Commonwealth v. Bebee

1

COMMONWEALTH OF PENNSYLVANIA v. GREGORY BEBEE Appellant

No. 1551 EDA 2021

No. J-A05015-23

Superior Court of Pennsylvania

March 13, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 9, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000764-2019

Joseph D. Seletyn, Esq.

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM

LAZARUS, J.

Gregory Bebee entered an open guilty plea to three counts of possession of a firearm by a person prohibited (F1),^[1] one count each of carrying a firearm without a license (F3),^[2] and carrying a firearm in public on the streets of Philadelphia (M1).^[3] The Honorable Scott DiClaudio sentenced Bebee to an aggregate term of three to six years' incarceration, followed by five years' probation. Bebee filed a timely post-sentence motion, which was denied by operation of law.^[4] On appeal, Bebee argues his sentence is harsh and excessive. See Appellant's Brief, at 4. After review, we affirm on the basis of Judge DeClaudio's opinion.

There is no automatic right to appeal from a challenge to the discretionary aspects of a sentence. See Commonwealth v. Austin, 66 A.3d 798, 807-08 (Pa. Super. 2013). Rather, when an appellant challenges the discretionary aspects of his sentence, we must consider his brief on this issue as a petition for permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997). Prior to reaching the merits of a discretionary aspects of sentencing issue,

[this Court conducts] a four-part analysis to determine: (1) whether the appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation marks and some citations omitted). See also Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018) (requirement appellant set forth reasons relied upon for allowance of appeal furthers purpose evident in Sentencing Code of limiting challenges to trial court's evaluation of multitude of factors impinging on sentencing decision to exceptional cases).

A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's action 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. Janda, 14 A.3d 147, 165 (Pa. Super. 2011) (quoting Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005)). Additionally, "we cannot look beyond the statement of questions presented and the prefatory Rule 2119(f) statement to determine whether a substantial question exists." Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018). Finally, for purposes of determining what constitutes a substantial question, "we do not accept bald assertions of sentencing errors," but rather require an appellant to "articulat[e] the way in which the court's actions violated the sentencing code." Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. 2006).

Here, Bebee preserved his claim in a timely-filed motion for reconsideration of sentence, see Motion for Reconsideration of Sentence, 10/19/21, and we deem his appeal timely filed. See supra at n. 4. In addition, Bebee has included in his brief a Rule 2119 statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence. See Appellant's Brief, at 8. Thus, we must determine whether Bebee's claim that the court "did not provide adequate reasons for the sentence," and imposed too severe a punishment in light of his "credible character evidence showing that he is capable of being a positive contributing member of the community with the support of his work[,]" raises a substantial question. Id.

We find Bebee has raised a substantial question. See Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (claim sentencing court did not set forth adequate reasons for sentence raises substantial question); see also Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (same). However, upon review, we find no abuse of discretion. Commonwealth v. Taylor, 277 A.3d 577, 592-93 (Pa. Super. 2022) (sentencing is vested in sound discretion of sentencing judge; sentence will not be disturbed on appeal absent manifest abuse of discretion).

Here, Judge DiClaudio imposed a sentence below the standard range of the Sentencing Guidelines, considered a presentence investigation report and relevant mitigating evidence on the record, and provided, at sentencing, reasons for the sentence imposed. See Trial Court Opinion, 6/28/22, at 5-6 (court noting Bebee's sentence was mitigated by 36 months even after court found Bebee had lied in open court under oath); N.T. Sentencing, 10/9/19, at 4, 46-48) (court stating guidelines are 6 years plus or minus 12 months; "I'm giving him three times mitigation even after lying.").

We rely on Judge DeClaudio's opinion to affirm the judgment of sentence, and we direct the parties to attach a copy of that opinion in the event of further proceedings.

Judgment of sentence affirmed.

Judgment Entered.

OPINION

Scott DiClaudio, J.

