Com. v. White, K.

• Court: Superior Court of Pennsylvania
• Decided: January 28, 2025
• Docket: 415 EDA 2024
• Status: Unpublished

Opinion

J-S47011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENYATTA WHITE : : Appellant : No. 415 EDA 2024

Appeal from the Judgment of Sentence Entered January 12, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000655-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENYATTA WHITE : : Appellant : No. 416 EDA 2024

Appeal from the Judgment of Sentence Entered December 16, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000656-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENYATTA WHITE : : Appellant : No. 417 EDA 2024

Appeal from the Judgment of Sentence Entered January 12, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004319-2021

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J. J-S47011-24

MEMORANDUM BY SULLIVAN, J.: FILED JANUARY 28, 2025

Kenyatta White (“White”) appeals from the judgment of sentence

imposed after he pled guilty to aggravated assault, person not to possess

firearms, firearms not to be carried without a license, carrying firearms on a

public street in Philadelphia, and possessing instruments of crime. 1 We affirm.

The trial court described the facts underlying White’s guilty plea as

follows:

At approximately 2[:00] a.m. on June 30, 2020, Philadelphia police officers received a report of a shooting around 3335 Waterloo Street in Philadelphia. When officers arrived, they found two victims suffering from gunshot wounds. Frederick Miller suffered a wound to his right shoulder, and Jaznell Rivera suffered a wound to his stomach and arm. On the way to the hospital, Mr. Miller told officers that [White] shot him from the passenger seat of a gray pickup truck. Mr. Miller also later identified [White’s] photograph. Officers recovered five .40 caliber FCCs [fired cartridge cases] and one copper projectile from the scene.

On July 2, 2020, Philadelphia Police Officers received a report of a person with a gun at the intersection of C Street and Cambria Street in . . . Philadelphia. Upon arrival, Officer McColgan[2] observed [White], whom he knew from previous encounters, near a vehicle with its door left open. [White] initially resisted arrest. As officers were putting [him] into the back of their car, a black .40 caliber Springfield XD handgun fell out of [his] pants. A search of the vehicle recovered a .40 caliber Sig Sauer P229 firearm and two .40 caliber FCCs. Laboratory analysis showed that the FCCs recovered from the vehicle matched those used in the shooting on June 30th, and that one of the firearms recovered fired those FCCs. [White] is ineligible to possess firearms based on his previous conviction for unlawful restraint with serious bodily

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1 See 18 Pa.C.S.A. §§ 2702(a)(1), 6105(a)(1), 6106, 6108, 907.

2 Officer McColgan’s first name does not appear in the record.

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injury. As a result of this incident, [White] was arrested and charged with aggravated assault and related offenses.

Trial Court Opinion, 3/21/24, at, at 1-2 (capitalization and grammar

standardized, record citations omitted).

In September 2022, White entered an open guilty plea to the above-

listed offenses. In December 2022, the trial court conducted a sentencing

hearing. The Commonwealth stated the sentencing guidelines for a person

with no prior record score called for a sentence of sixty to seventy-eight

months of imprisonment for the use of a deadly weapon during the aggravated

assault. See N.T., 12/16/22, at 6.3 White presented the court a mitigation

package, and trial counsel asserted White sold drugs to feed his family due to

his father’s long-term incarceration and used drugs in response to his own

series of gunshot wounds, including one fired by the son of one of the men he

shot. See id. at 6-8. Counsel asserted White, who exhibited paranoid traits,

fired into that man’s car believing the man’s son was inside. See id. at 9.

Counsel offered pay stubs for White’s previous employment and his GED

3 In fact, as the presentence report established, White had a prior record score

“1.” See Trial Court Opinion, 3/21/24, at 6 n.2, citing 204 Pa. Code § 303.5(b)(2). See also 204 Pa.Code § 303.7(a)(5)(i). According to the sentencing guidelines in effect for offenses committed after January 1, 2020, aggravated assault causing serious bodily injury had an offense gravity score of “11,” and under the Deadly Weapon Enhanced/Used Matrix for a person with a prior record score of “1,” the standard range sentence was sixty to seventy-eight months plus or minus 12 months. See 204 Pa. Code §§ 303.15, 303.17(b) (effective 1/1/20). Thus, the Commonwealth correctly stated the guidelines range. On appeal, White does not assert the trial court employed the wrong prior record score or guideline sentence range.

