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

COMMONWEALTH OF PENNSYLVANIA

v.

DAKAR HAMPTON

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 988 WDA 2019 Appeal from the Judgment of Sentence Entered April 25, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0010328

- 2017

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUIM BY: McCAFFERY, J. FILED MARCH 20, 2020
Dakar Hampton (Appellant) appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial conviction of robbery. 1 Appellant contends t he evidence w as insufficient
to support the verdict and the court abused its discretion by imposing a manifestly excessive sentence

. We affirm.
The trial court summarized the evidence presented at trial:
On August 12, 2017, David Brody [(Victim)] was wor king as a doorman and bellman at the Fairmont Pittsburgh [H] otel in the Market Square sec tion of the City of Pittsburgh. During the evening on that day, [Victim] was moving BMW bicycles from the outside of the ho tel to the inside of the hotel. The BMW bicycles were maintained a t the Fairmont [H]otel for guests’ usage to permit them to enjoy bicycle rides around the City of Pittsburgh.

_________________ __________ ______ ____ _______

1 18 Pa.C.S. § 3701(a)(1)(ii) ( person is guilty of robbery if, in cou rse of committing theft, he threatens another with or intentionally puts him in fear of i mmediate serious bodily injury.)J

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According to [Victim] , the BMW bicycles were high

- end bicycles and were very valuable. As [Victim] was bringing the bi cycles in for the night, [Appellant] , wearing a dark hoodie and ski goggles, approached [Victim] and put h is hand on one of the bicycles. [Victim] addr essed [Appellant] by saying, “ No, you can ’t take that.” [Victim] pulled the bicycle away from [Appellan t]

. As [Victim] pulled the bicycle away, [Appellant] lifted his hoodie and displayed what appeared to be a firearm to [Victim. Victim] was able to observe the firearm from the handle to the trigger. The barrel of the firearm was down inside the waistban d of [Appellant’s] pants. According to [Victim] , the firearm appeared to be a real firearm. As [Victim] carried the bicycle into the hotel, [Appellant] walked away and pointed toward [Victim] , making a hand gesture replicating the firing of a gun.

After moving the bicycles into the hotel, [Victim] telephoned the police. Within ten to fifteen minutes, police officers responded to the general area where the incident occurred. Not far from the hotel, the police officers encountered [Appellant]

. He was w earing a blue hoodie and had black ski goggles with red lenses on his head. He was wearing a black bandana around his neck. The police officers exited their police vehicle. Due to the fact that the initial report to them was that the actor involved in t he incident a t the Fairmont [H] otel may have been armed, one officer had his weapon drawn and one officer was holding his taser. The officers ordered [Appellant] to lay on the ground and [Appellant] complied. He was then placed in custody. A paintball gun was located in [Appellant’s] pants. At trial, [Victim] identified the ski goggles as the goggles worn by [Appellant] and the paintball gun as the gun he observed on [Appellant] during the incident at the Fairmont [H] otel.
Trial Ct. Op., 10/28/19, at 1

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The Commonwealth charged Appellant with, inter alia , robbery. 2 On
January 18, 2018, this case proceeded to a bench trial. Appellant did not
testify and presented no evidence. The court convicted Appellant of robbery.
On April 25, 2018, after reviewing a presentence investigation report
(PSI), the court sentenced Appellant to 5 to 10 years’ imprisonment, and a
consecutive three years’ probation. On May 4, 2018, Appellant filed a post

sentence motion, which was denied on June 26, 2018.
Appellant filed a notice of appeal on July, 13, 2018. However, on
February 14, 2019, this Court dismissed the appeal because appellate counsel

failed to file a brief on Appellant’s behalf. Commonwealth v. Hampton , 1023 WDA 2018 (order ) (Pa. Super. 2/14/19). On April 9, 2019, Appellant
filed a timely, pro se Post Conviction Relief Act 3 petition (PCRA). The court
appointed present counsel to represent Appellant. On May 17, 2019,
Appellant filed an amended PCRA petition requesting rein statement of his
post

- sentencing and appellate rights. The court granted this petition. On May
31, 2019, Appellant filed a post

- sentence motion nunc pro tunc challenging
the sufficiency of evidence and the discretionary aspects of sentencing, which

_________________ __________ ______ ____ _______

2 The Commonwealth had also charged Appellant with possession of an instrument of crime, 18 P.C.S. § 907(b ), and possession of marijuana, 35 P.S. § 780

- 113(a)(31), but these charges were withdrawn prior to trial.

