J-S18021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARNELL BASON

Appellant No. 3718 EDA 2015

Appeal from the Judgment of Sentence dated November 6, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006896-2010

 CP-51-CR-0006898-2010

 CP-51-CR-0006947-2010

BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.: FILED MAY 24, 2017

Appellant, Darnell Bason, appeals from the judgment of sentence 

entered on November 6, 2015, in the Philadelphia County Court of Common 

Pleas, following this Court’s remand to the trial court to re-sentence 

Appellant for his trial convictions for one count each of robbery – threat of 

immediate serious injury, possession of an instrument of crime with intent, 

escape, and robbery of a motor vehicle, and for two counts of criminal 

conspiracy relating to each of the robbery charges.1 We affirm.

The facts of this case are as follows:

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(ii), 907(a), 5121(a), 3702(a), 903(a)(1), 

respectively.
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Complainant Steven Evans testified that at approximately 1:00 

in the morning on April 29, 2010 he was “hacking”, i.e. working 

as an unlicensed taxicab driver, near 52nd and Market Streets in 

Philadelphia. Mr. Evans’s vehicle was a green Chevrolet Blazer 

(Blazer). Mr. Evans was hailed by two males and he drove them 

to the intersection of 57th and Haverford. One of the men was 

[Appellant], who sat in the back seat while the other man sat in 

the front seat. After parking the car, the man in the front seat 

pulled out a knife and told Mr. Evans: “get out, I'm taking the 

car.” [Appellant] pulled out a gun and also told Mr. Evans to 

“get out.” Mr. Evans got out and Defendant and the other man 

drove away in the vehicle.

Philadelphia police officer Andre Howard testified that he and his 

partner Officer Nick Louis were the first to arrive at the location 

of the carjacking and meet with Mr. Evans, at which point they 

put out a “flash” describing the stolen vehicle. Philadelphia 

police detective Matthew Farley testified that at 9:00 that 

morning he showed Mr. Evans a photo spread, and Mr. Evans 

picked out a photo of [Appellant] from the array.

Complainant Edward Burse testified that at approximately 6:30 

on the morning of April 29, 2010 he was walking to work at the 

Mercy Medical Center Hospital on 53rd Street and Cedar Avenue 

in Philadelphia when he suddenly heard a “loud screeching” and 

saw a green Blazer run a light and pull up quickly to the side of 

the curb. A man ran up behind him, saying “give me your 

money.” A struggled ensued, during which the assailant poked 

at Mr. Burse with a knife, until [Appellant] appeared and pointed 

a gun at him and said “You're taking too long, give me the 

money, give me the money.” Mr. Burse surrendered his wallet 

and the two drove away in the Blazer.

After the attack Mr. Burse proceeded to the Hospital and called 

the police, who arrived shortly after and took his statement. 

When the officers learned that potential suspects had been 

apprehended Mr. Burse was driven to the scene and asked to 

identify the men. Mr. Burse testified that he recognized the two 

men as his assailants, and when shown a picture of [Appellant] 

(Commonwealth Exhibit 8) at trial he identified him as being one 

of the attackers.

Philadelphia police officer Malik Abdulhadi testified that on April 

29, 2010 he was called to the area of the Mercy Medical Center 
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Hospital to interview the complainant Edward Burse. Officer 

Abdulhadi relayed the information he collected from Mr. Burse 

over the radio and shortly after he received information that a 

suspect had been apprehended. Officer Abdulhadi transported 

Mr. Burse to the scene. Officer Abdulhadi testified that upon 

arriving Mr. Burse identified [Appellant] as one of the individuals 

who robbed him.

Philadelphia police officer Anthony Washington testified that on 

April 29, 2010 he was working a midnight to 8:00 a.m. shift in 

the 18th District of Philadelphia. Officer Washington was on patrol 

in a marked police car with his partner Officer Denia Starks when 

at approximately 6:15 a.m[.] he received a robbery in progress 

call “for 54th and Cedar involving two black makes inside of a 

green Chevy Blazer SUV.” Approximately fifteen minutes later 

the officers observed a green Blazer and turned on their 

overhead lights in order to get the vehicle to stop. At this point 

the Blazer backed into a parking spot and the driver fled on foot. 

Officer Washington pursued the driver, [Appellant], who pulled a 

black handgun from his waistband and threw it under a parked 

car. Because there was a young girl on the street Officer 

Washington retrieved the gun before continuing his chase. 

