Com. v. Alsbrook, M. ( 2016 )

J-S30010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARVIN ALSBROOK
Appellant No. 2298 EDA 2015
Appeal from the Judgment of Sentence June 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002093-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 06, 2016
Appellant Marvin Alsbrook, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions of robbery, robbery of a motor vehicle, criminal conspiracy,
persons not to possess firearms, and possessing instruments of crime
(“PIC”).1 We affirm.
The trial court stated the relevant facts of this case as follows:
On July 17, 2013, around 10:00 p.m., [the victim]
received a call to deliver food to 1139 Union Street. When
he arrived at the row house address, he called the caller
ID number of the person who ordered the pizza, and the
person responded that he would come downstairs. While
the victim was waiting on the porch of the property, he
____________________________________________
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3702(a), 903(c), 6105(a)(1), 907(a),
respectively.
J-S30010-16
saw [Appellant], with his distinct style of walk, and
codefendant Tyreek Torrence walking together down the
street towards him from the corner. [Appellant] asked,
“What’s up, homie?” while holding a black .38 revolver gun
in his left hand. The victim said, “Damn,” and put his keys
down, the pizza down, and his hands up by his head “for
fear of [his] life.” Codefendant stood there then came up
on the steps, grabbed the victim by the collar of his shirt,
and the victim “went willingly to the ground” and lay on his
stomach. [Appellant] went up on the porch, got the keys,
and went straight to the driver’s side of the victim’s van.
Codefendant went through the victim’s pockets and sock
and took $380.00 United States Currency, his wallet, and
his phone. The victim pleaded, “Please don’t hurt me. I
have two children.” Codefendant replied, “Nobody’s going
to hurt you.” Codefendant then got up, got into the
passenger side of the van, and [Appellant] drove off
toward the Philadelphia Zoo. The victim went around the
corner to a friend’s house and called the police.
(Trial Court Opinion, filed on September 8, 2015, at 3-4) (footnote omitted).
On December 19, 2015, police arrested Appellant after they found him
hiding under a bed in his aunt’s home.
Following trial, a jury convicted Appellant of robbery, robbery of a
motor vehicle, criminal conspiracy, persons not to possess firearms, and PIC.
On June 29, 2015, the trial court sentenced Appellant to consecutive terms
of imprisonment of ninety (90) to two hundred twenty-eight (228) months
for robbery, seventy-eight (78) to two hundred sixteen (216) months for
robbery of a motor vehicle, seventy-eight (78) to two hundred sixteen (216)
months for conspiracy, sixty (60) to one hundred twenty (120) months for
persons not to possess firearms, and fourteen (14) to forty-two (42) months
for PIC. Thus, the court imposed an aggregate sentence of three hundred
-2-
J-S30010-16
twenty (320) to eight hundred twenty-two (822) months’ imprisonment.
Appellant filed a timely post-sentence motion on July 2, 2015. On July 6,
2015, the court denied the motion. Appellant filed a timely notice of appeal
on July 22, 2015. The court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied.
Appellant raises the following issue for our review:
IS APPELLANT ENTITLED TO A NEW SENTENCE HEARING
WHEN THE TRIAL COURT IMPOSED AN AGGREGATE
SENTENCE OF 26½ TO 68½ YEARS IN PRISON BASED ON
ARRESTS THAT WERE NOT CONVICTIONS, THE
ERRONEOUS BELIE[F] THAT APPELLANT WAS A CRIMINAL
RING LEADER IN THE NEIGHBORHOOD, AN UNSUPPORTED
OPINION OF THE PROSECUTOR AND THE BELIEF NOT
SUPPORTED BY THE RECORD THAT…DRUG TRANSACTIONS
AND OTHER CRIMINAL ACTIVITY IN THE NEIGHBORHOOD
CEASED OR DROPPED OFF AFTER APPELLANT’S ARREST
AND INCARCERATION?
(Appellant’s Brief at 2)
Appellant argues the court’s imposition of consecutive sentences
resulted in an excessive aggregate sentence, especially where the victim
suffered no bodily injury. Appellant contends the court failed to consider his
age, family history, and rehabilitative needs. Appellant claims the court
relied on unsupported assertions that Appellant was a criminal ringleader
and criminal activity in the neighborhood decreased after his arrest.
Appellant concludes he is entitled to resentencing on all of his convictions.
As presented, Appellant challenges the discretionary aspects of his sentence.
-3-
J-S30010-16
See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super.
2010) (explaining challenge to imposition of consecutive sentences
implicates discretionary aspects of sentencing); Commonwealth v.
Downing, 990 A.2d 788 (Pa.Super 2010) (stating claim court relied on
improper factors when imposing sentence implicates discretionary aspects of
sentencing); Commonwealth v. Cruz-Centro, 668 A.2d 536 (Pa.Super.