3 42 Pa.C.S. §§ 9541

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the c ourt denied. On June 27, 2019, Appellant timely filed both a notice of
appeal and a Pa.R.A.P. 1925(b) statement of issues on appeal.
Appellant presents two issues for our review:

1. D id the trial court err in denying Appellant’ s post sentencing moti ons sin ce Appellant’s robbery

- t hreatening serious bodily injury [18 P a.C.S . § 3701 (a) (1) (ii)] conviction was not supporte d by sufficient evidence since A ppellant simply and briefly put his h and on the bicycle[, N.T., 1/18/18, at 19 ] , A ppellant never uttered a wor d during the entire encounter, [Victim] told Appellant “that he couldn’t take the bike” [ id. , Victim] continued to wheel the bicycle in to the hotel and A ppellant did not thereafter make any attempt to take the bicycle[, N.T. at 21] ; the incident involv ing the bicycle ended at that po int and any further actions by A ppellant may have constitu ted terroristic threats toward [Victim] but A ppellant was only charged with one count of robbery and not terroristic threats or any other crime related to [Victim]
or the bicycle. Appellant’ s action of briefly putting his hand on the bicycle and uttering no words could have been interpreted in a multitude of ways, but was not sufficient to prove him guilty, beyond a reasonable doubt, of an attempted robbery accompanied by a threat of serious bodily injury (an attempt to take the bicycle by force from [Victim] , with accompanying threats of serious bodily injury)?

2. D id the trial court err in denying Appellant’ s post sentencing motions since A pp ellant's sentence of 5

- 10 years’ state imprisonment, regardless of the sentencing guidelines, was manifestly excessive since the factual scenario regarding the crime onl y involved A ppellant briefly placing one hand on a bicycle, with no further attempt at taking the bicycle?
Appel lant’s Brief at 7. 4

_________________ __________ ______ ____ _______

4 We remind counsel, “The statement of questions involved must concisely state the issues to be resolved . . . without unnecessary detail.” See Pa.R.A.P. 2116(a).J

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Appellant avers the evidence is insufficient to convict him of robbery , contend ing he never made any legitimate attempt to steal the bicycle and did
not communicate any threats to Victim. Appellant claims “[a]ll he did . . . was
place his hand on a bicycle that [Victim] was rolling back into the hotel.”
Appellant’s Brief at 13. Appellant claims he “never uttered a word during the
encounter, and [Victim], who is a well

- built, very muscular bodybuilder, nea rly
6’ tall, 225 pound, . . . healthy young man,” was never touched or injured
during the entire encounter. Id. , citing N.T., 1/18/18, at 19. Appellant also
reasons “[t]he incident involving the bike ended at that point” and his
subsequent conduct may ha ve , at most, established terroristic threats, a crime
not charged. Id. at 13.

Our standard of review is well

- settled:
In reviewing a sufficiency of the evidence claim, we must determine whether the evidence admitted at trial, as well as all reasonable i nferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all elements of the offense. Additionally, we may not reweigh the evidence or substitute our own judgment for that of the fact finder. The e vidence may be entirely circumstantial as long as it links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Walker , 139 A.3d 225, 229 (Pa. Super. 2016) (citations
omitted). Pursuant to Section 3701(a)(ii) of the Pennsylvania Crimes Code,
“[a] person is guilty of robbery if, in the course of committing a theft, he

. . . threatens another with or intentionally puts him in fear of immediate serious
bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii). “ Serious bodily injury ” is defined
as “[b]odily injury which creates a substantial risk of death or which causesJ

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serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S § 2301.
A conviction under Section 3701(a)(1)(ii) is contingent upon the type of bodily harm threatened

. The Commonwealth need not prove a verbal utterance or threat to sustain a conviction under Section 3701(a)(1)(ii). It is sufficient if the evidence demonstrates aggressive act ions that threatened the victim’ s safety. For the purposes of Section 3701(a)(1)(ii), the proper focus is on the nature of the threat posed by an assailant and whether he reasonably placed a victim in fear of “im mediate serious bodily injury.”
Commonwealth v. Ouch, 199 A.3d 918, 923

– 24 (Pa. Super. Ct. 2018)
(citations & quotation marks omitted). Further, “the threat posed by the
appearance of a firearm is calculated to inflict fear of dea dly injury, not merely

fear of ‘ serious b odily injury. ’ ” Commonwealth v. Hopkins , 747 A.2d 910,
914 (Pa. Super. 2000).
In addressing the sufficiency claim, the trial court noted the evidence
clearly established Appellant attempted to grab the bicycle. Trial Ct. Op. at

5. In fact, Appellant a ppears to concede this point. However, the trial court,
sitting as the finder of fact, found that w hen Victim showed resistance,
Appellant contemporaneously flashed a firearm located in his waistband.
Appellant further made a hand gesture simulating the firing of a gun toward
Victim as Appellant fled the scene. The trial court explained these actions
constituted ample evidence that Appellant intended to place Victim in fear of
being seriously injured. Id. ; See Ouch , 199 A.3d at 923. The fact that the

i tem used in this crime was not a real firearm, i.e. a paintball gun, does notJ

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negate the threat calculated to inflict fear of deadly injury to Victim. Id. ; see
also , Hopkins 747 A.2d at 914. Accordingly, Appellant’s first issue fails.
Next, Appellant challenges the discretionary aspects of his sentence. He
claims the sentence imposed was manifestly excessive because it was
“disproportionate to the offense of the simple act of briefly putting one’s hand
upon a bicycle and making no atte mpts take the bicycle.” Appellant’s Brief at

9. Again, Appellant’s argument rests solely on this rather one

- sided recitation
of facts, rejected by the trial court. Appellant also contends the trial court did
not provide sufficient reasons for the excess ive sentence.
A discretionary aspects of sentencing claim is n ot appealable as of right,

but “ must be considered a petition for permission to appeal.”

