J-A12026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DEVIN DERAN WEBB                           :
                                               :
                       Appellant               :      No. 1496 WDA 2019

        Appeal from the Judgment of Sentence Entered August 19, 2019
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005530-2017

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                v.                             :
                                               :
                                               :
    DEVIN WEBB                                 :
                                               :
                       Appellant               :      No. 1498 WDA 2019

        Appeal from the Judgment of Sentence Entered August 19, 2019
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0007730-2016


BEFORE:      KUNSELMAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.                                     FILED MAY 29, 2020

        Appellant, Devin Deran Webb, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following his open

guilty pleas to two counts of possession of a controlled substance, five counts

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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of possession of a controlled substance with the intent to deliver (“PWID”),

and one count of persons not to possess firearms.1 We affirm.

        In its opinion, the trial court accurately set forth the relevant facts and

procedural history of this case as follows:

           These appeals arise out of two separate arrests of
           [Appellant] for which he entered guilty pleas on March 19,
           2019. At the plea hearing[,] summaries of the evidence
           were presented by the Commonwealth which included the
           following:

           CC 201607730

           [Appellant’s] arrest at CC201607730 followed a controlled
           purchase of narcotics on September 10, 2015. Officers from
           the Ross Township Police Department conducted a
           controlled buy, through a confidential informant, of
           narcotics from [Appellant].       The informant contacted
           [Appellant] via a cell phone and they agreed to meet outside
           of a residence located in the City of Pittsburgh. The
           controlled buy was done by a hand-to-hand transaction
           between the informant and [Appellant] during which
           [Appellant] sold 49 stamp bags which proved to contain
           heroin and fentanyl. [Appellant] pled guilty to four counts
           of [PWID] and two counts of Possession.

           CC 201705530

           On March 10, 2017[, Appellant] was the driver of a vehicle
           that was stopped for speeding and making an illegal left turn
           on East 8th Avenue in Homestead, Pa. by Officer Meals of
           the Homestead Police Department.          When [Appellant]
           stopped his vehicle, he was blocking the driveway of an auto
           repair service station. [Appellant] informed Officer Meals
           that he did not have a driver’s license as it was suspended.
           Officer Meals also confirmed that [Appellant] had an
           outstanding warrant from the state of Georgia, although
           Georgia was not requesting extradition. As the vehicle was
____________________________________________


1   35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S.A. 6105, respectively.

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          blocking a driveway and [Appellant] could not drive the
          vehicle, [Appellant] was informed the vehicle would be
          towed and an inventory search was performed. During the
          search a loaded .45 caliber firearm was found in a black
          nylon case behind the driver’s seat along with 550 stamp
          bags of suspected heroin, rubber bands, unused sandwich
          bags and a digital scale with white powder on it. [Appellant]
          was also searched and found to have 10 stamp bags of
          heroin in his hoodie pocket. After being given Miranda[2]
          warnings[, Appellant] admitted to the officer that the heroin
          was his and he was selling it to support himself and to pay
          his rent. Testimony from an expert in the field of narcotics
          would also testify that [Appellant] possessed the heroin with
          the intent to deliver it. [Appellant pled] guilty to Possession
          of Firearm Prohibited and one count of [PWID]. Charges on
          seven additional counts were withdrawn. [Appellant] made
          no corrections to the summary of the evidence in either of
          the cases and after an appropriate colloquy, [Appellant’s]
          pleas were accepted and a presentence report was ordered.

          The presentence report indicated that [Appellant’s] criminal
          history included a firearm conviction in October 2000 for
          which he was sentenced to 1½ to 6 years; a conviction for
          possession and [PWID] in June 2001 for which he was
          sentenced to 2 to 4 years; that he was paroled in April of
          2004 until January 2006; that he was again convicted of
          possession and [PWID] in January of 2011 for which he was
          sentenced to 2½ to 5 years; that he pled nolo contendere
          to simple battery—family violence and disorderly conduct in
          Georgia in February 2008; that he was convicted of
          possession and [PWID] in July of 2010 for which he was
          sentenced to 18 to 36 months; and various summary
          offenses in 2012 and 2017.

          At the time of sentencing [Appellant] presented testimony
          from his fiancée, London Porter, who testified that
          [Appellant] had turned his life around and had a positive
          effect on her and her children. In his allocution statement
          [Appellant] acknowledged that he had been before the court
          a “few times” and also stated that he was not the same
          person as before and that he made progress in his life
____________________________________________


2   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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         through his education, employment and mental health
         treatment in order to avoid continued involvement with
         drugs and he requested leniency.

