J-S07028-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
JOSE GOINES                           :
                                      :
                 Appellant            :   No. 1307 EDA 2019

   Appeal from the Judgment of Sentence Entered November 20, 2018
  In the Court of Common Pleas of Chester County Criminal Division at
                    No(s): CP-15-CR-0004661-2016


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
JOSE GOINES                           :
                                      :
                 Appellant            :   No. 1308 EDA 2019

   Appeal from the Judgment of Sentence Entered November 20, 2018
  In the Court of Common Pleas of Chester County Criminal Division at
                    No(s): CP-15-CR-0000070-2017


COMMONWEALTH OF PENNSYLVANIA          :   IN THE SUPERIOR COURT OF
                                      :        PENNSYLVANIA
                                      :
           v.                         :
                                      :
                                      :
JOSE GOINES                           :
                                      :
                 Appellant            :   No. 1309 EDA 2019

   Appeal from the Judgment of Sentence Entered November 20, 2018
  In the Court of Common Pleas of Chester County Criminal Division at
                    No(s): CP-15-CR-0002054-2017
J-S07028-20



BEFORE:       NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED AUGUST 12, 2020

       Appellant Jose Goines appeals1 from the judgments of sentence

imposed following his jury trial convictions for burglary, conspiracy, and

related offenses. Appellant argues that the trial court erred by instructing

the jury with an erroneous missing witness instruction concerning a

Commonwealth witness, overruling Appellant’s objection to the prosecutor’s

closing arguments, and denying his post-sentence motion challenging the

weight of the evidence. Appellant also challenges the discretionary aspects

of his sentence. We affirm.

       The trial court summarized the underlying facts of this matter as

follows:

       Over the course of nine days in the fall of 2016, specifically,
       October 28, 2016, November 1, 2016, November 4, 2016[,] and
       November 7, 2016, [Appellant] and co-defendants, Anita Hersh
       and Christopher Hersh, conspired and burglarized four homes in
       Chester County, Pennsylvania[,] and attempted to burglarize a
       fifth home.     The fifth burglary was thwarted because the
       homeowner was home that day when [Appellant] kicked in the
       front door of the home. Throughout these burglaries, the modus
       operandi was that co-defendant Anita Hersh drove and acted as
____________________________________________


*Retired   Senior Judge assigned to the Superior Court.

1 Appellant filed three separate notices of appeal, one for each of the trial
court docket numbers. See Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018). On August 19, 2019, Appellant filed an unopposed application for
consolidation pursuant to Pa.R.A.P. 2138.         This Court granted this
application via a per curiam order entered on October 4, 2019.




                                           -2-
J-S07028-20


       the lookout, [Appellant] kicked in the doors, and then
       [Appellant] and co-defendant Christopher Hersh, went into the
       homes, ransacked them, broke things, ripped up important
       documents, and stole anything they believed to be of value.
       Once [Appellant and co-defendants] got away with the
       homeowners’ items, including jewelry and electronics, they then
       travelled together to Wilmington, Delaware to pawn the items
       and split the proceeds.

Trial Ct. Op., 1/10/20, at 3.

       Based on these allegations, Appellant was charged with one count of

attempted burglary and four counts each of burglary, theft by unlawful

taking, receiving stolen property (RSP), and conspiracy.2, 3 See Docket Nos.

4661-2016, 70-2017, 2054-2017.                 On August 28, 2017, the matter

proceeded to a jury trial.

       The trial court summarized the trial evidence as follows:

       The Commonwealth presented evidence that each home was
       targeted during the day, around the same time, when it
       appeared like the homeowner was not present. Each home was
       also broken into by the door being broken/kicked in, the home
       ransacked, items belonging to the homeowner taken, and then
       pawned at pawn shops in Wilmington, Delaware.

       The Commonwealth also presented an abundance of physical
       evidence as to [Appellant’s] guilt beyond a reasonable doubt.
       Specifically, the Commonwealth presented evidence from the
       pawn shops that either Anita Hersh or Christopher Hersh pawned
____________________________________________


218   Pa.C.S. §§ 901(a), 3502(a)(2), 3921(a), 3925(a), and 903, respectively.

3Specifically, Appellant was charged with one count of attempted burglary at
Docket No. 4661-2016; one count each of burglary, theft by unlawful taking,
RSP, and conspiracy, at Docket No. 70-2016; and three counts each of
burglary, theft by unlawful taking, RSP, and conspiracy at Docket No. 2054-
2017.



