Com. v. Abduss-Salaam, I.

• Court: Superior Court of Pennsylvania
• Decided: October 7, 2022
• Docket: 1449 WDA 2021
• Status: Unpublished

Opinion

J-S34043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISSA ABDUSS-SALAAM : : Appellant : No. 1449 WDA 2021

Appeal from the Judgment of Sentence Entered July 16, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000546-2020

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: October 7, 2022

Issa Abduss-Salaam (Abduss-Salaam) appeals the judgment of

sentence entered by the Court of Common Pleas of Allegheny County (trial

court) challenging the discretionary aspects of his sentence. In 2021, Abduss-

Salaam pleaded guilty to a number of offenses arising from an incident of

domestic violence which turned into a shootout with the police. He was

sentenced to an aggregate prison term of 15-30 years. In this appeal,

Abduss-Salaam contends that the trial court abused its discretion by imposing

a manifestly excessive and unreasonable sentence in light of his mitigation

evidence. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S34043-22

I.

In 2019, Abduss-Salaam got into a violent domestic dispute with his

then-girlfriend (C.N.) and slapped her in the face. The incident escalated when

Abduss-Salaam armed himself with a handgun, at which point C.N.’s daughter

(age 16) called 911. The 911 operator soon overheard Abduss-Salaam

threaten to use deadly force against the police if they intervened. Rather than

stand down, Abduss-Salaam gathered ammunition and blocked C.N., her

daughter and her son (age 5) from leaving the residence. Abduss-Salaam

then discharged his weapon twice, shooting at a wall, and pointed the weapon

at C.N. threatening to kill her.

Two police officers arrived at the residence minutes later and ordered

Abduss-Salaam to drop the firearm he was still holding. Abduss-Salaam

instead opened fire on the officers, striking only their patrol vehicle. The

officers returned fire, striking Abduss-Salaam several times and seriously

injuring him. The officers gave Abduss-Salaam medical attention until first

responders arrived and transported him to the hospital.

In 2020, after he had recovered from his wounds, Abduss-Salaam

entered into an open guilty plea to two counts of attempted homicide (18

Pa.C.S. § 903(a)); two counts of attempted aggravated assault (18 Pa.C.S.

§ 2702(a)(2)); two counts of endangering the welfare of children (18 Pa.C.S.

§ 4304(a)(1)); one count of terroristic threats (18 Pa.C.S. § 2706(a)(1)); one

count of unlawful restraint (18 Pa.C.S. § 2902(a)); one count of simple assault

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(18 Pa.C.S. § 2701(a)(1)); and five counts of recklessly endangering another

person (18 Pa.C.S. § 2705).

Prior to sentencing, a pre-sentence report was ordered and reviewed by

the trial court, as was a defense mitigation report and a sentencing

memorandum prepared by the Commonwealth. At the sentencing hearing,

the trial court announced on the record that it had thoroughly reviewed these

materials and considered their contents. See Sentencing Hearing Transcript,

7/16/2021, at pp. 3-4.

Six witnesses were called by the defense to testify at the sentencing

hearing as evidence in support of a mitigated sentence. These witnesses

included a social worker, family and friends. They testified at length as to the

typically peaceful character of Abduss-Salaam, his personal history, military

service, and mental health struggles arising from that experience.

At the conclusion of the testimony, Abduss-Salaam was sentenced to

the following prison terms: 6 to 12 years as to each count of attempted

homicide; 2.5 to 5 years as to each count of attempted aggravated assault; 1

to 2 years as to each count of child endangerment; 6 to 12 months as to the

single count of unlawful restraint, and 6 to 12 months as to the single count

of simple assault.

All the sentences were set to run consecutively except for the two counts

of attempted aggravated assault, which were made concurrent with one count

of attempted homicide. No sentence was imposed as to the one count of

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terroristic threats and the five counts of reckless endangerment. Thus, the

aggregate prison term totaled 15 to 30 years.

Abduss-Salaam filed a post-sentence motion claiming that the sentence

should be reduced in light of the mitigation evidence he presented at

sentencing. The lower court summarily denied the motion on November 4,

2021, and a timely appeal was filed. In his brief, Abduss-Salaam now raises

one issue for our consideration:

Was the aggregate sentence of imprisonment imposed upon [Abduss-Salaam] (15-to-30 years) manifestly excessive given the totality of the circumstances of this case, requiring vacation of that sentence and a remand for resentencing pursuant to 42 Pa.C.S. § 9781(c)(2)?

Appellant’s Brief, at 5.

II.

Abduss-Salaam argues in this appeal that the trial court abused its

discretion at sentencing by failing to consider mitigation evidence and

imposing a manifestly excessive sentence. “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); see generally 42

Pa.C.S. § 9781(b). Before the merits of such a claim may be considered, an

appellant must first satisfy a four-part test:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of

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appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted).

Rule 2119(f) requires the appellant to “set forth in his brief a concise

statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). The concise

statement must specify “where the sentence falls in relation to the sentencing

guidelines and what particular provision of the code it violates.”

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000). The

statement must also specify “what fundamental norm the sentence violates

and the manner in which it violates that norm.” Id. If these requirements

are met, then this Court may determine whether a substantial question has

been raised. See id.

Here, Abduss-Salaam timely filed a post-sentence motion, as well as a

timely notice of appeal. His brief includes a concise statement of reasons

relied upon in accordance with Rule 2119(f). However, the issue Abduss-

Salaam raised in his post-sentence motion did not preserve for appeal an issue

presenting a substantial question as to the discretionary aspect of his

sentence.

“This Court has held that a claim the trial court focused solely on the

nature of the offense, without considering the protection of the public or the

rehabilitative needs of the appellant, as is required by 42 Pa.C.S. § 9721(b),

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presents a substantial question.” Commonwealth v. Clarke, 70 A.3d 1281,

1287 (Pa. Super. 2013); Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.