Commonwealth v. Best , 120 A.3d 329, 348 (Pa. Super. 2015) ( ci tation
omitted). Before we reach the mer its of a discretionary sentencing iss ue, this

Court must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved his 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 [, See Pa.R.A.P. 2119(f)] ; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards , 71 A.3d 323, 329

- 30 (Pa. Super. 2013)
(citation omitted).

T he determination of what constitutes a substantial question must be evaluated on a case

- by

- case basis. A substantial question exists “only when the appellant advances a colorable argument that the sentencing judges’ actions were either: (1) inconsistentJ

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with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.”
Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted). “Our inquiry must focus on the reasons for which the appeal is
sought, in contrast to the facts underlying the appeal, which are necessary
only to decide the appeal on the merits.” Commonwealth v. McNabb , 819
A.2d 54, 56 (Pa. Super. 2003) (citations omitted ). “ [A] n excessive sentence

claim

— in conjunction with an assertion that the court failed to consider
mitigating factors

— raises a substantial question. ” Commonwealth v.

Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) ( en banc ). Furthermore,
“[a] n allegation that the sentencing court did not adequately set forth its

reasons on the record ” likewise present s a substantial question.

Commonwealth v. Brown , 741 A.2d 726, 735 (Pa. Super.1999)

. Appellant complied with the procedural requirements for this appeal by
filing a timely post

- sentence motion nunc pro tunc and notice of appeal

. In
his appellate brief, Appellant includes a statement of reasons relied upon for
appeal pursuant to Pa.R.A.P. 2119(f). See Edwards , 71 A.3d at 329

- 30;
Appellant’ s Brief at 9. Furthermore, his claim s, that the sentence was
disproportionate to his crimes and the trial court did not provide sufficient
reasons for the excessive sentence, raise substantial question s invoking this
Court’s jurisdiction

. See Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) ( en
banc ). Furthermore, “[a] n allegation that the sentencing court did not
adequately set forth its reasons on the record ” likewise present a substantialJ

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question. Co mmonwealth v. Brown , 741 A.2d at 735 ; Brown , 741 A.2d at

735

. Thus, we consider the merits of Appellant’s claim.
[T]he proper standard of review when considering whether to affirm the sentencing court’ s determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias o r ill

- will. . . .
Moury , 992 A.2d at 169

- 70 (citation omitted).

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.” Further, where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.

Id at 171 (citations omitted).

“ Our Supreme Court has determined that where the trial court is informed by a [PSI], it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informe d, its discretion should not be disturbed.” “ T he 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 [PSI], thus properly considering and weighing al l relevant factors.”

Commonwealth v. Edwards , 194 A.3d 625, 638 (Pa. Super. Ct.
2018), appeal denied , 202 A.3d 41 (Pa. 2019).
When imposing a sentence , “[ a ] court is required to consider the particular circumstances of the offense and the character of the defendant.” “ In particular, the sentencing court should refer to the defendant’s prior criminal record, his age, personal characteristics , and his potentia l for rehabilitation.”
Moury , 992 A.2d at 171 (citations omitted).J

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Here, the trial court explained:
The record in this case support s the sentence imposed by this C ourt. Notably, the sentence imposed was near the low end of the standard range of the sentencing guidelines. This Court reviewed the presentence report and considered the contents of that report in imposing sentence. This Court was persuaded that the sentence imposed was appropriate because [Appellant] was serving a probationary sentence for a separate offense that had been imposed by this Court just three weeks prior to the [Appellant’ s ] commission of the robbery in this case. [Appellant] had been involved in unlawful conduct at the Fairmont Hotel in the past. This Court also considered the effect [Appellant’s] actions had on [V]ictm

. [V] ictim testified that he was traumatized by the events that occurred during the robbery. Based on the circumstances of this case, this C ourt believed that a county jail sentence was not appropriate. In this C ourt's view, a standard range sentence was the appropriate sentence. Accordingly, the sentence should not be disturbed.
Trial Ct. Op. at 7

- 8.

T he trial court weighed the information in the PSI concerning Appellant’s
criminal history , and thus we presume it was aware of all appropriate
sentencing factors and considerations

. See Edwards , 194 A.3d at 638;
Moury , 992 A.2d at 175

. At the time he committed the crime , Appellant was
on probation for three additional cases, one of which occurred at the Fairmont
Hotel. The court based its sentence in part upon Appellant’s probationary

status

. See McNabb , 819 A.2d at 57. Further, Appellant’s argument does
not specify a violation of any fundamental norm or a specific provision of the
Sentencing Code ; rather, Appellant merely reiterates his challenge to the

sufficienc y of the evidence based upon his selective version of facts in arguing

for a lesser sentence. See i d. at 56. The record demonstrates the trial courtJ

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considered all statutory and mitigat ing factors in fashioning its sentence.
Accordingly, Appellant is not entitled to relief.
Judgment of sentence affirmed.

Judge Olson joins this memorandum.
Judge Musmanno files a dissenting statement.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/20/2020