J-S80020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO MORENO                             :
                                               :
                       Appellant               :   No. 2449 EDA 2017

           Appeal from the Judgment of Sentence February 17, 2017
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003594-2016,
              CP-51-CR-0008756-2014, CP-51-CR-0013838-2010

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BOWES, J.:                                  FILED JUNE 17, 2019

       Antonio Moreno appeals from the aggregate judgment of sentence of

sixteen and one-half to thirty-three years of incarceration imposed in the

above three cases.1 We affirm.

____________________________________________


1  Appellant filed a single notice of appeal captioned in all three cases. This
Court issued a rule to show cause why the appeals should not be quashed
pursuant to Pa.R.A.P. 341 (indicating that separate notices of appeal must be
filed at each docket when a single order resolves issues related to more than
one judgment or docket). Appellant responded, citing the facts that no co-
defendant is involved, all three docket numbers were included on the notice
of appeal, and that the issues arose at a single hearing. Answer to Rule to
Show Cause, 9/14/17, at ¶ 7.

 Our Supreme Court made it clear in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), that appellants are required to file separate notices of appeal
at each docket number implicated by an order resolving issues that involve
more than one trial court docket, regardless of whether a single hearing or
order addressed the issues at all implicated dockets. However, as the instant
appeal predates Walker, and the Court indicated that Walker applies
prospectively, we do not quash this appeal.
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      At case number 13838-2010 (“the 2010 case”), Appellant entered a

guilty plea to possession with intent to deliver controlled substances (”PWID”),

and received a county sentence followed by eight years of probation. He then

pled guilty to PWID again at case number 8756-2014 (“the 2014 case”), for

which he received a sentence of intermediate punishment and a probationary

tail of three years.

            On February 1, 2016, while on . . . probation for the above-
      mentioned cases, [Appellant] met with Officer Cleaver of the
      Philadelphia Police Narcotics Field Unit, and sold the officer
      fourteen packets of heroin.         The Narcotics Unit received
      [Appellant]’s phone number from Janice Matthews, whose son,
      Austin Sternberg, was found dead of a fentanyl overdose on
      January 28, 2016. Ms. Matthews went through her son’s phone
      following his death, discovered that the last text messages he
      exchanged were with [Appellant] and appeared to be arranging
      for the purchase of narcotics, and contacted the police with that
      information. Following the February 1st sale, the police ran
      [Appellant]’s license plate and discovered that he resided at 2075
      Monmouth Street. On February 2, 2016, Officer Cleaver received
      a text message from [Appellant] informing the officer that
      [Appellant]’s phone number had changed. On February 3, 2016,
      Officer Cleaver contacted [Appellant] at the new phone number,
      and arranged to make a sale. Officers observing 2075 Monmouth
      Street [saw Appellant] leave that residence and get into his car.
      [Appellant] then met with Officer Cleaver and sold him twenty five
      packets of alleged heroin. Testing revealed that sixteen of the
      packets contained heroin and nine contained fentanyl.           On
      February 10 and February 15, 2016, Officer Cleaver again met
      with [Appellant] and purchased heroin. On February 16, 2017,
      Officer Cleaver arranged to meet with [Appellant], however,
      before the meeting took place, officers executed a search warrant
      of 2075 Monmouth Street and arrested [Appellant]. Officers
      recovered ten bundles of heroin, each containing fifteen packets,
      as well as $810.00, an ID card, and a probation card from
      [Appellant]. From inside the home officers recovered thirty two
      bundles of heroin and six bottles of crack cocaine.

Sentencing Court Opinion, 11/27/17, at 1-2 (citations omitted).

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       As a result of the sales to Officer Cleaver, Appellant was charged at

case number 3594-2016 (“the 2016 case”) with PWID and criminal use of a

communications facility (“CUCF”), to which he pled guilty.                 Another

consequence of the new PWID charge was the revocation of Appellant’s

probation in the 2010 and 2014 cases.

       On February 17, 2017, the sentencing court sentenced Appellant in all

three cases.      In the 2016 case, Appellant received five to ten years of

imprisonment for PWID, with a consecutive term of three and one-half to

seven years of incarceration for CUCF.           For the probation revocations, the

court imposed consecutive sentences of four to eight years of imprisonment

at each docket. As such, Appellant received an aggregate sentence of sixteen

and one-half to thirty-three years of incarceration.

       Appellant filed a timely motion for reconsideration of sentence.         By

orders dated March 6, 2017,2 the sentencing court vacated Appellant’s

sentences in the 2010 and 2014 cases pending reconsideration.3                 The

sentencing court thereafter denied the motion for reconsideration by orders




____________________________________________


2 The orders were not docketed until October 27, 2017, after this Court
directed their entry.

3 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will not
toll the 30-day appeal period.”).