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confirmation. See id. at 14-15. White exercised his right of allocution and

stated he took full responsibility for his actions. He described having been

shot several times himself and told the court about his employment and his

need to support his six children. See id. at 21-30.

The court stated that in consideration of counsel’s arguments, the prior

record score, the offense gravity score, the pre-sentence investigation report

(“PSI”), and White’s mitigation package, it was “going to give [White] a break

and simply give [him] a guideline sentence.” See id. at 35. It imposed a

concurrent, aggregate term of five to eleven years of imprisonment for all

White’s offenses, a sentence at the lowest end of the standard sentencing

guideline range.

White filed a timely pro se motion for reconsideration of sentence. On

January 12, 2023, the court resentenced him to no further penalty for persons

not to possess firearms; the length of White’s aggregate sentence remained

unaffected. White filed a timely notice of appeal and he and the trial court

complied with Pa.R.A.P. 1925.

On appeal, White presents the following issue for our review:

Was the sentence excessive, more than necessary to protect the public, vindicate the complainants and rehabilitate [White?] [White], who suffers from mental health and substance abuse issues, was extremely remorseful and accepted responsibility by pleading guilty. Through meaningful work history and positive behavior while incarcerated (including peacefully organizing inmates to file grievances regarding their deplorable treatment during COVID), [White] exhibited tremendous potential for complete rehabilitation?

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White’s Brief at 7.

White challenges the discretionary aspects of his sentence. See White’s

Brief at 23-28. There is no absolute right to challenge the discretionary

aspects of a sentence. See Commonwealth v. Hill, 66 A.3d 359, 363 (Pa.

Super. 2013). Before reaching the merits of a discretionary sentencing claim,

we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant’s brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.

Commonwealth v. Edwards, 71 A.3d 323, 329–30 (Pa. Super. 2013)

(citation omitted).

White preserved his sentencing issue in a post-sentence motion, filed a

timely appeal, and included in his brief a statement of the reasons relied upon

for allowance of appeal. Therefore, we consider whether White has raised a

substantial question.

White asserts his sentence was excessive and the trial court “paid lip

service to the mitigation that was present.” See White’s Brief at 17, 20. Such

a claim arguably fails to state a substantial question. See Commonwealth

v. Popielarcheck, 151 A.3d 1088, 1094 (Pa. Super. 2016) (assertion that

trial court failed to consider mitigating evidence adequately does not raise a

substantial question). However, White’s assertion that his sentence

contravened sentencing norms, see White’s Brief at 21, arguably asserts a

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substantial question. See Commonwealth v. Mouzon, 812 A.2d 617, 622

(Pa. 2002).

We consider the merits of White’s claim mindful of the following:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation

omitted).

When a sentence is within the standard range of the guidelines,

Pennsylvania law views the sentence as appropriate under the Sentencing

Code. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).

We may only vacate a sentence within the guidelines where the sentence is

“clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2). In addition, when the trial

court has the benefit of a PSI, 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. Devers, 546 A.2d 12, 18 (Pa. 1988).

Here, the trial court considered all the mitigating factors including those

contained in White’s PSI, counsel’s argument, White’s lack of a prior criminal

record, the offensive gravity score, White’s remorse, his history of substance

abuse, his mental health history, the fact he had been shot multiple times, his

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efforts to remain employed, and his experiences while incarcerated during

COVID. See N.T., 12/16/22, at 35; Trial Court Opinion, 3/21/24, at 6. The

court balanced this mitigating evidence with White’s violent conduct, and his

history of being unable to comply with the terms of supervision. See N.T.,

12/16/22, at 6-7 (citing White’s four prior probation violations). The court

then imposed a standard guidelines range sentence.

After careful review, we conclude White’s standard-range sentence was

neither excessive nor clearly unreasonable and discern no abuse of discretion

in sentencing. See, e.g., Moury, 992 A.2d at 171 (holding a sentence within

the standard range of the guidelines is viewed as appropriate, and the

sentence is not unreasonable where the trial court had the benefit of a PSI

and imposed a standard range sentence); see also Commonwealth v.

Raven, 97 A.3d 1244, 1254-55 (Pa. Super. 2014) (holding defendant’s

standard-range sentences were neither unreasonable nor excessive where the

“record reflects that the [sentencing] court carefully considered all of the

evidence presented at the sentencing hearing”).

As we discern no abuse of discretion by the trial court, White’s

sentencing issue does not merit relief.

Judgment of sentence affirmed.

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Date: 1/28/2025

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