         The Commonwealth’s position was that [Appellant] “stands
         before the [c]ourt having been convicted now of his fourth
         [PWID] charge and, at least a [s]econd Carrying a Firearm
         Illegally.” Counsel also noted that the standard range
         sentence [for the firearms offense] called for a sentence
         [between] 72 and 84 months based on [Appellant’s]
         previous record. In addition, the Commonwealth noted that
         the narcotics [Appellant] admitted selling tested positive for
         not only heroin but fentanyl. The Commonwealth requested
         that a sentence be imposed that would “impress upon
         [Appellant] the need to reform himself with the dictates of
         a civilized society.”

         In response [Appellant’s] counsel noted that during the
         pendency of the cases [Appellant] had obtained and was
         working three jobs and he attempted drug treatment at
         Gateway Rehabilitation and Butler Family Services. Counsel
         also reviewed [Appellant’s] exposure to and use of drugs
         and alcohol beginning as early as age 12 and, that despite
         the absence of a father in his life, he was an active father in
         his children’s lives. He also noted [Appellant] had obtained
         his GED.     Finally, counsel argued that the sentencing
         guidelines were high based on convictions in 1999, 2000,
         2006 and 2008, but that these convictions were “stale and
         maybe should be given less consideration [than] if those
         convictions were from 2011, 2012.” Counsel argued that
         based on [Appellant’s] positive achievements since his
         latest arrest that consideration be given to “rejecting the
         guideline” and the imposition of a county sentence. In
         response, the Commonwealth again stated that its position
         was that “a county sentence, with alternative housing,
         would [not] effectively impress upon [Appellant] the
         severity of the crimes.”         After consideration of the
         presentence report, the testimony and the argument of
         counsel[,] an aggregated mitigated range sentence was
         imposed[.]

(Trial Court Opinion, filed January 6, 2020, at 2-5) (internal citations omitted).

      At the conclusion of the sentencing hearing on August 19, 2019, the

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court imposed an aggregate term of 5 to 10 years’ imprisonment, plus 3 years’

probation.3     On August 28, 2019, Appellant timely filed a post-sentence

motion, which the court denied on September 4, 2019. Appellant timely filed

separate notices of appeal at each underlying docket (listing only one docket

number on each notice of appeal) on October 3, 2019. On October 21, 2019,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on

October 23, 2019.        This Court subsequently consolidated the appeals sua

sponte.

       Appellant raises one issue for our review:

          DID THE TRIAL COURT ABUSE ITS DISCRETION IN
          IMPOSING A SENTENCE THAT WAS MANIFESTLY
          EXCESSIVE, UNREASONABLE, AND CONTRARY TO THE
          DICTATES OF THE SENTENCING CODE WHEN THE TRIAL
          COURT OVERLOOKED AND/OR FAILED TO CAREFULLY
          CONSIDER RELEVANT FACTORS WHEN SENTENCING
          [APPELLANT], INCLUDING THE UNIQUE FACTS AND
          CIRCUMSTANCES OF THE CRIMES, AND HIS BACKGROUND
          AND REHABILITATIVE NEEDS?

(Appellant’s Brief at 4).

       Appellant argues the circumstances of his case did not justify imposing


____________________________________________


3  Specifically, at docket CP-02-CR-0007730-2016, the court imposed a term
of 2 to 4 years’ imprisonment on Count 4 (PWID), a concurrent term of 1 to 2
years’ imprisonment on Count 5 (PWID), and no further penalty for the
remaining offenses. At docket CP-02-CR-0005530-2017, the court sentenced
Appellant to 5 to 10 years’ imprisonment, plus 3 years’ probation, for the
firearms conviction, and a concurrent term of 3 to 6 years’ imprisonment for
the PWID conviction. The court imposed the sentences at each docket
concurrent to each other.

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a term of imprisonment. Appellant asserts the sentence imposed does not

reflect the court’s consideration of Appellant’s background and characteristics,

his efforts to rehabilitate, and the remoteness of his prior convictions.

Appellant maintains the sentence imposed is grossly disproportionate to the

circumstances of the offenses and contrary to the norms of the sentencing

process.    Appellant concedes the court imposed a sentence within the

statutory limits and below the standard range. Nevertheless, Appellant insists

the court did not impose an individualized sentence, tailored to him and the

facts of his case. Appellant contends the court also failed to set forth adequate

reasons on the record for the sentence imposed. Appellant suggests the court

ignored Appellant’s acceptance of responsibility by pleading guilty and his

expressions of remorse. Appellant avers the court disregarded that Appellant

obtained a high school diploma, had three jobs, and sought treatment for his

addiction since the time his offenses occurred. Appellant concludes the court

abused its discretion by imposing a sentence of imprisonment, where a

sentence of alternative housing was more appropriate given Appellant’s

progress.

