J-S06020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GEORGE WESTBROOK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3693 EDA 2016

Appeal from the Judgment of Sentence Entered on July 27, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0012208-2014

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 23, 2018

George Westbrook appeals from the judgment of sentence imposed 

following his convictions for aggravated assault, persons not to possess 

firearms, and possession of an instrument of crime.1 Westbrook claims his 

sentence, which was above the standard range of the Sentencing Guidelines, 

was an abuse of discretion. We affirm. 

The relevant facts and procedural history are as follows. On May 1, 

2014, Westbrook met with Andrew Keeys at Keeys’ apartment. After seeing 

a text message in Keeys’ phone, Westbrook became angry and pulled a gun

from his waistband and ordered Keeys to lie on the floor. After a brief 

struggle between the two, Westbrook shot Keeys in the area of his left 

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1 18 Pa.C.S.A. §§ 2702(a), 6105(a)(1), and 907(a), respectively. 
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shoulder. On May 20, 2016, a jury found Westbrook guilty of aggravated 

assault and possession of an instrument of crime. The same day, Westbrook 

waived his right to a jury trial for the charge of persons not to possess 

firearms and after a bench trial, the trial court found him guilty of that 

charge. The trial court then ordered a pre-sentence investigation report with 

a mental health evaluation.

The trial court later sentenced Westbrook on July 27, 2016 to a term 

of ten to 20 years’ imprisonment for aggravated assault; a consecutive term 

of two and a half to five years’ imprisonment for possession of an instrument 

of crime; and two and a half to five years’ imprisonment for persons not to 

possess firearms to run consecutive to the sentence on the aggravated 

assault charge but concurrent to the sentence for the possession of an 

instrument of crime charge. Westbrook’s aggregate sentence was 121⁄2 to 25

years’ imprisonment. The sentence was above the aggravated range of the 

Sentencing Guidelines. 

Westbrook filed a Post-Sentence Motion on July 29, 2016, which was 

denied by operation of law on November 29, 2016. On December 2, 2016, 

he filed a timely Notice of Appeal. The trial court ordered, and Westbrook 

timely filed, a Concise Statement of Errors Complained of on Appeal 

pursuant to Pa.R.A.P. 1925(b). On May 24, 2017, the trial court filed its 

opinion pursuant to Pa.R.A.P. 1925(a).
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Westbrook raises one question for our review:

Did not the lower court abuse its discretion and violate due 

process by imposing an unreasonable aggregate sentence 

of twelve-and-a-half to twenty-five years, a sentence 

above the aggravated guideline range, by not 

differentiating prior arrests and convictions, by issuing an 

above guidelines sentence without stating its reasons for 

doing so, and by failing to state adequate reasons for 

issuing consecutive sentences?

Appellant’s Brief at 3.

Westbrook challenges the trial court’s discretion in imposing sentence. 

As such, we must conduct a four-part analysis before reaching the merits of 

his claim. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). 

We must determine: (1) whether present appeal is timely, (2) whether the 

instant issue argued was properly preserved, (3) whether a statement was 

filed pursuant to Pa.R.A.P. 2119(f), and (4) whether there is a substantial 

question that the sentence is not appropriate under the Sentencing Code. 

Id.

In the instant case, Westbrook timely filed a Notice of Appeal, and 

properly preserved his claims challenging the discretionary aspects of 

sentencing in his Post-Sentence Motion. Westbrook also included a Pa.R.A.P. 

2119(f) Statement in his brief. Appellant’s Brief at 10-11. Finally, Westbrook 

has presented substantial questions for our review. Westbrook contends that 

the trial court failed to state adequate reasons for deviating from the 

Sentencing Guidelines, which raises a substantial question. See 
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Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa.Super. 2008). His 

additional argument that the trial court relied on impermissible factors in 

fashioning his sentence also raises a substantial question. Appellant’s Brief 

at 3; Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa.Super. 2006). 

Sentencing is within the discretion of the trial court and thus will not 

be disturbed absent an abuse of discretion. Commonwealth v. Jones, 640 

A.2d 914, 916 (Pa.Super. 1994). The only limitations on this discretion are 

that the sentence imposed must be within the statutory limits; the record 

must show that the court considered the Sentencing Guidelines; and if the 

court deviates from the Sentencing Guidelines, the record must include a 

statement of reasons for the departure. Commonwealth v. Warren, 84 

A.3d 1092, 1097 (Pa.Super. 2014). When imposing a sentence, the court 

must consider the protection of the public, the gravity of the offense as it 

relates to the impact on the victim and the community, the defendant’s 

rehabilitative needs, and the Sentencing Guidelines. Commonwealth v. 

Feucht, 955 A.2d 377, 383 (Pa.Super. 2008). 

Westbrook contends that the trial court considered two improper 

factors when it fashioned his sentence: his prior convictions, which he notes 

were accounted for by his prior record score, and his prior arrests, which he 

argues the trial court treated as if they were convictions. The 

Commonwealth did not file an Appellee’s Brief in this Court.
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Westbrook is correct that prior convictions are accounted for in the 

prior record score, and a prior conviction therefore may not be used to 

impose an aggravated range sentence. See 204 Pa.Code § 303.5;

Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa.Super. 2000). But 

see Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa.Super. 2008)

(stating even where sentencing court relies on improper factor, there is no 

abuse of discretion if court has significant other support for departing from 

Sentencing Guidelines). 

