Com. v. Parkins, K. ( 2023 )

J-A10023-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KAREEM SHARIFF PARKINS :
:
Appellant : No. 2388 EDA 2022
Appeal from the Judgment of Sentence Entered August 29, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002064-2021
BEFORE: PANELLA, P.J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED APRIL 13, 2023
Appellant, Kareem Shariff Parkins, appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas, following his
jury trial convictions for two counts of simple assault and one count of
possessing instruments of crime (“PIC”), and bench trial conviction for
summary harassment.1 We affirm.
The trial court set forth the relevant facts of this case as follows:
On October 6, 2020, at approximately 7:00 p.m., … Kathryn
Veech came on the front porch of the home of Anna
Accomando and Rosario Badalamenti in the Lake Valhalla
community. Ms. Veech and her companion, [Appellant],
also resided in the Lake Valhalla community with their
children. Ms. Veech was there to complain about foul
language being directed to Veech’s minor daughter by
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2701(a)(1); 907; and 2709, respectively.
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Accomando/Badalamenti’s minor son, G.B. Rosario
Badalamenti answered the door. Ms. Veech asked him
where his son was. When Mr. Badalamenti turned to call his
son, Ms. Veech attempted to punch him in the face. Anna
Accomando came to the door and Ms. Veech attacked her,
causing injury to her lip and punching her in the eye. She
fought back, with both women clutching the other’s hair.
Then [Appellant] appeared at the doorway and struck Ms.
Accomando in the head with a metal solar light post causing
a laceration to her scalp and a fracture of her maxillary
bone. At some point [Appellant] also punched G.B. in the
mouth and dragged him, causing a scraping injury to his
knees.
(Trial Court Opinion, filed November 9, 2022, at 1-2).
Procedurally, a jury convicted Appellant on May 12, 2022, of two counts
of simple assault and one count of PIC. The court also convicted Appellant of
summary harassment. The court sentenced Appellant on August 29, 2022,
with the benefit of a pre-sentence investigation (“PSI”) report, to an aggregate
45 days to 12 months’ imprisonment. Appellant did not file post-sentence
motions. Appellant timely filed a notice of appeal on September 12, 2022.
On September 19, 2022, the court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors; Appellant complied.
Appellant raises one issue for our review:
Did the trial court abuse its discretion by imposing an
aggravated sentence based entirely on the injuries
sustained, ignoring rehabilitative factors and danger to the
community, when multiple mitigating factors were present?
(Appellant’s Brief at 5).
Preliminarily, a challenge to the discretionary aspects of sentencing is
not automatically reviewable as a matter of right. Commonwealth v.
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Hunter, 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796
A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing
issue, we conduct a four-part test 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).
Significantly, objections to the discretionary aspects of a sentence are
waived if they are not raised at the sentencing hearing or in a timely filed
post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super.
2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot
be cured by submitting the challenge in a Rule 1925(b) statement.”
Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal
denied, 580 Pa. 695, 860 A.2d 122 (2004).
Instantly, Appellant did not file a post-sentence motion. Although
Appellant argues that he preserved his issue at the sentencing hearing (see
Appellant’s Brief at 8), the record belies this claim. Rather, the notes of
testimony from the sentencing hearing show that defense counsel argued for
a probationary sentence. (See N.T. Sentencing, 8/29/22, at 2-3). Defense
counsel noted that Appellant had a prior record score of zero, is fully
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employed, and has five children. (Id.) Counsel explained that a probationary
sentence was appropriate “given his prior record score, given his family ties[,]
… letters in support … [and prior diagnosis of] PTSD … due to the death of his
brother.” (Id. at 3). The Commonwealth noted there were aggravating
factors in this case and sought a county sentence of 3 to 24 months (less one
day) of imprisonment. (Id. at 4-7). The court ultimately imposed less than
what the Commonwealth sought, sentencing Appellant to an aggregate 45
days to 12 months’ imprisonment.2 (Id. at 9-11).
Following the court’s imposition of sentence, defense counsel asked if
the court would be “inclined to do a house arrest sentence due to [Appellant]
having children[.]” (Id. at 11). The court said no. (Id.) The sentencing
proceeding then concluded with no further argument from Appellant. As such,
the record confirms that Appellant did not preserve his sentencing challenge
orally following imposition of sentence. See Griffin, supra. See also
Commonwealth v. Perzel, 2023 PA Super 30, ___ A.3d ___, 2023 WL
2252159 (Pa.Super. Feb. 28, 2023) (explaining that purpose of requiring party
to object to sentence after it is imposed, is to give trial judge opportunity to
reconsider or modify sentence imposed; failure to do so deprives trial court of
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2 Specifically, the court imposed concurrent terms of 45 days to 12 months’
imprisonment for each count of simple assault and PIC. The harassment
conviction merged for sentencing purposes.
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this chance). Therefore, Appellant has waived his sole issue on appeal.3
Accordingly, we affirm and strike this case from the argument list.
Judgment of sentence affirmed. Case stricken from argument list.
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3 Moreover, the trial court explained:
The sentence I imposed is 15 days longer than the standard
range sentence authorized for each of these offenses. The
simple assault convictions were for assaults on two people,
Ms. Accoma[n]do and G.B., a minor. I could have given 15
day minimum sentences on each count and run them
consecutively, imposing the same sentence and remaining
within the standard range for each sentence, so there is no
prejudice to [Appellant] because of the 45 day minimum
sentence, even if it is outside of the standard guideline
range. The longer sentence was necessary to recognize the
vicious aspect of the assault on Ms. Accomando’s vital body
parts with the metal pole. The attack on her front porch and
inside her house left her bleeding from a scalp laceration, in
shock and with a facial bone fracture. A lesser sentence was
not called for.
(Trial Court Opinion at 3). We further note that the court had the benefit of a
PSI report. See Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006)
(stating where court had benefit of PSI report, we can presume it was aware
of relevant information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors). Given our deferential
standard of review, we would see no abuse of the court’s sentencing discretion
here, even if Appellant had properly preserved his claim on appeal. See
Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62
(2007) (discussing rationale behind broad sentencing discretion afforded to
trial courts).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2023
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