Super. 2005). A substantial question is similarly raised when the claim of

excessiveness includes the averment that the sentence is so manifestly

excessive as to constitute too severe a punishment under the circumstances

of the case. See Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa.

Super. 2003). Conversely, a substantial question is not raised where it is

claimed that the trial court “failed to consider” or “did not adequately consider”

various sentencing factors, as this would amount to a request for the reviewing

court to substitute its judgment for that of the trial court. See

Commonwealth v. Williams, 562 A.2d 1385, 1388 (Pa. Super. 1989) (en

banc); Commonwealth v. Griffin, 804 A.2d 1, 9 (Pa. Super. 2002) (same).

The Commonwealth has argued in its answer brief that Abduss-Salaam

failed to preserve for appeal a substantial question because he had only

contended in his post-sentence motion that the trial court did not give due

weight to his evidence of mitigation – a claim which differs from the central

argument in his brief and Rule 2119(f) statement that the sentence is

manifestly excessive and unreasonable in light of all the evidence of mitigation

he had presented to the trial court. See Answer Brief, at 7-12.

The content of Abduss-Salaam’s post-sentence motion demonstrates

the merit of the Commonwealth’s contention. Abduss-Salaam did not claim

in the post-sentence motion, as he does now on appeal, that the sentence is

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“excessive” or “unreasonable.” He instead asked for a reduction in the

sentence based on “proper weight” being assigned to the mitigation evidence:

Undersigned Counsel argues that the overall length of the sentence does not give proper weight to Issa’s aptitude for rehabilitation and successful reintegration into society, nor does it fully consider how little chance there is of further danger to the public. Issa would therefore request only a modification to the length of the sentences imposed by the Court.

Post-Sentence Motion, at para. 9.

Accordingly, the substantial question Abduss-Salaam now raises is

waived because it was not preserved for appeal. See Commonwealth v.

Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013) (“Although we find that

this argument raises a substantial question . . . his issue is waived for not

being preserved in his post-sentence motion or at sentencing.”); see also

Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011) (absent an

issue being raised in a post-sentence motion or presenting a claim during

sentencing proceedings, “an objection to a discretionary aspect of a sentence

is waived.”).

III.

Even if Abduss-Salaam had preserved an issue raising a substantial

question, we would find that the claim is belied by the record. In his brief, he

argued that the trial court abused its discretion by imposing a manifestly

excessive and unreasonable sentence in light of his mitigation evidence.

Sentencing is a matter vested in the sound discretion of the sentencing

court. See Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa. Super.

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2021). The standard of review involving discretionary aspects of a sentence

is a manifest abuse of discretion. See Commonwealth v. Hyland, 875 A.2d

1175, 1184 (Pa. Super. 2005). A trial court abuses its discretion in this

context by ignoring or misapplying the law, exercising its judgment for

reasons of partiality, prejudice, bias or ill will, or arriving at a manifestly

unreasonable decision. See id.

“In determining whether a sentence is manifestly excessive, the

appellate court must give great weight to the sentencing court’s discretion, as

he or she is in the best position to measure factors such as the nature of the

crime, the defendant’s character, and the defendant’s display of remorse,

defiance, or indifference. Commonwealth v. Mouzon, 828 A.2d 1126, 1128

(Pa. Super. 2003). This discretion extends to the choice to run sentences

concurrently or consecutively. See Commonwealth v. Prisk, 13 A.3d 526,

533 (Pa. Super. 2011).

When reviewing challenges to the discretionary aspects of a sentence,

an appellate court may vacate the sentence and remand for a resentencing

only where the record shows that:

(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.

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42 Pa.C.S. § 9781(c).

Abduss-Salaam’s central contention on appeal is that while his sentence

was within the statutory sentencing guidelines, the sentence was manifestly

excessive and unreasonable because the trial court ignored that Abduss-

Salaam was a first-time offender; no one was seriously injured by his violent

behavior except for himself; he is a combat veteran who suffers from post-

traumatic stress disorder; he has expressed remorse; and he has only just

recently begun to receive treatment that will likely reduce future incidents of

violent outbursts. See Appellant’s Brief, at 36-42.

The record establishes, however, that the trial court took all of the

mitigating evidence into account when imposing sentence. Significantly, the

trial court had the benefit of a pre-sentence report, and “[o]ur Supreme Court

has determined that where the trial court is informed by a pre-sentence

report, it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted). While a sentencing

court must state, on the record, its reasons for imposing a sentence, that

requirement can be satisfied “by indicating that he or she has been informed

by the pre-sentencing report; thus properly considering and weighing all

relevant factors.” Id. (citation omitted).

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The trial court in this case not only indicated that it had reviewed the

pre-sentence report, it also specifically referenced the defense’s mitigation

report and discussed the testimony of the witnesses prior to imposing the

sentence. The trial court further stressed that the sentence reflected both the

rehabilitative needs of Abduss-Salaam and the seriousness of the offenses:

[H]aving given this serious consideration, and after reading through things multiple times, I will impose the following sentence which the Court believes takes into account not only your rehabilitative needs, but also the seriousness of this offense and the impact that this offense has had on the victims in this case, the community at large, the need for protection of the public, and also takes into account all of the other things that were not only contained in the presentence report, but also contained in the statements of your family, your friends, your counsel.

Sentencing Hearing Transcript, 7/16/2021, at pp. 40-41.

Thus, due to the waiver of Abduss-Salaam’s appellate claim, as well as

the lack of record evidence to rebut the presumption that the trial court acted

within its discretion at the sentencing, the judgment of sentence must stand.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/07/2022

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