J-S74020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT AATIF AUSTIN

Appellant No. 2782 EDA 2015

Appeal from the Judgment of Sentence June 3, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013799-2010

BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.: FILED JANUARY 23, 2017

Robert Aatif Austin appeals from the judgment of sentence entered 

June 3, 2015, in the Philadelphia County Court of Common Pleas, which was 

made final by the denial of post-sentence motions on July 28, 2015. On 

April 8, 2015, the trial court, sitting without a jury, convicted Austin of 

aggravated assault, conspiracy to commit aggravated assault, possessing a 

firearm prohibited, carrying a firearm without a license, and carrying a 

firearm on a public street.1 The court imposed an aggregate sentence of ten 

to 20 years’ incarceration, followed by 15 years’ probation. The sole issue 

on appeal is a challenge to the discretionary aspects of sentencing. After a 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 18 Pa.C.S. §§ 2702(a), 903(c), 6105(a)(1), 6106(a)(1), and 6108.
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thorough review of the submissions by the parties, the certified record, and 

relevant law, we affirm the judgment of sentence.

The trial court set forth the factual history as follows:

On May 23, 2010, at about 1:30 a.m., Ms. Diane Pahan 

and two friends named “Bell” and Hiroshi Miwa were in the Old 

City area of Philadelphia getting out of a car when they heard 

gunfire and immediately ducked. Ms. Pahan thereafter saw two 

men run by her, one of whom was armed with a silver handgun 

and was wearing an orange t-shirt and the other a white t-shirt 

and the other a white t-shirt.2 Upon seeing the two men Ms. 

Pahan got back into the car with her two friends where they 

were soon joined by a man later identified as George Morse, the 

complainant herein, who was bleeding profusely from his 

abdomen and leg and asked to be taken to a hospital. Ms. 

Pahan and her friends immediately took him to a nearby hospital 

where Ms. Pahan returned Morse’s cell phone to friends of his. 

Ms. Pahan believed Morse was unarmed.

____________________

2

 Ms. Miwa did not see the second male.

____________________

The complainant, a Philadelphia Corrections Officer at the 

time of the incident, testified that on the night of the incident, at 

about 1:15 a.m., he and three acquaintances named Tyreek 

Stiles, “Marcus,” and “Ryell” went to Old City to attend a party at 

a Hyatt Hotel located there. When the men couldn’t gain entry 

they walked to Front Street toward their car, which was parked 

near Walnut Street, they encountered [Austin] and a second 

male staring intently at them. The second male, Nyfeese 

Saunders, made a smart remark to Morse and the men with him. 

Morse asked Saunders, “What’s the problem?,” after which they 

began arguing.

During the argument, [Austin] tried to get Saunders to 

leave. [Austin], however then began arguing with Tyreek. 

[Austin] then told Saunders that he believed that Morse was a 

corrections officer and that they should leave after which 

[Austin] and Morse shook hands. Saunders though began 
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fighting with Tyreek and Morse told Saunders that he wasn’t 

going to hit anyone and that if he wanted to get “physical” he 

could do so with him.

After Morse said that he took off a necklace he was 

wearing at which time both [Austin] and Saunders took out 

automatic handguns and began shooting at Morse, who was shot 

a couple of times as he ran down the street attempting to avoid 

injury.3 Morse however was struck several times and fell next to 

a car from where he saw the two assailants run by him. He then 

noticed three people in a car across the street one of whom 

offered to take him to a hospital. He got into their car and they 

took him to Jefferson Hospital where he underwent several 

operations for gunshot wounds to his arms, legs, and abdomen. 

During the operations, two fired projectiles were recovered from 

his body, both of which were turned over to the police.

____________________

3

 Morse testified that he did not see [Austin] fire his gun; 

only take it out.

____________________

On May 26, 2010, Morse gave an interview to police. 

During the interview, he identified a photograph of Saunders. 

He thereafter was interviewed again and on July 2, 2010, Morse 

participated in another photographic identification session. 

During it he selected a photograph of [Austin] from a photo

array. Morse indicated that he was unarmed during the affray. 

Later on the day of the shooting police went to a residence in 

Southwest Philadelphia to apprehend [Austin]. When police 

arrived, [Austin] ran into the residence at which time a SWAT 

team was called. Upon entering the residence police did not 

locate [Austin] therein.

