Com. v. Christian, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALTER CHRISTIAN :
:
Appellant : No. 2297 EDA 2019
Appeal from the Judgment of Sentence Entered June 28, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002328-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JULY 17, 2020
Walter Christian (Christian) appeals from the judgment of sentence of
20 to 40 years’ imprisonment imposed by the Court of Common Pleas of
Philadelphia County (trial court) following his convictions of, among other
offenses, two counts of robbery and one count of persons not to possess
firearms. On appeal, he challenges the discretionary aspects of his sentence.
After review, we affirm.
I.
The trial court concisely summarized the relevant facts as follows:
On October 25, 2017, during mid-afternoon, Ms. Francis Quinn
and Mr. Michael Alston were working at Barto’s Auto Body located
on North Broad Street in Philadelphia, which Ms. Quinn owned,
when [Christian] entered the establishment and expressed
interest in purchasing a vehicle. Ms. Quinn showed him some
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* Retired Senior Judge assigned to the Superior Court.
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vehicles for sale. After she did so, [Christian] appeared to leave
the car lot, along with some employees and some customers who
were present at the time because it was closing time, or so Ms.
Quinn believed. She then went into her office and locked the door
behind her. However, [Christian] had not left and knocked on the
door to the business and asked Ms. Quinn, inter alia, if she could
start a vehicle. [Christian] then appeared to have left the car lot
again.
A couple of minutes later, [Christian] again knocked on the office
door, which was kept locked for security reasons. Ms. Quinn, who
was seated in her office and was speaking to Mr. Alston when
[Christina] returned, unlocked the door because she believed that
[Christian] had another question about a car. When she did so,
[Christian] entered the office armed with a handgun, and pointed
it at her. [Christian] then repeatedly threatened to kill her unless
she gave him money that he thought was present on the premises.
There was no cash on the premises and after again threatening to
kill Ms. Quinn, [Christian] took a set of keys to Ms. Quinn’s car
that were hanging around her neck as well as with her cell phone
and other items. [Christian] then got into Ms. Quinn's Mercedes
and drove away.
Mr. Alston, who worked as a guard at the business, picked up a
machete as [Christian] was pointing a gun at Ms. Quinn and
threatening to kill her. [Christian] pointed the gun at him and
threatened to kill him when he picked up the machete. Mr. Alston
participated in a lineup and identified [Christian] as the person
who robbed him and Ms. Quinn.
After [Christian] left the premises, Ms. Quinn called police, who
arrived almost immediately, and gathered information about the
incident from the two victims, which they broadcast over police
radio. Shortly thereafter the police found Ms. Quinn's vehicle,
which was running, and had it towed to a police garage to check
it for fingerprints after Ms. Quinn, who had been driven to the
location where the car was abandoned, positively identified the
car as belonging to her. Ms. Quinn, who was not able to look
inside the car before it was towed, noted that she left her
pocketbook under the driver’s front seat in the car. In it, she had
money, credit cards, and prescription drugs. Her purse and the
items in it were not recovered. After she identified her vehicle,
Ms. Quinn provided a statement to police.
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A fingerprint examination of Ms. Quinn's car yielded, inter alia, a
single fingerprint identified as belonging to [Christian] inside the
car by the glove compartment. When the police identified the
fingerprint, they contacted Ms. Quinn and had her participate in a
photographic identification session on November 20, 2017.
During the session, she immediately selected [Christian’s] photo
and said that it depicted the person who had robbed her and Mr.
Alston.
Trial Court Opinion (T.C.O.), 11/18/19, at 2-3.
In April 2019, a jury convicted Christian of two counts of robbery;
carrying firearms without a license; theft by unlawful taking; possessing an
instrument of crime; carrying firearms in Philadelphia; and two counts each
of terroristic threats and simple assault.1 In a bifurcated bench trial after the
verdict, the Commonwealth presented evidence that Christian was convicted
of rape in 1991 and, therefore, prohibited from possessing a firearm. Based
on this, the trial court convicted him of persons not to possess firearms.2
At the sentencing hearing, Christian presented the testimony of his
longtime fiancé. She testified that Christian has volunteered with her doing
charity work in the community, as well as starting his own landscaping
business in June 2017. Christian’s counsel highlighted that despite having a
serious criminal record as a juvenile and young adult, Christian had not been
in trouble since 2002. Counsel asked that the court sentence Christian to
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1 18 Pa.C.S. §§ 3701(a)(1)(ii), 6106(a)(1), 3921(a), 907(a), 6108,
2706(a)(1) and 2701(a).
2 18 Pa.C.S. § 6105(a)(1).
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concurrent sentences of 7 to 14 years’ imprisonment on the robbery charges,
with a consecutive 10 years’ probation for any of the other offenses.
The Commonwealth, on the other hand, requested a sentence of 20 to
40 years’ imprisonment. In support, the Commonwealth presented the
testimony of both of the victims, including Francis Quinn, who is over 70 years
old. Both victims testified to the trauma Christian caused them by pointing a
gun and threatening to kill them. After their testimony, Christian exercised
his right to allocution and maintained that he was innocent.