Office of Judicial Records Defendant Gregory Bebbe appeals from his sentence entered on October 9, 2019, subsequent to a guilty plea on July 16, 2019, for three counts of Possession of a Firearm by a Person Prohibited, 18 Pa.C.S. § 6105 one count of Carrying a Firearm Without a License, 18 Pa.C.S. § 6106, and one count of Carrying a Firearm in Public on the Street of Philadelphia, 18 Pa.C.S. § 6108. On appeal, Defendant challenges the sentence stating it is harsh and unreasonable. For the reasons discussed herein, the Superior Court should affirm this Court's sentence and uphold this Court's denial of Defendant's post-sentence motion.

I. FACTUAL HISTORY^[1]

On October 26, 2018, around 6:00 p.m., Defendant was at a barber shop near 68th and Ogontz Avenues in the City and County of Philadelphia, Pennsylvania, when a young man holding his chin entered the shop. N.T. Plea at 13, N.T. Sentencing at 19. The victim had been shot in the chin and was bleeding profusely. N.T. Sentencing at 19. Defendant stated he did not know the young man but saw that he was bleeding from his face. Id. at 36-37. One of the barbers in the shop called for an ambulance. Id. at 19. As those in the barber shop heard sirens coming towards them, Defendant and the victim entered Defendant's vehicle and drove to the hospital although witnesses testified that no words were spoken between Defendant and the victim. Id. About a block and half away from the barber shop, as Defendant stopped at a stop sign, the two firearms the victim had removed from his pocket and placed on the back seat, fell to the floor and made a thud. Id. at 38-39. Defendant looked back at the noise and said, "Shit, that's too much." Id. Defendant then pulled over and placed the firearms under the hood of the car. Id. After dropping the victim off at the hospital, Defendant apparently returned to the barber shop.

When officers responded to a report of a shooting and a person with a firearm on October 26, 2018 around 6 p.m., Defendant was on scene, and admitted to two police officers that he hid two revolvers that the victim possessed. N.T. Plea at 13. Defendant stated he took the revolvers from the victim's pockets and hid them under the hood of the vehicle before driving the victim to the hospital. Id. at 14. The two revolvers were ultimately placed on a property receipt. Id.

II. PROCEDURAL HISTORY

On October 27, 2018, Defendant, Gregory Bebbe, was arrested and charged with Carrying a Firearm without a License, Carrying a Firearm on the Public Streets of Philadelphia, and three counts of Possession of a Firearm by a Prohibited Person.^[2] On July 16, 2019, Defendant pled guilty. On October 9, 2019, this Court sentenced Defendant to three (3) to six (6) years incarceration for the Possession of a Firearm by a Person Prohibited with five (5) years probations on the remaining charges. Defendant filed a Motion to Reconsider on October 16, 2019. This Court, by operation of law, denied the motion on February 14, 2020. Defendant did not file a direct appeal. On March 4,2020, Defendant filed a pro-se PCRA Petition. PCRA Counsel was appointed, and counsel filed an amended petition on August 30, 2020. On March 5, 2021, this Court granted Defendant's PCRA and reinstated Defendant's direct appellate rights nunc pro tunc. On March 6, 2021, Defendant filed a pro-se Motion to Reconsider Sentence. On July 26, 2021, by operation of law, this Court denied the motion. On July 27,2021, Defendant filed a pro se appeal. On February 7, 2022, Appellate Counsel was appointed. On June 1,2022, this Court filed a 1925(b) order.^[3] On June 15, 2022, Defendant filed a Statement of Errors Complained of On Appeal.

III. DEFENDANT'S STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Defendant raises the following issue in his Statement of Errors:

The Court was in error in denying the defendant's Motion to Reconsider Sentence as the sentence of 3-6 years was harsh and unreasonable for the following reasons:

1. The defendant completed trade school and was employed full time.

2. The defendant had a good record of employment at Pro Com roofing and at Munn roofing.

3. His supervisor, Charles Venezia, testified in defendant's behalf

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