Com. v. Alsbrook, M.

• Court: Superior Court of Pennsylvania
• Decided: July 6, 2016
• Docket: 2298 EDA 2015
• Status: Unpublished

Opinion

J-S30010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MARVIN ALSBROOK

Appellant No. 2298 EDA 2015

Appeal from the Judgment of Sentence June 29, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0002093-2014

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 06, 2016

Appellant Marvin Alsbrook, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions of robbery, robbery of a motor vehicle, criminal conspiracy,

persons not to possess firearms, and possessing instruments of crime

(“PIC”).1 We affirm.

The trial court stated the relevant facts of this case as follows:

On July 17, 2013, around 10:00 p.m., [the victim] received a call to deliver food to 1139 Union Street. When he arrived at the row house address, he called the caller ID number of the person who ordered the pizza, and the person responded that he would come downstairs. While the victim was waiting on the porch of the property, he ____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3702(a), 903(c), 6105(a)(1), 907(a), respectively. J-S30010-16

saw [Appellant], with his distinct style of walk, and codefendant Tyreek Torrence walking together down the street towards him from the corner. [Appellant] asked, “What’s up, homie?” while holding a black .38 revolver gun in his left hand. The victim said, “Damn,” and put his keys down, the pizza down, and his hands up by his head “for fear of [his] life.” Codefendant stood there then came up on the steps, grabbed the victim by the collar of his shirt, and the victim “went willingly to the ground” and lay on his stomach. [Appellant] went up on the porch, got the keys, and went straight to the driver’s side of the victim’s van. Codefendant went through the victim’s pockets and sock and took $380.00 United States Currency, his wallet, and his phone. The victim pleaded, “Please don’t hurt me. I have two children.” Codefendant replied, “Nobody’s going to hurt you.” Codefendant then got up, got into the passenger side of the van, and [Appellant] drove off toward the Philadelphia Zoo. The victim went around the corner to a friend’s house and called the police.

(Trial Court Opinion, filed on September 8, 2015, at 3-4) (footnote omitted).

On December 19, 2015, police arrested Appellant after they found him

hiding under a bed in his aunt’s home.

Following trial, a jury convicted Appellant of robbery, robbery of a

motor vehicle, criminal conspiracy, persons not to possess firearms, and PIC.

On June 29, 2015, the trial court sentenced Appellant to consecutive terms

of imprisonment of ninety (90) to two hundred twenty-eight (228) months

for robbery, seventy-eight (78) to two hundred sixteen (216) months for

robbery of a motor vehicle, seventy-eight (78) to two hundred sixteen (216)

months for conspiracy, sixty (60) to one hundred twenty (120) months for

persons not to possess firearms, and fourteen (14) to forty-two (42) months

for PIC. Thus, the court imposed an aggregate sentence of three hundred

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twenty (320) to eight hundred twenty-two (822) months’ imprisonment.

Appellant filed a timely post-sentence motion on July 2, 2015. On July 6,

2015, the court denied the motion. Appellant filed a timely notice of appeal

on July 22, 2015. The court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

timely complied.

Appellant raises the following issue for our review:

IS APPELLANT ENTITLED TO A NEW SENTENCE HEARING WHEN THE TRIAL COURT IMPOSED AN AGGREGATE SENTENCE OF 26½ TO 68½ YEARS IN PRISON BASED ON ARRESTS THAT WERE NOT CONVICTIONS, THE ERRONEOUS BELIE[F] THAT APPELLANT WAS A CRIMINAL RING LEADER IN THE NEIGHBORHOOD, AN UNSUPPORTED OPINION OF THE PROSECUTOR AND THE BELIEF NOT SUPPORTED BY THE RECORD THAT…DRUG TRANSACTIONS AND OTHER CRIMINAL ACTIVITY IN THE NEIGHBORHOOD CEASED OR DROPPED OFF AFTER APPELLANT’S ARREST AND INCARCERATION?

(Appellant’s Brief at 2)

Appellant argues the court’s imposition of consecutive sentences

resulted in an excessive aggregate sentence, especially where the victim

suffered no bodily injury. Appellant contends the court failed to consider his

age, family history, and rehabilitative needs. Appellant claims the court

relied on unsupported assertions that Appellant was a criminal ringleader

and criminal activity in the neighborhood decreased after his arrest.

Appellant concludes he is entitled to resentencing on all of his convictions.

As presented, Appellant challenges the discretionary aspects of his sentence.

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See Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595 (Pa.Super.

2010) (explaining challenge to imposition of consecutive sentences

implicates discretionary aspects of sentencing); Commonwealth v.

Downing, 990 A.2d 788 (Pa.Super 2010) (stating claim court relied on

improper factors when imposing sentence implicates discretionary aspects of

sentencing); Commonwealth v. Cruz-Centro, 668 A.2d 536 (Pa.Super.

