Com. v. Griffin

• Decision Date: 24 June 2002
• Citation: 804 A.2d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Al GRIFFIN A/K/A Francisco Griffin, Appellant.
• Court: Pennsylvania Superior Court

804 A.2d 1

COMMONWEALTH of Pennsylvania, Appellee, v. Al GRIFFIN A/K/A Francisco Griffin, Appellant.

Superior Court of Pennsylvania.

Argued May 7, 2002.

Filed June 24, 2002.

David Zuckerman, Public Defender, Philadelphia, for appellant.

Erica Robertson, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: HUDOCK, BOWES and CAVANAUGH, JJ.

HUDOCK, J.

¶ 1 This is an appeal from the judgment of sentence entered after a jury found Appellant guilty of possessing a controlled substance (cocaine) and possessing a controlled substance with intent to deliver (cocaine).¹ For the reasons explained below, we affirm.

¶ 2 The trial court has explained the facts underlying this appeal in the following apt manner:

On August 6, 1997, Philadelphia Police Officers Merrick and Bolds were patrolling the area of Price and Crittenden in the 14th District of the City of Philadelphia. At approximately 3:45 a.m., the officers noticed two persons inside of a truck which the officers knew to be an abandoned vehicle due to stickers placed on the vehicle by previous police officers designating it as such. The officers parked behind the truck and approached on foot to investigate. Upon reaching the truck, the officers saw a male, later identified as [Appellant], seated on the driver's side, and a female sitting on the passenger side. The officers were standing on opposite sides of the truck, and Officer Merrick then questioned [Appellant] as to the ownership of the truck. When [Appellant] failed to provide identification for himself or the vehicle, Officer Merrick asked him to exit the vehicle. As [Appellant] did so, Officer Merrick, with the aid of his flashlight, noticed a white clear packet on the floor with a white powder substance in it. Officer Bolds then came over to the driver's side and escorted [Appellant] to the rear of the truck while Officer Merrick examined the object further. Based on his experience, Officer Merrick believed the substance to be powder cocaine.

Bolds then patted [Appellant] and found a total of 32 packets of crack cocaine on his person. Eleven black tinted packets of crack cocaine were found in a cigarette box in [Appellant's] jacket pocket, 18 yellow tinted packets of crack cocaine were discovered in [Appellant's] right sock, and 3 orange tinted packets were located in [Appellant's] right pants pocket. A female officer was summoned to the scene to further search the female suspect. No contraband or drug paraphernalia was found on her person and she was released shortly thereafter.

Trial Court Opinion, 7/12/99, at 1-2 (citations and quotation marks omitted).

¶ 3 Appellant was arrested on drug-related charges and brought to trial. On August 5, 1998, a jury found him guilty of possessing a controlled substance. However, the jury was unable to reach a verdict on the charge of possession with intent to deliver. Consequently, a second trial was conducted before a new jury. On October 16, 1998, the new jury convicted Appellant of possessing a controlled substance with intent to deliver. The trial court sentenced Appellant to serve an aggregate term of imprisonment of between ten and twenty years and to pay a fine of $10,000.00.

¶ 4 Appellant filed a direct appeal to this Court. Although we affirmed the convictions, we vacated the judgment of sentence on the grounds that the trial court did not possess a pre-sentence report at the time of sentencing and did not adequately explain its sentencing rationale on the record. Both Appellant and the Commonwealth filed petitions seeking an appeal before the Pennsylvania Supreme Court. Appellant's petition was denied December 7, 2000. The Supreme Court denied the Commonwealth's request on February 1, 2001.

¶ 5 The certified record shows that, upon remand, the trial judge ordered a pre-sentence report, and that he both possessed and consulted the report at the subsequent sentencing hearing. On May 31, 2001, the trial judge sentenced Appellant to serve an aggregate term of imprisonment of between ten and twenty years and to pay a $10,000.00 fine. This is the same sentence originally imposed by the trial court. Appellant filed a timely motion for reconsideration of sentence, which the trial court denied on June 13, 2001. Appellant's timely notice of appeal followed.

