J-S17022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

STANLEY SMITH

                            Appellant             No. 3702 EDA 2015


     Appeal from the Judgment of Sentence Entered November 20, 2015
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0013743-2013


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED MAY 17, 2017

       Appellant, Stanley Smith, appeals from the November 20, 2015

judgment of sentence imposing an aggregate seven to fifteen years of

incarceration followed by five years of probation for robbery, conspiracy,

four violations of the Uniform Firearms Act, theft by receiving stolen

property, theft by unlawful taking, terroristic threats, simple assault,

recklessly endangering another person, and unauthorized use of an

automobile.1 We affirm.

       The record reveals that, on June 23, 2013 at 10:10 p.m., victim

Jasmine Rone and a friend were sitting in a car when Appellant and his

____________________________________________


1
  18 Pa.C.S.A. §§ 3701, 903, 6105, 6106, 6108, 6110.2, 3925, 3921, 2706,
2701, 2705, and 3928, respectively.
J-S17022-17


friend, Lamar, approached and asked Rone and her friend where they could

buy marijuana. N.T. Trial, 6/3/15, at 37-38, 40. Rone told them about a

location where they could obtain marijuana, after which the two men

approached a friend of Rone’s.     Id. at 38, 41, 57. Concerned about their

intentions, Rone followed them. Id. Moments after Rone’s friend entered a

club, Lamar pulled a gun, pointed it at Rone, and threatened to kill her. Id.

With Lamar holding Rone at gunpoint, Appellant searched her pockets and

removed $90.00 and car keys. Id. Both men were within two feet of Rone

during the robbery.   Id. at 42.    Appellant and Lamar departed from the

scene in the vehicle Rone had been driving. Id. at 38-39.

      Shortly after the incident, police apprehended Appellant and Lamar,

and Rone identified them. Id. at 43-44, 60. While the case was pending,

Rone received a phone call from Appellant apologizing for the incident and

asking her not to appear in court to testify against him.      Id. at 45-46.

Appellant also sent letters to Rone.       Id. at 46-47.    In addition, Rone

received a letter from Lamar, apparently by accident, in which Lamar wrote,

“them bitches is not coming to court.” Id. at 48.

      Appellant proceeded to a June 3, 2015 bench trial.       The trial court

found Appellant guilty of the aforementioned offenses.       Appellant filed a

timely motion for reconsideration of his sentence. The trial court denied that

motion on December 3, 2015.         This timely appeal followed.    Appellant

presents two questions for our review:


                                     -2-
J-S17022-17


      A. Did not the trial court err by applying the deadly weapons
         enhancement at sentencing where there was no evidence that
         Appellant used or possessed a firearm during the robbery for
         which he was convicted?

      B. Did not the trial court err and abuse its discretion when it
         imposed a manifestly excessive and clearly unreasonable
         sentence of seven to fifteen years of incarceration following
         trial, aggravating the sentence where Appellant presented
         significant mitigation, without making a contemporaneous
         statement of reasons on the record?

Appellant’s Brief at 4.

      Appellant first challenges the trial court’s application of the deadly

weapon enhancement (“DWE”), 204 Pa. Code § 303.10 and 303.17, because

Lamar, not Appellant, was holding the gun during the offense.              This issue

implicates    the   discretionary   aspects   of   the   trial   court’s   sentence.

Commonwealth v. Solomon, 151 A.3d 672, 676 (Pa. Super. 2016).

Appellant preserved this issue in a post-sentence motion and in his Pa.R.A.P.

2119(f) statement in his brief. Appellant’s Brief at 15-17. A challenge to

the trial court’s application of the DWE raises a substantial question.

Solomon, 151 A.3d at 676.           We will therefore turn to the merits of

Appellant’s argument.

              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.

Id. at 677.


                                       -3-
J-S17022-17


       The trial court applied the DWE based on Appellant’s possession (as

opposed to use) of a deadly weapon, in accord with § 303.10(a)(1).          N.T.

Sentencing, 11/20/15, at 9.2          Possession, for purposes of the sentencing

guidelines, means “[o]n a defendant’s person or within the defendant’s

immediate control.” 42 Pa.C.S.A. § 2154(b).

       Appellant argues that the DWE does not apply because his co-

conspirator held the gun, and the gun was never in Appellant’s possession or

within his immediate control.         In several cases, we have held that a gun

used by a defendant’s co-conspirator was within the defendant’s immediate

control. In Commonwealth v. Bowen, 612 A.2d 512 (Pa. Super. 1992),

appeal denied, 621 A.2d 577 (Pa. 1993), the defendant was one of six

persons who assaulted the victims. Some, possibly all of the assailants had

guns. Id. at 513-14. We held that the sentencing court erred in failing to

apply the DWE for possession of a weapon, because the defendant either

possessed a gun or was “inches away” from one of the gunmen who

participated in the crime. Id. at 515-16. Likewise, in Commonwealth v.

