J

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* Retired Senior Judge assigned to the Superior Court NON
- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

SEAN JOSE RAIN ,

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

PENNSYLVANIA

No. 1894 WDA 2017

Appeal from the Judgment of Sentence October 5, 2015 in th e Court of Common Pleas of Mercer County C riminal Division at No(s): CP

- 43

- CR

- 0001010

- 2014

BEFORE: BOWES, STABILE , and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 14, 2018

Sean Jose Rain (Appellant) appeals nunc pro tunc from the judgment

of sentence entered October 5, 2015, after he was foun d guilty of one count

of person not to possess a firearm

. We are constrained to affirm.

In September 20 14, Ap pellant was charged with several crimes,

including two counts of person not to possess a firearm , in relation to a

shooting that occurred in 2013. The victim , Leonard Figgins (Figgins),

identified Appellant as the shooter. On November 5, 2014, Appellant made

an application to sever the two counts of person not to possess, which the

trial court subsequently granted. In February 2015, Appellant proceeded to a

jury trial on all charges except the two possession counts, and was

acquitted.J

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B ased upon, inter al ia , the acquittal, Appellant filed a motion to quash

the two outstanding person not to possess charges. The Commonwealth

opposed the mo tion to quash , and subsequently filed its own motion , seeking to amend the information to add count 12, another person n ot to

possess charge , based upon information received from testimony provided

by a defense witness at Appellant’s earlier trial

. On June 4, 2015, the trial
court granted both Appellant’s motion to quash and the Commonwealth’s

motion to amend and a count o f person not to possess a firearm w as added

to the information.

Appellant proceeded to a jury trial. At trial, Andre Hailstock

(Hailstock ) testified that on October 9, 2013, Hailstock, Appellant, and

several other individuals, including Figgins were at a home on the 900 block

of Fruit Street. N.T., 7/14/2015 , at 22. Hailstock testified that he was with

Appellant in the living room when Figgins approached, grabbed his coat, and

asked Appellant to hand him a gun that was on a table n ear where Appellant

was sitting

. 1 Appellant complied and Figgins left the home. Id. at 23

- 24.

Hailstock testified that he and Appellant w ere aware that Figgins had left the

home with the firearm “to go rob a dice game.” Id. at 26. Based upon the

1 The firearm belonged to Figgins.J

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foregoing, 2 o n July 15, 2 015, Appellant was convicted of one count of person

not to possess a firearm, and on October 5, 2015, the trial court sentenced

Appellant to 30 to 6 0 months of incarceration. 3

On October 17, 2017, Appellant filed a post

- sentence motion nu n c pro

tunc

. 4 T h e trial court scheduled a hearing where it heard argument from the

2 Only Hailstock and Alex Glessner, a forensic DNA scientist for the Pennsylvania State Police testified. Mr. Glessner testified that Appellant’s DNA was found on a Ruger Red Hawk revolver. N.T. 7/14/2015, at 44.

3 At sentencin g, it was determined that with Appellant’s prior record score of four and an offense gravity score of five , the sentencing guideline rang e was nine to 16 months’ incarceration, plus or minus three. Thus, the trial court imposed a sentence in excess of the guidelines, but within the statutory maximum. See N.T., 10/5/2015, at 8

- 9; 18 Pa.C.S. § 1104(1) (“ A person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than ... [f]ive years in the case of a misdemeanor of the first degree.”).

4 After his sentencing hearin g, Appellant inquired with the public d efender’s office, who was appointed to represent him, about filing an appeal on his behalf. Despite his inquiry, the deadline for filing a n appeal passed wit hout action. This prompted Appellant to file his first petition pursuant to the Post

Con viction Relief Act (PCRA), 42 Pa.C.S. §§ 9 541

- 9546 , requesting the court reinstate his appellate rights nunc pro tunc . On July 25, 2016, the PCRA court granted Appellant’s petition . Appellant filed an appeal challenging, inter alia , the discretionary aspe cts of his sentence. On appeal, this Court found Appell ant’s sentencing claim waived for failur e to preserve properly his issue at sentencing or in a post

- sentence motion. Commonwealth v. Rain, 170 A.3d 1186 (Pa. Super. 20 17) (unpublished memorandum).