[Appellant] ran down an alleyway which Officer Washington 

knew to have only one other exit, at which time [Appellant] was 

taken into custody by other police officers. Officer Washington 

was shown a photograph of [Appellant] at trial and identified him 

as the driver of the Blazer he had pursued.

Sergeant Kenneth Flaville testified that after the two suspects 

who had been driving the Blazer were taken into custody he 

conducted a search of the vehicle and found in its interior a 

wallet belonging to Edward Burse. Officer Starks testified that 

while Officer Washington was chasing [Appellant] she detained 

the passenger of the Blazer. The passenger had not attempted 

to flee. Officer Starks later conducted an investigation on the 

vehicle and determined that neither [Appellant] nor the 

passenger was the owner of the Blazer.

Philadelphia police officer Ronald Browne testified that he 

transported [Appellant] to police headquarters, but prior to 

entering the building, [Appellant] “made kind of a motion and a 

noise like he was injured.” Officer Browne asked [Appellant] 

what was wrong and as he opened the door [Appellant], whose 

left arm was free from his handcuffs, began to run. He was 
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chased by Officer Browne and other officers in the vicinity. 

Officer Browne tackled [Appellant], who fell on Officer Browne’s 

hand and broke it. [Appellant] struggled with the officers after 

he was tackled, “flailing around” and kicking at the officers 

before he could be put in handcuffs again. . . . [Appellant] was 

released from custody and placed on house arrest on January 3, 

2012. . . .

Philadelphia police officer Yvette Rawls-Guyton testified that she 

worked for the pretrial unit of the First Judicial District and that 

that on Friday, May 11, 2012 she was notified by the “Warrant 

Unit” that [Appellant’s] electronic monitoring strap had been 

tampered with. In response Officer Rawls-Guyton placed a 

phone call to the address where [Appellant] had been living, but 

the person who answered the call was unable to provide 

information regarding [Appellant’s] whereabouts. Officer RawlsGuyton testified that she was notified by Sergeant Michael Roth 

of the “Warrant Unit”, who had gone to [Appellant’s] home to 

investigate, that [Appellant] was missing and that his electronic 

monitoring equipment had been recovered.

Trial Ct. Op., 11/20/13, at 3-8 (footnote omitted) (citations to the record 

omitted).

On January 9, 2013 [Appellant] was sentenced to consecutive 

periods of confinement at a State Correctional Institution of 5 to 

10 years on the charge of Robbery - Threatens Serious Bodily 

Injury and 1 to 5 years on the charge of Conspiracy at CP-51-

CR-0006896-2010, 1 to 2 years on the charge of Escape at CP51-CR-0006898-2010, 5 to 10 years on the charge of Robbery of 

Motor Vehicle and 1 to 5 years on the charge of Conspiracy at 

CP-51-CR-0006947-2010, for a total period of confinement of 13 

to 32 years.

Id. at 2. “The [trial] court imposed the mandatory minimum sentence for 

the robbery [– threat of immediate serious injury] conviction and the 

robbery of a motor vehicle conviction pursuant to 42 Pa.C.S. § 9712.” 

Commonwealth v. Bason, No. 344 EDA 2013, at 2, 2014 WL 10753721, at 

*1 (Pa. Super., Dec. 11, 2014) (unpublished memorandum).
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In Appellant’s direct appeal, this Court “vacate[d] the judgment of 

sentence and remand[ed] for resentencing without consideration of any 

mandatory minimum sentence as provided by section 9712.” Bason, No. 

344 EDA 2013, at 6, 2014 WL 10753721, at *3 (citing Alleyne v. United 

States, 133 S.Ct. 2151 (2013); Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014) (en banc) (holding 42 Pa.C.S. § 9712 unconstitutional), 

appeal denied, 121 A.3d 496 (Pa. 2015)).

On November 6, 2015, [Appellant] was resentenced, in 

accordance with the order of the Superior Court, to the same 

period of confinement without considering mandatory minimums, 

[Appellant] was sentenced to consecutive periods of confinement 

at a State Correctional Institution of 5 to 10 years on the charge 

of Robbery and 1 to 5 years on the related charge of Conspiracy, 

1 to 2 years on the charge of Escape, 5 to 10 years on the 

charge of Robbery of Motor Vehicle and 1 to 5 years on the 

related charge of Conspiracy, for a total period of confinement of 

13 to 32 years.

Trial Ct. Op., 9/1/16, at 2-3 (footnote omitted). Appellant’s new sentence 

thus had the same length of incarceration as the original sentence that we 

vacated in 2014. Appellant appeals from that sentence.

