J-S10041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ARTUMISE GORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1131 EDA 2022

Appeal from the Judgment of Sentence Entered November 16, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No: CP-51-CR-0001594-2017

BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2023

Appellant, Artumise Gore, appeals from his judgment of sentence of 4-

8 years’ imprisonment for robbery and other offenses. He contends that the 

court abused its discretion by sentencing him above the standard range of the 

Sentencing Guidelines. Finding that the court acted within its discretion, we 

affirm.

The trial court, per the Honorable Genece Brinkley, summarized the 

evidence adduced during trial as follows:

Rochelle Goines . . . testified that she and [Appellant] went to 

elementary, junior high, and high school together. She stated that 

they lost contact afterward and reconnected through Facebook in 

July of 2016. The two started dating around that time and 

[Appellant] moved into Goines’s home, at 66th and Guyer Streets

in Philadelphia, by September 2016. 

Goines testified that on Saturday, September 10, 2016, she 

noticed that her ATM card was missing. She testified that she 

normally kept it in a wallet attached to her phone case and noticed 

that it was no longer in the wallet. She testified that [Appellant] 
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is the only other person who lived with her at the time. Goines 

testified that she allowed [Appellant] to borrow her ATM card once 

before when she was sick in order to buy her soup. She provided 

him the PIN at that time. Goines maintained that she did not give 

[Appellant] permission to take or use her ATM card at this time. 

Goines testified that on September 15, 2016, [Appellant] asked 

her to walk with him approximately one block to the takeout 

Chinese store around the corner from her house around 11:45 

p.m. When they arrived at the store, [Appellant] withdrew 

Goines’s ATM card from his wallet to pay for the food. Goines 

testified that is when she realized that he had her card. 

[Appellant] asked her to pay for the food. Goines refused and 

explained that she needed the money to pay for rent. She testified 

that he tried to pull the card out of her hand, so she snatched it 

from him and started running away. As she ran away from the 

store, he chased her and tackled her from behind, causing her to 

fall in the middle of the street. When [Appellant] tackled Goines, 

she fell forward with her hands in front of her, which caused cuts 

on her hands. While she was on the ground laying on her 

stomach, [Appellant] was on her back repeatedly punching her in 

the back, right side of the head. Goines testified that she began 

calling for help. Goines explained that she was able to roll over 

onto her back and pushed [Appellant] off of her with her knees 

and hands. At that point, she got up and started running. Goines 

testified that one of her shoes fell off when [Appellant] tackled 

her, so she kicked the other shoe off in order to run towards 67th 

Street. Goines then threw her ATM card in a grassy area next to 

the takeout store.

Goines testified that [Appellant] tackled her for a second time. 

[Appellant] then raised Goines to her feet by lifting her by her 

ponytail. [Appellant] kept asking where her ATM card was while 

Goines continued to yell for help. Goines testified that she 

explained that she had her hands up and told him she didn’t know 

where it was and that she must have dropped the card. 

[Appellant] pulled down Goines’s shirt to expose her breasts and 

rummaged through her bra. [Appellant] then searched the 

pockets of her pants and reached his hands inside her pants 

outside of her underwear. [Appellant] retrieved her ID and house 

keys from Goines’s pockets but was unable to find the card. At 

that point, Goines noticed a police car driving down Dicks Avenue. 
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[Appellant] embraced Goines in an apparent hug and began 

kissing her neck. As the police car approached, Goines called for 

help and the police approached. Goines testified that she tried to 

explain the situation to a female police officer. She explained that 

[Appellant] had her house keys and ID and requested the officer 

retrieve them for her. The officer asked [Appellant] whether he 

had any of Goines’s belongings and he said no. At that point, the 

officer asked Goines what she wanted to do. Goines requested

that the officer transport her to the hospital to address the cuts 

on her hands, elbows, and feet and the scratch on the back of her 

neck caused by [Appellant]. Goines testified that she was treated 

at the hospital for abrasions that took approximately 2 to 4 weeks 

to heal completely. 