After hearing from Christian, the trial court made the following remarks:
I will note for the record, Mr. Christian, I didn’t find you
guilty. A jury of your peers found you guilty beyond a reasonable
doubt. I’m just wondering how a guy that comes from a good
family, who comes with a good woman behind him, ends up with
this record. I’m not talking about something that happened to
you 29 years ago. I’m not talking about something that happened
15 years ago. I’m talking about something that happened to you
on this particular date and this location. You had two people who
said you walked into that car dealership with a gun, stuck a gun
in their face, robbed them, and left with the Mercedes. You have
independent evidence in this case, including fingerprints, your
fingerprints, not somebody else’s, inside the car that was taken.
I don’t find fault with anything that the jury said. What I find
curious is the way you sit up here and you talk about the good
woman behind you, who is a good woman, and your good family
that’s behind you, as a [repeat felon], and you express no remorse
from what happened to Ms. Quinn or Mr. Alston on that particular
date. What I am left with is somebody with a record, we don’t
need to rehash today, who was convicted by a jury of your peers
of two gunpoint robberies.
N.T., 6/28/19, at 22.
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Relevant to this appeal, the trial court determined that the deadly-
weapon-possessed enhancement (DWPE) was applicable.3 Because his prior
record score placed him in the repeat felony offender range, Christian’s
standard range guidelines for his robbery convictions were increased to 81 –
93 under the DWPE sentencing matrix. The trial court imposed consecutive
sentences of 7½ to 15 years’ imprisonment for each robbery conviction, and
a consecutive 5 to 10 years’ imprisonment for persons not to possess firearms.
As a result, Christian’s aggregate sentence was 20 to 40 years’ imprisonment.4
After sentencing, Christian filed a timely post-sentence motion to modify
sentence, arguing that the trial court’s sentence was unduly harsh and
excessive because it increased his guidelines on the robbery convictions
through the DWPE, but then imposed a consecutive sentence for persons not
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3 The DWPE applies as follows:
(1) When the court determines that the offender possessed a
deadly weapon during the commission of the current conviction
offense, the court shall consider the DWE/Possessed Matrix
(§ 303.17(a)). An offender has possessed a deadly weapon if any
of the following were on the offender’s person or within his
immediate physical control:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
loaded or unloaded[.]
204 Pa. Code § 303.10(a)(1)(i).
4 The trial court sentenced Christian to concurrent probationary terms or
imposed no further penalty on the remaining counts.
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to possess firearms. In his view, this resulted in his possession of the firearm
being “doubly, or triply, counted against [him] for a brief act [.]” After a
hearing, the trial court denied the post-sentence motion. Christian filed this
direct appeal.
II.
On appeal, Christian argues that the trial court imposed an unduly harsh
and excessive sentence under the circumstances. First, he claims that all of
the offenses occurred simultaneously and were committed as part of a single
criminal episode. Second, he reasserts his quasi-double jeopardy argument
that imposing a consecutive sentence for the firearms offense was excessive
because the possession was already used to increase the guidelines for the
robbery offenses through the DWPE. Third, he claims that the trial court
ignored his substantial mitigating evidence at the sentencing, including his
charity work, employment history and family support. Finally, because he is
48 years old, Christian claims that his sentence is effectively a de facto life
sentence. In his view, such a lengthy term of imprisonment is not the least
restrictive sentence necessary to effectuate the aims of our sentencing laws.
Christian’s arguments implicate the discretionary aspects of sentencing.
“The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014). To
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determine whether the appellant has invoked our jurisdiction, we consider the
following four factors:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(citations omitted).
Instantly, Christian filed a timely appeal and preserved his sentencing
issue in a timely post-sentence motion. He has also included a statement of
reasons relied upon for his challenge to the discretionary aspects of his
sentence as required by Pa.R.A.P. 2119(f). Additionally, his challenge to the
imposition of consecutive sentences as being unduly excessive, along with his
claim that the trial court failed to consider mitigating factors, raises a
substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2015) (“This Court has held that an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.”). Therefore, we address the merits of
his claim.5
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5 “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
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When the trial court sentences within the guidelines, we will vacate the
sentence only when “the case involves circumstances where the application of
the guidelines would be clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). In
reviewing the record, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
On the merits, Christian is not claiming that the trial court misapplied
the guidelines or sentenced him outside of them. Indeed, he does not
challenge the application of the DWPE. Instead, he believes that the trial
court’s imposition of three consecutive sentences was unreasonable in light
of, among other reasons, the mitigating evidence presented at sentencing that
he did charity work, started his own business, and had family support.
However, because the trial court had the benefit of a pre-sentence
investigation report, we presume that the trial court was aware of all of
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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. Gonzalez, 109 A.3d
711, 731 (Pa. Super. 2015) (quotation omitted).