Appellant now raises one issue for our review:

Did not the trial court err as a matter of law and violate the 

principles of discretionary sentencing when, at [A]ppellant’s resentencing, it merely re-imposed [A]ppellant’s manifestly 

excessive original sentence of 13 to 32 years incarceration 

without giving any individualized consideration to [A]ppellant’s 

personal history, rehabilitative needs and background, and which 

was in excess of what was necessary to address the gravity of 

the offense, the protection of the community, and [A]ppellant’s 

rehabilitative needs?

Appellant’s Brief at 3.
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When appealing the discretionary aspects of a sentence, an 

appellant must invoke the appellate court’s jurisdiction by 

including in his brief a separate concise statement demonstrating 

that there is a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Pa. R.A.P. 2119(f).[2] 

. . . The 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 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.

Commonwealth v. Glass, 50 A.3d 720, 726-27 (Pa. Super. 2012) 

(citations and internal quotation marks omitted), appeal denied, 63 A.3d 

774 (Pa. 2013).

Appellant included a Rule 2119(f) statement in a separate section of 

his brief, as required by the Appellate Rules. See Appellant’s Brief at 7-9. 

There, Appellant stated that the trial court “reimposed [A]ppellant’s original 

sentence of 13 to 32 years of confinement, without any explanation for 

imposition of the same manifestly excessive sentence in the absence of the 

applicability of any mandatory minimum sentences” and “failed to conduct 

any semblance of an individualized consideration of [A]ppellant’s personal 

history, rehabilitative needs and background in fashioning his sentence.” Id.

at 7. Appellant continued that “[t]his Court should grant allowance of appeal 

____________________________________________

2

It is also necessary for Appellant to have preserved the issue in the trial 

court and to have filed a timely appeal. Commonwealth v. Colon, 102 

A.3d 1033, 1042-43 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 

2015). Appellant’s appeal was timely filed, and he preserved his challenge 

to the discretionary aspects of sentencing in his post-sentence motion and in 

his Pa.R.A.P. 1925(b) statement.
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from the discretionary aspects of sentence because the trial court violated 

the express provisions of the Sentencing Code and imposed an excessive 

sentence, contrary to the fundamental norms which underlie the sentencing 

process.” Id. (citing Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 

2002)). He added:

the sentencing court failed to carefully consider all relevant 

factors as set forth in Section 9721(b) of the Sentencing Code 

(Title 42).

[3] Specifically, the sentence imposed far surpassed 

that required to protect the public, the community’s interests, 

and failed to address [A]ppellant’s personal history and 

rehabilitative needs.

Id. at 8.

Appellant’s argument raises a substantial question. See 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super.) (en 

banc) (“[a]rguments that the sentencing court failed to consider the factors 

proffered in 42 Pa.C.S. § 9721 . . . present a substantial question” 

(quotations and citation omitted)), appeal denied, 104 A.3d 1 (Pa. 2014). 

Hence, we will consider the substantive merits of his sentencing claim.

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

____________________________________________

3 42 Pa.C.S. § 9721(b) states, in relevant part:

[T]he 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.
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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 ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citation 

omitted), appeal denied, 117 A.3d 297 (Pa. 2015). “A sentencing court 

need not undertake a lengthy discourse for its reasons for imposing a 

sentence or specifically reference the statute in question, but the record as a 

whole must reflect the sentencing court’s consideration of the facts of the 

crime and character of the offender.” Commonwealth v. Schutzues, 54 

A.3d 86, 99 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

In addition:

Where pre-sentence reports exist, we shall continue to presume 

that the sentencing judge was aware of relevant information 

regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors. A presentence report constitutes the record and speaks for itself. In 

order to dispel any lingering doubt as to our intention of 

engaging in an effort of legal purification, we state clearly that 

sentencers are under no compulsion to employ checklists or any 

extended or systematic definitions of their punishment 

procedure. Having been fully informed by the pre-sentence 

report, the sentencing court’s discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, “[w]here 

the sentencing judge had the benefit of a pre-sentence report, it will be 

presumed that he was aware of relevant information regarding appellant’s 

character and weighed those considerations along with the mitigating 
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statutory factors.” Commonwealth v. Fullin, 892 A.2d 843, 849–50 (Pa. 

Super. 2006). 