After being released from the hospital, Goines went to Southwest 

Detectives in order to follow up on her report. Goines testified 

that photographs were taken of her injuries and confirmed the 

pictures the Commonwealth presented to her were the pictures 

taken by the detectives. She further testified that she had 

personal knowledge that her bank account was missing $698. 

She lives paycheck to paycheck and was waiting for a direct 

deposit in that amount. After the incident described with 

[Appellant], there was only $2 left in her bank account. Goines 

testified that no one other than [Appellant] knew her pin number 

for her bank account. Goines testified that her bank statement 

reflected someone made a balance inquiry, then made repeated 

withdraws in $100 increments that incurred additional fees and 

charges.

Goines testified that after this incident, she received text 

messages and messages through social media from [Appellant]. 

In the messages, [Appellant] professed his love for Goines and 

apologized for an incident that occurred September 15, 2016. On 

cross examination, Goines denied being drunk or high on crack 

the night of September 15, 2016. Defense counsel questioned 

Goines why [Appellant] would pull out her ATM card, hand it back 

to her, and ask her to withdraw money if he already had the means 

to withdraw money himself. Goines corrected aspects of defense 

counsel’s question in order to repeat the story she described 

previously. 

Trial Court Opinion, 9/10/18, at 2-4.
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Following a bench trial, the Honorable Pamela Dembe found Appellant 

guilty of robbery, theft by unlawful taking, and simple assault. On September 

14, 2017, Judge Dembe sentenced Appellant to 4-8 years’ imprisonment for 

robbery, a concurrent term of imprisonment for theft, and a consecutive term 

of 5 years’ probation for simple assault, graded as a first-degree misdemeanor. 

Appellant did not file a notice of appeal. In early 2018, Appellant filed a PCRA 

petition alleging that defense counsel was ineffective for failing to file a direct 

appeal. On May 10, 2019, the court ordered Appellant’s direct appeal rights 

reinstated nunc pro tunc. 

Appellant appealed to this Court, which held that Judge Dembe imposed 

an illegal sentence. We reasoned that Appellant’s simple assault conviction 

was a second-degree misdemeanor instead of a first-degree misdemeanor, 

and his sentence of five years’ probation exceeded the lawful maximum for 

second-degree misdemeanors. Accordingly, we remanded for resentencing on 

all counts of conviction. 

On August 21, 2019, a resentencing hearing was held before Judge 

Brinkley due to Judge Dembe’s retirement. Judge Brinkley resentenced 

Appellant to an aggregate term of 5-10 years’ imprisonment. Appellant 

appealed to this Court, which remanded for resentencing on June 1, 2021, 

because it was unclear from the record whether Judge Brinkley was aware 

that she was sentencing Appellant outside the guidelines. Commonwealth 

v. Gore, 2021 WL 2287485 (Pa. Super. June 1, 2021).
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On November 16, 2021, Judge Brinkley convened another sentencing 

hearing. The Commonwealth recommended an aggregate sentence of 5-10 

years’ imprisonment, while defense counsel recommended a standard 

guideline sentence. Judge Brinkley sentenced Appellant to an aggregate term 

4-8 years of incarceration, the same sentence originally imposed by Judge 

Dembe, and explicitly stated on the record that it was imposing an aboveguideline sentence. N.T., 11/16/21, at 9. Appellant filed timely post-sentence 

motions, which were denied, and a timely appeal, the appeal presently under 

review. Both Appellant and Judge Brinkley complied with Pa.R.A.P. 1925.

Appellant raises a single issue in this appeal, “Whether the trial court 

erred when it sentenced [Appellant] outside the Pennsylvania Sentencing 

Guidelines for the criminal offense of robbery (F2), which was unreasonable 

and manifestly excessive?” Appellant’s Brief at 4.

This is a challenge to the discretionary aspects of Appellant’s sentence. 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932, 

935 (Pa. Super. 2013). Before reaching the merits of a discretionary aspects 

issue, this Court must conduct a four-part test to determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his or her issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence; and (4) whether 

the concise statement raises a substantial question that the 

sentence is appropriate under the Sentencing Code.
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Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). “To 

preserve an attack on the discretionary aspects of sentence, an appellant must 

raise his issues at sentencing or in a post-sentence motion. Issues not 

presented to the sentencing court are waived and cannot be raised for the first 

time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. 

