J-A17014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ARMONTI WOMACK                           :
                                          :
                    Appellant             :   No. 2744 EDA 2018

       Appeal from the Judgment of Sentence Entered May 30, 2018
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0006811-2016


BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                    FILED NOVEMBER 07, 2019

      Armonti Womack appeals from the judgment of sentence imposed

following his guilty plea conviction of possession of a firearm with an altered

serial number, carrying a firearm without a license, and carrying a firearm in

public in Philadelphia. Appellant challenges the discretionary aspect of his

sentence, claiming that the court erred when it considered evidence of arrests

for which he had not yet been tried, and abused its discretion in imposing an

above the guidelines sentence without stating an adequate reason. We affirm.

      On April 5, 2016, Philadelphia police officers Reuben Henry and Riccardo

Hanton pulled over Appellant’s SUV after watching it run through a stop sign.

Upon approaching the vehicle, Officer Henry smelled a strong odor of

marijuana, and so asked Appellant and his passenger to step out of the car.

Once they were out of the car, Officer Hanton observed a handgun stuck in
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between the driver’s seat and the center console. The officers then placed

Appellant under arrest.

      On October 5, 2017, Appellant pleaded guilty to the aforementioned

violations of the uniform firearms act. The trial court deferred sentencing while

awaiting a presentence investigation report (PSI).

      During sentencing on May 30, 2018, the parties agreed that the offense

gravity score was ten, prior record score was zero, and therefore the guideline

sentencing range was not less than twenty-two nor more than thirty-six

months of incarceration. The parties also stated that they had the opportunity

to review the PSI and mental health evaluation.

      Defense counsel emphasized Appellant’s parental support, that he held

a job at the time of the arrest, he does not have a significant drug addiction

problem, and he plans to go back to college where he hopes to play football.

See N.T. Sentencing, 5/30/18, at 5-10. Counsel acknowledged Appellant’s

arrests that occurred subsequent to this case, both of which involved

weapons.

      The parties agreed that, while on bail in the instant matter, Appellant

was arrested in New York in June 2017, for carrying a firearm in McDonalds in

Times Square. He was placed on bail for the New York case and came back to

Philadelphia. In November 2017, Appellant was arrested in Philadelphia for

possession of a firearm, which officers recovered during a traffic stop.

Appellant was subsequently arrested for pointing a gun and shooting it at his




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ex-girlfriend, after ballistics testing matched the traffic stop weapon to a bullet

fragment found in her apartment.

      The court then found that the sentencing guidelines “significantly

underrepresent [Appellant’s] inclination to commit violent crimes and/or carry

firearms,” and that “his persistence in carrying firearms is unrelenting even

while on bail, which shows a defiance of authority that indicates very clearly

that there’s a need to protect society” from Appellant. Id. at 18. The court

sentenced Appellant to not less than five nor more than ten years of

incarceration, concurrent on each count, followed by five years of probation.

The court denied Appellant’s timely post-sentence motions, and this timely

appeal followed.

      Appellant raises two issues on appeal.

      1. [Whether] the [sentencing] court err[ed] when it treated
         Appellant’s open charges as proof of criminal conduct?

      2. [Whether] the [sentencing] court err[ed] in sentencing
         Appellant to an above-guidelines sentence without adequately
         addressing its reasons for departing from the guidelines on the
         record?

Appellant’s Brief, at 3.

      Appellant concedes both of his arguments raise challenges to the

discretionary aspect of his sentence. See id. at 10. Challenges to the

discretionary aspects of a sentence do not entitle an appellant to review as a

matter of right. Rather, an appellant must comply with the following

requirements before this court can address such a challenge.




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      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:
      (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.

Commonwealth v. Swope, 123 A.3d 333, 337 (Pa. Super. 2015) (citation

omitted).

      In the instant case, Appellant preserved his issues by timely filing his

notice of appeal and post-sentence motion. Furthermore, Appellant’s brief

includes a concise statement of reasons relied on for allowance of appeal

pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief, at 10-11. Therefore, we

must determine whether Appellant presents a substantial question that the

sentence appealed from is not appropriate under the sentencing code. See

Swope, 123 A.3d at 337.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. Further:

            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. at 338 (quotation marks and citations omitted).

