Com. v. Long, R.

• Court: Superior Court of Pennsylvania
• Decided: June 21, 2024
• Docket: 2476 EDA 2023
• Status: Unpublished

Opinion

J-S16039-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT LONG : : Appellant : No. 2476 EDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000909-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT LONG : : Appellant : No. 2477 EDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000910-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT LONG : : Appellant : No. 2478 EDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000911-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S16039-24

: v. : : : ROBERT LONG : : Appellant : No. 2479 EDA 2023

Appeal from the Judgment of Sentence Entered July 14, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000912-2019

BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 21, 2024

Appellant, Robert Long, appeals from the judgment of sentence entered

July 14, 2020, in the Philadelphia Court of Common Pleas. After review we

affirm.

The relevant facts and procedural history are as follows:

[On December 11, 2018, Appellant was arrested and charged with four counts of murder and related offenses] after he and two other men conspired to stage a drug transaction for the purpose of robbing one of the four victims and one of the men shot and killed the victims. On January 2, 2020, Appellant entered an open guilty plea to the charges. The trial court deferred sentencing pending preparation of pre-sentence investigation (“PSI”) and mental health reports. Following the court's consideration of the reports, on July 14, 2020, it sentenced Appellant to three concurrent terms of 10 to 20 years’ incarceration for three of his Murder convictions, a consecutive term of 10 to 20 years’ incarceration for his remaining Murder conviction, a concurrent term of 10 to 20 years’ incarceration for his Conspiracy to Commit Robbery conviction, and a consecutive term of 5 to 10 years’ incarceration for one of his Robbery convictions. The court imposed no further penalty on the remaining convictions. ____________________________________________

* Former Justice specially assigned to the Superior Court.

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On July 24, 2020, Appellant filed a Motion for Reconsideration of Sentence in which he conceded that the court imposed a sentence within the guidelines but asserted that it was excessive in light of the mitigating circumstances, including Appellant's expression of remorse, his acceptance of responsibility, and his character. Motion, 7/24/20, at ¶¶ 3, 8-12. He also claimed the sentence was excessive because it exceeded the Commonwealth's sentencing recommendation of 20 to 40 years’ incarceration, was arbitrary, and [was] strictly punitive. Id. at ¶¶ 5-6. On August 21, 2020, the court denied Appellant's Motion. The court also permitted Appellant's plea counsel to withdraw. However, no new counsel was appointed, and Appellant did not timely appeal from his Judgment of Sentence. Appellant successfully petitioned for reinstatement of his direct appeal rights[.]

Commonwealth v. Long, 279 A.3d 1274 (Pa. Super. 2022).

On direct appeal to this Court, Appellant’s appellate counsel, Attorney

Joseph Schultz, failed to properly address in his brief the issues Appellant had

preserved in his post-sentence motion, so we found the claims waived. See

id. Because Attorney Schultz abandoned the only preserved issue for appeal,

he was per se ineffective. PCRA counsel, Attorney George Yacoubian, was

appointed, and on June 11, 2023, filed a Finley1 no-merit letter. Appellant

filed a supplemental PCRA petition in response to counsel’s Finley letter on

July 13, 2023. Although Attorney Yacoubian was permitted to withdraw and

new counsel was appointed, the trial court determined that Attorney

Yacoubian was ineffective for failing to raise the claim about Attorney Schultz

in an amended PCRA petition. Tr. Ct. Op., 10/27/23, at 3-4. As a result, the

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1 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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lower court reinstated Appellant’s right to file an appeal nunc pro tunc. This

appeal followed.

Appellant raises one question for our review:

Did the sentencing court abuse its discretion by denying Appellant's Motion for Reconsideration of Sentence and imposing an aggregate sentence of 25 to 50 years of incarceration because the sentencing court overly stressed retribution and protection of the public while failing to adequately consider Appellant's rehabilitative needs, mitigation, support in the community, psychological disorders, remorse, and prior zero record score and, in addition, the sentencing court abused its discretion by exceeding the Commonwealth's recommended sentence of 20 to 40 years of incarceration by 5 to 10 years and this was, for the same reasons, excessively punitive without adequate justification?

Appellant’s Br. at 4.

Appellant raises a challenge to the discretionary aspects of his sentence.

We apply the following standard of review:

The right to appeal the discretionary aspects of the sentence is not absolute. Two requirements must be met before a challenge to the discretionary aspects of a sentence will be heard on the merits. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the sentencing court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.

Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003) (internal

citations omitted).

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Appellant has complied with Pa.R.A.P. 2119(f) by including a concise

statement of the reasons relied upon for allowance of appeal. In his 2119(f)

statement, Appellant claims that the Court of Common Pleas sentence is

excessive with respect to protection of the public, Appellant’s prior record

score of zero, and the rehabilitative needs of the Appellant. He claims that the

trial court rigidly focused on retribution. He further avers that the court’s

sentence exceeded the sentence recommended by the Commonwealth.

Appellant's Brief at 11-12.

