Com. v. Young, R. ( 2022 )


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  • J-A19042-21
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RAHMEER YOUNG                              :
    :
    Appellant               :   No. 2098 EDA 2020
    Appeal from the Order Entered October 27, 2020
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0003398-2019
    BEFORE:      DUBOW, J., MURRAY, J., and COLINS, J.*
    MEMORANDUM BY COLINS, J.:                             FILED JANUARY 28, 2022
    This is an appeal from the judgment of sentence entered in the Court of
    Common Pleas of Philadelphia County Criminal Division following a non-
    negotiated guilty plea by Rahmeer Young (Appellant) to robbery (for
    threatening or intentionally putting the victim in fear of immediate serious
    bodily injury) and terroristic threats.1 Appellant asserts that the trial court
    abused its discretion by imposing an excessive aggregate 12 ½ to 25 years’
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1 18 Pa. C.S. §§ 3701(a)(1)(ii) and 2706 (a)(1). Appellant was also charged
    with simple assault, recklessly endangering another person (REAP), theft-
    receiving stolen property, and theft by unlawful taking; the Commonwealth
    nolle prossed these charges.
    J-A19042-21
    sentence outside the sentencing guidelines2 and the Commonwealth’s
    sentencing recommendation.3           The Commonwealth has filed a brief, further
    asserting that Appellant’s sentence is illegal because the trial court imposed
    separate sentences for robbery and terroristic threats, and the two sentences
    should have merged for sentencing purposes.             The Commonwealth also
    asserts that the trial court abused its discretion by imposing the statutory
    maximum sentence, far in excess of the sentencing guidelines. After careful
    consideration, we affirm the convictions for both robbery and terroristic
    threats, but vacate the judgment of sentence for terroristic threats, as it
    merges with robbery.
    The factual history presented by the trial court in its 1925(a) opinion is
    as follows:
    On March 13, 2019, at approximately 2:00 a.m., Appellant,
    Rahmeer Young, robbed [Victim], on the 3200 block of Pearl
    Street in Philadelphia, as she was walking home from the Drexel
    University library. According to [Victim], Appellant approached
    her and told her “give me everything you have or it’ll get really
    violent.” Appellant then put his hand on a bulge on his left side,
    which led [Victim] to assume he was armed. Appellant then took
    a $50 American Express gift card and [Victim]’s student ID. He
    then grabbed [Victim]’s arm and attempted to drag her to a
    secondary location. [Victim] was able to break free, and she fled
    to her home, where she contacted police. Philadelphia Police
    ____________________________________________
    2 Appellant’s offense gravity score was 10, and his prior record score was 1;
    the Pennsylvania sentencing guidelines for robbery provide a standard
    sentencing range of 2 ½ to 3 ½ years, with an aggravated range of plus 12
    months. N.T., 9/5/19 at 15.
    3 The Commonwealth requested an aggregate sentence of 2 ½ to 5 years’
    incarceration. N.T., 9/5/19 at 16.
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    Officers apprehended Appellant based on [Victim]’s description.
    Appellant was in possession of [Victim]’s stolen belongings, and
    [Victim] positively identified Appellant as the man who robbed
    her.
    Trial Court Opinion (TCO), 2/16/2021 at 1.
    Following a sentencing hearing on September 5, 2019, Appellant was
    sentenced to consecutive terms of ten to twenty years’ confinement for
    robbery and two and one-half to five years of confinement for terroristic
    threats. He filed a motion for reconsideration of sentence, which was denied
    on October 27, 2020. This appeal followed.4
    Although Appellant has not raised this issue, a claim that crimes should
    have merged for sentencing purposes raises a challenge to the legality of a
    sentence.     Commonwealth v. Martinez, 
    153 A.3d 1025
    , 1030 (Pa. Super.
    2016). The issue of whether a sentence is illegal is not subject to waiver and
    may be raised by this Court, even if its illegality has not been raised by the
    appellant. Commonwealth v. Pi Delta Psi, Inc., 
    211 A.3d 875
    , 889 (Pa.
    Super. 2019); Commonwealth v. Tanner, 
    61 A.3d 1043
    , 1046 (Pa. Super.