Super. 2006).

Here, Appellant timely filed a notice of appeal, preserved his issues in 

his post-sentence motion, and included a Rule 2119(f) statement in his brief. 

We further conclude that Appellant has raised substantial questions for our 

review. Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“[a] 

claim that a sentence is manifestly excessive such that it constitutes too 

severe a punishment raises a substantial question”); Commonwealth v. 

Curran, 932 A.2d 103, 105 (Pa. Super. 2007) (“a claim that the sentencing 

court sentenced outside the sentencing guidelines presents such a substantial 

question”). Therefore, we will address Appellant’s claims.

Our review is governed by the following principles:

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.
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).

Additionally, our review of the discretionary aspects of a sentence is governed 

by 42 Pa.C.S. § 9781(c) and (d):

(c) Determination on appeal.—The appellate court shall vacate 

the sentence and remand the case to the sentencing court with 

instructions if it finds:

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly unreasonable; or

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

(d) Review of record.—In reviewing the record the appellate 

court shall have regard for:

(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(c)-(d). 

This Court has further explained:

Where ... a 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(b).

[A sentencing] judge ... [must] 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 
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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.

* * *

[W]hen deviating from the sentencing guidelines, a trial judge 

must indicate that [s]he understands the suggested ranges. 

However, there is no requirement that a sentencing court must 

evoke “magic words” in a verbatim recitation of the guidelines 

ranges to satisfy this requirement. Our law is clear that, when 

imposing a sentence, the trial court has rendered a proper 

contemporaneous statement under the mandate of the 

Sentencing Code so long as the record demonstrates with clarity 

that the court considered the sentencing guidelines in a rational 

and systematic way and made a dispassionate decision to depart 

from them.

Commonwealth v. Beatty, 227 A.3d 1277, 1287-88 (Pa. Super. 2020).

Further, when the sentencing court is informed by a presentence report, 

it is presumed that the court is aware of all appropriate sentencing factors and 

considerations and, where the court has been so informed, its discretion 

should not be disturbed. Commonwealth v. Ventura, 975 A.2d 1128, 1135 

(Pa. Super. 2009). 

Finally, the court may depart from the guidelines if it is necessary to 

fashion a sentence which considers the protection of the public and the gravity 

of the particular offense as it relates to the impact on the life of the victim and 

the community. Commonwealth v. Durazo, 216 A.3d 316, 320 (Pa. Super. 

2019). 
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In the present case, at sentencing on November 16, 2021, counsel for 

Appellant recommended a standard guidelines sentence carrying a minimum 

sentence of 24-30 months. Counsel argued that Appellant was progressing 

with rehabilitation in prison by completing a drug treatment program and a 

violence prevention program, participating in the “Batterer’s” violence 

prevention program, and working towards his GED. The Commonwealth 

requested a sentence of 5-10 years, noting that (1) the victim was still terrified 

of Appellant, (2) Appellant blamed the victim for the incident in the 

presentence investigation, and (3) Appellant has a history of probation 

violations, including an instance where he was released on bail and 

immediately threatened the victim. Appellant spoke on his own behalf and 

accepted full responsibility for his actions. Judge Brinkley expressly stated 

that Appellant’s sentence was 4-8 years’ imprisonment for robbery, a sentence 

she expressly stated was “above and outside the guidelines.” N.T., 11/16/21, 

at 32.

Judge Brinkley explained her reasons for departing from the guidelines 

as follows:

On the charge of robbery the sentence is four to eight years. This 

sentence is above and outside the guidelines. The reasons for the 

sentence include the same information that I just read into the 

record concerning [Appellant’s] recidivism while on federal 

probation and the long history of criminal activity despite being on 

federal probation, as well as the victim’s impact statement 

indicating that she is still afraid of [Appellant] and the lasting 

impact that this crime has had on her over the years. 
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The court has also taken into consideration everything that 

[Appellant] has said, in particular what he said today, regarding 

his treatment programs and his willingness to apologize to the 

victim. I believe that this sentence of four to eight years is an 

appropriate sentence even though it is above and outside the 

guidelines for the reasons that I gave today and the reasons that 

I read into the record today.