      In his first issue, Appellant argues that the sentencing court relied on

an improper factor at sentencing when it treated evidence of his arrests as

proof of criminal conduct. See Appellant’s Brief, at 12-15. Appellant contends


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that this claim raises a substantial question because the court relied on an

impermissible factor—treating his arrests as proof of criminal conduct—when

it imposed sentence. See id. at 10. An allegation that the sentencing court

relied upon impermissible factors raises a substantial question. See

Commonwealth v. P.L.S., 894 A.2d 120, 127 (Pa. Super. 2006).

Accordingly, we will review Appellant’s claim on the merits.

           Our standard of review of a challenge to the discretionary
      aspects of sentence is well-settled:

                   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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation

omitted).

      When it imposes sentence, a court may consider prior arrests as long as

it does not treat the arrests as convictions or give them undue weight. See

Commonwealth v. Allen, 489 A.2d 906, 912 (Pa. Super. 1985). “This is

because the sentencing judge must neither ignore the presumption of

innocence nor regard defendant’s prior arrest record as showing criminal

conduct.” Id. at 912 n.4 (citations omitted).

      Here, the sentencing court considered Appellant’s prior arrests in

addition to the arguments of counsel, the presentence report, mental health

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evaluation, sentencing guidelines, Appellant’s criminal history as a whole, the

particular circumstances of this case, and mitigating factors such as

Appellant’s acceptance of responsibility, personal history and family support.

See N.T. Sentencing, 5/30/18, at 18-19. The court recognized that the arrest

record referred to charges which had not been disposed of, stating: “while

recognizing that [Appellant is] not guilty of the offenses charged in the new

cases, any evidence available about that may and should be considered by

me.” Id. at 17.

      We conclude that the sentencing court did not treat Appellant’s arrests

as convictions or give them undue weight. It appropriately recognized that

while on bail in the instant matter, Appellant was arrested three times, all

involving firearms. Accordingly, the sentencing court did not rely on an

impermissible factor when imposing sentence. Appellant’s first issue does not

merit relief.

      In his second issue, Appellant claims that the sentencing court abused

its discretion when it imposed an above guidelines sentence without placing

adequate reasons on the record. Specifically, he argues that the reasons put

forth by the court to justify an above guidelines sentence were inadequate

because they were based on Appellant’s arrests without disposition. See

Appellant’s Brief, at 19-21. “Claims that the sentencing court imposed a

sentence outside the standard guidelines without stating adequate reasons on

the record presents a substantial question.” Antidormi, 84 A.3d at 759

(citations omitted). Accordingly, we review the merits of Appellant’s claim.

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            In every case in which the court imposes a sentence for a
      felony or a 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. The
      sentencing guidelines are not mandatory, and sentencing courts
      retain broad discretion in sentencing matters, and therefore, may
      sentence defendants outside the [g]uidelines. In every case where
      the court imposes a sentence outside the guidelines adopted by
      the Pennsylvania Commission on Sentencing the court shall
      provide a contemporaneous written statement of the reason or
      reasons for the deviation from the guidelines. However, this
      requirement is satisfied when the judge states his reasons for the
      sentence on the record and in the defendant’s presence.
      Consequently, all that a trial court must do to comply with the
      above procedural requirements is to state adequate reasons for
      the imposition of sentence on the record in open court.

            When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant’s prior criminal record, age, personal characteristics
      and potential for rehabilitation. Where pre-sentence reports exist,
      we shall presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.

Id. at 760-61 (citations, quotation marks, brackets and ellipses omitted).

      Here, in addition to considering the sentencing factors, the sentencing

court explained its reasons for departing from the sentencing guidelines on

the record, stating:

             This court finds that the sentencing guidelines in this case
      significantly underrepresent the defendant’s inclination to commit
      violent crimes and/or carry firearms. His persistence in carrying
      firearms is unrelenting even while on bail, which shows a defiance
      of authority that indicates very clearly that there’s a need to
      protect society from this defendant.

           This court also finds that the defendant’s rehabilitative
      needs call for substantial confinement. He is not a candidate for


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      supervision at this time. This court finds that a state sentence
      might even serve to protect the defendant himself from whatever
      he’s doing.

N.T. Sentencing, at 18-19 (unnecessary capitalization omitted).

      We discern no abuse of discretion. The sentencing court had the benefit

of a presentence investigation report, and heard extensive argument from

both parties concerning Appellant’s arrest record. As discussed, we conclude

that the court appropriately considered the arrests as simply arrests, and did

not treat them as convictions or give them undue weight. The sentencing court

clearly stated its reasons for imposing an above guidelines sentence, which

included such arrests, on the record at the time of sentencing. Appellant’s

second issue does not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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