Com. v. Gore, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ARTUMISE GORE :
:
Appellant : No. 1131 EDA 2022
Appeal from the Judgment of Sentence Entered November 16, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0001594-2017
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2023
Appellant, Artumise Gore, appeals from his judgment of sentence of 4-
8 years’ imprisonment for robbery and other offenses. He contends that the
court abused its discretion by sentencing him above the standard range of the
Sentencing Guidelines. Finding that the court acted within its discretion, we
affirm.
The trial court, per the Honorable Genece Brinkley, summarized the
evidence adduced during trial as follows:
Rochelle Goines . . . testified that she and [Appellant] went to
elementary, junior high, and high school together. She stated that
they lost contact afterward and reconnected through Facebook in
July of 2016. The two started dating around that time and
[Appellant] moved into Goines’s home, at 66th and Guyer Streets
in Philadelphia, by September 2016.
Goines testified that on Saturday, September 10, 2016, she
noticed that her ATM card was missing. She testified that she
normally kept it in a wallet attached to her phone case and noticed
that it was no longer in the wallet. She testified that [Appellant]
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is the only other person who lived with her at the time. Goines
testified that she allowed [Appellant] to borrow her ATM card once
before when she was sick in order to buy her soup. She provided
him the PIN at that time. Goines maintained that she did not give
[Appellant] permission to take or use her ATM card at this time.
Goines testified that on September 15, 2016, [Appellant] asked
her to walk with him approximately one block to the takeout
Chinese store around the corner from her house around 11:45
p.m. When they arrived at the store, [Appellant] withdrew
Goines’s ATM card from his wallet to pay for the food. Goines
testified that is when she realized that he had her card.
[Appellant] asked her to pay for the food. Goines refused and
explained that she needed the money to pay for rent. She testified
that he tried to pull the card out of her hand, so she snatched it
from him and started running away. As she ran away from the
store, he chased her and tackled her from behind, causing her to
fall in the middle of the street. When [Appellant] tackled Goines,
she fell forward with her hands in front of her, which caused cuts
on her hands. While she was on the ground laying on her
stomach, [Appellant] was on her back repeatedly punching her in
the back, right side of the head. Goines testified that she began
calling for help. Goines explained that she was able to roll over
onto her back and pushed [Appellant] off of her with her knees
and hands. At that point, she got up and started running. Goines
testified that one of her shoes fell off when [Appellant] tackled
her, so she kicked the other shoe off in order to run towards 67th
Street. Goines then threw her ATM card in a grassy area next to
the takeout store.
Goines testified that [Appellant] tackled her for a second time.
[Appellant] then raised Goines to her feet by lifting her by her
ponytail. [Appellant] kept asking where her ATM card was while
Goines continued to yell for help. Goines testified that she
explained that she had her hands up and told him she didn’t know
where it was and that she must have dropped the card.
[Appellant] pulled down Goines’s shirt to expose her breasts and
rummaged through her bra. [Appellant] then searched the
pockets of her pants and reached his hands inside her pants
outside of her underwear. [Appellant] retrieved her ID and house
keys from Goines’s pockets but was unable to find the card. At
that point, Goines noticed a police car driving down Dicks Avenue.
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[Appellant] embraced Goines in an apparent hug and began
kissing her neck. As the police car approached, Goines called for
help and the police approached. Goines testified that she tried to
explain the situation to a female police officer. She explained that
[Appellant] had her house keys and ID and requested the officer
retrieve them for her. The officer asked [Appellant] whether he
had any of Goines’s belongings and he said no. At that point, the
officer asked Goines what she wanted to do. Goines requested
that the officer transport her to the hospital to address the cuts
on her hands, elbows, and feet and the scratch on the back of her
neck caused by [Appellant]. Goines testified that she was treated
at the hospital for abrasions that took approximately 2 to 4 weeks
to heal completely.
