J-S21009-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARNELL THOMAS,

Appellant No. 3552 EDA 2013

Appeal from the Judgment of Sentence June 26, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000259-2012

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Carnell Thomas appeals from the judgment of sentence of nine to 

twenty-three years imprisonment that the court imposed after he was 

convicted at a bench trial of one count each of burglary and possession of an 

instrument of crime and six counts each of simple assault and unlawful 

restraint. We reject his challenges to the discretionary aspects of his 

sentence and affirm. 

The trial court set forth the facts adduced by the Commonwealth in 

support of the outlined convictions: 

 Ms. Elaine Wilson, the first complainant in this case, testified 

that on September 10, 2011, she was at her house on the 200 

block of South 50th Street when her son Anthony Wilson walked 

inside and told her that there was a fight going on outside on the 

street. She walked outside and observed her son's friend Steve 

fighting with Defendant. After the fight ended, Ms. Wilson went 

back into the house and Anthony and Steve then went up to the 

third floor of the house. 
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 A few moments later, Defendant and his brother entered the 

house and pointed a gun at Malik Wilson, Ms. Wilson's grandson, 

backing him into the living room. Defendant then pointed the 

gun at Ms. Wilson and her children Denae Wilson, Sherri Scott, 

Joyce Wilson, and Tyreek Wilson, who were all seated on the 

couch. Ms. Wilson testified that the gun was a small black 

revolver. Defendant and his brother ordered Ms. Wilson and her 

children to remain seated, and demanded that somebody go find 

Steve. Joyce Wilson went upstairs to find Steve, but instead 

sought help from her brother Sean Wilson. Ms. Wilson testified 

that she felt like she could not leave at this point and that she 

felt that her life was threatened.

 As Sean Wilson entered the living room, Defendant pointed 

the gun at him. Mr. Wilson proceeded to grab Defendant and 

attempted to wrestle the gun from his hands. During the 

struggle the gun went off and the shot fired hit the ceiling fan 

and broke the attached glass light fixture, at which point 

everybody ran out of the house. Ms. Wilson, Anthony Wilson 

and Sean Wilson remained behind and were able to subdue 

Defendant until the police arrived.

 Mr. Sean Wilson, Ms. Wilson's oldest son, corroborated the 

testimony of Ms. Wilson. Mr. Wilson testified that on September 

10, 2011, he was at his house on 209 South 50th Street at 

approximately 10:00 pm when his sister Joyce Wilson came 

upstairs seeking help [with respect to] a gunman in the living 

room. Sean testified that as he entered the living room he saw 

Defendant pointing a black revolver at him. Mr. Wilson 

immediately proceeded towards Defendant and attempted to 

wrestle the gun out of his hand. During the struggle he heard 

and felt the gun-go off. [Sean] Wilson and Anthony Wilson were 

able to obtain the gun and hold Defendant down until the police 

arrived. 

 Philadelphia Police Officer Tamika Reid testified that while she 

was on duty on September 10, 2011, between 10:00 pm and 

11:00 pm, she responded to a radio call indicating a person 

screaming for help at 209 South 50th Street. Upon entering the 

house, Officer Reid observed several occupants of that property 

holding a male inside the property. Officer Reid also testified 
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that she observed broken glass on the floor from a shattered

ceiling fan light fixture. Officer Reid identified Defendant as the 

man being held. 

 . . . . 

 Mr. Malik Wilson, Ms. Wilson's grandson, corroborated the 

testimony of Mr. and Ms. Wilson. He testified that Defendant 

entered his house on 209 South 50th Street at approximately 10 

pm, and pointed a black revolver at his head and chest. Mr. 

Wilson testified that he felt like he was unable to leave the 

situation at this time. 

Trial Court Opinion, 8/1/14, at 3-5 (citations to record and quotation marks 

omitted). 