Westbrook is incorrect, however, that the trial court’s “extended” 

discussion of his prior record shows that the court considered it as an 

aggravating sentencing factor. Appellant’s Brief at 13. To the contrary, the 

court never stated that it was using Westbrook’s prior record as an 

aggravating sentencing factor. Rather, the trial court referred to Westbrook’s

history of arrests and convictions as part of its explanation of its sentence: 

assessment of Westbrook’s potential for rehabilitation and the need to 

protect the community:

You, sir, have a terrible record . . . . What strikes me here is that 

your first arrest as a 17 year old was for aggravated assault, for 

which you were adjudicated delinquent. And here you are 12 

years later and we’re back again with an aggravated assault 

charge. We simply cannot have folks walking the street who can 

visit violence on a fellow citizen in the manner that you did in 

this case. 

N.T., Sentencing Hearing, 7/27/16 at 35. 
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Furthermore, although the court made reference to Westbrook’s 

arrests and convictions as both a juvenile and an adult, it is clear that the 

court was making a complete record of the evidence that was presented to it 

for purposes of sentencing. This is supported by what the trial court stated 

to Westbrook prior to the discussion of his record:

I want you to appreciate that our judicial system requires that 

sentencing be individualized; that is that we look at Mr. 

Westbrook’s need for rehabilitation, who he is, his position in 

life. But we must also take into account society’s need for 

protection.

Id. at 34. 

The court thus did not improperly consider Westbrook’s prior record as 

an aggravating factor. Moreover, even if the trial court had considered his 

prior record as an aggravating factor, doing so would not have been an 

abuse of discretion because his prior record was not the sole reason for his 

aggravated sentence. See Sheller, 961 A.2d at 192. The trial court stated 

that it considered all the requisite factors such as society’s need for 

protection, Westbrook’s need for rehabilitation, and the gravity of the 

offense. N.T., Sentencing Hearing, 7/27/16 at 37. The court expressly stated 

that it gave due consideration to the Sentencing Guidelines and read the 

pre-sentence investigator’s report as well as the mental health evaluation,

which included the mitigating factor of Westbrook’s rough upbringing. Id. at 

36.
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Westbrook also claims that the trial court conflated his prior arrests 

with criminal convictions. However, the record is clear that the court 

distinguished among Westbrook’s arrests, adjudications of delinquency, and

criminal convictions:

When I review the reports ordered for assistance of sentence in 

this case, I see that you have four arrests as a juvenile and 

three adjudications of delinquency; nine arrests as an adult and

five convictions.

Id. at. 35-36.

The court’s review of Westbrook’s arrest, delinquency, and criminal 

history was not improper. See Commonwealth v. Johnson, 481 A.2d 

1212, 1214 (Pa.Super. 1984) (stating sentencing court may consider 

defendant’s prior arrests which did not result in convictions, as long as court 

recognizes that defendant was not convicted of the charges). 

Westbrook next contends that the trial court failed to state its reasons 

for imposing his consecutive sentences. Appellant’s Brief at 14-15. Even 

assuming for purposes of argument only that this claim states a substantial 

question,2this claim lacks merit.

The trial court heard testimony from Westbrook’s mother and his 

child’s mother who spoke about his character and their support for him. 

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2 See Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012) 

(en banc) (stating challenge to imposition of consecutive sentences states a 

substantial question if consecutive sentences “raise[] the aggregate 

sentence to, what appears upon its face to be, an excessive level in light of 

the criminal conduct at issue in the case.”). 
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N.T., 7/27/16 at 17-25. Additionally, the court heard from the victim in the 

case, Mr. Keeys, by way of a victim impact statement that the prosecutor

read into the record. Id. at 28-33. The court also considered the presentence investigation report as well as the mental health evaluation. Id. at. 

36-37.

The court then, contrary to Westbrook’s claim on appeal, explained 

how it had settled on the sentence it imposed on Westbrook. The court 

explained that Westbrook’s four arrests as a juvenile and three adjudications 

of delinquency, and nine arrests as an adult and five criminal convictions 

showed that despite multiple prior opportunities at rehabilitation, Westbrook 

had reoffended. Id. For that reason, the court concluded that the risk of 

recidivism to be high, and stated, “We simply cannot have folks walking the 

street who can visit violence on a fellow citizen in the manner that you did in 

this case.” Id. at 35-36. The court also noted that Westbrook’s mother had 

abused him and his father had abandoned him, but also pointed out that 

Westbrook had now abandoned his own two children. Id. at 36. The court 

then identified all of the all of the factors that it had considered in sentencing 

Westbrook:

I have taken into consideration Mr. Westbrook, all of the factors 

I’m required to, those imposed on this Court by our appellate 

courts, as well as those imposed by the legislature. I’ve given 

due consideration to the guideline computations. I have read the 

presentence investigator’s report and the mental health 

evaluation. I have considered your need for rehabilitation as well 

as society’s need for protection. And I have taken into account 

the gravity of the offense on which the jury found you guilty.
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Id. at 37. 

Westbrook’s claim that the trial court failed to state its reasons for 

imposing an aggravated-range sentence is patently meritless. 

Finally, we address Westbrook’s claim that his aggregate sentence was 

unreasonable. A sentence may be found to be unreasonable if the trial court 

imposed it without consideration of the protection of the public, the gravity 

of the offense in relation to the impact on the victim and the community,

and the rehabilitative needs of the defendant. Commonwealth v. Walls, 

926 A.2d 957, 964 (Pa. 2007). A sentence may also be found to be 

unreasonable after review of the factors set forth in Section 9781(d):

(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 pre-sentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

Id. (citing 42 Pa.C.S. § 9781(d)).

Here, we cannot say that Westbrook’s aggregate sentence was 

unreasonable. As demonstrated above, the trial court considered and 

weighed the required sentencing factors, and gave consideration to both 

mitigating and aggravating circumstances before imposing sentence. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/18