After being released from the hospital, Goines went to Southwest
Detectives in order to follow up on her report. Goines testified
that photographs were taken of her injuries and confirmed the
pictures the Commonwealth presented to her were the pictures
taken by the detectives. She further testified that she had
personal knowledge that her bank account was missing $698.
She lives paycheck to paycheck and was waiting for a direct
deposit in that amount. After the incident described with
[Appellant], there was only $2 left in her bank account. Goines
testified that no one other than [Appellant] knew her pin number
for her bank account. Goines testified that her bank statement
reflected someone made a balance inquiry, then made repeated
withdraws in $100 increments that incurred additional fees and
charges.
Goines testified that after this incident, she received text
messages and messages through social media from [Appellant].
In the messages, [Appellant] professed his love for Goines and
apologized for an incident that occurred September 15, 2016. On
cross examination, Goines denied being drunk or high on crack
the night of September 15, 2016. Defense counsel questioned
Goines why [Appellant] would pull out her ATM card, hand it back
to her, and ask her to withdraw money if he already had the means
to withdraw money himself. Goines corrected aspects of defense
counsel’s question in order to repeat the story she described
previously.
Trial Court Opinion, 9/10/18, at 2-4.
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Following a bench trial, the Honorable Pamela Dembe found Appellant
guilty of robbery, theft by unlawful taking, and simple assault. On September
14, 2017, Judge Dembe sentenced Appellant to 4-8 years’ imprisonment for
robbery, a concurrent term of imprisonment for theft, and a consecutive term
of 5 years’ probation for simple assault, graded as a first-degree misdemeanor.
Appellant did not file a notice of appeal. In early 2018, Appellant filed a PCRA
petition alleging that defense counsel was ineffective for failing to file a direct
appeal. On May 10, 2019, the court ordered Appellant’s direct appeal rights
reinstated nunc pro tunc.
Appellant appealed to this Court, which held that Judge Dembe imposed
an illegal sentence. We reasoned that Appellant’s simple assault conviction
was a second-degree misdemeanor instead of a first-degree misdemeanor,
and his sentence of five years’ probation exceeded the lawful maximum for
second-degree misdemeanors. Accordingly, we remanded for resentencing on
all counts of conviction.
On August 21, 2019, a resentencing hearing was held before Judge
Brinkley due to Judge Dembe’s retirement. Judge Brinkley resentenced
Appellant to an aggregate term of 5-10 years’ imprisonment. Appellant
appealed to this Court, which remanded for resentencing on June 1, 2021,
because it was unclear from the record whether Judge Brinkley was aware
that she was sentencing Appellant outside the guidelines. Commonwealth
v. Gore, 2021 WL 2287485 (Pa. Super. June 1, 2021).
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On November 16, 2021, Judge Brinkley convened another sentencing
hearing. The Commonwealth recommended an aggregate sentence of 5-10
years’ imprisonment, while defense counsel recommended a standard
guideline sentence. Judge Brinkley sentenced Appellant to an aggregate term
4-8 years of incarceration, the same sentence originally imposed by Judge
Dembe, and explicitly stated on the record that it was imposing an above-
guideline sentence. N.T., 11/16/21, at 9. Appellant filed timely post-sentence
motions, which were denied, and a timely appeal, the appeal presently under
review. Both Appellant and Judge Brinkley complied with Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal, “Whether the trial court
erred when it sentenced [Appellant] outside the Pennsylvania Sentencing
Guidelines for the criminal offense of robbery (F2), which was unreasonable
and manifestly excessive?” Appellant’s Brief at 4.
This is a challenge to the discretionary aspects of Appellant’s sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Griffin, 65 A.3d 932,
935 (Pa. Super. 2013). Before reaching the merits of a discretionary aspects
issue, this Court must conduct a four-part test to determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his or her issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.
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Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). “To
preserve an attack on the discretionary aspects of sentence, an appellant must
raise his issues at sentencing or in a post-sentence motion. Issues not
presented to the sentencing court are waived and cannot be raised for the first
time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.
Super. 2006).