                                           -3-
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     the stolen items close in time to each of the burglaries, often on
     the same day. Many of the pawned items were unique to the
     victims in this case.      The Commonwealth presented video
     evidence of the co-defendants’ presence in one of the pawn
     shops on two separate occasions when items from the burglaries
     were being pawned.

     The record reveals that the Commonwealth also presented
     incriminating shoe print and phone evidence. [Sergeant] Laura
     Klinger of the Pennsylvania State Police laboratory testified that
     [Appellant’s] unique shoes, Nike Air Jordan Retro 88’s, taken
     from his belongings during the execution of a valid search
     warrant, were consistent with the size and characteristics of the
     shoeprints recovered from two of the doors of the burglarized
     homes.     Stated differently, when [Appellant’s] shoes were
     compared with the shoe prints taken from the doors, [Sergeant]
     Klinger pointed out that there was a high degree of association
     between the two.

     The Commonwealth also presented a substantial amount of
     phone evidence. Two types of phone evidence were presented:
     GPS data and the forensic download from [Appellant’s] phone,
     which was also seized pursuant to a valid search warrant. The
     GPS location data placed [Appellant] in close proximity to all of
     the burglary locations at the time they were committed and then
     in close proximity to the pawn shops where the stolen items
     were pawned after the burglaries. The forensic download data
     further revealed hundreds of incriminating searches relating to
     the burglaries. . . .

     During trial, [Stern,] the homeowner from the attempted
     burglary on November 7, 2016, identified [Appellant] in court as
     the [person] who kicked in his door. During the attempted
     burglary, the victim was able to observe [Appellant] and co-
     defendant, Christopher Hersh, before chasing them off his
     property.    While [Appellant] and [Christopher] Hersh were
     fleeing [from] the home, the homeowner was able to get the
     license plate number of the vehicle they were using. It was later
     proven at trial that the vehicle they were using was registered to
     [Christopher] Hersh.

     Finally, the cooperating co-defendant, Anita Hersh, testified at
     trial that [Appellant] and Christopher Hersh, planned and
     conspired to commit all five burglaries, broke into the homes,



                                   -4-
J-S07028-20


        ransacked them, stole items belonging to the homeowners, and
        proceeded to pawn the stolen items at pawn shops.

Trial Ct. Op. at 5-6.

        On August 31, 2018, the jury convicted Appellant of all charges. The

trial court deferred sentencing for the preparation of a pre-sentence

investigation report (PSI). On November 20, 2018, the trial court sentenced

Appellant to an aggregate term of nine to twenty years’ incarceration.4 On

November       30,   2018,    Appellant    filed   a   timely   post-sentence   motion

challenging the sufficiency and weight of the evidence and seeking to reduce



____________________________________________


4   Specifically, the trial court sentenced Appellant as follows.

At Docket No. 4661-2016, the trial court sentenced Appellant to eighteen
months to three years of incarceration for one count of attempted burglary.

At Docket No. 2054-2017, the trial court sentenced Appellant to a
consecutive term of one to two years’ incarceration for burglary (count one),
a concurrent term of one to two years’ incarceration for conspiracy (count
sixteen), and consecutive terms of one to three years’ incarceration for
burglary (count two), one to two years’ incarceration for conspiracy (count
seventeen), eighteen months to three years’ incarceration for burglary
(count three), and one to three years’ incarceration for conspiracy (count
eighteen).

At Docket No. 70-2017, the trial court sentenced Appellant to a consecutive
term of one to two years’ incarceration for burglary (count one) and a
consecutive term of one to two years’ incarceration for conspiracy (count
seven).   All other charges merged with Appellant’s other convictions.
Sentencing Order, Docket No. 4661-2016, 11/20/18, at 1; Sentencing
Order, Docket No. 70-2017, 11/20/18, at 1; Sentencing Order, Docket No.
2054-2017, 11/20/18, at 1-3.




                                           -5-
J-S07028-20



his sentence. Appellant’s post-sentence motion was subsequently denied by

operation of law on March 30, 2019.5

       On April 25, 2019, Appellant filed timely notices of appeal at all three

docket numbers.          Appellant subsequently filed court-ordered Pa.R.A.P.