Appellant then filed his second PCRA petition contending his appellate counsel was ineffective for failing to preserve properly his sentencing claim. On October 10, 2017, the court once again entered an order reinstating his appellate rights nunc pro tu nc , and Appellant filed the aforementioned post

sentence motion.J

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parties, including Appellant’s counsel, who requested the trial court re
sentence Appellant within the standard range. N.T., 11/27/2017, at 2

- 4

. Following the hearing, on November 30, 2017 , the trial court denied

Appellant’s motion. Appellant thereafter timely filed a notice of appeal. 5

Appellant ’s sole issue on appeal challenges the discretionary aspects of

his sentence. Appellant’s Brief at 4. Accordingly, we bear in mind the

followi ng.
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 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 nunc pro tunc and

notice of appeal, and included a statement pursuant to Rule 2119(f) in his

5 Both Appellant and the trial court complied with Pa.R.A.P. 1925.J

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brief. 6 We now turn to consider whether Appellant has presented a

substantial question for our review.

The determination of what constitutes a substantial question must be

evaluated on a case

- by

- case basis. Commonwealth v. Paul , 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only w hen the
appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Griffin , 6 5 A.3d at 935 (citation and quotation marks

omitted).

In his 2119(f) statement, Appellant states only that the trial court
“abused its discretion when the [court] sentenced Appellant outside of the

sentencing guidelines without putting sufficient reasons f or said deviation on
the record.” Appellant’s Brief at 9. Such a claim raises a substantial

question for our review

. See Commonwealth v. Garcia

- Rivera , 983 A.2d

777, 780 (Pa. Super. 2009) (“This [C]ourt has found that a claim the trial

court failed to s tate its reasons for deviating from the guidelines presents a
substantial question for review.”). We address the merits of this claim

mindful of the following.

6 Despite Appellant’s woefully inadequate 2119(f) statement, see Appellant’s Brief at 9, the Commonwealth has not objecte d, so we will consider whether Appellant has raised a substantial question for our review.J

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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. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignor ed or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

* * *

When imposing sentence, a court is required to consider the particular circumstances of the offense and the character of the defendant. In considering these factors, the court should refer to the defendant’s prior criminal record, age, personal characteristics and potential for rehabilitation.

Commonwealth v. Antidormi , 84 A.3d 736, 760

- 61 (Pa . Super. 2014)

(emphasis added; internal citations and quotation marks omitted).

As a general matter, Pennsylvania’ s sentencing scheme, with its guidelines and suggested minimum sentences, is “ indeterminate, advisory, and guided ” in its nature. Pennsylv ania judges retain broad discretion to sentence up to and including the maximum sentence authorized by statute; “ the only line that a sentence may not cross is the statutory maximum sentence. ”

Commonwealth v. Gordon , 942 A.2d 174, 182 ( Pa. 2007) (citatio ns
omitted; emphasis added). “ Traditionally, the trial court is afforded broad

discretion in sentencing criminal defendants ‘ because of the perception that

the trial court is in the best position to determine the proper penalty for a

particular offense ba sed upon an evaluation of the indi vidual circumstances

before it.’” Commonwealth v. Mouzon , 812 A.2d 617, 620 ( Pa. 2002)

.
See also Commowealth v. Melvin , 172 A.3d 14, 21 (Pa. Super. 2017)

(“ To be clear, while the court must consider the guidelines, the c ourt is alsoJ

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afforded broad discretion in sentencing matters, as it is in the best position

to evaluate the individual circumstances before it. ”).

In it s opinion to this Court, the trial court responded to Appellant’s

claim as follows.

Th[e trial c]ourt se ntenced [Appellant] outside the sentencing guidelines and explained its reasoning extensively at the [s]entencing h] earing held on October 5, 2015. Th[e c]ourt’ s sentence and reasoning fully comply with 42 Pa.C.S. § 9721(b) and 42 Pa.C.S. §§ 9781(c) and (d). The [c] ourt discussed the nature of the offense and the fact that [Appellant] gave a gun to his friend knowing that the friend intended to commit armed robbery. Th[e trial c]ourt also considered [Appellant’ s ] history, characteristics and reviewed his entire criminal history. [Appellant’s] [j] uvenile [r] ecord consisted of six arrests, four adjudications, two adult arrests, one conviction, and two incarcerations, both lasting about nine months.