The matter proceeded to sentencing on June 26, 2013, where the trial 

court had the benefit of a presentence report. Additionally, Appellant’s 

counsel spoke in mitigation of sentence, noting that Appellant had a prior 

record score of only one, had children, was working full time prior to this 

incident, was intoxicated when the crimes occurred, and obtained his GED 

while in jail. The trial court imposed an aggregate sentence of nine to 

twenty-three years. On the burglary conviction, Appellant was sentenced to 

two to six years, which was within the applicable guidelines1 using the 

deadly weapon enhancement, weapon possessed matrix. The court imposed 

____________________________________________

1

 The applicable guidelines were the 6th edition, effective June 3, 2005 to 

December 28, 2012.
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sentences of one to two years, which exceeded the guidelines,2on the 

unlawful restraint and the simple assault convictions. The unlawful restraint 

and simple assault sentences were made concurrent to each other insofar as 

they pertained to a single victim, but the one to two year term was imposed 

consecutively as to all six victims. The sentence on PIC was one to five 

years, an aggravated range sentence, and that sentence was made 

consecutive to the other ones. No objection was raised to this sentence at 

the hearing. 

Appellant filed a timely post-sentence motion for reconsideration of the 

sentence claiming that: 1) “the Court did not consider all of the factors” and 

the sentence imposed was excessive; and 2) “the cumulative sentence of 9 

to 23 years is excessive considering Petitioner’s limited prior record and 

excellent chance of being rehabilitated.” Defendant’s Post-Sentence Motion, 

7/8/13, at ¶¶ 4, 5. This appeal followed denial of the post-sentence motion. 

Appellant complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) 

statement, and now raises this contention on appeal: 

I. Did the trial court abuse its discretion and violate general 

sentencing principles when the court sentenced [Appellant] to an 

aggregate sentence of nine (9) to twenty three (23) years of 

____________________________________________

2 The Commonwealth did not invoke the deadly weapon enhancement 

guidelines when it outlined the applicable guideline ranges for the simple 

assault and unlawful restraint convictions. N.T. Sentencing, 6/26/12, at 4. 
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state imprisonment?

Appellant’s brief at 4. 

A defendant does not have an absolute right to pursue a challenge to 

the discretionary aspects of his sentence. Commonwealth v. Raven, 97 

A.3d 1244, 1252 (Pa.Super. 2014). First, to preserve a discretionary 

sentencing claim, the defendant must raise it either during the sentencing 

proceedings or in a post-sentence motion. Commonwealth v. Cartrette, 

83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Second, to obtain merits 

review of such a claim, an appellant must include a Pa.R.A.P. 2119(f) 

statement in his brief. Raven, supra; Pa.R.A.P. 2119(b) (“An appellant who 

challenges the discretionary aspects of a sentence in a criminal matter shall 

set forth in his brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a 

sentence.”). Finally, the Pa.R.A.P. 2119(f) statement must demonstrate 

“that there is a substantial question that the sentence imposed is not 

appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b).” Raven, 

supra at 1252 (citation and quotation marks omitted). A substantial 

question warranting appellate review of a sentence is raised if the defendant 

avers that “the sentence violates either a specific provision of the sentencing 

scheme set forth in the Sentencing Code or a particular fundamental norm 

underlying the sentencing process.” Id. 
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Appellant’s brief does contain the requisite statement. Appellant’s 

brief at 8. In that statement, as well as in the argument portion of his brief, 

Appellant dissects his challenge to the sentence into two discrete aspects. 

First, Appellant complains that the court “failed to consider all relevant 

factors” in rendering its decision. Id. Second, he argues that the sentence 

is manifestly excessive as grossly disproportionate to his crime and that the 

trial court “failed to provide adequate reasons for the sentence on the 

record” especially with respect to the sentences that exceeded the applicable 

guidelines. Id. These positions raise a substantial question warranting 

appellate review. Commonwealth v. Raven, 97 A.3d 1244, 1253 

(Pa.Super. 2014) (“It is well-established that a sentencing court's failure to 

consider mitigating factors raises a substantial question.”); Commonwealth 

v. Bowen, 55 A.3d 1254, 1263-64 (Pa.Super. 2012) (“In 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.”). 

Appellant’s first claim is that the sentencing court focused solely on the 

seriousness of the offense and did not consider the mitigating factors at 

play. Concomitantly, Appellant suggests, his sentence was manifestly 

excessive and the period of confinement was not consistent with the gravity 

of the offenses, which he committed while intoxicated, or with his 

rehabilitative needs. See 42 Pa.C.S. § 9721(b) (when imposing a sentence, 
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the court must abide by the principle that the sentence of incarceration be 

consistent with the public’s protection, the gravity of the offense, and the 

defendant’s rehabilitative needs). This averment was preserved since it was 

contained in the post-sentence motion. 