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filed in all three cases on June 28, 2017.4 Appellant filed a timely notice of

appeal on July 28, 2017, and both Appellant and the sentencing court

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

       Appellant presents the following question for this Court’s consideration:

       Should not the lower court’s manifestly excessive aggregate total
       sentence of 16½ to 33 years [of] incarceration be vacated where
       the sentence imposed in [A]ppellant’s 2016 case was far in excess
       of the guidelines, the sentences in each case were far in excess of
       the sentences requested by the prosecution, and the lower court
       based the sentences in each docket almost entirely on a crime for
       which [Appellant] was never charged, tried, or found guilty?

Appellant’s brief at 2.

       The following principles apply to our consideration of whether

Appellant’s question raises a viable challenge to the discretionary aspects of

his sentence.

       An appellant is not entitled to the review of challenges to the
       discretionary aspects of a sentence as of right. Rather, an
       appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction. We determine whether the
       appellant has invoked our jurisdiction by considering the following
       four factors:

              (1) whether appellant has filed a timely notice of
              appeal; (2) whether the issue was properly preserved
____________________________________________


4 Although the trial court did not expressly state its intent to re-impose the
previously-vacated original sentences in the 2010 and 2014 cases in the June
28, 2017 order, such a ruling is implicit in the subsequent denial of Appellant’s
motion for reconsideration of those sentences. Therefore, we treat the trial
court’s order denying Appellant’s motion for reconsideration as vacating the
prior order that had vacated the sentences, and deem the appealed-from
sentences to have been imposed on the date they originally were announced
in open court: February 17, 2017.                 Accord Commonwealth v.
Nahavandian, 954 A.2d 625, 630 (Pa.Super. 2008).

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            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal
            defect; and (4) whether there is a substantial question
            that the sentence appealed from is not appropriate
            under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

      Appellant filed a timely notice of appeal and preserved the issue in a

timely post-sentence motion seeking reconsideration of his sentence.

Appellant’s brief contains a statement of reasons relied upon for his challenge

to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).

Thus, we consider whether Appellant has raised a substantial question.

      Appellant avers that his aggregate sentence is manifestly excessive and

is based upon the sentencing court’s consideration of an impermissible factor.

Appellant’s brief at 13. Appellant further complains that the sentencing court

“focused solely on retribution, to the exclusion of other required statutory

considerations[.]” Id.

      We conclude that Appellant has raised a substantial question that the

sentence is not appropriate under the sentencing code.                See, e.g.,

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (holding

claims that trial court failed to consider relevant sentencing criteria and relied

upon impermissible sentencing factors presented substantial questions);

Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa.Super. 2011) (“[A]

claim that a sentence is excessive because the trial court relied on an



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impermissible factor raises a substantial question.”).     Therefore, we shall

proceed to address the merits of Appellant’s claims.

      We review the sentencing court’s sentencing determination for an 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. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      Regarding Appellant’s sentence in the 2016 case, we observe that, while

a sentencing court has broad discretion, its

      discretion is not unfettered. When imposing a sentence, the
      sentencing court must consider the factors set out in 42 Pa.C.S.
      § 9721(b), that is, the protection of the public, gravity of offense
      in relation to impact on victim and community, and rehabilitative
      needs of the defendant. And, of course, the court must consider
      the sentencing guidelines.

Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011)

(cleaned up). “We cannot re-weigh the sentencing factors and impose our

judgment in the place of the sentencing court.” Commonwealth v. Macias,

968 A.2d 773, 778 (Pa.Super. 2009).

      As to sentencing following revocation of Appellant’s probation in the

2010 and 2014 cases, the sentencing guidelines did not apply, and the court

was “limited only by the maximum sentence that it could have imposed

originally at the time of the probationary sentence.”     Commonwealth v.


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Simmons, 56 A.3d 1280, 1286-87 (Pa.Super. 2012) (internal quotation

marks omitted). A sentence of total confinement may be imposed following

probation revocation if the sentencing court finds, inter alia, that “the conduct

of the defendant indicates that it is likely that he will commit another crime if

he is not imprisoned;” or that “such a sentence is essential to vindicate the

authority of the court.” 42 Pa.C.S. § 9771(c)(2) and (3).

      As detailed above, Appellant’s conviction and sentence for PWID in the

2016 case was not related to the overdose death of Austin Sternberg. Yet, at

the sentencing hearing, the sentencing court heard extensive testimony and

received other evidence, such as identical drug packaging, that demonstrated

that Mr. Sternberg had purchased the drugs that killed him from Appellant.

