Com. v. Salmond, J. ( 2023 )

J-S45044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAWAUN SALMOND :
:
Appellant : No. 905 EDA 2022
Appeal from the Judgment of Sentence Entered October 26, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0007686-2018
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 22, 2023
Jawaun Salmond (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of one count each of attempted
murder, aggravated assault, aggravated assault of an unborn child,
possessing an instrument of crime, simple assault, recklessly endangering
another person, and three counts of violating the Uniform Firearms Act.1 We
affirm.
The trial court detailed the underlying facts as follows:
[The Victim] … grew up in the 6600 block of Chew Avenue in
Northwest Philadelphia … the same area as Appellant, had known
him for many years, and had spoken with him on previous
occasions. On August 12, 2018, [the Victim] was visiting her
friend in the Mount Airy area. While there, [the Victim] saw
Appellant during the daytime sitting with a group of other men on
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1 18 Pa.C.S.A. §§ 901(a), 2702(a), 2606(a), 907(a), 2701(a), 2705,
6105(a)(1), 6106(a)(1), and 6108.
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the corner of Chew Avenue and Sharpnack Street. [The Victim]
testified that she did not speak with Appellant at the time and she
could not recall what he was wearing.
Later that evening, [the Victim] stopped at a Chinese store
to get change so she could take the bus back home. As she was
exiting the store, she testified that there was a “smoker” named
Cheryl standing outside, who told [the Victim] something was
about to happen on Chew Avenue and that she should leave. [The
Victim] stated that she was already headed toward Chew Avenue
and Montana Street to catch the bus home, so she continued to
her destination. Once there, she saw the bus approaching, then
heard someone running. She glanced back at the person running
but wasn’t really paying much attention to the person until he was
behind her. The person then told [the Victim,] “Bitch you said you
was going to line me” and opened fire on her. [The Victim] tried
to run but was only able to take two or three steps before she fell
and hit her face.
[The Victim] stated that while she could not see the
shooter’s face because it was covered by a zipped-up hoodie
revealing only his eyes, she was still able to immediately identify
him because she recognized his voice. She testified that without
a doubt, the person who shot her was Appellant, stating: “We sat
around each other multiple times on Chew and Sharpnack where
we would hang…. So, I know the young man’s voice.” … [The
Victim] stated that she heard eight (8) gunshots and then felt a
“crippling feeling.” She testified that she was shot four (4) times
in the back, once in the liver, once in the kidney, once in the lung,
and had a hematoma in her neck.
As a result of her injuries sustained during the shooting, [the
Victim] spent a couple months in the hospital and underwent
sixteen (16) surgeries. She had multiple drains put in and
removed due to infection. The infection flooded [the Victim’s]
stomach with pus, which needed to be extracted several times.
At the time of trial, [the Victim] stated that she was still fighting
off re-infection. [The Victim] also suffered a collapsed lung and
became restricted in her movements because a bullet was lodged
on top of her rib. At the time of the shooting, [the Victim] was
thirteen (13) weeks pregnant. Her unborn child died as a result
of the shooting. [The Victim] was unable to have an operation to
remove the deceased fetus and was forced to “push it out on the
toilet” in the hospital.
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Trial Court Opinion, 5/17/22, at 3-5 (citations to notes of testimony omitted).
The Commonwealth charged Appellant with numerous crimes in
connection with the August 12, 2018 shooting, which occurred while Appellant
was on parole and wearing an ankle monitor. See N.T., 10/26/21, at 17.
The trial court held a non-jury trial and convicted Appellant of the
aforementioned crimes on May 19, 2021. On October 26, 2021, following
completion of a pre-sentence investigation report (PSI), the trial court
sentenced Appellant to an aggregate standard-range sentence of 22 – 50
years in prison. At the close of sentencing, defense counsel made an oral
motion to withdraw from representation, which the trial court granted. Id. at
21-22. Despite seeking leave to withdraw, trial counsel filed a post-sentence
motion challenging the discretionary aspects of sentence, which was denied
by operation of law on February 28, 2022. Appellant timely appealed and has
filed a court-ordered Pa.R.A.P. 1925(b) statement.2
Appellant presents a single question for review:
Is the sentence imposed unduly harsh and excessive under the
circumstances of this case where, inter alia, the [trial] court relied
upon an improper factor in fashioning the sentence?