    2013). “The legality of a criminal sentence is non-waivable, and this Court
    may ‘raise and review an illegal sentence sua sponte.’” Pi Delta Psi, Inc.,
    211 A.3d at 889 (quoting Commonwealth v. Muhammed, 
    992 A.2d 897
    (Pa. Super. 2010)). In a challenge to the legality of a sentence, our standard
    ____________________________________________
    4 The trial court ordered Appellant to file a concise statement of matters
    complained of on appeal on December 3, 2020, and Appellant filed a concise
    statement on December 10, 2020. The trial court issued its 1925(a) opinion
    on February 16, 2021.
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    of review is de novo and the scope of review is plenary. Martinez, 153 A.3d
    at 1030 (Pa. Super. 2016).
    The crime of terroristic threats is committed when an individual
    “communicates, either directly or indirectly, a threat to commit any crime of
    violence with intent to terrorize another.”    18 Pa.C.S. § 2706(a)(1).      The
    robbery charge to which Appellant pled guilty was section 3701(a)(2) of the
    Crimes Code, which provides that an individual is guilty of robbery if, in the
    course of committing a theft, he or she “threatens another with or intentionally
    puts [her] in fear of immediate serious bodily injury[;].”        18 Pa.C.S. §
    3701(a)(2).
    “No crimes shall merge for sentencing purposes unless the
    crimes arise from a single criminal act and all of the
    statutory elements of one offense are included in the
    statutory elements of the other offense. Where crimes
    merge for sentencing purposes, the court may sentence
    the defendant only on the higher graded offense.
    18 Pa.C.S. § 9765. The offense of robbery under section 3701(a)(2) includes
    all of the statutory elements of terroristic threats.     Where a defendant’s
    convictions for terroristic threats and robbery both rely on the same
    threatening statement - “give me everything you have or it’ll get really violent”
    – the convictions merge and the sentence is illegal. See Martinez, 153 A.2d
    at 1032.
    Appellant’s claim of a manifestly excessive sentence implicates the
    discretionary aspects of his sentence, and such challenge does not guarantee
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    a petitioner’s right to our review.    Instead, in order to invoke our Court’s
    jurisdiction, he must satisfy a four-part test:
    We 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. Swope, 
    123 A.3d 333
    , 337 (Pa. Super. 2015) (citation
    omitted.) Here, Appellant filed a timely notice of appeal, and his brief included
    a statement of reasons relied upon for allowance of appeal, as is required by
    Pa.R.A.P. 2119(f). See Appellant’s Brief at 9. He also preserved the issue in
    a timely post-sentence motion to reconsider, filed on September 16, 2019.
    Therefore, we consider whether Appellant has raised a substantial question.
    “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 () contrary to
    the   fundamental     norms    which    underlie   the   sentencing       process.”
    Commonwealth v. Prisk, 
    13 A.3d 526
    , 533 (Pa. Super. 2011) (internal
    citations omitted). A claim that a sentence was based on an improper factor
    raises a substantial question, see Commonwealth v. Downing, 
    990 A.2d 788
    , 792 (Pa. Super. 2010), and an allegation that a sentence was
    unreasonable because it was outside the sentencing guidelines similarly raises
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    a substantial question, see Commonwealth v. Lawrence, 
    960 A.2d 473
    ,
    478 (Pa. Super. 2008). Appellant claims that the trial court focused solely on
    the harm caused to the victim and failed to take into account mitigating
    factors, and the imposition of the statutory maximum sentence was far in
    excess of the sentencing guidelines, which provide for a minimum sentence of
    two and one-half years.     Here, we conclude that the challenges present a
    substantial question, and we proceed to the merits of the sentencing
    challenge.
    Our Supreme Court has enunciated the proper standard of appellate
    review of a sentencing court’s imposition of a sentence:
    Our Court has stated that the proper standard of review
    when considering whether to affirm the sentencing court’s
    determination is the abuse of discretion. Commonwealth
    v. Smith, 
    673 A.2d 893
    , 895 ((1996) (“Imposition of a
    sentence is vested in the discretion of the sentencing court
    and will not be disturbed absent a manifest abuse of
    discretion.”). As stated in Smith, an abuse of discretion is
    more than a mere error of judgment; thus, a sentencing
    court will not have abused its discretion unless “the record
    discloses that the judgment exercised was manifestly
    unreasonable, or the result of partiality, prejudice, bias, or
    ill-will.” 
    Id.