      As presented, Appellant’s challenges implicate the discretionary aspects

of his sentence.   See, e.g., Commonwealth v. Cartrette, 83 A.3d 1031

(Pa.Super. 2013) (en banc) (explaining claim that sentencing court failed to

consider Section 9721(b) factors pertains to discretionary sentencing

matters); Commonwealth v. Clarke, 70 A.3d 1281 (Pa.Super. 2013),


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appeal denied, 624 Pa. 671, 85 A.3d 481 (2014) (stating contention that court

focused solely on serious nature of crime without adequately considering

protection of public and defendant’s rehabilitative needs concerns court’s

sentencing discretion); Commonwealth v. Cruz-Centeno, 668 A.2d 536

(Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating

allegation that court overemphasized seriousness of crime without considering

mitigating factors challenges discretionary aspects of sentencing).

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

         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) (internal citations omitted).

      Significantly, objections to the discretionary aspects of a sentence are

waived if they are not raised at the sentencing hearing or in a timely filed

post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot


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be cured by submitting the challenge in a Rule 1925(b) statement.”

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal

denied, 580 Pa. 695, 860 A.2d 122 (2004).

      Instantly, Appellant filed a timely post-sentence motion on August 28,

2019. Nevertheless, Appellant did not preserve any of the claims he raises on

appeal in that motion. Instead, Appellant merely requested the court permit

him the opportunity to enroll in motivational boot camp. Appellant mentioned

nothing about the court’s alleged failure to consider mitigating factors, lack of

sufficient reasons on the record for the sentence, or any of the other

arguments Appellant now advances on appeal. Appellant’s failure to preserve

his current claims in the post-sentence motion constitutes waiver of his

sentencing issue on appeal. See Griffin, supra; McAfee, supra.

      Even if Appellant had preserved his claims on appeal, this Court will not

disturb the judgment of the sentencing court absent an abuse of discretion.

Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006).

         [A]n 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. In more expansive
         terms, …: 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.

         The rationale behind such broad discretion and the
         concomitantly deferential standard of appellate review is
         that the sentencing court is in the best position to determine

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         the proper penalty for a particular offense based upon an
         evaluation of the individual circumstances before it. Simply
         stated, the sentencing court sentences flesh-and-blood
         defendants and the nuances of sentencing decisions are
         difficult to gauge from the cold transcript used upon
         appellate review. Moreover, the sentencing court enjoys an
         institutional advantage to appellate review, bringing to its
         decisions an expertise, experience, and judgment that
         should not be lightly disturbed. Even with the advent of the
         sentencing guidelines, the power of sentencing is a function
         to be performed by the sentencing court. Thus, rather than
         cabin the exercise of a sentencing court’s discretion, the
         guidelines merely inform the sentencing decision.

Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62

(2007) (internal quotation marks, footnotes, and citations omitted).

      Pursuant to Section 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.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth

v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit

of pre-sentence investigation report, we can presume it was aware of relevant

information   regarding    defendant’s     character   and    weighed     those

considerations along with mitigating statutory factors).

      Here, the trial court analyzed Appellant’s sentencing claim as follows:

         In this case[,] the presentence report established that
         [Appellant] has a very long history of offenses related to
         selling narcotics and illegal possession of a firearm. Also,
         as noted by [Appellant], he has previously been before this
         [c]ourt and he was sentenced for [PWID]. In addition, the
         latest offenses, as noted at the time of sentencing, included

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         selling heroin containing fentanyl, which is widely known to
         be a very dangerous mixture. While it was noted that some
         of [Appellant’s] offenses were years before, it was also clear
         that [Appellant] had repeatedly offended in 2016 and 2017,
         and those repeat offenses were certainly not “stale.” In
         addition, despite shorter periods of incarceration for
         previous offenses, [Appellant] continued selling dangerous
         narcotics. While [Appellant’s] efforts at rehabilitation were
         noted and considered, it was also considered, as argued by
         the Commonwealth, that a sentence that reflected the
         seriousness of the offenses would be appropriate. After
         considering the sentencing code, the sentencing guidelines,
         the presentence report and the evidence presented at the
         sentencing hearing, [Appellant] was sentenced to a
         mitigated range sentence and all other sentences imposed
         were made concurrent to that sentence. Consequently,
         there was no abuse of discretion in the sentence imposed.

(Trial Court Opinion at 7). We see no abuse of the court’s broad sentencing

discretion. See Walls, supra; Fullin, supra. Therefore, even if Appellant

had properly preserved his claim and raised a substantial question, it would

merit no relief. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/2020




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