1925(b) statements at each docket number, and the trial court issued a Rule

1925(a) opinion addressing Appellant’s claims.

       On appeal, Appellant raises the following issues, which we have

reordered as follows:

       1. Did the trial court err in not finding the verdicts against the
          weight of the evidence?

____________________________________________


5 Under Rule 720(B)(3), post-sentence motions shall be decided within 120
days by order or operation of law. Appellant’s post-sentence motion was
denied by operation of law on March 30, 2019, but the clerk of courts did not
enter an order to that effect at that time. See Pa.R.Crim.P. 720(B)(3)(a)-
(c). Appellant filed his timely notices of appeal on April 25, 2019. On
August 22, 2019, this Court issued a rule to show cause as to why this
appeal should not be quashed as interlocutory and directed Appellant’s
counsel to inform this Court when Appellant’s counsel filed a praecipe with
the trial court for entry of such an order. Appellant’s counsel filed a praecipe
with the trial court on August 23, 2019, and the clerk of courts entered an
order that same day reflecting that Appellant’s post-sentence motion was
denied by operation of law on March 30, 2019. This Court discharged the
rule to show cause on October 4, 2019, and advised the parties that the
issue may be revisited by this panel. Order, 10/4/19.

Our review of the record confirms that Appellant timely complied with this
Court’s order directing him to praecipe the lower court to enter an order
denying his motion by operation of law. Pa.R.A.P. 301(d). Pursuant to Rule
905(a)(5), Appellant was not required to file a new notice of appeal. See
Pa.R.A.P. 905(a)(5) (stating that initially premature notice of appeal shall be
treated as filed on the date the appealable order is entered). Accordingly,
we have jurisdiction over this appeal.



                                           -6-
J-S07028-20


      2. Did the trial court err in giving a jury instruction with respect
         to witness Nunez who was deemed unavailable by the [trial]
         court?

      3. Did the trial court err in not sustaining defense counsel’s
         objection to [the] prosecutor’s statements in closing
         argument that “this is the same shoe,” “this is identical,” and
         “this is completely identical”?

      4. Did the trial court abuse its discretion when it imposed an
         aggregate sentence of nine (9) years to twenty (20) years’
         confinement [at Docket Nos. 2054-2017, 70-2017, and 4661-
         2016]?

Appellant’s Brief at 6 (some formatting altered).

                             Weight of the Evidence

      In his first claim, Appellant argues that the trial court erred by denying

his   post-sentence   motion    challenging   the   weight   of   the   evidence.

Appellant’s Brief at 28. Appellant asserts that the Commonwealth’s evidence

“fell short” in terms of establishing that he “was present within the homes

and committed the particular burglaries.” Id. First, Appellant argues that

Anita Hersh’s “testimony regarding the particular homes was very weak and

vague” and “[h]er description of what happened in each home was

generalized to a degree that made it unbelievable to think that she could

identify each particular home and say Appellant was inside each of those

particular homes.”     Id.     Further, Appellant claims that Anita Hersh’s

testimony was not credible “due to the bias she had as a cooperating

witness against Appellant as well as her own personal relationship with the

third co-defendant, her husband, [Christopher] Hersh.” Id.




                                      -7-
J-S07028-20



      Second, Appellant challenges the reliability of Stern’s testimony that

Appellant was one of the individuals who attempted to break into his home.

Id. at 31. Appellant argues (1) that Stern provided inconsistent descriptions

of the suspects in the 911 call and at the preliminary hearing, and (2) that

Stern’s in-court identifications of Appellant “could not be more suggestive.”

Id.

      Finally, Appellant argues that the other evidence at trial was

inconclusive.   Id.   Specifically, Appellant contends that (1) the internet

search history relating to the Wilmington pawn shops could not be attributed

to Appellant, as his phone “previously belonged to Christopher Hersh,” (2)

Christopher Hersh was the cell phone subscriber, and (3) “[t]he law

enforcement witnesses were clear that although the data might show certain

searches it cannot show who was holding the phone when the searches were

made.” Id. Appellant further claims that the shoe print evidence was not

conclusively linked to his shoes.   Id. at 32.   Therefore, Appellant asserts

that the verdict was against the weight of the evidence.

