J-A33031-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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ARTHUR PHILLIPS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 767 WDA 2016

Appeal from the Judgment of Sentence April 21, 2016,

In the Court of Common Pleas of Allegheny County,

Criminal Division, at No(s): CP-02-CR-0002048-2013

BEFORE: LAZARUS, SOLANO, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 31, 2017

Arthur Phillips (Appellant) appeals from the judgment of sentence 

entered on April 21, 2016, following a resentencing hearing pursuant to this 

Court’s opinion remanding Appellant’s case for resentencing.1 Upon review, 

we affirm.

The trial court summarized the pertinent factual and procedural history 

underlying Appellant’s case as follows.

[Appellant] proceeded to a jury trial on February 20, 2014, 

February 21, 2014[,] and February 24, 2014, after which he was 

convicted of robbery, aggravated assault, criminal conspiracy 

and flight to avoid apprehension. [The trial court] imposed a 

term of imprisonment of not less than 10 nor more than 20 

years relative to the conviction of robbery. [Appellant] received 

a consecutive term of not less than 2 years nor more than 4 

years relative to the conviction for aggravated assault. 

[Appellant] received a consecutive term of not less than 1 year 

nor more than 2 years relative to the conviction for criminal 

 

1 Commonwealth v. Phillips, 129 A.3d 513 (Pa. Super. 2015).
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conspiracy[. Appellant] received a sentence of not less than 1 

year nor more than 2 years relative to the conviction for flight to 

avoid apprehension, consecutive to all preceding sentences. The 

aggregate sentence of imprisonment imposed on [Appellant] was 

not less than 14 years nor more than 28 years. A timely appeal 

followed. 

[Appellant] raised a number of issues on appeal. [Through 

an opinion dated December 14, 2015,] the Superior Court 

reversed [Appellant’s] conviction for flight to avoid apprehension 

and remanded the case for resentencing. 

Upon resentencing, [the trial court] sentenced [Appellant] 

to a term of imprisonment of not less than 10 nor more than 20

years relative to the conviction of robbery. [Appellant] received 

a consecutive term of not less than one year nor more than two 

years relative to the conviction of aggravated assault. No 

further penalty was imposed relative to the conviction for 

criminal conspiracy. The aggregate sentence of imprisonment 

was not less than 11 years nor more than 22 years. 

Trial Court Opinion, 6/22/2016, at 1-2 (unnecessary capitalization omitted).

Appellant filed a post-sentence motion arguing that the trial court 

failed to provide sufficient reasons for Appellant’s sentence at count 1, 

robbery, and double counted factors already subsumed in the guidelines. 

Post-Sentence Motions, 4/27/2016, at 5 (unnumbered). Appellant also 

averred that he had made “rehabilitative progress” since being incarcerated, 

and cited several mitigating factors, which Appellant argued warranted a 

reduction in his sentence. Id. at 3-5 (unnumbered). That motion was 

denied. This appeal followed, wherein Appellant’s sole issue challenges the 

discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his [or her] sentence 
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must invoke this Court’s jurisdiction by satisfying a four-part 

test:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.[] § 9781(b).

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

citations omitted). 

Here, Appellant timely filed a post-sentence motion in which he 

requested a modification of his sentence, as well as a timely notice of 

appeal. Additionally, Appellant included a 2119(f) statement in his brief. 

However, before reaching the merits of the issues Appellant raised, we must 

first examine if the issues presented were properly preserved. “Objections 

to the discretionary aspects of a sentence are generally waived if they are 

not raised at the sentencing hearing or in a motion to modify the sentence 

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

Appellant’s 2119(f) statement set forth the following issues: (1) the 

trial court erred in failing to provide a contemporaneous written statement to 

justify Appellant’s sentence to count 1, robbery, which exceeded the 

aggravated range, and failed to recite Appellant’ sentencing guidelines, 

which is required when sentencing Appellant outside the guidelines, and (2) 

the trial court erred by double counting the gravity of the offense, 
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Appellant’s criminal history, and his use of deadly weapon during the 

commission of the crime. Appellant’s Brief at 14-16.

Upon review, Appellant’s first issue is not in his post-sentence motion. 