Here, Appellant timely filed a notice of appeal, preserved his issues in
his post-sentence motion, and included a Rule 2119(f) statement in his brief.
We further conclude that Appellant has raised substantial questions for our
review. Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (“[a]
claim that a sentence is manifestly excessive such that it constitutes too
severe a punishment raises a substantial question”); Commonwealth v.
Curran, 932 A.2d 103, 105 (Pa. Super. 2007) (“a claim that the sentencing
court sentenced outside the sentencing guidelines presents such a substantial
question”). Therefore, we will address Appellant’s claims.
Our review is governed by the following principles:
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 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.
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Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Additionally, our review of the discretionary aspects of a sentence is governed
by 42 Pa.C.S. § 9781(c) and (d):
(c) Determination on appeal.—The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable; or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.—In reviewing the record the appellate
court shall have regard for:
(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.A. § 9781(c)-(d).
This Court has further explained:
Where ... a court imposes a sentence outside of the Sentencing
Guidelines, the court must provide, in open court, a
contemporaneous statement of reasons in support of its sentence.
42 Pa.C.S.[A.] § 9721(b).
[A sentencing] judge ... [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
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guidelines, if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the community,
so long as it also states of record the factual basis and specific
reasons which compelled it to deviate from the guideline range.
***
[W]hen deviating from the sentencing guidelines, a trial judge
must indicate that [s]he understands the suggested ranges.
However, there is no requirement that a sentencing court must
evoke “magic words” in a verbatim recitation of the guidelines
ranges to satisfy this requirement. Our law is clear that, when
imposing a sentence, the trial court has rendered a proper
contemporaneous statement under the mandate of the
Sentencing Code so long as the record demonstrates with clarity
that the court considered the sentencing guidelines in a rational
and systematic way and made a dispassionate decision to depart
from them.
Commonwealth v. Beatty, 227 A.3d 1277, 1287-88 (Pa. Super. 2020).
Further, when the sentencing court is informed by a presentence report,
it is presumed that the court is aware of all appropriate sentencing factors and
considerations and, where the court has been so informed, its discretion
should not be disturbed. Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009).
Finally, the court may depart from the guidelines if it is necessary to
fashion a sentence which considers the protection of the public and the gravity
of the particular offense as it relates to the impact on the life of the victim and
the community. Commonwealth v. Durazo, 216 A.3d 316, 320 (Pa. Super.
2019).
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In the present case, at sentencing on November 16, 2021, counsel for
Appellant recommended a standard guidelines sentence carrying a minimum
sentence of 24-30 months. Counsel argued that Appellant was progressing
with rehabilitation in prison by completing a drug treatment program and a
violence prevention program, participating in the “Batterer’s” violence
prevention program, and working towards his GED. The Commonwealth
requested a sentence of 5-10 years, noting that (1) the victim was still terrified
of Appellant, (2) Appellant blamed the victim for the incident in the
presentence investigation, and (3) Appellant has a history of probation
violations, including an instance where he was released on bail and
immediately threatened the victim. Appellant spoke on his own behalf and
accepted full responsibility for his actions. Judge Brinkley expressly stated
that Appellant’s sentence was 4-8 years’ imprisonment for robbery, a sentence
she expressly stated was “above and outside the guidelines.” N.T., 11/16/21,
at 32.
Judge Brinkley explained her reasons for departing from the guidelines
as follows:
On the charge of robbery the sentence is four to eight years. This
sentence is above and outside the guidelines. The reasons for the
sentence include the same information that I just read into the
record concerning [Appellant’s] recidivism while on federal
probation and the long history of criminal activity despite being on
federal probation, as well as the victim’s impact statement
indicating that she is still afraid of [Appellant] and the lasting
impact that this crime has had on her over the years.
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The court has also taken into consideration everything that
[Appellant] has said, in particular what he said today, regarding
his treatment programs and his willingness to apologize to the
victim. I believe that this sentence of four to eight years is an
appropriate sentence even though it is above and outside the
guidelines for the reasons that I gave today and the reasons that
I read into the record today.
