Com. v. Baker, J.

• Court: Superior Court of Pennsylvania
• Decided: January 11, 2018
• Docket: 3304 EDA 2016
• Status: Unpublished

Opinion

J-A25041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JARRELL BAKER

Appellant No. 3304 EDA 2016

Appeal from the Judgment of Sentence Entered May 4, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006671-2015

BEFORE: OTT, STABILE, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED JANUARY 11, 2018

Appellant, Jarrell Baker, appeals from the May 4, 2016 judgment of

sentence imposing an aggregate five to ten years of incarceration followed by

twenty years of probation for robbery, aggravated assault, and conspiracy.1

We affirm.

On April 29, 2015, the victim, Jeffrey Bridges, delivered food to 5462

Arlington Street in response to a call placed from Appellant’s cell phone. Upon

Bridges’ arrival, Appellant and several others pistol-whipped, punched, and

kicked him. The perpetrators also stole Bridges’ car and $140.00 in cash from

his person. On September 21, 2015, Appellant pled guilty to the

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701, 2702, and 903, respectively. J-A25041-17

aforementioned offenses. After sentencing, Appellant filed a timely post-

sentence motion challenging the discretionary aspects of his sentence. The

motion was denied by operation of law on September 22, 2016. This timely

appeal followed.

Appellant’s sole assertion of error is that the trial court abused its

discretion in imposing sentences above the aggravated guideline range.

Appellant’s Brief at 5. Before we address the merits, we must determine

whether Appellant has raised a substantial question as to the propriety of the

trial court’s exercise of its sentencing discretion. A substantial question exists

if an appellant can show that the trial court’s sentence is “inconsistent with

the Sentencing Code or contrary to the fundamental norms underlying the

sentence process.” Commonwealth v. Lee, 876 A.2d 408, 411 (Pa. Super.

2005). Bald allegations of an excessive sentence will not raise a substantial

question. Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2005). “An

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.” Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.

Super. 2008), appeal denied, 968 A.2d 1280 (Pa. 2009).

In his concise statement of reasons relied upon for allowance of appeal,

pursuant to Pa.R.A.P. 2119(f), Appellant claims the trial court abused its

discretion in relying largely on the need to punish Appellant for the harm he

caused to the victim. Appellant’s Brief at 7. Appellant argues the trial court

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failed to consider Appellant’s background and potential for rehabilitation. Id.

In essence, Appellant argues the trial court failed to consider certain

mitigating factors. Appellant does not argue that the trial court was unaware

of the alleged mitigating factors.2 Rather, he argues the trial court failed to

give them sufficient weight. “This type of claim, which asks us to substitute

our judgment for that of the sentencing court, does not present a substantial

question that the sentence imposed was inappropriate under the Sentencing

Code as a whole.” Commonwealth v. Lopez, 627 A.2d 1229, 1231 (Pa.

Super. 1993), impliedly overruled on other grounds as recognized by,

Commonwealth v. Rosario-Hernandez, 627 A.2d 1229, 1231 (Pa. Super.

1993). In light of Johnson and Lopez, Appellant has failed to present a

substantial question for appellate review.

Appellant relies on Commonwealth v. Jones, 565 A.2d 732 (Pa.

1989), in which the defendant received 50 to 100 years of incarceration for

21 counts of sexual abuse of children. This Court vacated the sentence in an

unpublished memorandum and the Commonwealth appealed to the Supreme

Court. The Supreme Court quashed the appeal because the Judicial Code

prohibits an appeal of the discretionary aspects of a sentence beyond the

2 At the time of the instant offense, Appellant was participating in drug treatment court in connection with a prior arrest. N.T. Sentencing, 5/4/16, at 5. The trial court noted that, despite the rehabilitative efforts of the drug treatment court, Appellant participated in a premeditated robbery and assault. Trial Court Opinion, 2/28/17, at 3-4.

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appellate court that has initial jurisdiction. Id. at 734 (citing 42 Pa.C.S.A.

§ 9781(f)). The Supreme Court nonetheless summarized this Court’s reasons

for vacating the sentence:

It is to be noted that the concern expressed by the Superior Court in this matter was that the trial court may have focused ‘nearly exclusively’ upon the need to punish for the harm caused to the victims, and that in doing so proper consideration was not given to the mental illness under which petitioner labored at the time of these incidents and the prospects of treatment which petitioner was receiving for the malady.

Id. at 735. Appellant argues he has presented a substantial question because

here, as in Jones, the trial court relied nearly exclusively on the need to

punish Appellant for the harm he caused. Appellant’s argument is unavailing.

Because this Court in Jones issued a non-precedential decision and the

Supreme Court quashed the Commonwealth’s appeal, the Supreme Court’s

summary of this Court’s rationale is obiter dicta. We therefore cannot rely on

Jones to conclude that Appellant has raised a substantial question. In any

event, the record reflects that the trial court considered all pertinent evidence.

N.T. Sentencing, 5/4/16, at 5-10; Trial Court Opinion, 2/28/17, at 3-4.

For all of the foregoing reasons, we conclude that Appellant has failed

to present a substantial question as to the propriety of the trial court’s exercise

of sentencing discretion. We therefore affirm the judgment of sentence

without reaching the merits of Appellant’s argument.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/11/18

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