1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim
that sentencing court failed to consider or did not adequately consider
certain factors challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d
910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary
sentencing issue:
[W]e 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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
Objections to the discretionary aspects of sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to modify the
-4-
J-S30010-16
sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d
788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599
(2003).
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 a substantial question as to the
appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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.” Sierra, supra at 912-13 (quoting
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),
appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).
“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)
-5-
J-S30010-16
(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
2006)). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa.Super. 1995) (stating defendant is not entitled to “volume discount” for
his crimes by having all sentences run concurrently). But see
Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal
denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard
range sentences on thirty-seven counts of petty theft offenses for
aggregate sentence of 58½ to 124 years’ imprisonment constituted virtual
life sentence and was so manifestly excessive as to raise substantial
question). “Thus, in our view, the key to resolving the preliminary
substantial question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears upon its face
to be, an excessive level in light of the criminal conduct at issue in the case.”
Prisk, supra at 533. But see Commonwealth v. Austin, 66 A.3d 798
(Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (holding
challenge to imposition of consecutive sentences, which yields extensive
aggregate sentence, does not necessarily present substantial question as to
discretionary aspects of sentencing, unless court’s exercise of discretion led
to sentence grossly incongruent with criminal conduct at issue and patently
unreasonable). Generally, “[a]n allegation that a sentencing court failed to
consider or did not adequately consider certain factors does not raise a
substantial question that the sentence was inappropriate.” Cruz-Centeno,
-6-
J-S30010-16
supra at 545. A claim that the court relied on an improper factor during
sentencing, however, does raise a substantial question. Downing, supra.
On appeal, this Court will not disturb the judgment of the sentencing
court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d
843 (Pa.Super. 2006). “An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support so as to be clearly erroneous.”
Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).
“Where the sentencing court imposes a sentence within the guideline range,
we must review to determine whether the trial court’s sentence is ‘clearly
unreasonable.’” Dodge, supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).
Instantly, Appellant failed to raise at sentencing or in his post-
sentence motion his claims regarding: (1) the court’s reliance on allegedly
improper sentencing factors or facts outside the record; and (2) the court’s
supposed failure to consider mitigating circumstances. Therefore, Appellant
waived those issues on appeal. See, Mann supra. Appellant preserved his
remaining argument that the court imposed an unreasonably long aggregate
sentence by linking all of Appellant’s sentences consecutively. Nevertheless,
as presented, that claim fails to raise a substantial question. See Prisk,
supra. Dodge, supra is distinguishable. The defendant in Dodge
committed a series of nonviolent petty theft offenses, whereas Appellant
-7-
J-S30010-16
robbed a victim at gunpoint. Further, Appellant will be eligible for parole
when he is fifty-five years old, whereas the defendant in Dodge received a
de facto life sentence.
Moreover, at sentencing, Officer Marvin Ruley testified he was familiar
with Appellant and his extensive criminal history and had many years’
experience policing the area Appellant frequented. Officer Ruley could not
recall any other arrests in the neighborhood since Appellant’s arrest.
Detective Matthew Carey similarly testified to a drop in shootings, robberies,
and drug sales in the neighborhood since Appellant was taken into custody.
As of the sentencing date, Appellant had several other open cases involving
allegations of drug dealing and a shooting.2 Appellant allegedly committed
the acts while he was a fugitive in the instant case, which involved an armed
robbery. The court placed its reasons on the record for the sentence
imposed, including Appellant’s risk to society, lack of rehabilitative potential
in light of a long criminal history, the seriousness of the offenses, and the
negative impact of the incident on the victim, who felt compelled to move
out of the neighborhood. The court confirmed it had reviewed Appellant’s
presentence investigation (“PSI”) report. See Commonwealth v. Devers,
____________________________________________
2
The court acknowledged those cases had not resulted in convictions as of
the time of sentencing. See Commonwealth v. Fries, 523 A.2d 1134,
1136 (Pa.Super. 1987), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987)
(stating: “[I]t is not improper for a court to consider a defendant's prior
arrests which did not result in conviction, as long as the court recognizes the
defendant has not been convicted of the charges”).
-8-
J-S30010-16
519 Pa. 88, 546 A.2d 12 (1988) (stating court’s review of PSI report raises
presumption court was aware of the relevant information regarding
defendant’s character and weighed those considerations along with
mitigating factors). The court also explained the relevant Sentencing
Guideline ranges for each offense and imposed a standard-range sentence
for each of Appellant’s convictions. Therefore, assuming Appellant’s claim
raised a substantial question, we would conclude the court’s decision to link
Appellant’s sentences consecutively did not rise to an abuse of discretion.
See Walls, supra. Based on the foregoing, Appellant’s discretionary
sentencing challenge merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
-9-