      The Commonwealth responds that “the jury’s guilty verdicts were not

against the weight of the evidence.” Commonwealth’s Brief at 23.

      When reviewing a weight claim, we are guided by the following

principles:

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Rather, the

                                    -8-
J-S07028-20


     role of the trial judge is to determine that notwithstanding all the
     facts, certain facts are so clearly of greater weight that to ignore
     them or to give them equal weight with all the facts is to deny
     justice. It has often been stated that a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.

     An appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question of
        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

     This does not mean that the exercise of discretion by the trial
     court in granting or denying a motion for a new trial based on a
     challenge to the weight of the evidence is unfettered.        In
     describing the limits of a trial court’s discretion, we have
     explained:

        The term discretion imports the exercise of judgment,
        wisdom and skill so as to reach a dispassionate conclusion
        within the framework of the law, and is not exercised for
        the purpose of giving effect to the will of the judge.
        Discretion must be exercised on the foundation of reason,
        as opposed to prejudice, personal motivations, caprice or
        arbitrary actions. Discretion is abused where the course
        pursued represents not merely an error of judgment, but
        where the judgment is manifestly unreasonable or where
        the law is not applied or where the record shows that the
        action is a result of partiality, prejudice, bias or ill-will.



                                    -9-
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Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation and

quotation marks omitted), appeal denied, 207 A.3d 291 (Pa. 2019); see

also Commonwealth v. Landis, 89 A.3d 694, 699 (Pa. Super. 2014)

(stating that “an appellate court reviews the exercise of the trial court’s

discretion; it does not answer for itself whether the verdict was against the

weight of the evidence.    It is well settled that the [fact-finder] is free to

believe all, part, or none of the evidence and to determine the credibility of

the witnesses . . . .” (citation omitted)).   “A true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions which evidence is to be believed.”     Commonwealth v. Lewis,

911 A.2d 558, 566 (Pa. Super. 2006) (citation omitted).

      Here, the trial court explained that

      the jury convicted [Appellant] on all charges after considering
      the overwhelming evidence presented by the Commonwealth.
      Based on the evidence presented at trial, the jury’s verdict
      cannot be said to shock one’s sense of justice in this matter.
      The aforementioned evidence is clearly indicative of [Appellant’s]
      guilt beyond a reasonable doubt. Accordingly, the evidence
      presented at trial was of such volume and quality as to
      overcome the presumption of innocence and satisfy the jury of
      [Appellant’s] guilt beyond a reasonable doubt.

Trial Ct. Op. at 5-6 (record citations omitted and some formatting altered).

      Following our review of the record, we discern no abuse of discretion in

the trial court’s decision to deny relief on Appellant’s weight claim.     See

Landis, 89 A.3d at 699; see also Soto, 202 A.3d at 97.         The trial court

appropriately concluded that the verdict was not so contrary to the evidence


                                    - 10 -
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as to require a new trial. See Landis, 89 A.3d at 699. Further, we decline

to reassess the credibility of the Commonwealth’s witnesses and to reweigh

the testimony and evidence presented at trial.                See id.; see also

Commonwealth        v.   West,    937    A.2d    516,   523   (Pa.   Super.   2007)

(emphasizing that the trier of fact is “free to believe all, part or none of the

evidence,” and that we will not re-weigh the evidence or substitute our

judgment for that of the fact finder (citation omitted)).              Accordingly,

Appellant’s challenge to the weight of the evidence merits no relief.

                              Jury Instruction

      In his next claim, Appellant argues that the trial court erred by

granting the Commonwealth’s request for a jury instruction relating to

Nunez, a Commonwealth witness who did not testify at trial.             Appellant’s

Brief at 41-49.

      By way of background to this claim, during opening statements, the

Commonwealth stated that it intended to call Nunez, who had witnessed the

November 1, 2016 burglary. According to the Commonwealth, Nunez would

testify that he saw “a heavier male . . . and a skinnier male” getting out of a

Ford Expedition in the driveway of one of the burglarized homes. N.T. Trial,

8/27/18, at 32.   The Commonwealth also stated that Nunez would testify

that a woman with long hair was driving the Expedition and that Nunez saw

the two men then quickly leaving the home with items in their hands and get

back into the Expedition.        Id. at 32-33, 41-42.         That same day, the

Commonwealth elicited testimony from Detective Amanda Wenrich that

                                        - 11 -
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Nunez had provided her some information about activity that he believed

was related to one of the burglaries, which had occurred across the street

from where Nunez worked.           Id. at 200, 212.   Although Detective Wenrich

did not testify as to the substance of Nunez’s statement, she noted that it

corroborated information she obtained during her investigation, which

included her review of security footage from different pawn shops.6 Id. at

191-200.

