J-S70020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

RAPHAEL SPEARMAN, :

:

Appellant : No. 79 EDA 2015

Appeal from the Judgment of Sentence July 5, 2012,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0015911-2010

BEFORE: DONOHUE, LAZARUS and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 30, 2015

Raphael Spearman (“Spearman”) appeals from the July 5, 2012 

judgment of sentence entered by the Philadelphia County Court of Common 

Pleas following his open guilty plea to carrying a firearm without a license 

(“6106”) and carrying a firearm on the public streets in Philadelphia 

(“6108”).1 The trial court sentenced Spearman to two and a half to six years 

of incarceration for the 6106 conviction and two to five years of incarceration 

for the 6108 conviction, with the sentences running consecutive to each 

other and consecutive to any other sentence Spearman was then serving. 

On appeal, Spearman challenges the trial court’s exercise of discretion in 

fashioning his sentence. For the reasons that follow, we affirm.

 

1

 18 Pa.C.S.A. §§ 6106, 6108.
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As Spearman addresses the sole issue raised on appeal to his 

sentence, a full recitation of the factual and procedural history of the case is 

unnecessary. Spearman pled guilty to the two crimes with which the 

Commonwealth charged him on June 5, 2012. On July 5, 2012, the trial 

court held a sentencing hearing. The trial court stated on the record that it 

reviewed the Commonwealth’s sentencing memorandum, Spearman’s 

mental health evaluation, the presentence investigation report, and the 

sentencing guideline report.2 N.T., 7/5/12, at 5. Counsel for Spearman 

detailed the history of Spearman’s childhood, which included being born 

addicted to crack cocaine; placement in the dependency system at age nine 

because of physical and emotional abuse; the death of his grandmother 

(who was the only stable parental figure he had) when he was twelve; 

severe mental health problems (including seven documented suicide 

attempts) beginning at or around age thirteen; and an adjudication of 

delinquency when he was seventeen. Id. at 7-11. Following his discharge 

from a state facility and successful completion of probation, Spearman “was 

no longer under the purview of the [f]amily [c]ourt and no longer receiving 

any medication or [mental health] treatment,” and shortly thereafter, began 

his involvement in the adult criminal justice system. Id. at 11.

Counsel for Spearman also informed the court that while incarcerated, 

Spearman has been stabbed four times and “continues daily to find himself 

 

2

 None of these documents appears in the certified record on appeal.
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defending his life.” Id. at 17. Counsel believed this stemmed from 

Spearman giving the Commonwealth an August 2010 statement (which he 

later recanted) regarding an open homicide investigation. Id. at 17-18. 

Spearman’s mother testified on his behalf as well, confirming her history of 

addiction, and seeking mercy for her son by the trial court. Id. at 15-16.

In its presentation at sentencing, the Commonwealth painted a 

different picture of Spearman. The prosecutor stated that Spearman was 

arrested three times as a juvenile, failed on probation, and required 

placement in four different facilities because of his aggressive and 

threatening behavior towards staff. Id. at 22, 24. He was ultimately placed 

in a state facility for delinquent juveniles and was arrested for the instant 

firearms violations within a year of the conclusion of supervision by the 

juvenile court. Id. at 22, 24-25. In 2011, he assaulted staff in a treatment 

facility and brought a weapon into a correctional facility. Id. at 25-26. 

Furthermore, the firearm Spearman possessed in this case was used to 

commit the murder he witnessed. Initially, Spearman told police that the 

perpetrator of the murder gave the gun to him to hide. Id. at 26. While 

incarcerated, however, Spearman sent an affidavit to the prosecutor trying 

the murder case stating that he was responsible for the murder.3 Id. at 27.

 

3

 The Commonwealth stated that no one in the District Attorney’s Office 

believes that Spearman was the one who committed the murder. N.T., 

7/5/12, at 27.
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The Commonwealth presented testimony from Officer Anthony 

Solomon of the Philadelphia Police Department. Officer Solomon testified 

that over the past six years, he has become familiar with Spearman through 

contacts he has had with him on the street. Id. at 32. Officer Solomon 

knew Spearman to associate with gang members and to frequent an area 

known for gang activity. Id. at 32-33. He testified to his training and 

experience, which largely concentrated on street gangs and organized crime, 

and his knowledge about the formation and background of a particular sect 

of the Bloods, 252, the gang to which, in his belief, Spearman belonged. Id.

at 36-40. He further explained that if a person claimed to be a Blood, but 

the person was not in fact a member of the gang, the Bloods “will issue an 

order to have [that person] killed.” Id. at 38-39.