Appellant’s Brief at 4.
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2 The trial court appointed new counsel, who was initially unaware of his
appointment. As a result, Appellant filed a pro se Post-Conviction Relief Act
(PCRA) petition. Appellant withdrew his pro se PCRA petition when appellate
counsel entered his appearance.
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Appellant asserts his sentence is harsh and excessive because the trial
court failed to consider mitigating factors; improperly considered hearsay3;
and improperly imposed consecutive sentences. Id. at 38-49.
Our review discloses that Appellant has not preserved his claims. There
is no absolute right to challenge the discretionary aspects of a sentence on
appeal. See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).
Where the appellant has preserved his sentencing challenge by raising it in a
post-sentence motion, he must (1) include in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence pursuant to Pa.R.A.P. 2119(f); and (2)
show there is a substantial question that the sentence is not appropriate under
the Sentencing Code. Hill, 66 A.3d at 363-64.
Here, Appellant filed a timely post-sentence motion for reconsideration
of sentence, but claimed only in general terms that “the sentence imposed
was done without sufficient reasons for same being placed on the record.”
Post-Sentence Motion, 10/29/21, at 1 (unnumbered). An appellant waives a
challenge to the discretionary aspects of sentence not raised in a post-
sentence motion, and may not raise it for the first time on appeal. See
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3 Appellant complains the trial court “denied his right to the presumption of
innocence” by considering “hearsay allegations which were unreliable,
unsubstantiated, and disputed by [Appellant.]” Appellant’s Brief at 48. The
hearsay Appellant references is in the PSI, where Appellant was quoted as
saying that the Victim “got what she deserved.” Id. at 46.
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Commonwealth v. Bradley, 237 A.3d 1131, 1138-39 (Pa. Super. 2020)
(claim waived where not specifically raised in post-sentence motion); see also
Pa.R.A.P. 302(a).
Appellant raised his discrete sentencing claims for the first time in his
Rule 1925(b) statement. Concise Statement of Errors, 4/4/22, at 1-3
(unnumbered); see Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa.
Super. 2011) (issues raised for first time in Rule 1925(b) statement are
waived). Therefore, we are constrained to find waiver.
Waiver notwithstanding, we would conclude that Appellant’s standard-
range sentence was neither excessive nor unreasonable. See, e.g.,
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating
that “where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code,” and holding that a sentence was not unreasonable where trial court
had the benefit of PSI and imposed a standard range sentence);
Commonwealth v. Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014)
(defendant’s standard range sentences were neither unreasonable nor
excessive where “record reflects that the [sentencing] court carefully
considered all of the evidence presented at the sentencing hearing.”).
The record demonstrates the trial court considered the PSI, Appellant’s
allocution, and the Victim’s statement in imposing Appellant’s sentence. See
N.T., 10/26/21, at 16-20; Trial Court Opinion, 5/17/22, at 15-19. This is what
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the law requires. See, e.g., Commonwealth v. Hardy, 939 A.2d 974, 980
(Pa. Super. 2007) (rejecting defendant’s challenge to discretionary aspects of
sentence and stating sentencing court is not required “to ignore context and
instead review [the] charges in a vacuum, where only the name of the offense
and corresponding standard range sentence is considered.”). Moreover, a
sentencing court is allowed to consider hearsay in determining a sentence; it
is not an improper factor. Commonwealth v. Medley, 725 A.2d 1225, 1230
(Pa. Super. 1999) (“Hearsay testimony is precisely the type of evidence which
is the right of a court in sentencing to consider … pre-sentence investigations
are routinely ordered and considered by the court and a pre-sentence report
is the very definition of hearsay[.]”). Finally, the trial court had discretion to
impose consecutive sentences. Commonwealth v. Radecki, 180 A.3d 441,
470 (Pa. Super. 2018) (“Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences” (citation omitted)). Thus, even if properly preserved, Appellant’s
claims would not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2023
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