J-S25036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY GILLCRESE,

                            Appellant                No. 1838 WDA 2014


           Appeal from the Judgment of Sentence September 8, 2014
              in the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-CR-0005907-2014


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 28, 2015

        Appellant, Timothy Gillcrese, appeals from the judgment of sentence

imposed after his bench trial conviction of simple assault and summary

harassment.1 We affirm.

        On June 10, 2014, the Commonwealth filed an information charging

Appellant with the aforementioned crimes for the assault of his ex-girlfriend

(the Victim).      Specifically, Appellant struck the Victim in the face and

shoulder, and choked her. On September 8, 2014, the case proceeded to a

bench trial, at the conclusion of which the court convicted Appellant of

simple assault and summary harassment.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701(a)(1) and 2709(a)(1), respectively.
J-S25036-15


        The same day, the court sentenced Appellant to six months’ house

arrest with work release, concurrent to two years’ probation. (See Order of

Sentence, 9/08/14, at 1). Appellant filed a post-sentence motion nunc pro

tunc, which the court denied on October 9, 2014.                       Appellant timely

appealed.2

        Appellant raises one question for our review:                   “[Whether the]

sentencing court abuse[d] its discretion by imposing a sentence without

adequately addressing all required sentencing factors, such as the protection

of the public, and the gravity of the offense and its influence on the victim

and the community?” (Appellant’s Brief, at 6) (capitalization omitted).

         Appellant’s issue challenges the discretionary aspects of his sentence,

which    “must     be   considered      a      petition   for   permission   to   appeal.”

Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation

omitted).     To preserve claims relating to the discretionary aspects of a

sentence properly, an appellant must first raise them with the trial court.

See Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008),

affirmed, 17 A.3d 332 (Pa. 2011).

        Here, Appellant’s post-sentence motion alleged that his sentence of

house arrest was unreasonable where he has not contacted the Victim since

____________________________________________


2
  Appellant filed a timely statement of errors on December 22, 2014
pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed an
opinion on January 15, 2015. See Pa.R.A.P. 1925(a).



                                            -2-
J-S25036-15


the incident, the Victim was not interested in him being incarcerated, and he

is not a threat to the community.        (See Nunc Pro Tunc Post-Sentence

Motion, 9/23/14, at unnumbered page 3). Appellant did not raise the issue

of the trial court’s alleged failure to address “all required sentencing

factors[.]” (Appellant’s Brief, at 6; see also Nunc Pro Tunc Post-Sentence

Motion, 9/23/14, at unnumbered page 3). Therefore, we deem Appellant’s

claim waived. See Foster, supra at 163.

      Moreover, the issue would not merit relief. We observe that:

      When challenging the discretionary aspects of the sentence
      imposed, an appellant must present a substantial question as to
      the inappropriateness of the sentence. Two requirements must
      be met before we will review this challenge on its merits. First,
      an 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 a sentence. Second, the appellant
      must show that there is a substantial question that the sentence
      imposed is not appropriate under the Sentencing Code. That is,
      [that] 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.
      We examine an appellant’s Pa.R.A.P. 2119(f) statement to
      determine whether a substantial question exists. Our inquiry
      must focus on the reasons for which the appeal is sought, in
      contrast to the facts underlying the appeal, which are necessary
      only to decide the appeal on the merits.

Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. Super. 2013) (citations

omitted) (emphases in original).

      In this case, Appellant filed a Rule 2119(f) statement, in which he

alleges that, when imposing sentence, the trial court failed “to adequately

consider all statutorily required factors set forth in 42 Pa.C.S.A. § 9721(b) of


                                     -3-
J-S25036-15


the Sentencing Code, such as the protection of the public, [] the gravity of

the offense[,] and how it impacted the victim and the community.”

(Appellant’s Brief, at 15; see also id. at 14-16).        This issue raises a

substantial question.   See Commonwealth v. Riggs, 63 A.3d 780, 786

(Pa. Super. 2012), appeal denied, 63 A.3d 776 (Pa. 2013).

      Our standard of review of a sentencing challenge is well-settled:

              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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (Pa. 2013) (citation omitted).            Moreover, “the

guidelines have no binding effect, create no presumption in sentencing, and

do not predominate over other sentencing factors—they are advisory

guideposts that are valuable, may provide an essential starting point, and

that must be respected and considered; they recommend, however, rather

than require a particular sentence.”       Glass, supra at 727-28 (citing

Commonwealth v. Walls, 926 A.2d 957, 964-65 (Pa. 2007)).

      Here, our independent review of the record reveals that, in formulating

Appellant’s sentence, the court considered the sentencing guidelines in

combination with other relevant factors. For example, it weighed Appellant’s

criminal record, the fact that he is a father, and that he works illegally as a

                                     -4-
J-S25036-15


jitney driver.   (See N.T. Non-Jury Trial and Sentencing, 9/08/14, at 103-

04).   In assessing Appellant’s character, the court found that he was not

credible, and that he was “telling whoppers.”      (Id. at 117).    The Victim

testified at sentencing that, since the attack, she is afraid whenever she is at

home and that she “just want[s] to feel safe for once.” (Id. at 106; see id.

at 105). The court observed that “[a] [forty-two]-year-old man resolves his

argument with his girlfriend by smacking her around and choking her. What

interest does the community have with that?” (Id. at 102-03). Finally, prior

to imposing sentence,      the court considered the mitigating evidence that

Appellant and the Victim had a long history prior to this incident that did not

include any violence, and that Appellant had not attempted to contact the

Victim since the assault. (See id. at 109-10, 119).

       Based on the foregoing, and our review of the record as a whole, we

conclude that Appellant has failed to establish that the trial court either

abused its discretion or committed an error of law in imposing his sentence.

See Glass, supra at 727. Therefore, even if not waived, his issue would

not merit relief.

       Judgment of sentence affirmed.




                                     -5-
J-S25036-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2015




                          -6-