N.T., 11/16/21, at 32-33. Judge Brinkley reviewed a presentence report, a
victim impact statement, and a memo dated July 25, 2019 from the
Pennsylvania Department of Corrections (“DOC”). Judge Brinkley observed
that the DOC memo
stated that Defendant was still on federal probation and that he
did poorly on community supervision and violated every term
imposed. His violations include absconding supervision, not
completing court orders, drug treatment, incurred new arrests
while on probation. In all, he has eight violations, six revocations
and one pending revocation here in Federal Court. The current
matter he was in direct violation of his federal probation. It is
important to note [that] the next [paragraph] . . . shows he has
been . . . continuously supervised on probation, parole or
incarcerated since 1992. In that time he had only a total of eleven
and a half months free of some form of court supervision or not
incarcerated. In short, he spent nearly all but eleven months in
the past twenty-five years on court supervision or was
incarcerated. Since then nothing has changed in his life despite
the implementation of various county probations, state and
federal programs. He continues to not be amenable to county or
any supervision—each time he’s released from custody he either
absconds or does not rema[in] committed to his treatment
program or his sobriety. It is not long after each release he comes
to be incarcerated. He still believes he’s in control of his addiction
and that he does not need treatment. He said he blames the
victim, his ex-girlfriend for falsely accusing him of this crime. And
it goes on.
Id. at 27-28.
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For multiple reasons, the sentence for Appellant’s attack and robbery of
the victim was a proper exercise of discretion. Judge Brinkley resentenced
Appellant to the same aggregate sentence that Judge Dembe imposed at the
original sentencing hearing. Her sentence was within the statutory maximum
and less than the sentence recommended by the Commonwealth. She
explicitly stated on the record that she was aware that her sentence was above
the guidelines, thus rectifying her failure in the previous sentencing hearing
to mention this detail. Beatty, 227 A.3d at 1287-88.
Furthermore, Appellant’s sentence was reasonably related to the gravity
of his offense. Appellant stole the victim’s debit card and emptied her account.
He fought with her over the debit card, chased her down the street, and
tackled her from behind. He then repeatedly punched her in the head. When
the victim was able to momentarily break free from Appellant’s grasp, he
chased after her again, grabbed hold of her, and resumed punching her. When
the victim fell to the ground, Appellant pulled her up by her hair. He then
pulled down the victim’s shirt, rummaged through her bra, exposed her
breasts and put his hand down her pants.
In addition, Appellant’s crime had a significant impact on the victim.
The victim informed the court that the attack made her distrustful of people
and that she was still afraid that Appellant would come after her. Moreover,
Appellant’s bail had to be revoked before trial because he was improperly
sending the victim messages on social media.
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Judge Brinkley properly determined that Appellant had little chance of
rehabilitation, given his extensive criminal record, including numerous arrests,
convictions and violations of probation and parole, and his history of drug use.
Judge Brinkley further considered the evidence presented by the
defense. She heard argument by defense counsel for a mitigated sentence,
and she considered a report prepared by the Department of Corrections
detailing the treatment programs Appellant had completed while incarcerated.
The court also heard Appellant’s allocution in which he accepted responsibility
for his actions. Judge Brinkley, however, had the discretion to conclude that
any mitigating factors, such as Appellant’s background, display of remorse,
and personal character, were outweighed by various aggravating factors. This
Court cannot second-guess Judge Brinkley’s consideration of the evidence.
See, e.g., Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009)
(this Court “cannot re-weigh the sentencing factors and impose our judgment
in the place of the sentencing court”).
Finally, Judge Brinkley had the benefit of Appellant’s presentence
investigation report, so she presumably was aware of all appropriate
sentencing factors and considerations and took them into account. Ventura,
975 A.2d at 1135.
For these reasons, we conclude that Appellant’s sentence was a proper
exercise of discretion, and we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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