Com. v. Green, T.

Opinion

J-S06013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TESHA GREEN, : : Appellant : No. 1603 EDA 2018

Appeal from the Judgment of Sentence June 27, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012259-2013

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED APRIL 30, 2019

Tesha Green appeals nunc pro tunc from the judgment of sentence of

two to ten years of imprisonment imposed after she was convicted of

aggravated assault, possessing instruments of crime (“PIC”), terroristic

threats, simple assault, and recklessly endangering another person (“REAP”).

We affirm.

At approximately 2:40 p.m. on August 3, 2013, Appellant initiated a

physical altercation with Takesha Keigler, brandished a knife with a three-inch

blade, and announced her intention to kill her. Ms. Keigler attempted to

defend herself from the knife-wielding assailant by striking Appellant with her

purse. Appellant stabbed Ms. Keigler on her head, neck, arms and hand before

a bystander intervened and stopped the assault.

During the ensuing bench trial, Appellant admitted to stabbing Ms.

Keigler but claimed that she acted in self-defense after Ms. Keigler struck her J-S06013-19

with a piece of metal and grabbed and kicked her. The trial court rejected

Appellant’s assertion and convicted her of the afore mentioned offenses.

On June 27, 2014, the case proceeded to sentencing, where the court

had the benefit of a pre-sentence investigation (“PSI”) report, Appellant’s

mental health evaluation, and favorable character evidence. The offense

gravity score for aggravated assault graded as a felony is ten, and with the

application of the deadly weapon enhancement, the sentencing guidelines

recommend a standard range of forty to fifty-four months. Nevertheless, the

trial court imposed the less severe sentence of two to ten years of

imprisonment for aggravated assault and a concurrent term of one to five

years for PIC. No further penalties were imposed on the remaining

convictions. Notably, the court’s mitigated-range sentence was substantially

less than the five year minimum term of incarceration that the Commonwealth

requested.

Appellant did not file a post-sentence motion or a direct appeal;

however, she filed a timely PCRA petition alleging, inter alia, that trial counsel

ignored her directive to file a petition for reconsideration of sentence, post-

sentence motions, and a direct appeal. She requested “to have her post-

sentence motion rights and her petition for reconsideration of sentence rights

reinstated nunc pro tunc, or in the alternative, a new trial and/or sentencing

hearing.” Amended PCRA Petition, 2/9/17, at unnumbered 2. On June 4,

2018, the trial court granted Appellant’s petition insofar as it ordered,

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“appellate rights are reinstated Nunc Pro Tunc to the Superior Court of

Pennsylvania.” PCRA Court Order, 6/4/18. This timely appeal followed.

Appellant presents two issues,

I. Did the trial court abuse its discretion in sentencing appellant to an aggregate term of two (2) to ten (10) years imprisonment?

II. Did trial counsel render ineffective assistance of counsel for failing to subpoena and introduce into evidence [A]ppellant's medical records (showing injuries sustained) during trial to prove self-defense?

Appellant’s brief at 5.

Appellant’s first claim challenges the discretionary aspects of her

sentence. Before we reach the merits of a discretionary sentencing issue, we

must ascertain whether (1) a timely appeal was filed from the judgment of

sentence; (2) the issue was preserved during the trial court proceedings; (3)

the appellant complied with Pa.R.A.P. 2119(f); and (4) the Rule 2119(f)

statement reveals a substantial question that the sentence was not

appropriate under the sentencing code. Commonwealth v. Lebarre, 961

A.2d 176, 178 (Pa.Super. 2008).

Herein, Appellant filed a timely appeal nunc pro tunc, raised the issue in

a concise statement filed pursuant to Pa.R.A.P. 1925(b), and complied with

Rule 2119(f) by including in her brief a statement of reasons in support of

review of her claim. Appellant’s brief at 4. Specifically, Appellant avers that

her sentence was “unduly harsh” in that the court focused on the seriousness

of the offense and failed to meaningfully consider other relevant sentencing

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factors. Id. Although Appellant’s trial counsel neglected to preserve this issue

in a post-sentence motion, which was one of the bases for relief that Appellant

asserted in her PCRA petition, we will not find the claim waived in light of the

PCRA Court’s decision to reinstate Appellant’s direct appeal rights.

Next, we must determine whether Appellant has asserted 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 (2) contrary

to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.Super. 2014) (en

banc) (quoting Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super.

2012)).