Next, we must determine whether Appellant's arguments raise a

substantial question. Bishop, supra. “An appellant making an excessiveness

claim raises a substantial question when he sufficiently articulates the manner

in which the sentence violates either a specific provision of the sentencing

scheme set forth in the Sentencing Code or a particular fundamental norm

underlying the sentencing process.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)

(internal citations omitted). A bald allegation of excessiveness will not suffice.

Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2001)

In the instant matter, Appellant acknowledges that punishment in the

form of retribution and incarceration are justified to protect the public, but he

asserts that his sentence goes beyond what is required to protect the public

and that deterrence and protection of the public could still be achieved with a

lesser sentence. Appellant’s Br. at 10-11. Appellant’s claims that the goals of

the Sentencing Code could be better served with a lesser sentence fall short

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of an allegation that the sentence is actually in violation of the goals of the

Sentencing Code. Appellant’s excessiveness claim is premised on his belief

that there was an excessive consideration for retribution and not enough

weight given to rehabilitation. Appellant’s Br. at 11. “[O]rdinarily, a claim that

the sentencing court failed to consider or accord proper weight to a specific

sentencing factor does not raise a substantial question.” Commonwealth v.

Berry, 785 A.2d 994, 996-97 (Pa. Super. 2001) (internal citation omitted)

(emphasis in original). Specifically,

[t]here is ample precedent to support a determination that [a claim that the trial court failed to consider an appellant's rehabilitative needs] fails to raise a substantial question.... See Commonwealth v. Cannon, 2008 PA Super 178, 954 A.2d 1222, 1228-29 (Pa.Super.2008), appeal denied, 600 Pa. 743, 964 A.2d 893) (claim that the trial court failed to consider the defendant's rehabilitative needs, age, and educational background did not present a substantial question); Commonwealth v. Coolbaugh, 2001 PA Super 77, 770 A.2d 788, 793 (Pa.Super.2001) (citing Commonwealth v. Mobley, 581 A.2d 949, 952 ([Pa.Super.]1990)) (claim that sentence failed to take into consideration the defendant's rehabilitative needs and was manifestly excessive did not raise a substantial question where sentence was within statutory guidelines and within sentencing guidelines); Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super.1997) (when the sentence imposed falls within the statutory limits, an appellant's claim that a sentence is manifestly excessive fails to raise a substantial question); Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa.Super.1997) (a claim that a trial court failed to appropriately consider an appellant's rehabilitative needs does not present a substantial question); Commonwealth v. Lawson, 650 A.2d 876, 881 ([Pa.Super.]1994) (claim of error for failing to consider rehabilitative needs does not present substantial question).

Commonwealth v. Griffin, 65 A.3d 932, 936-37 (Pa. Super. 2013), appeal

denied, 76 A.3d 538 (Pa.2013).

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We point out that Appellant does not allege that the trial court was

unaware of his prior record score, community support, background and

psychological issues, or rehabilitative needs, nor does Appellant contend that

the sentencing court relied on inadequate or incorrect information. Indeed,

the trial court in this matter considered a pre-sentence report; therefore, it is

presumed that the court adequately considered relevant mitigating and

aggravating factors. Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.

Super. 2006). Rather, Appellant would have us reconsider the weight given to

various sentencing factors, such as his potential for rehabilitation. Since

Appellant is effectively asking this Court to substitute our judgment for that

of the lower court, he has failed to present us with a substantial question. See

Commonwealth v. Rivera, 637 A.2d 1015, 1017 (Pa. Super. 1994) (citing

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

banc)).

Even if we were to address the merits of the contention, we would find

that the trial court did not abuse its sentencing discretion. The trial court

noted:

Contrary to the Defendant's assertion, this Court imposed its twenty-five to fifty year sentence after careful consideration of all the factors presented at trial and during the sentencing hearing and formulated its sentence to best reflect this Court's duty to consider the gravity of the offense, the protection of the public, and the Defendant's own rehabilitative needs. In so doing, this Court reviewed the presentence and mental health reports provided in anticipation of the sentencing hearing. Any argument that this Court did not consider the Defendant's mitigating circumstances, or his rehabilitate needs is belied by the record.

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Tr. Ct. Op., 8/11/21, at 5.

A review of the record confirms the inclusion of the above relevant

factors in the pre-sentence report, and the sentencing court’s reasoning for

giving no weight to Appellant’s rehabilitative needs. 2 Accordingly, we conclude

that Appellant failed to raise a substantial question for our review. To the

extent that the sentencing claim before us presents a "substantial question"

for our review, we conclude that the sentencing court did not abuse its

sentencing discretion in fashion Appellant's sentence.

Judgment of sentence affirmed.

Date: 6/21/2024

2 Appellant submits that “the trial court admitted ignoring Appellant’s potential

for rehabilitation.” Appellant’s Br. at 13. A review of the sentencing transcript reveals that Appellant’s rehabilitative needs were considered but afforded no weight because the trial court stated it has not seen Appellant demonstrate responsibility for his crimes. N.T. at 105-06.

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