Using pictures he previously took of Spearman’s tattoos,4 Officer 

Solomon explained the meaning behind each tattoo and its significance in 

terms of the Bloods’ culture:

 A tattoo over Spearman’s eyebrows that says “sex $ murder,” 

which Officer Solomon stated is a marking of the Bloods (id. at 

38, 42);

 A bullseye with crosshairs in the center filled in red (the Bloods’ 

color) and a teardrop filled in red, which Officer Solomon 

understood to mean either the individual took a life or lost 

someone close to them (id. at 39, 42-43);

 A tattoo on one eyelid that says “2$2,” which Officer Solomon 

said stands for 252 (id. at 37, 45);

 

4

 The pictures were not included in the certified record on appeal.
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 A tattoo on his other eyelid that says “LIE,” which Spearman told 

Officer Solomon means “loyalty is everything” (id. at 45);

 On his right hand, a spider web with “brazy boy,” which Officer 

Solomon believed meant “crazy boy,” but Bloods use the letter 

“b” instead of “c” in words to show disrespect for the Crips, their 

rival gang (id. at 38, 45-46);

 A five-pointed star, which Officer Solomon stated is indicative of 

Blood membership (id. at 39, 47);

 The name “Mark Tart,” a member of the Bloods who was killed 

by an off-duty police officer during an attempted robbery of the 

officer (id.);

 “Live by the trigger” and “die by the trigger” on the inside of 

Spearman’s fingers (id.);

 “One Hunt Down” (for Huntington Street), “S block” (for Stanley 

Street), “19132” (the zip code), and “NP” (for North 

Philadelphia) on Spearman’s left arm and “29 Street” on his 

thumb, all of which refer to the area the 252 Bloods congregate 

(id. at 48);

 “NP gunman” and “Blood, money” (id.);

 “Homey boys” on Spearman’s fingers, which Spearman told 

Officer Solomon stands for “homicide boys” (id. at 48, 52).

Officer Solomon testified that the night he spoke with Spearman and 

took the above pictures, the tattoos on Spearman appeared to be fresh. Id.

at 50. Spearman reportedly told Officer Solomon that he was upset that 

people with whom he was affiliated, another gang known as “Team A,” had 

killed his friend, Anwar Ashmore (“Ashmore”), and he and others decided to 

break from Team A to form a gang of their own. Id. at 50-51. Spearman 

explained to Officer Solomon that he covered up several Team A-related 
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tattoos to turn them into Blood tattoos – e.g., the spider web previously only 

had an “A” in the middle, which he changed to say “brazy boy,” and the 

teardrop tattoo that he filled in red – and added new tattoos to distance 

himself from Team A. Id. at 51, 53-54. Officer Solomon had pictures of 

Spearman prior to Ashmore’s murder that corroborated this explanation. He 

also had pictures of Spearman with Ashmore (prior to his murder) and 

others, one of whom allegedly killed Ashmore. Id. at 54-55.

The Commonwealth also showed a music video posted on YouTube, 

the internet address for which was not stated on the record at sentencing. 

See id. at 58-61; 76. The trial court summarized the video as having been 

put together by another artist and depicting Spearman and others who were 

mentioned during the sentencing hearing “dealing with guns, drugs and 

other activities[.]” Id. at 76-77.

Spearman exercised his right to allocution and apologized for his 

actions that brought him into court. Id. at 65. He asked the trial court not 

to judge him by the actions taken by his neighbors or by his tattoos. Id. He 

explained that he is a tattoo artist and in an urban rap group, not a gang, 

and that the gang-related tattoos are “just a costume,” likening himself to 

rapper Lil Wayne. Id. at 65-66, 72-74. The trial court questioned him 

about the possibility of being killed for impersonating a gang member, to 

which Spearman replied that he “let them know” that he’s not a gang 

member and “didn’t think it would be this, like, very important.” Id. at 67-
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68. The trial court further questioned him about being in possession of the 

firearm used to kill Ashmore, but Spearman stated that although he wanted 

to respond, he did not want to respond that day. Id. at 68-70. 

The trial court then handed down Spearman’s sentence. In so doing, 

it stated the following:

I’ve heard the extensive testimony at the 

sentencing hearing. I’ve considered the presentence 

mental health reports. I’ve considered the 

Commonwealth’s sentencing memorandum. 

Considered the presentation made by counsel [for 

Spearman], as well as the testimony of 

[Spearman]’s mother, and all the background 

information that’s been provided regarding 

[Spearman]’s history both as a juvenile, the 

commitments, incarceration, as well as an adult.

* * *

Mr. Spearman, I understand you were damaged 

from what has happened to you in your life. But 

there also comes a time when the dangers to the 

community has to be strongly considered. In your 

case, I hope that you’ll use the time in state prison 

to do what you’re saying you want to do, to

fundamentally deal with whatever problems you 

have and make whatever changes you need to. 