Here, the trial court explained:

In reimposing [Appellant]’s sentence on November 6, 2015, the 

[c]ourt fully reviewed the record from the January 9, 2013 

sentencing, including the presentence investigation report, 

arguments of counsel, as well as testimony from both the 

[Appellant] and [Appellant]’s grandmother. In 2013, arguing 

that [Appellant] cut his electronic monitor when he was released 

on house arrest and failed to appear for trial, the Commonwealth 

recommended a sentence of 26 to 52 years. The 

Commonwealth also noted that [Appellant] had been on juvenile 

probation numerous times, and that the nature of his current 

offenses were particularly harmful due to the multiple victims 

and a police officer who broke his hand while apprehending 

[Appellant]. On reimposing [Appellant]’s sentence and referring 

to its decision in 2013, the court noted, “I gave him a break. I 

gave him -- a 13-year minimum was a break. It was in 

consideration of his age...” “Because of his youth and his lack of 

prior record for violent crime.” In resentencing [Appellant], the 

Court has properly considered the factors of [Appellant]’s 

history, rehabilitative needs, and background.

. . . 

[A]ll sentences imposed by the [trial c]ourt were well within the 

range of the sentencing guidelines. The guidelines 

recommended a minimum sentence of 54 to 66 months plus or 

minus 12 for each robbery count, a maximum penalty the same 

as robbery for each conspiracy count, and a maximum penalty of 

7 years for escape. The sentences imposed for each individual 

conviction were all within the guidelines, but the [trial c]ourt ran 

them consecutively, totaling a period of confinement of 13 to 32 

years.

. . .

[T]he [trial c]ourt had the original PSI report from [Appellant]’s 

January 9, 2013 sentencing. This report, in addition to 

arguments of counsel and testimony of [Appellant]’s witnesses 

made at the 2013 sentencing, sufficiently apprised the [trial 

c]ourt of the circumstances surrounding [Appellant]’s 

convictions. [Appellant]’s counsel was also able to make 

argument to the [c]ourt in 2015 that during his time in state 

custody he had exhibited good behavior. The [c]ourt was 
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sufficiently aware of [Appellant]’s personal history and because 

the circumstances of the [Appellant]’s crime had not changed 

during the period of his confinement, there was no need for an 

updated presentence investigation report.

Trial Ct. Op., 9/1/16, at 5-6, 8-9 (citing N.T., 1/9/13, at 3, 20-23, 25; N.T., 

11/6/15, at 9, 12, 16). 

We conclude that by considering the PSI, testimony from Appellant’s 

first sentencing hearing, and counsel’s arguments from both sentencing 

hearings, the trial court created a proper record and rendered its sentence 

fully informed by it. See Devers, 546 A.2d at 18; Fullin, 892 A.2d at 849–

50. Thus, the trial court considered Appellant’s character – including his 

youth, his prior criminal history, and good behavior while incarcerated; his 

rehabilitative needs, including his earlier actions while on house arrest and 

his failure to reform while on juvenile probation; and the impact of his 

actions on his victims and on the community and public, including his lack of 

violent behavior. See 42 Pa.C.S. § 9721(b); Schutzues, 54 A.3d at 99. 

The trial court also had reviewed the sentencing guidelines, which take into 

account the gravity of the offenses. N.T., 1/9/13, at 3; see 42 Pa.C.S. § 

9721(b). Accordingly, the trial court properly reviewed all of the requisite 

factors required by the Sentencing Code. Having done so, we conclude that 

the trial court did not abuse its discretion in imposing the sentence that it 

selected. 

The record does not support the conclusion that “the sentencing court 

ignored or misapplied the law, exercised its judgment for reasons of 
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partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable 

decision.” Zirkle, 107 A.3d at 132. Appellant argues that “[t]he trial court 

did not take the re-sentencing hearing seriously in the slightest, stating 

during the call of the list, ‘So you’re here for me to say [that] I [can] impose 

the same sentence, but I’m not doing it on the basis of a mandatory 

minimum?’” Appellant’s Brief at 14 (quoting N.T., 11/6/15, at 4). We 

acknowledge that the trial court’s comment was flippant, but that does not 

make the sentence improper so long as the trial court considered all of the 

appropriate factors and applied them in a correct way to reach an 

appropriate sentence. As we have held, the trial court properly considered 

Appellant’s character, his rehabilitative needs, the gravity of his offenses, 

and the impact of his actions on his victims and on the community and 

public. We therefore discern no basis upon which to conclude that the trial 

court did not take the re-sentencing hearing seriously.

Judgment of sentence affirmed.

Judge Panella joins the memorandum.

Judge Fitzgerald concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2017