Hatcher, 746 A.2d 1142 (Pa. Super. 2000), the defendant and two co-

____________________________________________


2
   During sentencing, the trial court stated expressly that it would apply the
DWE matrix for possession of a weapon rather than the more severe DWE
for use of a deadly weapon. Id. An apparently erroneous footnote in the
trial court’s June 2, 2016 opinion indicates that the trial court applied the
matrix for use of a deadly weapon. Trial Court Opinion, 6/2/16, at 8 n.2.
The trial court’s opinion analyzes Appellant’s possession, not use, of the
weapon. Id. at 8-10.



                                           -4-
J-S17022-17


conspirators approached the victim and started punching him.      During the

assault, one of the co-conspirators pulled a handgun and beat the victim

with the butt of the gun. Id. at 1143. Though the defendant never held the

weapon, he was in “close physical proximity” to the co-conspirator who used

the gun. Id. at 1145. That was sufficient to demonstrate possession within

the meaning of § 2154(b).     Id.   In Commonwealth v. Pennington, 751

A.2d 212 (Pa. Super. 2000), appeal denied, 766 A.2d 1246 (Pa. 2000), the

defendant was one of five co-conspirators involved in a robbery. One man

held the victim at gunpoint while the others kicked him, punched him, and

searched his pockets.     Id. at 214-15.     This Court, citing Bowen and

Hatcher, concluded the trial court properly applied the DWE because the

gun was within the defendant’s immediate control. Id. at 216-17.

      In contrast, the DWE did not apply to a defendant who was waiting in

a getaway car several blocks from a jewelry store in which his co-conspirator

conducted an armed robbery. Commonwealth v. Greene, 702 A.2d 547,

552-53 (Pa. Super. 1997).

      Instantly, the record reveals that Appellant’s co-conspirator, Lamar,

held Rone at gunpoint while Appellant searched her pockets, removing cash

and car keys. Both men were within two feet of Rone. N.T. Trial, 6/3/15, at

42.   We therefore conclude the trial court correctly applied the DWE,

because Appellant was in close physical proximity to an armed co-

conspirator. Appellant’s first argument does not merit relief.


                                     -5-
J-S17022-17


       Next, Appellant argues that the trial court erred in imposing a

sentence within the aggravated guidelines range because the trial court

focused    solely   on    aggravating     circumstances        and   ignored   mitigating

circumstances.           This   argument       presents    a     substantial   question.

Commonwealth v. Hyland, 875 A.2d 1175, 1183-84 (Pa. super. 2005),

appeal denied, 890 A.2d 1057 (Pa. 2005).                  As noted above, Appellant

received a minimum sentence of 84 months of incarceration3. The guideline

range, considering the DWE for possession of a weapon, was 69 to 81

months, plus or minus 12 months for the aggravated or mitigated ranges.

N.T Sentencing, 11/20/15, at 4-5. Appellant’s 84-month minimum sentence

falls within the lower end of the DWE aggravated range.4 Since Appellant’s

sentence falls within the guideline range, we may vacate only if we find the

sentence clearly unreasonable. 42 Pa.C.S.A. § 9781(c)(2). In addition, we

observe the following:

             In imposing sentence, the trial court is required to consider
       the particular circumstances of the offense and the character of
       the defendant. The trial court should refer to the defendant’s
____________________________________________


3
   The trial court imposed concurrent 84-month minimum for robbery and
conspiracy to commit robbery, with other lesser sentences running
concurrently.
4
   Without the DWE, the applicable guideline range would have been 60 to
72 months, plus or minus 12. N.T. Sentencing, 11/20/15, at 5. Appellant
argues that the trial court abused its discretion in imposing a minimum
sentence at the top of the aggravated range. Appellant’s Brief at 31, 33.
Appellant’s argument, premised on his contention that the DWE did not
apply, is incorrect.



                                           -6-
J-S17022-17


      prior criminal record, age, personal characteristics, and potential
      for rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding
      the defendant’s character and weighed those considerations
      along with mitigating statutory factors.         Additionally, the
      sentencing court must state its reasons for the sentence on the
      record. 42 Pa.C.S.A. § 9721(b). The sentencing judge can
      satisfy the requirement that reasons for imposing sentence be
      placed on the record by indicating that he or she has been
      informed by the pre-sentencing report; thus properly considering
      and weighing all relevant factors.

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004) (some

citation omitted), affirmed, 891 A.2d 1265 (Pa. 2006)

      Here, the sentencing court was aware of Appellant’s background, per a

presentence investigation report, and the sentencing court heard testimony

from Appellant’s social service advocate. N.T. Sentencing, 11/20/15, at 4,

15-17.    In   accord   with   defense   counsel’s   request,   the   trial   court

recommended that Appellant serve his sentence at SCI Chester, which has

programs available to address Appellant’s mental health needs. Id. at 12,

22. The record does not support Appellant’s argument that the trial court

failed to consider pertinent mitigating circumstances.

      In summary, we have concluded that neither of Appellant’s arguments

merits relief. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.




                                     -7-
J-S17022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




                          -8-