Otherwise, you’re going to come back to state prison 

for the rest of your life from having killed someone 

or be dead yourself.

What you’ve gotten involved in, what you’ve been 

doing may be a product of what happened to you 

from the time of birth being crack addicted and 

everything else that occurred. I don’t think the 

Commonwealth disputes that. But what you’ve 

done, both in juvenile facilities and as an adult[,] 

make you very dangerous on the street right now.
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You’re a relatively young man. The sentence is 

not going to get you out in the near term, but it will 

get you out where you will be able to have a lot of 

your life left. What you make of your life will really 

be yours; none of us, your mother, your attorney, 

myself, nobody else. 

* * *

I appreciate your taking programs. There’s a lot 

of programs in the state prison that can help you. I 

hope you’ll take advantage of every one. Learn a 

trade, further education, counseling, whatever it is 

that you need to deal with anger that’s in you, and 

everything else that occurred that brought you to 

where you’re at. 

Id. at 81-85.

Spearman filed a timely motion to reconsider his sentence, arguing 

that his sentence was excessive based on its consecutive nature and the trial 

court’s failure to properly consider mitigating factors. The trial court denied 

the motion by operation of law on November 20, 2012.

On January 4, 2013, Spearman filed a pro se petition pursuant to the 

Post Conviction Relief Act (“PCRA”). The PCRA court appointed counsel, who 

filed an amended petition. On December 29, 2014, the PCRA court 

reinstated Spearman’s direct appeal rights. Thereafter, Spearman filed a 

timely notice of appeal and a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). On May 7, 2015, the trial court filed 

a responsive opinion pursuant to Pa.R.A.P. 1925(a).
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On appeal, Spearman raises one issue for our review: “Does 

[Spearman]’s [] 6108 sentence constitute an abuse of discretion and should 

the matter be remanded for resentencing?” Spearman’s Brief at 4. This 

issue raises a challenge to discretionary aspects of Spearman’s sentence.

Before we reach the merits of this issue, we must 

engage in a four part analysis to 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; and (4) whether 

the concise statement raises a substantial question 

that the sentence is appropriate under the 

sentencing code. The third and fourth of these 

requirements arise because Appellant’s attack on his 

sentence is not an appeal as of right. Rather, he 

must petition this Court, in his concise statement of 

reasons, to grant consideration of his appeal on the 

grounds that there is a substantial question. Finally, 

if the appeal satisfies each of these four 

requirements, we will then proceed to decide the 

substantive merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa. Super. 2014) 

(citations omitted), appeal denied, 109 A.3d 678 (Pa. 2015).

As stated above, Spearman filed a timely notice of appeal following the 

reinstatement of his direct appeal rights and filed a timely motion to 

reconsider his sentence. He includes in his brief on appeal a concise 

statement pursuant to Pa.R.A.P. 2119(f) wherein he purports to raise two 

substantial questions. First, he points to his sentence of two to five years of 

incarceration for 6108, which is double the aggravated guideline sentence, 

and the trial court’s decision to run the sentence consecutively to his 
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sentence for 6106. Spearman’s Brief at 9. He asserts that “[t]his sentence 

is inconsistent with 4[2] Pa.C.S.A. 9721(b) and contrary to the fundamental 

norms which underlie the sentencing process generally[, as t]he sentencing 

court did not properly explain how the sentence imposed was consistent with 

the protection of the public or how the sentence would serve [Spearman]’s 

rehabilitative needs. Id. Our review of the record reveals that Spearman 

failed to preserve this issue in his post-sentence motion to reconsider his 

sentence, and thus has waived it for purposes of appeal. See 

Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa. Super. 2015), 

appeal denied, 119 A.3d 351 (Pa. 2015).

Second, Spearman asserts that the length of his sentence for 6108, 

coupled with its consecutive nature, results in a manifestly excessive 

sentence, as Spearman pled guilty and accepted responsibility for his 

actions. Spearman’s Brief at 9. Although preserved in his post-sentence 

motion, we nonetheless deny review, as Spearman fails to raise a 

substantial question for our review. As stated by our Supreme Court,

[O]nly where the appellant’s Rule 2119(f) statement 

sufficiently articulates the manner in which 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, will such a statement be deemed 

adequate to raise a substantial question so as to 

permit a grant of allowance of appeal of the 

discretionary aspects of the sentence. 
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Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002). In his 2119(f) 

statement, Spearman fails to state with any specificity which section of the 

Sentencing Code or the fundamental norm the trial court violated by issuing 

this allegedly excessive sentence. See Spearman’s Brief at 9. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2015