The Commonwealth additionally presented evidence to show the extent of the

opioid epidemic in the neighborhood where Appellant had conducted all of the

drug sales at issue in these cases, and how people like Appellant are “out

there on the streets of Philadelphia, profiting on the destructions of family

lives.” N.T. Sentencing, 2/17/17, at 35. The court also heard from Appellant

and his witnesses that Appellant himself is a victim of substance abuse, that

Appellant did not know that he was selling fentanyl rather than heroin, and

that he only went back to selling drugs to provide for his children.

      Upon hearing all of this information, as well as considering the

sentencing   guidelines   and   the   presentence   investigation   report,   the

sentencing court imposed its sentence based upon the weight it gave to the


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aggravating factors, the fact that Appellant “will continue to commit more

crimes unless he is incarcerated[,]” and his lack of respect for the authority of

the   court   in    the   face   of   prior   “lenient   sentences   and   treatment

opportunities[.]”     Trial Court Opinion, 11/27/17, at 8.           Therefore, the

sentencing court consciously deviated from the guidelines and imposed an

aggregate sentence more than twice as long as that requested by the

Commonwealth. N.T. Sentencing, 2/17/17, at 77.

      Appellant contends that this was improper, arguing “the record makes

abundantly clear that the lower court relied almost exclusively on the

impermissible factor of the homicide [that] the lower court believed

[Appellant] had committed when crafting the sentence in each of [Appellant]’s

three cases.” Appellant’s brief at 20. Appellant notes that he did not admit

to selling any drugs to Mr. Sternberg, that he did not waive his right to have

a fact finder decide his mens rea, and that the evidence offered at the

sentencing hearing was not sufficient to prove he committed a homicide. Id.

at 24-25. Appellant suggests that, even if the circumstantial evidence did

point to his having sold the fentanyl to Mr. Sternberg, there was no indication

that Appellant knew it was fentanyl rather than heroin, and the sentencing

court’s “importing a theory of strict products liability” was improper. Id. at

24. Appellant maintains that “the alleged uncharged criminal conduct in this

case [does not] show anything new about [Appellant]’s character or the

potential danger he poses to society.” Id. at 25.


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      Appellant argues that this Court’s decision in Commonwealth v.

Rhodes, 990 A.2d 732 (Pa.Super. 2009), requires that we find that the

sentencing court abused its discretion in this case. In Rhodes, the defendant,

who had no prior criminal record, initially reached an agreement with the

Commonwealth to plead guilty to involuntary manslaughter in connection with

the death of her newborn child, but the trial court refused to accept the plea.

The parties then presented the court with an open plea to voluntary

manslaughter, which the trial court accepted. Prior to sentencing, the trial

court conducted an ex parte investigation into the circumstances of the child’s

death.

      At the sentencing hearing, after the parties presented their arguments,

the trial court provided counsel with a thirty-six page “Statement of

Sentencing Rationale” which it had prepared and distributed to the media, but

not to the defendant or the Commonwealth, before the sentencing hearing

commenced. The court declined to recess the hearing to allow Rhodes and

her counsel to read and respond to the document.           Instead, the court

discussed the statement on the record, revealing its conclusion, based upon

hearsay from police reports, that the killing had not been the product of

sudden and intense passion admitted by Rhodes pursuant to her guilty plea.

Instead, the trial court detailed “an alternate recitation of the case, drawing

unfavorable inferences against the defendant and fashioning a narrative of

depravity and deceit indicative of a premeditated, calculated and intentional


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killing.”   Id. at 740 (internal quotation marks omitted).      The court “then

concluded the hearing with a nod to the Sentencing Guidelines, but imposed

a sentence . . . only one to two years shy of the statutory maximum[.]” Id.

at 741. The trial court rejected the objections of defense counsel that the

court issued a predetermined sentence, based upon evidence not of record

and which the defense had not even seen, and had not given Rhodes the

opportunity to cross-examine any of the people whose statement the court

relied upon.

       On appeal, this Court held that the trial court abused its discretion by

relying upon impermissible considerations in that it “effectively convicted and

sentenced the defendant for conduct and intent she had not admitted and

could not prepare to address.” Id. at 747. As we explained,

       The court’s reliance on police reports it obtained ex parte is of
       particular concern, as [the trial judge] failed to afford Rhodes the
       opportunity to cross-examine the witnesses whose hearsay
       statements comprised the bulk of the reports’ contents. He then
       drew factual inferences directly from those reports on the basis of
       which he imposed a sentence almost five times that recommended
       by the Commonwealth and only one to two years shy of the
       statutory maximum for voluntary manslaughter. The court then
       sought to buttress the sentence with the repeated assertion that
       its duration reflected Rhodes’s commission of a calculated,
       premeditated killing, reflecting a finding of elements that define
       an offense with which Rhodes was not charged and to which she
       did not plead. Every such occurrence contravened accepted
       sentencing norms in this Commonwealth.