¶ 6 The trial court directed Appellant to file a concise statement and Appellant complied. The trial court thereupon filed a full opinion in the matter. Appellant raises the following issues:

1. Did not the lower court err and abuse its discretion in imposing a maximum term of imprisonment totaling ten to twenty years, far in excess of the applicable guideline range, by:

a) failing to accurately determine and consider, or demonstrate an awareness of, the starting point for the sentencing guidelines before sentencing appellant;

b) failing to state legally sufficient reasons on the record for its substantial deviation from the guidelines, instead relying on improper or irrelevant factors;

c) failing to give individualized consideration to appellant's rehabilitative needs and the mitigating factors presented at appellant's hearing, particularly evidence of appellant's limited mental functioning and possible brain damage; and

d) failing to grant a continuance for [additional] psychological testing and to allow for the imminent receipt of Department of Corrections records?

2. Did not the trial court lack jurisdiction and violate statutory law, due process, and the right to a jury trial under the state and federal constitutions when it imposed a sentence of twice the statutory maximum pursuant to the recidivist doubling provisions of 35 P.S. 780-115, where the alleged predicate facts, prior convictions, were never submitted to a jury to be proved beyond a reasonable doubt?

Appellant's Brief at 4-5.

¶ 7 Appellant's first argument comprises multiple claims that the trial court should not have imposed a term of imprisonment outside and above the ranges of the sentencing guidelines. In this context, Appellant does not claim that the trial court imposed an illegal sentence. Rather, he advances four contentions that implicate the discretionary aspects of the sentence. A challenge to the discretionary aspects of a sentence requires the claimant to set forth in his brief a separate, concise statement of the reasons relied upon for the allowance of appeal as to that challenge. Commonwealth v. Eby, 784 A.2d 204, 205-06 n. 2 (Pa.Super.2001) (citing Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987)). Appellant has complied with this requirement.

¶ 8 This Court may reach the merits of an appeal challenging the discretionary aspects of a sentence only if it appears that a substantial question exists as to whether the sentence imposed is not appropriate under the Sentencing Code. Eby, 784 A.2d at 206.

A substantial question will be found where the defendant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the code or is contrary to the fundamental norms which underlie the sentencing process. A claim that the sentencing court imposed an unreasonable sentence by sentencing outside the guideline ranges presents a "substantial question" for our review.

Id. (citations omitted). Because Appellant has presented at least a colorable claim that a substantial question exists, we may conduct a substantive review of each of the arguments concerning the discretionary aspects of the sentence imposed upon remand to ascertain whether relief is warranted.

¶ 9 The standard of review in sentencing matters is well settled: imposition of sentence is vested in the discretion of the sentencing court and will not be disturbed by an appellate court absent a manifest abuse of discretion. Commonwealth v. Smith, 543 Pa. 566, 570-71, 673 A.2d 893, 895 (1996). An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Smith at 571, 673 A.2d at 895. An appellate court shall vacate a sentence and remand if the sentence is outside the guidelines and is "unreasonable." Id. (quoting 42 Pa.C.S. § 9781(c)(3)). If the sentence is "not unreasonable," the appellate court must affirm. Id.

¶ 10 When the sentencing court imposes a sentence outside the guidelines, it must provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Eby, 784 A.2d at 206. The Sentencing Code requires a trial judge who intends to sentence outside the guidelines to demonstrate, on the record, his awareness of the guideline ranges. Id. Having done so, the sentencing court may, in an appropriate case, deviate from the guidelines by fashioning a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community. Id. at 207. In doing so, the sentencing judge must state of record the factual basis and specific reasons which compelled him or her to deviate from the guideline ranges. Id. at 206. When evaluating a claim of this type, it is necessary to remember that the sentencing guidelines are advisory only. Id.

¶ 11 Appellant first complains that the trial judge failed to establish the proper starting point for the sentencing process in that he did not recite the correct sentencing guideline ranges at the sentencing hearing. Furthermore, Appellant avers that the sentencing judge failed to indicate that he had any understanding of the applicable ranges. Appellant is correct in asserting that when deviating from the sentencing guidelines, a trial judge must indicate that he understands the suggested ranges. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super.1999) (...