The [c] ourt discussed the protection of the public, the g ravity of the offense, the impact on the community and the victim, and [Appellant’s] rehabilitative needs. The [c] ourt noted that this is not an offense in which there is a specific victim, however the strong impact on the community must be considered. Th e [c] ourt addressed the prevalence of gun violence in Mercer County and t hat [Appellant] contributed to this [] problem by handing a gun to a person who was going to commit a robbery. The [c] ourt also discussed the need to protect the community from gun v iolence . The [c] ourt specifically addressed [Appellant’s] rehabilitati[ve] needs drawing attention to [Appellant’s] repeat offenses and lack of
remorse. The [c] ourt did consider the letters sent by members of the community speaking positively about [Appe llant] , however, the [c] ourt also noted that [Appellant] has a history of physical altercations and other violence throughout his past. Having considered all of this, the [c] ourt imposed a sentence that, while outside of the guidelines, complies fully wit h the law.

Trial Court Opinion, 2/14/2018, at 5

- 6 ( unnumbered; citations omitted).J

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Indeed , at Appellant’s sentencing hearing, on the record, the trial

court stated the following

.

As indicated by the Assistant District Attorney, you were found guilty by a jury on July 15[], 2015. And just as I don’t take into consideration acquittals, nor am I allowed to, I do take into consideration that a jury has spoke n in this case. That it was not a de minimis matter.

And I do believe that the Assistant District At torney cited the record correctly, tha t the testimony from [Hailstock] was that you passed over the gun to [ Figgins ] knowing that he was going to go out and rob crap [s] games.
The presentence investigation [report (PSI)] indicates you’re twenty

- one. You have a GED.

Your co

- [d]efendant [Figgins] , if we can call him that because he’s really not your co

- [d]efendant on this charge, but he was involved in the u nderlying situation or the totality of the situation, did receive a state sentence. Of course, he was convicted on much different charges.

Juvenile record indicates six arrests, four adjudications; two adult arrests, one conviction. Two incarcerations, one lasted about nine months and the other maybe a little bit less than that.

[A]lthough your atto rney has argued, primari ly focusing on what’ s become of you since the last time you got out of jail, I am required and I do think it’ s important that I consider a

-- consider the past. The juvenile supervision adjustment indicates you were placed in shelt er care from March 27[] , 2008 to April 14[] , 2008. You then wen t to a boot camp from April 14[], 2008 to July 8[] , 2008. You then went home from July 8[], 2008 to November 27[] , 2008, when you had new charges. You were back to shelter care from November 27 [] , 2008 to March 6, 2009.

You went into the Adelphoi Villag e secure facility from March 6[], 2009 to July 30[] , 2009. And then to ... the Gre ystone Group Home from July 30[], 2009 to December 7[] , 2009. Came back home again on December 7[], 2009 until Jun e 22[] ,J

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2011, when you had new charges again. Bac k to shelter care from June 22[], 2011 to June 27[] , 2011. Placed in t he New Castle YDC from June 27[], 2011 to January 12[] , 2012. Then back home again on Janua ry 12[], 2012 until January 25[] , 2012, when you had parole violations and bac k in shelter care from July 25[], 2012 to July 27[] , 2012.

You then came h ome on house arrest on July 27[] , 2012, and finish ed on house arrest on March 15[], 2012 [] , when you turned eighteen.

The juveni le offenses were two counts of [d] isorde rly [c]onduct and [a]ggravated [a]ssault and then another [d]isorderly [c] onduct and then an [e]scape from the shelter
care.
Your adult record, you were acquitted twice and then you had your current case where you were convicted. Y ou noted in

-

- the PSI notes you had a close family relationship. You have no

r eal drug or alcohol issues. You’ re single with no children.

You reported to the ... auditor that you’ re not a violent person and you describe yourself as someone who tries to d e
escalate a volatile situation. And you had an anger management while in juvenile placement.

Your work history indicates you worked for an uncle and you then you had the job in Georgia for about three months and lately now, it’ s been testified here, that you are a bouncer in a bar. ... [Y]ou did say you [] clean the bar after it closes as well.