[Austin] was eventually arrested. Following [Austin]’s 

arrest, a lineup was scheduled. It was canceled because in the 

view of the police officer who was going to conduct the lineup, 

[Austin] changed his appearance between the day of his arrest 

and the date the lineup was scheduled.

An investigation of the scene where the assailants were 

standing when they shot Morse resulted in the collection of 
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numerous spent shell casings, Morse’s watch, which had been 

shot off of his wrist, a bullet jacket, and lead fragments[.] 

Photographs were also taken, some of which depicted bullet 

strike marks.

All of the ballistic evidence was later examined by Police 

Officer Gregory Walsh of the Philadelphia Police Department’s 

Firearms Identification Unit. That examination revealed that two 

different guns were fired at the scene.

Trial Court Opinion, 12/21/2015, at 2-4.

Austin was charged with, inter alia, the above-stated crimes. Austin’s 

bench trial began on April 7, 2015. The following day, the court convicted 

Austin of the offenses set forth above. On June 3, 2015, the court imposed 

the following sentence: (1) a term of ten to 20 years’ imprisonment for the 

aggravated assault conviction; (2) a term of ten years’ probation for the 

conspiracy conviction; and (3) a consecutive term of 5 years’ probation for 

the possession of a firearms prohibited offense. The court did not impose a 

further penalty with respect to the remaining claims. Austin filed a postsentence motion to reconsider his sentence,2 which was denied on July 28, 

2015. This appeal followed.3

____________________________________________

2

 Specifically, Austin alleged his sentence was excessive under the 

circumstances and constituted an abuse of discretion. See Austin’s Motion 

to Reconsider Sentence, 6/11/2015.

3

 On September 2, 2015, the trial court ordered Austin to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Austin filed a concise statement on September 17, 2015. The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on December 21, 2015.
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In his sole issue on appeal, Austin claims he is entitled to a new 

sentencing hearing because the trial court abused its discretion by 

sentencing him in excess of the aggravated range of the sentencing 

guidelines where there were no aggravating factors warranting such a 

sentence. Austin’s Brief at 3. 

As presented, Austin’s issue challenges the discretionary aspects of his 

sentence. See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002) 

(explaining argument that sentence is manifestly excessive challenges 

discretionary aspects of sentencing). “A challenge to the discretionary 

aspects of a sentence must be considered a petition for permission to 

appeal, as the right to pursue such a claim is not absolute.” 

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007) (citations 

and quotation marks omitted). To reach the merits of a discretionary issue, 

this Court must determine: 

(1) whether appellant has filed a timely notice of appeal; (2) 

whether the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence; (3) whether 

appellant’s brief has a fatal defect; and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) 

(footnotes omitted). 

Here, Austin filed a timely notice of appeal and included the requisite 

statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief. Moreover, his 

post-sentence motion was timely filed. Therefore, we may proceed to 
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determine whether Austin has presented a substantial question that the 

sentence appealed from is not appropriate under the Sentencing Code. 

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

denied, 81 A.3d 75 (Pa. 2013).

With respect to whether an issue presents a substantial question, we 

are guided by the following:

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. See 

Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825 

(Pa. Super. 2007). “A substantial question exits 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.” 

Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932, 

2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and 

quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted). Moreover, this Court has 

previously “held that a substantial question is raised where an appellant 

alleges the sentencing court erred by imposing an aggravated range 

sentence without consideration of mitigating circumstances.” 

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012), appeal 

denied, 64 A.3d 630 (Pa. 2013).4 

____________________________________________

4

 See also Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super. 

2008) (substantial question presented with respect to “a claim that the

sentencing court imposed an unreasonable sentence by sentencing outside

the guidelines”) (citation omitted), appeal denied, 980 A.2d 606 (Pa. 2009).
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Here, Austin asserts: “[The trial court] focused primarily, if not 

exclusively, on [the] Assistant District Attorney’s misconstrued testimony 

and other irrelevant considerations, [so that] the Court abused its 

discretion.” Austin’s Brief at 14-15. To the extent that Austin’s argument 

amounts to a claim that the trial court erred by imposing an aggravated 

range sentence without consideration of mitigating circumstances, we find 

he has raised a substantial question and will proceed to an examination of 

his argument on appeal.5

The standard of review for a claim challenging a discretionary aspect 

of sentencing is well-established:

Sentencing is a matter vested in the sound discretion of 

the judge, and will not be disturbed on appeal absent a manifest 

abuse of discretion. 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. 