Id. at 745 (internal quotation marks and unnecessary capitalization omitted).

       We agree with the Commonwealth that Rhodes is readily distinguished

from the instant case.     See Commonwealth’s brief at 12-14.         Here, the

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sentencing court did not do an independent investigation to reach a sentencing

decision prior to the hearing based upon evidence that Appellant had no

opportunity to challenge. Rather, it considered the evidence offered at the

sentencing hearing, including the presentence investigation report, and gave

Appellant the opportunity to cross-examine witnesses and present his own

evidence, before reaching its decision.

      Furthermore, the sentencing court here did not punish a first-time

offender based upon its determination that she was guilty of a crime other

than that for which she was being sentenced as the court did in Rhodes.

Instead, the sentencing court was tasked with fashioning three sentences for

Appellant, who just had his fifth PWID conviction as an adult: one for each of

two prior PWID convictions, and one for the current PWID committed while he

was still under supervision for the other two.       Relevant to its decisions,

addressing Appellant’s repeated criminal activity between 2010 and 2016,

were the requirements of §§ 9721(b) and 9771(c) of the sentencing code.

Those statutes provide, in relevant part, 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[,]” 42

Pa.C.S. § 9721(b) (emphases added); and that total confinement may be

imposed if “the conduct of the defendant indicates that it is likely that he will

commit another crime if he is not imprisoned.” 42 Pa.C.S. § 9771(c).


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      Indeed, in Commonwealth v. Ali, 149 A.3d 29 (Pa. 2016), our

Supreme Court expressly recognized that a trial court’s consideration of the

impact of a defendant’s drug dealing on the community is an appropriate

consideration under the sentencing code. The defendant in Ali operated a

convenience store along with a partner, out of which they sold synthetic

marijuana (“K2”).    The operation was discovered by police who made an

undercover buy and executed a search warrant after receiving information

that a person who purchased K2 from the store operated an automobile while

under the influence of the drug, killing two people.

      Ali was convicted of PWID, conspiracy, corrupt organizations, and

delivery of paraphernalia. Although Ali was not charged with or convicted of

causing the deaths at issue, the trial court at sentencing allowed the

Commonwealth to present evidence from the families of the victims of the car

accident “to attempt to establish a causal relationship between the sale of K2

to [the driver responsible for the deaths] and the accident.”      Id. at 31.

Specifically, the Commonwealth offered evidence that K2 from Ali’s store was

found in the car after the accident, that the driver smoked K2 before the

accident, causing his heart to race and vision to become blurry, and that K2

is known to cause heart attacks and strokes, along with victim impact

testimony from the driver’s sentencing hearing. Id.

      The trial court, while acknowledging that the evidence offered would not

allow a jury to conclude that Ali directly caused the deaths, “determined that


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it could not ignore the connection between the sale of the K2 and the fatal

accident.” Id. The trial court explained its reasoning as follows:

      [The deaths are] connected to what you do, Mr. Ali, exactly what
      you do. If you peddle death and dangerous substances, you can
      expect something like this to happen. This is within the purview
      of being a business owner. If you take the risk, you should expect
      it. . . .

      And when people buy something and go in the nature of
      convenience stores in this society, they do so by vehicle. They
      drive up and they drive away. And if you sell them something that
      can lead to their death, that can lead to them being impaired, then
      this is a consequence that should be readily known to you.

      . . . I believe you simply were operating for profit, you took a risk,
      and your risk ended up contributing, leading, being connected to,
      whatever you want to say—the Court is not finding that you
      caused their death[s] directly, but you certainly were connected
      to a series of horrific events that led to unspeakable tragedy for
      the families that this Court had to listen to during the sentencing
      phase of [the driver’s] case. So I cannot turn a blind eye to it. It
      is simply a fact. And that was the tragic turn of events that now
      leads to your conviction and your sentencing.

Id. (internal quotation marks omitted).

      On appeal, Ali contended that the trial court was not permitted to

consider the victim impact evidence in sentencing him for the crimes at issue

because, as they were not crimes against a person and thus had no legal

victims, the evidence was irrelevant. This Court agreed, and held that the

trial court erred in considering victim impact testimony where Ali was not

charged with or convicted of any crime related to the two deaths.