Nor did, Appellant raise this issue at his sentencing hearing. Therefore, 

Appellant has not preserved this issue, and it is waived. Commonwealth v. 

Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding discretionary aspects 

claims not raised at sentencing or in a post-sentence motion are not subject 

to our review, even if raised in 1925(b) statement and addressed in the trial 

court’s 1925(a) opinion). 

Even if we were to address the merits of his claim, Appellant would not 

be entitled to relief. First, Appellant is correct that 42 Pa.C.S. § 9721(b), 

requires the trial court to issue a written contemporaneous statement 

justifying the imposition of a sentence outside the guideline range. This 

Court has held that a “judge’s statement of reasons for the sentence made 

of record at sentencing in the defendant’s presence constitutes a 

‘contemporaneous written statement,’ within the meaning of the act.” 

Commonwealth v. Royer, 476 A.2d 453, 457 (Pa. Super. 1984). Here, 

the record is clear that the trial court set forth its reasons for sentencing 

Appellant on the record at Appellant’s resentencing hearing. Furthermore, 

Appellant acknowledges that the trial court set forth reasons on the record 

for sentencing Appellant outside the guideline range, since the trial court’s 

reasoning is an integral part of Appellant’s first argument, namely that the 
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trial court’s reasoning amounted to double counting of factors already taken 

into consideration in the guidelines. Appellant’s Brief at 20-23. 

Furthermore, Appellant has failed to provide this Court with any case 

law to support his argument that a trial court, upon resentencing, must 

again reiterate the sentencing guidelines. Not only has Appellant failed to 

convince this Court that an error was made, we note that 

while we continue to suggest that “prior to sentencing outside 

the guidelines, [the trial court] would do well to specifically 

articulate the guideline range of sentences,” we recognize that 

such a recitation is not uniformly necessary to establish “that the 

court was aware of, and considered, the guidelines[.]” 

Accordingly, we hold that when imposing sentence, a trial court 

has rendered a proper “contemporaneous statement” under 

section 9721(b) 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. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999) (citations 

and quotations omitted). 

We now consider Appellant’s remaining argument. He argues that the 

trial court double counted factors already subsumed in the guidelines. The

Commonwealth concedes that Appellant’s issue raises a substantial question 

for our review. See Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. 

Super. 2000) (“When fashioning a sentence, a sentencing court may not

‘double count’ factors already taken into account in the sentencing

guidelines.”). See also Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. 

Super. 2005) (finding appellant raised a substantial question for the Court’s 
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review when claiming that the trial court “considered factors already 

included in the guidelines”).

Appellant contends that the trial court erred “by strictly relying on 

factors already taken into account by the sentencing guidelines to justify its 

sentence.” Appellant’s Brief at 16. Specifically, Appellant argues the trial 

court “relied on [Appellant’s] prior criminal history and the gravity of the 

offense as the sole bases for its sentence.” Id. at 20. Appellant avers that 

the trial court’s reliance on these factors, as well as Appellant’s use of an 

AK-47 during the commission of the home invasion, which had already 

elevated Appellant’s guidelines under the deadly weapon enhancement, was 

an abuse of discretion.

The trial court provided the following analysis. 

The sentencing record reflects that [the trial court] 

considered the presentence report [(PSI)], the testimony 

presented at trial and at resentencing and all other relevant 

factors.1 [Appellant] did not object to the substance of 

information contained in the [PSI]. The sentencing record 

reflects that in imposing the sentence [the trial court] considered 

that [Appellant’s] conduct in this case was very violent. [The 

trial court] considered the impact on the victim, Mr. Sharpley. 

[Appellant’s] conduct was part of a violent home invasion. [The 

trial court] considered that [Appellant] took an AK-47 and fought 

with Mr. Sharpley as Mr. Sharpley was fighting for his life. 

1 Though not at issue in this appeal, it is clear that 

[the trial court] considered mitigating information at 

resentencing. [The trial court] credited [Appellant] 

with what the [court] believed to be positive changes 

in [Appellant] since he was incarcerated in this case. 

[The trial court] reduced the original sentence 

relative to the [a]ggravated [a]ssault conviction to 

not less than one nor more than two years. [The 
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trial court] reduced the original sentence on the 

[c]onspiracy conviction to no further penalty.