____________________________________________

5

 In his brief, but not set forth in the argument section, Austin implies “the 

Commonwealth made an inflammatory and clearly impermissible sentencing 

argument which certainly served no other purpose but to inflame the Court.” 

Austin’s Brief at 8. However, Austin fails to explain how this testimony was 

inflammatory. Furthermore, we note that in the transcript from the 

sentencing hearing, a sidebar was taken after the alleged inflammatory 

comment was made, which was not transcribed and therefore, we have no 

knowledge of what discussion took place between the court and the parties 

regarding the matter. N.T., 6/3/2015, at 11. Accordingly, we find this claim 

to be waived and underdeveloped and need not address it further.
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation 

omitted), appeal denied, 980 A.2d 607 (Pa. 2009). 

Moreover, when imposing a sentence, the sentencing court is required 

to “consider” the Sentencing Guidelines, but the Guidelines are “merely one 

factor among many that the court must consider in imposing a sentence.” 

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). 

When reviewing a sentence outside of the guideline range, the 

essential question is whether the sentence imposed was 

reasonable. Commonwealth v. Walls, 592 Pa. 557, 567, 926 

A.2d 957 (Pa. 2007). An appellate court must vacate and 

remand a case where it finds that “the sentencing court 

sentenced outside the sentencing guidelines and the sentence is 

unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). In making a 

reasonableness determination, a court should consider four 

factors:

(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.A. § 9781(d). A sentence may be found unreasonable 

if it fails to properly account for these four statutory factors. A 

sentence may also be found unreasonable if the “sentence was 

imposed without express or implicit consideration by the 

sentencing court of the general standards applicable to 

sentencing.” Walls, 592 Pa. at 569. These general standards 

mandate that a sentencing court impose a sentence “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. § 9721(b).
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Sheller, 961 A.2d at 190-191. Furthermore,

[i]n every case where a sentencing court imposes a sentence 

outside of the sentencing guidelines, the court must provide in 

open court a contemporaneous statement of reasons in support 

of its sentence. 42 Pa.C.S.A. § 9721; see also 

Commonwealth v. Eby, 2001 PA Super 287, 784 A.2d 204, 

205-206 (Pa. Super. 2001).

The statute requires a trial judge who intends to sentence 

a defendant outside of the guidelines to demonstrate on 

the record, as a proper starting point, [its] awareness of 

the sentencing guidelines. Having done so, the sentencing 

court may deviate from the guidelines, if necessary, to 

fashion a sentence which takes into account the protection 

of the public, the rehabilitative needs of the defendant, 

and the gravity of the particular offense as it relates to the 

impact on the life of the victim and the community, so long 

as [it] also states of record the factual basis and specific 

reasons which compelled [it] to deviate from the guideline 

range.

Commonwealth v. Gibson, 716 A.2d 1275, 1276-1277 (Pa. 

Super. 1998) (internal quotations omitted).

...

“[O]ur Supreme Court has indicated that if the sentencing court 

proffers reasons indicating that its decision to depart from the 

guidelines is not un reasonable, we must affirm a sentence that 

falls outside those guidelines.” Id. (citations omitted, emphasis 

in original).

Bowen, 55 A.3d at 1263-1264.

Turning to the present matter, at sentencing, the court indicated that 

it had reviewed the presentence investigation report (“PSI”). N.T., 
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6/3/2015, at 17.6 Austin had a prior record score of four and an offense 

gravity score of 11. Id. at 2. 

The court heard from the Commonwealth, who stated the victim was 

shot eight times, specifically describing the victim’s injuries as follows:

[The victim] was basically crucified. On his wrist, there is 

a mark on each wrist. There is a mark on each leg. He was shot 

in the knees. This is someone who, again, it is like an 

assassination attempt and to say [Austin] is less culpable 

[because he originally tried to break up the fight], I disagree.

Id. at 7-8. The Commonwealth further noted Austin was under federal and 

county supervision for two unrelated cases when he committed the present 

offense. Id. The Commonwealth also mentioned Austin had incurred five 

infractions while he was in custody for the present incident, and twice he 

had been disciplined with a finding of guilt. Id. at 11-12. 