Th e sentencing guidelines are an [o]ffense [g]ravity [s]core of five, [p]rior [r]ecord [s] core of four. Standard range is nine to sixteen, plus or minus three.

I’v e noted already and I’ ll note again I did consider the sentencing memorandum and the various letters, some of whom [are] from people I know. And they do report on you regarding your past mistakes, noting y our past mistakes, and that you’ re changing your l ife. And certainly I've heard the witnesses testify today, including your mom.J

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- I’ m required by law to consider the impact of the crime on the victim. In essence, there is no victim here because this was a possession charge.

The impact on the community. The offense does have a great impact on the community. I don’ t view it as de minim[i] s

. Gun violence is prevalent in parts of Mercer County. Everyone walks in fear because of the prevalence of guns.

By the testimony in this trial, you were sitting in
s omeone’s home and there’s a gun sitting on the table. Just part of the décor. You were part of that. That was your life. And when someone wanted the gun to go rob crap [s] games, you just handed it to him.

I have to consider the safet y of the communit y. There is a strong need to prot ect the community fro m gun violence. People need to be safe from guns everyw here. In their homes, in their work, and certainly in their neighborhoods.

Must also consider your rehabilitation needs. Your record show s t hat for a significant period of time you were a regular offender. Despite many placements, you re

- offended soon af ter returning ho m e. Despite juvenile placements and incarceration, you offended again

.
I do note the letters that admired your attempt to change your life and that you try to speak to youth groups about your mistakes.

I also consider your attitude. It appears that the people that have written on your behalf certainly believe your attitude has changed. You’re trying to become a better p erson. Yo u correctly indicate you recognize your mistakes.

What I didn’ t see anywhere is any suggestion of r emorse on your part. Maybe that’ s implied from the course of conduct you’ re now trying to follow. None of the letters ever mention [s]
s pecific ally remorse or that you’ ve showed remorse. They do show you’ ve tried to help others avoid what you went through.

You made m istakes, admit to them, but don’ t really apologize for them. You told the ... PSI auditor that you’ re a
non [

- ] violent person and yo u act as a de

- escalator, you try toJ

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de

- escalate a violent situation. Well, let’ s talk about that. Were you a de

- escalator in the first of your two [d]isorderly [c] onducts when you were a juvenile? You told the PSI auditor you were involved in a physical altercation at Sharon High School. You would not calm down, you screamed obscenities at the police and were jumping around. [ 7 ]

* * *

I've tried to look at everything, []including [Appellant’s] past , which I do think is significant; the fact that this inv olved a gun, a gun that was then used, at a minimum, to rob crap[s] games.

I do take seriously the letters that were written and the things tha t have been said upon [Appellant’s] behalf. But I note there were periods of time when he came home and then go t in trouble again. That seemed to be a repetitive situation. He hasn’ t yet, but, of course, he knew he had

-- was facing trial in this case and now sentencing on this case. Does that explain some of his behavior?

* * *

The [trial court] notes that th e sentence is outside the standard range of the guidelines, but believes that it is an appropriate sentence due to the seriousness of the offense, the impact of the crime on the community, the need to keep the community safe.

[Appellant has] been in multi ple placements, including incarceration, but continue [d] to offend. I am no t seeing remorse. I’m seeing someone who’s telling me they’ re trying to change their life. I question your credibility. You told the auditor you were a de

- escalator and I saw no de

- escalation in any of your conduct.

N.T., 10/5/2015, at 32

- 42

.

7 The trial court then went on to note several other instances in which the court found Appellant did not act as a de

- escalator . This included other crimes of viole nce, as well as several misconducts Appellant received while incarcerated. See N.T., 10/5/2015, at 38

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Here the trial court provided reasons for the sentence imposed

including, inter alia , the seriousness of the crime , the protection of the public

against gun violence, which has been a prev ale nt problem in Mercer County

according to the trial court , and Appellant’s lack of remorse and

r ehabilitation despite several placements, arrests, and incarcerations. Id.

at 42. The court also acknowledged the sentencing guidelines prior to

imposing a n above the guideline range sentence. Id. at 8.