[The trial court] exhibited concern that society should be 

protected from [Appellant] due to the “outright dangerous, 

intentional[,] and knowing” conduct in this case. The 

presentence report reflected that [Appellant] was on probation 

on one case and parole on another case at the time of the 

incident. [The trial court] believed that [Appellant’s] conduct 

demonstrated that he could not conform his own conduct to the 

dictates to the law and he had a propensity to harm others. This 

presentence report noted that prior rehabilitative efforts of 

county supervision had not dissuaded [Appellant] from 

committing other violent crimes. In [the trial court’s] view, 

[Appellant’s] violent conduct continued to escalate despite all of 

the efforts that were made to rehabilitate him. His own conduct 

further demonstrated his ignorance of his obligations to the 

community and his own family. 

Further, [the trial court] was convinced that the sentence 

imposed in this case would have a deterrent effect on 

[Appellant] and on others inclined to commit similar offenses. 

Trial Court Opinion, 6/22/2016, at 8-9 (footnote omitted).

Upon review of the record, this Court finds the trial court did not 

double count Appellant’s prior criminal history. The trial court did speak at 

length about Appellant’s prior convictions, how prior attempts of 

rehabilitation proved futile, and how Appellant’s escalating conduct was 

undeterred by prior arrests and sentences. See N.T., 4/21/2016, at 41-42 

(“[Appellant’s] past demonstrates that he promises [the trial court] all the 

time he will be a good guy and follow the rules, then he does something 

worse the next time. If you look at his criminal history, he kept doing worse 

things. None of the arrests had any good impact on him. The next time he 

got arrested was for something worse than the last.”). While the trial court 
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indicated it did see some change in Appellant, resulting in a reduction in 

Appellant’s aggregate sentence, the court found Appellant’s confinement 

necessary for the protection of the public. 

I have to say, and I’m saying for the record, that I do 

believe [Appellant] is a little different person now than when I 

encountered him the last time on this case and when I 

sentenced him [] on other cases. ... The problem with what you 

are asking for ... is that now all of that comes a little too late in 

the scheme of things. [Appellant] is constantly ignoring his 

duties to the community, to his own family, to his own children. 

His conduct continued to escalate through all of the efforts that 

were made to rehabilitate him. Now he finally got a very severe, 

stiff sentence, which he deserved, now suddenly he is making all 

of these changes in this relatively short time. 

Id. at 43-44.

Furthermore, nowhere in the record does it reflect that the trial court 

imposed its sentence based upon the fact that Appellant was armed with an 

AK-47 when he entered Mr. Sharpley’s home. To the contrary, the trial 

court set forth the facts in the context of detailing Appellant’s crime and his 

complete disregard for the safety of others. Id. at 30-31, 38 (“Only because 

Mr. Sharpley was able to fight off his attacker, [] was he able to come in this 

courtroom and tell us about it. Under a [same] but slightly different 

scenario, Mr. Sharpley would be dead having been on the wrong end of the 

bullet of [Appellant’s] AK-47. ... We are not talking about [Mr. Sharpley] 

fighting for his life in a fist fight, we are talking about fighting for his life 

when the other guy has an AK-47.”). 
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Lastly, Appellant fails to make a cognizable argument, or cite any 

authority to support the contention that the individual nature of the crime, 

the impact to the victim, and the events surrounding the incident are 

incorporated as factors that comprise the guidelines. See Commonwealth 

v. Wall, 926 A.2d 957, 967 (Pa. 2007) (holding that the defendant “offered 

no legitimate basis to presume” that individual factors of the case “are 

subsumed within the sentencing guidelines”). Additionally, we note that the 

trial court reviewed Appellant’s PSI prior to sentencing. “[W]here the 

sentencing judge had the benefit of a PSI, 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.” 

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

We are not persuaded by Appellant’s argument that the trial court 

double counted the gravity of the offense, Appellant’s use of a deadly 

weapon or his prior criminal history when imposing Appellant’s sentence, as 

the record indicates otherwise. No relief is due.

In light of the foregoing, we discern no abuse of discretion.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/31/2017