____________________________________________

6

 We note the PSI was not included the certified record. Nevertheless, 

“where the sentencing court had the benefit of a presentence investigation 

report (‘PSI’), we can assume the sentencing court was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Moury, 992 A.2d 162, 171 (Pa. Super. 2010), quoting Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotations omitted). “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. Ventura, 975 A.2d 

1128, 1135 (Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d 

161 (Pa. 2009).
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Lastly, the Court heard allocution from Austin, in which he denied 

shooting the victim and stated he was just trying to break up the altercation. 

Id. at 15. 

At the conclusion of the hearing, the court set forth its rationale for the 

sentence:

The recollection that I have in this case is that you and your co[-

]conspirator were out to kill this complainant the way you shot 

him. You have two guns firing at an unarmed man, a 

correctional officer, fleeing down the street but for the grace of 

God, for the good grace of God, this complainant would be dead 

and you would be facing life without parole.

I didn’t see anything about breaking it up. I think it was 

an incident, which is just like many incidents in this city, a little 

spark goes off and suddenly we have to use our guns because 

we are big, bad guys.

Robert Austin, on CR-13799, on the charge of aggravated 

assault, the sentence of the Court, going above the guidelines, 9 

years with deadly weapon enhancement, I am going 1 year 

above it, which is an increase but still within the guidelines, plus 

or minus, I am sentencing you to 10 to 20 years to a state 

correctional facility, on Count 10. On Count 8, criminal 

conspiracy, I am sentencing you to 10 years[’] probation 

consecutive to the sentence I just imposed on Count 10. On 

Count 1, possession of a firearm by person prohibited from 

carrying a firearm, Section 6105 of the Uniform Firearms Act, I 

am sentencing you to 5 years[’] probation consecutive to the 

sentences imposed. No further punishment on the other 

sentences.

Id. at 15-17.

In the Rule 1925(a) opinion, the trial court further explained its 

rationale for a departure from the guidelines:

Under these [sentencing] standards, the sentence imposed 

was not unreasonable or an abuse of discretion because all of 
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the factors above were considered when this Court fashioned its 

sentence. This Court reviewed pre-sentence reports and 

carefully considered the facts of the case, which showed that 

[Austin] fired numerous shots at an unarmed man on a busy 

Philadelphia street following a minor dispute. It was only due to 

the actions of persons not involved in the matter, who took the 

complainant to the hospital that the complainant did not expire. 

In doing so, [Austin] demonstrated that he is a danger to the 

community and that a lengthy criminal sentence was necessary 

to protect the public. Given all of the foregoing, it is suggested 

that the instant claim be deemed lacking in merit because it is 

clear that the sentence imposed herein was not unreasonable, 

did not constitute an abuse of discretion, and that the Court 

considered all of the required factors in fashioning [Austin]’s 

sentence. See Commonwealth v. Griffin, 804 A.2d 1 (Pa. 

Super. 2002) (where a judge who makes a discretionary 

sentencing decision has been fully informed of pertinent facts, 

his discretion should not be disturbed).

Trial Court Opinion, 12/21/2015, at 9.

Based upon our standard of review, we conclude the trial court did not 

abuse its discretion in sentencing Austin outside the guideline range. 

Contrary to Austin’s argument, it is evident from the sentencing hearing and 

the Rule 1925(a) opinion that the court did indeed consider the required 

factors under Section 9781(d). Moreover, the court acknowledged its 

understanding of the sentencing guidelines, and did articulate a sufficient 

statement of reasons for sentencing Austin one year above the aggravated 

range. 

Furthermore, the court indicated it had reviewed and relied on the PSI. 

See Moury, 992 A.2d at 171. The court also articulated its concern for the 

protection of the community, including the victim. The court emphasized 

the reckless nature of Austin’s actions on the night in question. The court
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provided further explanation for the sentence imposed in its Rule 1925(a) 

opinion, and these additional comments support its decision. Accordingly, 

Austin has not demonstrated that his sentence was “unreasonable.” 42 

Pa.C.S. § 9781(c)(3). Therefore, Austin’s discretionary sentencing claim 

fails, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/2017