While a bald allegation that the court imposed an excessive sentence

will not, by itself, raise a substantial question, a claim that the trial court

fashioned an excessive sentence due to its failure to properly consider

mitigating factors may raise a substantial question. Commonwealth v.

Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (“an excessive sentence claim—

in conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question”). Instantly, Appellant supplemented

her excessiveness claim with the contention that the sentencing court failed

to consider “the facts and circumstances of the underlying case.” Appellant’s

brief at 10. Accordingly, we will address the merits of Appellant’s claim.

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Our standard of review is well settled. “Sentencing is a matter vested

within the discretion of the trial court and will not be disturbed absent a

manifest abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280

1282-83 (Pa.Super. 2010). To establish an abuse of discretion, Appellant

must prove that the sentencing court arrived at a manifestly unreasonable

sentence, ignored or misapplied the law, or exercised its judgment with

impartiality, prejudice, bias or ill will. Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007).

Pursuant to 42 Pa.C.S. § 9721(b), “In selecting from the alternatives

set forth in subsection (a) [outlining the types of permissible sentences], the

court shall follow the general principle that the sentence imposed should call

for confinement 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.” Appellant does

not necessarily claim that the sentencing court overlooked the § 9721(b)

factors. Instead, she complains that, in imposing the sentence of two to ten

years of imprisonment, the court provided insufficient acknowledgment of her

mental health evaluation, the injuries she sustained during the altercation,

and favorable character evidence. Appellant’s brief at 10.

Appellant’s allegation that her mitigated-range sentence is excessive

lacks merit. This Court is permitted to reverse a standard-range sentence

only if the sentence, when viewed in light of the factors outlined in 42

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Pa.C.S. § 9781(d),1 is clearly unreasonable. Commonwealth v. Walls, 926

A.2d 957 (Pa. 2007). An unreasonable sentence is one that was irrational or

not guided by sound judgment. Id. Indeed, “rejection of a sentencing court's

imposition of sentence on unreasonableness grounds [should] occur

infrequently, whether the sentence is above or below the guidelines ranges.”

Id. at 964.

Instantly, the trial court fashioned a sentence that was neither irrational

nor guided by unsound judgment. The certified record establishes that the

sentencing court had the benefit of a PSI report when it imposed a sentence

that was within the mitigated range of the sentencing guidelines. Where the

sentencing court both sentences within the standard range and considers a

pre-sentence report, the sentence will not be considered excessive.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013). In fact, in

this situation, we are required to presume that the sentencing court properly

weighed the mitigating factors. Commonwealth v. Devers, 546 A.2d 12,

____________________________________________

1 Section 9781(d) provides that when we review this type of question, we 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.

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18 (Pa. 1988) (“Where pre-sentence reports exist, we . . . presume that the

sentencing judge was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors.”); Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).

This principle is even more forceful where, as here, the trial court utilized the

PSI report to impose a mitigated range sentence over the Commonwealth’s

request for a five year minimum. See Trial Court Opinion, 10/1/18, at 5 (“Had

Appellant not presented the mitigating evidence, the [trial c]ourt would have

imposed a standard range sentence.”). No relief is due.

Appellant’s second issue concerns whether trial counsel provided

constitutionally ineffective assistance by failing to introduce medical records

to substantiate Appellant’s claim that she acted in self-defense. In

Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013), our Supreme

Court reaffirmed the general rule that “claims of ineffective assistance of

counsel are to be deferred to PCRA review” unless two scenarios exists: (1)

where the trial court addresses a discrete claim of trial counsel ineffectiveness

that is both apparent from the record and meritorious; and (2) where the

defendant knowingly and expressly waives his right to seek review under the

PCRA. See id. at 563-564. Neither exception applies herein.

As Appellant’s claim is not facially meritorious and Appellant did not

knowingly and expressly waive her right to collateral review, Appellant must

seek review of her ineffectiveness claims in a succeeding PCRA petition, which

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will be treated as her first. See Commonwealth v. Fowler, 930 A.2d 586,

591 (Pa.Super. 2007) (quoting Commonwealth v. O'Bidos, 849 A.2d 243,

252 n.3 (Pa.Super. 2004)) (“It is now well[-]established that a PCRA petition

brought after an appeal nunc pro tunc is considered [an] appellant's first PCRA

petition, and the one-year time clock will not begin to run until this appeal

nunc pro tunc renders his judgment of sentence final.”).

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/30/19

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