In addition, the trial court received and reviewed a 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). The court stated on multiple occasions that it

considered the mitigating informati on presented by Appellant and that it
took the letters and statements made on Appellant’s behalf “seriously.”

N.T., 10/5/2015, at 41. Nonetheless, for the reasons cited supra , the

sentencing court concluded that the imposition of an above

- guideline

sente nce was appropriate.

We are cognizant that gun violence plagues our society

. We are also

keenly aware that courts must punish individuals who use firearms to break

the law and help to perpetuate crimes in our communities. However, in this

case, we are troubled with the i mposition of an above

- guideline

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sentence based on the facts before us. While we do not find his act “ de

minimis ,” Appellant’s actions narrowly meet the definition set forth in 18

Pa.S.C. § 6105 (a)(1) , 8 which makes the imposition of a statutory maximum

sentence troubling.

Nonetheless, based on the record before us and the limited review this

Court has when considering sentencing claims, as cited in more detail supra , we cannot find, nor has Appellant convinced this Court that, the trial court’s

determination was manifestly unreasonable, a misapplication of the law or

was the product of partiality, prejudice, bias, or ill

- will. 9 “[I]f the sentencing

8 A person convicted of an enumerated offense set forth in the statute “shall not possess, use, control, sell, transfer or manufacture or obtain a li cense to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.” 18 Pa.S.C. § 6105 (a)(1)

.

9 Lastly, we note that although Appellant only raises the aforementioned issue in his 2119(f) statement, the argument section of his b rief raises several additional arguments in support of his contention that an above the guideline range sentence was inappropriate. Specifically, Appellant avers the trial court failed “to take into consideration the mitigating factors presented by Appell ant” and found that Appellant lacked remorse. Appellant’s Brief at 12. Furthermore, Appellant contends his possession of the firearm was de minimis , that the trial court took into consideration Figgins’s actions at Appellant’s sentencing hearing, and th at he was not involved in a crime of violence or gun violence. Id. at 14. With that in mind, Appellant avers the trial court erred in relying on the sentence Figgin s re ceived, especially since Figgin s was convicted of crimes that varied greatly from, and were “far more serious than, the charge for which Appellant was convicted.” Id. Lastly, Appellant argues the trial court’s emphasis on the protection to the public and his juvenile record were misplaced. Id. at 13

- 16. Assuming arguendo that Appellant p reserved properly these claims and raised substantial questions for our review, he would still not be entitled to relief. At sentencing, the trial court heard and considered statements (Footnote Continued Next Page)J

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court, after considering the appropriate [] sentencing factors , states valid

reasons for its sentence , which are supported by the record, this Court must

affirm the decision even if the particular panel does not agree with the

weight the sentencing court accorded them.” Commonwealth v. Marts , 889 A.2d 608, 616 (Pa. Super. 2005). See also Commonwealth v.

Stewart , 867 A.2d 589, 592 (Pa. Super. 2005) (“It is not the function of an

appellate court to determine whether it would have imposed the same

sentence as the trial court. ” ).

In light of the foregoing, we are constrained to affirm.

(Footnote Continued)

_______________________ from Appellant, his pastor, and his mother, as well as reviewed variou s letters in support of Appellant. Additionally, the court received and reviewed Appellant’s PSI report and as our case law notes, the trial court is in the best position to consider these factors and evaluate Appellant’s remorse. See Mouzon , supra

. Lik ewise, we find Appellant’s complaint about the court’s discussion of Figgins’ actions and sentence at Appellant’s sentencing hearing meritless. We find nowhere in the record, and Appellant has failed to convince this Court, that the trial court considered improper factors when sentencing Appellant. To the contrary, we find t he trial court mentioned Figgin s to highlight that Appellant was aware that the firearm he passed off to Figgins was going to be used to commit an armed robbery. To wit, the court ack nowledged that although Figgins received a lengthy sentence, he

“ was convicted on much different charges.” N.T., 10/5/2015, at 33.

Nor has this Court been convinced that the trial court erred by considering Appellant’s juvenile record and emphasizing the impact Appellant’s crime had on the community. When sentencing a defendant, the trial court “shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). The aforementioned considerations were proper and balanced by the court’s recognition of the mitigat ing evidence presented by Appellant.J

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Judgm ent of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/14/2018