accounted for by the Sentencing

Guidelines, was not raised in his Rule 2119(f) statement.         In any event,

Appellant completely fails to develop this claim in the argument portion of

his brief. Therefore, we will not address it further.

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     In regard to Appellant’s assertion that the court failed to consider

certain mitigating circumstances, the record belies that claim.     The court

stated that it considered Appellant’s age, and it heard Appellant’s statement

that he accepted full responsibility and understood that his behavior was

“completely inappropriate[.]”   N.T. Plea/Sentencing, 2/19/16, at 12, 14.

However, the court was also informed that, in January of 2016, Appellant

was convicted of terroristic threats in “three cases all similar to this

incident….”   Id. at 8.   Contrary to Appellant’s argument, we ascertain

nothing improper about the court’s considering Appellant’s history of “other

instances of aggression and threatening behavior.” Id. at 15.

     Additionally, it is clear that the court took into account the section

9721(b) factors, and explicitly weighed more heavily the seriousness of

Appellant’s offenses, the impact of his crimes on the victims, and the danger

he poses to the community.      For instance, at the sentencing hearing, the

court stressed that Appellant’s conduct was “beyond … the spontaneous

statement that is made in anger.” Id. The court also focused on the fact

that, “not only was this gentleman and his child” put in danger, “but other

persons on the roadway … were endangered by [Appellant’s] behavior[,]” as

well. Id. Moreover, in the court’s Rule 1925(a) opinion, it summarizes its

sentencing considerations, stating:

           We found that departing from the guidelines was
     appropriate because of the gravity of the offense, its effect on
     the victims and the public, and the need for community
     protection.   Appellant endangered and terrorized both the
     victims and the public at large by firing a shot at the victim’s car

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      on a highway. In addition, this [c]ourt considered Appellant’s
      criminal history, which involved prior terroristic behavior.

            We recognize that Appellant accepted responsibility and
      waived his right to trial. However, these facts do not outweigh
      the seriousness of Appellant’s behavior and its effect on the
      victims and the community. As this [c]ourt stated at the hearing
      for the Motion to Modify and Reconsider Sentence, it was hard to
      “imagine a more serious offense meeting these definitions.”
      Further, this [c]ourt could have given Appellant consecutive
      periods of incarceration for Counts 1, 2, 3, and 4[,] but did not
      do so.

TCO at 5.

      Based on this record, we cannot conclude that Appellant’s sentence is

unreasonable. The trial court considered the requisite statutory factors, as

well as the mitigating factors Appellant discusses herein, and chose to weigh

more heavily the factors calling for a lengthier sentence.        The court’s

decision was not an abuse of discretion, especially considering the serious

facts of this case, and Appellant’s history of committing similar offenses. We

also point out that Appellant faced a total maximum sentence of 11 years’

incarceration, had the court imposed consecutive terms of imprisonment for

each of his offenses. See N.T. Plea/Sentencing Hearing at 4. Thus, while

Appellant’s PIC sentence is above the aggravated guideline range, we cannot

ignore that the court imposed concurrent terms of probation for his

remaining offenses, rather than further incarceration.   In other words, the

court’s overall sentencing scheme was not an abuse of discretion, especially

where the court clearly stated compelling reasons on the record, and in its

opinion, for fashioning Appellant’s sentence.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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