      Our Supreme Court reversed, largely based upon § 9721(b). The Court

explained, “when it comes to impacts and effects of crimes, the provision


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explicitly directs courts to fashion sentences that are consistent with the

protection of the public and the impact on both the life of the victim and on

the community.” Ali, supra at 37. While Ali made arguments focused on the

language concerning “the victim,” he did not acknowledge “the broader focus

of the provision making relevant the impact on the community and the

protection of the public.” Id. The Court accepted the position of an amicus

curiae that, with § 9721(b),      “the General Assembly has recognized that

criminal law exists to protect not only direct victims, but also the community

that bears the indirect consequences of crime, and this, in turn, affords some

flexibility in the trial court considering the practical and tangential effects of a

crime in fashioning a sentence.” Id.

      Specifically addressing the conduct and impact at issue in Ali, the Court

stated as follows:

             Perhaps a complicating factor here is the evidence deemed
      relevant by the trial court was posed as victim impact rather than
      “community impact” evidence. But, considerations of public
      protection and community impact presumably may be addressed
      in myriad ways. The general community effects of illegal drug
      distribution are well-known, including effects (sometimes fatal)
      upon abusers, attendant property crimes by certain of those
      suffering from addiction, and violence associated with certain
      drugs or manners of distribution. The tragic fortuity here—the
      death of two at the hands of a driver impaired, to some extent,
      by an illegal narcotic—obviously is not present in all, or even in
      many, cases involving distribution of the involved drug.

            However, the risk or danger of such consequent fortuities is
      present and where, as here, the crime in fact is logically connected
      to a community impact suffered by specific individuals, section
      9721(b) makes that impact or effect a relevant consideration at
      sentencing[.]

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Id. at 38 (footnote and unnecessary capitalization omitted)

       While Ali is not entirely on all fours with the instant case, we conclude

that its reasoning supports the sentencing court’s consideration of the

overdose death of Mr. Sternberg at Appellant’s sentencing hearing.5           The

Commonwealth presented evidence that connected Mr. Sternberg’s death to

Appellant’s criminal activity through an assumption-of-risk logic accepted in

Ali, which in turn was relevant to the court’s evaluation of what sentences

were appropriate to protect the public from Appellant and to rectify the impact

of his drug dealing on the community.              Further, the extent of the harm

Appellant had caused through his continuing criminal activity properly

informed the court’s determination as to whether prior lenient punishment had

been ineffective and a lengthy term of incarceration upon revocation of

probation was necessary to vindicate its authority. As such, the sentencing

court in this case did not consider any improper factors, but rather acted within

its discretion in considering evidence relevant to the sentencing considerations

established by our legislature.

       Furthermore, we cannot conclude that the sentencing court committed

an abuse of discretion in imposing an aggregate sentence of sixteen and one-

half to thirty-three years of incarceration on the other bases argued by



____________________________________________


5 Appellant does not acknowledge the Ali decision in his brief, let alone
attempt to distinguish the case.

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Appellant. First, the fact that the sentencing court reviewed the presentence

investigation report prepared for sentencing leads to the presumption “that

the court properly considered and weighed all relevant factors in fashioning

the defendant’s sentence.”    Commonwealth v. Baker, 72 A.3d 652, 663

(Pa.Super. 2013). Even so, the sentencing court did expressly acknowledge

Appellant’s mitigating evidence, but found that it was not “sufficient to

overcome the aggravating factors in this case.” Sentencing Court Opinion,

11/27/17, at 5. Thus, Appellant’s claim that the sentencing court ignored all

considerations but retribution is meritless.

      Second, Appellant’s repeated return to the same criminal conduct

unquestionably   supported    the   sentencing   court’s   finding   that   lenient

punishment was ineffective in rehabilitating Appellant, and that a lengthy

period of incarceration was warranted to vindicate its authority. See, e.g.,

Commonwealth v. Colon, 102 A.3d 1033, 1045 (Pa.Super. 2014) (affirming

sentence of four to twelve years of incarceration, imposed following probation

revocation to protect the public and vindicate the authority of the court, where

defendant with history of a history of substance abuse and mental health

issues engaged in antisocial conduct while on probation following release from

inpatient treatment).    As such, we cannot agree that the sentence was

manifestly excessive.

      For all of the above reasons, we hold that Appellant failed to show “that

the sentencing court ignored or misapplied the law, exercised its judgment for


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reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly

unreasonable decision.” Antidormi, supra at 760. Therefore, he is entitled

to no relief from this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/19




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