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Christian’s mitigating evidence and weighed it along with any other mitigating
factors. See Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super.
2014). In fact, as quoted above in full, the trial court explicitly acknowledged
and credited Christian’s mitigating evidence, but simply determined that it was
outweighed by Christian being a repeat felon offender who committed two
gunpoint robberies—one of which was committed against a 70-year-old
woman. Accordingly, the trial court committed no error in connection with its
consideration of Christian’s mitigating evidence.
We likewise find no error in the trial court imposing consecutive
sentences for the robberies and persons not to possess firearms. As to
consecutive sentences, “long standing precedent ... recognizes that [the
Sentencing Code] 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.” Commonwealth v. Marts,
889 A.2d 608, 612 (Pa. Super. 2005). We will not disturb consecutive
sentences unless the aggregate sentence is “grossly disparate” to the
defendant’s conduct, or “viscerally appear[s] as patently unreasonable.”
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super.
2010).
As to the consecutive sentences for the robberies, it does not follow—as
Christian seems to believe it does—that he should get a reduction in sentence
simply because the two offenses were committed close in time to each other.
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That he pointed his gun and threatened to kill the two victims close together
hardly minimizes the seriousness of his actions. This Court has long held that
defendants convicted of multiple offenses are not entitled to a “volume
discount” on their aggregate sentence. Commonwealth v. Foust, 180 A.3d
416, 434-35 (Pa. Super. 2018) (citations omitted). The robberies were
distinct crimes with distinct victims, both of who testified about the trauma
caused by Christian’s actions.
We also find no error with the trial court imposing a consecutive
sentence for persons not to possess a firearm. Significantly, Christian does
not argue that the trial court was precluded from imposing a consecutive
sentence for persons not to possess firearms because it applied the DWPE to
the robbery convictions. Indeed, robbery is not one of the enumerated
offenses specifically precluded from application of the deadly weapon
enhancement. 204 Pa. Code. § 303.10(a)(3).6 Instead, Christian argues that
the consecutive sentence for the firearms offense was excessive because his
possession of the firearm was already utilized to increase his sentencing
guidelines on the robbery sentences.
However, this argument fails to recognize that 18 Pa.C.S. § 6105 does
not merely punish possession of a firearm; instead, it punishes the possession
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6We note that violations of the Uniform Firearms Acts, which includes persons
not to possess firearms, are specifically excluded from DWPE. 204 Pa. Code.
§ 303.10 (a)(3)(viii).
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of a firearm by certain enumerated persons. See Commonwealth v.
Gillespie, 821 A.2d 1221, 1224 (Pa. Super. 2003) (“The clear purpose of
§ 6105 is to protect the public from convicted criminals who possess firearms,
regardless of whether the previous crimes were actually violent or the barrel
of the firearm was a certain length.”). As noted above, Christian was
prohibited from possessing a firearm because he had been convicted of
enumerated offense under § 6105(b), specifically, rape. Because he was an
enumerated offender, his possession of the firearm constituted a distinct crime
in and of itself from the robberies. The trial court acknowledged this in its
Rule 1925(a) opinion, stating that Christian “[used] a firearm to threaten the
lives of the two victims thereby blatantly ignoring the law prohibiting felons
from possessing guns.” T.C.O., 11/18/19, at 5. The court was free in its
discretion to determine that Christian’s possession of the firearm—as a
convicted felon—warranted a consecutive sentence.7
Finally, we are unpersuaded by Christian’s argument that the trial
court’s sentence is clearly unreasonable because he will possibly be
incarcerated well into his 80s until reaching his statutory maximum. First,
Christian will be, based on our calculation, 66 years old when he reaches his
minimum sentence. We cannot agree that his sentence “affords him no
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7We would also note that Christian’s standard range sentencing guidelines for
persons not to possess firearms was 72 – 84, meaning the trial court’s
sentence of 5 to 10 years’ imprisonment was below the guidelines.
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reasonable probability or a meaningful life thereafter.” Commonwealth v.
Anderson, 224 A.3d 40, 47 (Pa. Super. 2018).
Moreover, the trial court determined that the length of total confinement
was warranted based on the protection of the public, the gravity of offenses
and their impact on the victims, and the rehabilitative needs of the defendant.
See 42 Pa.C.S. § 9721(b). In its Rule 1925(a) opinion, the trial court showed
that it weighed these competing considerations:
[T]he facts of the instant case, when viewed in conjunction with
his prior criminal record and previous incarceration, showed that
[Christian] was not amenable to rehabilitation and that he
represented a threat to law-abiding citizens. [Christian’s] actions
also showed a complete disregard for the law and the citizens of
Philadelphia, making it imperative for the safety of the community
that he receive a lengthy sentence.
T.C.O. at 5-6.
Based on our review of the record, including all the considerations under
42 Pa.C.S. § 9781(d), we find that the trial court did not abuse its discretion
in sentencing Christian to 20 to 40 years’ imprisonment.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/20
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