Our standard of review is established: “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.” Bowen, supra

at 1263. An abuse of discretion occurs only if “the record discloses that the 

judgment exercised was manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill-will.” Id. (citation omitted). 

Appellant takes umbrage with the sentencing court’s failure to 

specifically articulate that it weighed Appellant’s low prior record score, his 

personal background, his intoxication, and his rehabilitative needs. The fatal 

flaw in this position is that the sentencing court herein had the benefit of a 

presentence report, which the record establishes that it reviewed prior to 

sentencing, and heard Appellant’s mitigation argument, which it also 

expressly considered. N.T. Sentencing, 6/26/13, at 11. (“THE COURT: Well, 

I reviewed the presentence report. I listened to the arguments of both 

sides.”). 

The law is settled. When the sentencing court possesses and 

considers a presentence report, we are required by our Supreme Court’s 

decision in Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988), to 
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presume that the sentencing court “was aware of relevant information 

regarding the defendant's character and weighed those considerations along 

with mitigating statutory factors.” See also Commonwealth v. Griffin, 65 

A.3d 932 (Pa.Super. 2013). The case upon which Appellant relies, 

Commonwealth v. Richey, 779 A.2d 1183 (Pa.Super. 2001), is inapposite 

because therein, the matter proceeded to sentencing immediately after the 

defendant’s guilty plea was entered, and the court did not have a 

presentence report. Hence, we must reject Appellant’s first position. 

Appellant’s second averment is that the sentencing court failed to 

articulate sufficient reasons for the sentence imposed. This contention is 

waived. At sentencing, Appellant did not object to the court’s failure to 

verbally justify its sentence. Additionally, the allegation was not preserved 

in the post-sentence motion. However, since this allegation was raised in 

the Pa.R.A.P. 1925(b) statement, it was addressed by the sentencing court. 

That court maintained that it had proffered a sufficient basis for its decision. 

We agree. 

Initially, we note that “the sentencing guidelines are advisory in 

nature.” Bowen, supra at 1264. A sentencing court may deviate from 

them if “it offers reasons for this determination.” Id. We must affirm a 

sentencing court’s departure if the rationale outlined by the sentencing court 

indicates that its decision is not unreasonable. Id. “In order to find that a 

trial court imposed an ‘unreasonable’ sentence, we must determine that the 
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sentencing court imposed the sentence irrationally and that the court was 

‘not guided by sound judgment.’” Commonwealth v. Riggs, 63 A.3d 780, 

786 (Pa.Super. 2012) (partially quoting Commonwealth v. Walls, 926 

A.2d 957, 961 (Pa. 2007)). In this case, the sentencing court supported its 

sentence as follows:

 For each sentence outside the recommended sentencing 

guidelines, the Court acknowledged its deviations and put 

reasons for these deviations on the record. The court noted that 

although the imposed sentences for simple assault and [unlawful 

restraint] were above the guideline sentences, "The aggregate 

sentence was certainly within the guidelines." (N.T. 6/26/13 pg 

16). The court reasoned further that the aggregate sentence of 

nine to twenty three years was an appropriate sentence when it 

comes down to a home invasion," despite minor deviations from 

the guidelines on the individual crimes. (N.T. 6/26/13 pg 14). 

This home invasion specifically involved holding six individuals at 

gunpoint, including two minors, and a shot being fired.

Trial Court Opinion, 8/1/14, at 9. 

This statement establishes that the trial court’s decision was neither 

irrational nor unguided by sound judgment. Appellant entered a home and 

brandished a weapon at six people, including adolescents aged fourteen and 

fifteen and a sixty-year-old woman. He demanded that they produce the 

man with whom he just had been fighting, presumably so Appellant could 

shoot his target. The family came to the man’s defense, and Sean Wilson 

attempted to disarm Appellant. In the process, a shot, which could have 

struck someone, was fired in an occupied room. A sentence exceeding the 

guideline ranges as to simple assault and unlawful restraint was not 
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unreasonable in light of these circumstances especially since the sentences 

were concurrent with each other to the extent the same victim was involved.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015