1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (stating claim

that sentencing court failed to consider or did not adequately consider

certain factors challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000). Prior to reaching the merits of a discretionary

sentencing issue:

[W]e 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

Objections to the discretionary aspects of sentence are generally waived if

they are not raised at the sentencing hearing or in a motion to modify the

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sentence imposed at that hearing. Commonwealth v. Mann, 820 A.2d

788, 794 (Pa.Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599

(2003). When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness of the sentence under the Sentencing Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). “The determination of what constitutes a substantial question must

be evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). 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 (2) contrary to the fundamental norms which underlie

the sentencing process.” Sierra, supra at 912-13 (quoting

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super. 1999) (en banc),

appeal denied, 567 Pa. 755, 790 A.2d 1013 (2001)).

“Generally, Pennsylvania law ‘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. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011)

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(quoting Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.

2006)). See also Commonwealth v. Hoag, 665 A.2d 1212, 1214

(Pa.Super. 1995) (stating defendant is not entitled to “volume discount” for

his crimes by having all sentences run concurrently). But see

Commonwealth v. Dodge, 957 A.2d 1198 (Pa.Super. 2008), appeal

denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard

range sentences on thirty-seven counts of petty theft offenses for

aggregate sentence of 58½ to 124 years’ imprisonment constituted virtual

life sentence and was so manifestly excessive as to raise substantial

question). “Thus, in our view, the key to resolving the preliminary

substantial question inquiry is whether the decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the case.”

Prisk, supra at 533. But see Commonwealth v. Austin, 66 A.3d 798

(Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (holding

challenge to imposition of consecutive sentences, which yields extensive

aggregate sentence, does not necessarily present substantial question as to

discretionary aspects of sentencing, unless court’s exercise of discretion led

to sentence grossly incongruent with criminal conduct at issue and patently

unreasonable). Generally, “[a]n allegation that a sentencing court failed to

consider or did not adequately consider certain factors does not raise a

substantial question that the sentence was inappropriate.” Cruz-Centeno,

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supra at 545. A claim that the court relied on an improper factor during

sentencing, however, does raise a substantial question. Downing, supra.

On appeal, this Court will not disturb the judgment of the sentencing

court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006). “An abuse of discretion may not be found merely

because an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.”

Commonwealth v. Walls, 592 Pa. 557, 564, 926 A.2d 957, 961 (2007).

“Where the sentencing court imposes a sentence within the guideline range,

we must review to determine whether the trial court’s sentence is ‘clearly

unreasonable.’” Dodge, supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).

Instantly, Appellant failed to raise at sentencing or in his post-

sentence motion his claims regarding: (1) the court’s reliance on allegedly

improper sentencing factors or facts outside the record; and (2) the court’s

supposed failure to consider mitigating circumstances. Therefore, Appellant

waived those issues on appeal. See, Mann supra. Appellant preserved his

remaining argument that the court imposed an unreasonably long aggregate

sentence by linking all of Appellant’s sentences consecutively. Nevertheless,

as presented, that claim fails to raise a substantial question. See Prisk,

supra. Dodge, supra is distinguishable. The defendant in Dodge

committed a series of nonviolent petty theft offenses, whereas Appellant

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robbed a victim at gunpoint. Further, Appellant will be eligible for parole

when he is fifty-five years old, whereas the defendant in Dodge received a

de facto life sentence.

Moreover, at sentencing, Officer Marvin Ruley testified he was familiar

with Appellant and his extensive criminal history and had many years’

experience policing the area Appellant frequented. Officer Ruley could not

recall any other arrests in the neighborhood since Appellant’s arrest.

Detective Matthew Carey similarly testified to a drop in shootings, robberies,

and drug sales in the neighborhood since Appellant was taken into custody.

As of the sentencing date, Appellant had several other open cases involving

allegations of drug dealing and a shooting.2 Appellant allegedly committed

the acts while he was a fugitive in the instant case, which involved an armed

robbery. The court placed its reasons on the record for the sentence

imposed, including Appellant’s risk to society, lack of rehabilitative potential

in light of a long criminal history, the seriousness of the offenses, and the

negative impact of the incident on the victim, who felt compelled to move

out of the neighborhood. The court confirmed it had reviewed Appellant’s

presentence investigation (“PSI”) report. See Commonwealth v. Devers, ____________________________________________

2 The court acknowledged those cases had not resulted in convictions as of the time of sentencing. See Commonwealth v. Fries, 523 A.2d 1134, 1136 (Pa.Super. 1987), appeal denied, 515 Pa. 619, 531 A.2d 427 (1987) (stating: “[I]t is not improper for a court to consider a defendant's prior arrests which did not result in conviction, as long as the court recognizes the defendant has not been convicted of the charges”).

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519 Pa. 88, 546 A.2d 12 (1988) (stating court’s review of PSI report raises

presumption court was aware of the relevant information regarding

defendant’s character and weighed those considerations along with

mitigating factors). The court also explained the relevant Sentencing

Guideline ranges for each offense and imposed a standard-range sentence

for each of Appellant’s convictions. Therefore, assuming Appellant’s claim

raised a substantial question, we would conclude the court’s decision to link

Appellant’s sentences consecutively did not rise to an abuse of discretion.

See Walls, supra. Based on the foregoing, Appellant’s discretionary

sentencing challenge merits no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/6/2016

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