     In more expansive terms, our Court recently
    offered: “An abuse of discretion may not be found merely
    because an appellate court might have reached a different
    conclusion, but requires a manifest unreasonableness, or
    partiality, prejudice, bias, or ill-will, or such lack of support
    so as to be clearly erroneous.” Grady v. Frito-Lay, Inc.,
    
    839 A.2d 1038
    , 1046 (2003).
    Commonwealth v. Walls, 
    926 A.2d 957
    , 961 (Pa. 2007) (citations and
    footnotes omitted).    The Sentencing Code offers general standards with
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    respect to the imposition of sentence which require the sentencing court to
    impose a sentence that “is consistent with the protection of the public, the
    gravity of the offense as it relates to the impact on the life of the victim and
    on the community, and the rehabilitative needs of the defendant.” Walls,
    926 A.2d at 962; 42 Pa.C.S.A. § 9721(b). Where, as here, a sentence imposed
    is outside the sentencing guidelines, we must remand if the sentence is
    “unreasonable.” 42 Pa.C.S.A. § 9781(c). “In making this “unreasonableness”
    inquiry, the General Assembly has set forth four factors that an appellate court
    is to 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.
    Walls, 926 A.2d at 963; 42 Pa. C.S. § 9781(d).
    Before the trial court, the victim testified that since the robbery, she has
    been unable to sleep in her own room, and that it took her months before she
    could sleep alone in her apartment. N.T., 9/5/19 at 7. She stated that she
    can no longer spend nights in the library studying past midnight in what was
    formerly a safe and comfortable routine for her; her daily panic attacks have
    become less frequent through therapy, but she is an amputee living in the
    City, and she is left feeling vulnerable. Id. She stated that she remains at
    work for hours after she clocks out, just to avoid walking home alone, and she
    will never feel as safe again. Id. at 7-8. The Commonwealth apprised the
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    trial court that the victim believed that Appellant was armed when he put his
    hand on a bulge on his left side, and that after he took her belongings, he
    grabbed her arm and attempted to pull her from the area, but she pulled free.
    Id. at 8-9.
    Prior to its imposition of the sentence, the trial court acknowledged that
    Appellant was “self-medicating” with Xanax. Id. at 24. Appellant’s mother
    alluded to Appellant’s presentence investigation report, noting that it reveals
    that Appellant lost one of his friends to an accidental shooting, and that his
    father had died under mysterious circumstances. Id. at 14. The trial court
    acknowledged        that      Appellant      had       no      violent     history
    but noted that his probation had been revoked on both of the DUI’s with which
    he was formerly convicted. Id. at 15. The trial court found that Appellant
    was lurking on the Drexel University campus at 2:00 a.m., and that he preyed
    upon the victim. Id. The trial court indicated that the sentencing guidelines
    had been considered, but that the court believed that “this crime is so
    egregious that the guidelines have to be superseded,” and stated that
    Appellant was being sentenced for “punishment, protection of the public,
    rehabilitation.”   Id. at 25. In its opinion, the trial court explained that it had
    considered the presentence report and the arguments of counsel, as well as
    Appellant’s mother’s testimony, and that it took into consideration that the
    victim did not suffer any serious physical injury as a result of the robbery.
    Trial Court Opinion at 3-4. The trial court noted its particular concern with the
    aggravating factors in this matter, specifically the fact that Appellant robbed
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    an amputee, in a neighborhood where many students reside who can be found
    by themselves and easily preyed upon.          Id. at 4.    It was extremely
    troublesome to the trial court that Appellant tried to drag Appellant away even
    after he had stolen her belongings, which indicated that Appellant “was in fact
    prepared to follow through on his threats to “get really violent.” Id. The trial
    court voiced its belief that Appellant is in need of drug treatment, and poses
    extreme danger to the public without the treatment and rehabilitative services
    he will receive while incarcerated. Id. Upon review, we cannot find that the
    trial court failed to satisfy the requirements set forth by the General Assembly
    in the Sentencing Code here, where it enunciated substantial reasons for the
    imposition of its sentence.    We are prohibited from finding an abuse of
    discretion merely because we might have reached a different conclusion,
    Grady, 829 A.2d at 1046, and our review of the record reveals no “manifest
    unreasonableness.”    Accordingly, we vacate the judgment of sentence for
    terroristic threats, and we affirm Appellant’s robbery sentence.
    Judgment of sentence for terroristic threats vacated.        Judgment of
    sentence for robbery affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 1/28/2022
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