N.T., 11/16/21, at 32-33. Judge Brinkley reviewed a presentence report, a 

victim impact statement, and a memo dated July 25, 2019 from the 

Pennsylvania Department of Corrections (“DOC”). Judge Brinkley observed 

that the DOC memo

stated that Defendant was still on federal probation and that he 

did poorly on community supervision and violated every term

imposed. His violations include absconding supervision, not

completing court orders, drug treatment, incurred new arrests 

while on probation. In all, he has eight violations, six revocations 

and one pending revocation here in Federal Court. The current 

matter he was in direct violation of his federal probation. It is 

important to note [that] the next [paragraph] . . . shows he has

been . . . continuously supervised on probation, parole or 

incarcerated since 1992. In that time he had only a total of eleven 

and a half months free of some form of court supervision or not 

incarcerated. In short, he spent nearly all but eleven months in 

the past twenty-five years on court supervision or was 

incarcerated. Since then nothing has changed in his life despite 

the implementation of various county probations, state and 

federal programs. He continues to not be amenable to county or 

any supervision—each time he’s released from custody he either 

absconds or does not rema[in] committed to his treatment 

program or his sobriety. It is not long after each release he comes 

to be incarcerated. He still believes he’s in control of his addiction 

and that he does not need treatment. He said he blames the 

victim, his ex-girlfriend for falsely accusing him of this crime. And 

it goes on.

Id. at 27-28.
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For multiple reasons, the sentence for Appellant’s attack and robbery of 

the victim was a proper exercise of discretion. Judge Brinkley resentenced 

Appellant to the same aggregate sentence that Judge Dembe imposed at the 

original sentencing hearing. Her sentence was within the statutory maximum 

and less than the sentence recommended by the Commonwealth. She 

explicitly stated on the record that she was aware that her sentence was above 

the guidelines, thus rectifying her failure in the previous sentencing hearing 

to mention this detail. Beatty, 227 A.3d at 1287-88. 

Furthermore, Appellant’s sentence was reasonably related to the gravity 

of his offense. Appellant stole the victim’s debit card and emptied her account. 

He fought with her over the debit card, chased her down the street, and 

tackled her from behind. He then repeatedly punched her in the head. When 

the victim was able to momentarily break free from Appellant’s grasp, he

chased after her again, grabbed hold of her, and resumed punching her. When 

the victim fell to the ground, Appellant pulled her up by her hair. He then 

pulled down the victim’s shirt, rummaged through her bra, exposed her 

breasts and put his hand down her pants. 

In addition, Appellant’s crime had a significant impact on the victim. 

The victim informed the court that the attack made her distrustful of people 

and that she was still afraid that Appellant would come after her. Moreover, 

Appellant’s bail had to be revoked before trial because he was improperly 

sending the victim messages on social media. 
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Judge Brinkley properly determined that Appellant had little chance of 

rehabilitation, given his extensive criminal record, including numerous arrests, 

convictions and violations of probation and parole, and his history of drug use. 

Judge Brinkley further considered the evidence presented by the 

defense. She heard argument by defense counsel for a mitigated sentence, 

and she considered a report prepared by the Department of Corrections 

detailing the treatment programs Appellant had completed while incarcerated.

The court also heard Appellant’s allocution in which he accepted responsibility

for his actions. Judge Brinkley, however, had the discretion to conclude that 

any mitigating factors, such as Appellant’s background, display of remorse, 

and personal character, were outweighed by various aggravating factors. This 

Court cannot second-guess Judge Brinkley’s consideration of the evidence. 

See, e.g., Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) 

(this Court “cannot re-weigh the sentencing factors and impose our judgment 

in the place of the sentencing court”). 

Finally, Judge Brinkley had the benefit of Appellant’s presentence 

investigation report, so she presumably was aware of all appropriate 

sentencing factors and considerations and took them into account. Ventura, 

975 A.2d at 1135.

For these reasons, we conclude that Appellant’s sentence was a proper 

exercise of discretion, and we affirm.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2023