       On the second day of trial, the Commonwealth informed the trial court

that Nunez may invoke his Fifth Amendment privilege based on his

immigration status.       N.T. Trial, 8/28/18, at 233-38.    The Commonwealth

explained    that based on         his recent discussion    with   Nunez,   it was

Commonwealth counsel’s understanding that Nunez might have legal

challenges concerning his authorization to reside in this country, and that he
____________________________________________


6 Detective Wenrich testified that her investigation led her to request two
videos, one from October 29, 2016, and one from November 2, 2019. See
N.T. Trial, 8/27/18, at 191. There was no indication that either video
showed the sale of items taken during the November 1, 2016 burglary.
However, based on her investigations, Detective Wenrich was able to
identify Anita Hersh from the October 29, 2019, video. Moreover, based on
her further investigation, she ultimately identified Appellant from the
October 29, 2019 video and November 2, 2019 video and Christopher Hersh
from the November 2, 2019 video. Id. at 194-97. The detective noted from
the November 2, 2019 video that Appellant “is much larger and heavier in
body type and build, whereas Christopher Hersh is skinnier, smaller.” Id. at
198. The November 2, 2019 video also showed Appellant and Christopher
Hersh getting out of the same car, which appeared to have a female driver.
Id. at 199-200. As noted above, the detective testified that the videos
“corroborated information that [she] received from witness statements”
specifically, Nunez. Id. at 200.



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could potentially face deportation.     Id. at 233-34.   The trial court then

appointed Fifth Amendment counsel for Nunez and deferred ruling on the

issue until after Nunez had an opportunity to confer with counsel.     Id. at

237-38.

      The next day, the Commonwealth explained to the trial court that

about two weeks prior to trial, he had spoken with Nunez in preparation for

trial, and at the end of the interview, Nunez, through an interpreter, asked

Commonwealth counsel if he [Nunez] had anything to worry about.          N.T.

Trial, 8/29/18, at 627-28.   Commonwealth counsel said he assured Nunez

that the case was not about him and that he would testify at trial and leave.

Id.   Further, the Commonwealth stated that it disclosed to the defense

about two weeks before trial that Nunez had asked Commonwealth counsel if

he had anything to worry about if he testified. Id. However, the record is

not clear as to whether Commonwealth counsel informed the defense that

Nunez could potentially face a legal challenge to his residency in this

country.

      Ultimately, after hearing from the Commonwealth, Nunez’s counsel,

and Appellant, the trial court concluded that Nunez was unavailable as a

witness due to his invocation of the Fifth Amendment.     Id. at 637-38. In

response to the trial court’s ruling, the Commonwealth requested a jury

instruction to explain that Nunez’s unavailability was “due to no fault of the

parties.” Id. at 637. The trial court deferred ruling on the instruction until

after the jury instructions charging conference. Id. at 638.

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      Prior to closing arguments, the trial court offered to instruct the jury

as follows: “a witness Fernando Nunez became unavailable due to a ruling

by the [trial c]ourt.     Do not consider anything concerning that when

deliberating upon your verdict.”          N.T. Trial, 8/30/18, at 807.    Appellant

objected, arguing that the Commonwealth should have anticipated that

Nunez might invoke his Fifth Amendment privilege and that it was not

entitled to an instruction on that basis. Id. at 807-08. Further, Appellant

argued that the instruction highlighted the Commonwealth’s references to

Nunez and that the Commonwealth was essentially benefiting from its own

mistake. Id. at 808.

      Ultimately,   the   trial   court    overruled   Appellant’s   objection   and

instructed the jury as follows:

      A witness, Nunez, became unavailable due to a ruling by th[e
      trial c]ourt. Do not consider anything concerning that when
      deliberating upon your verdict. Detective Wenrich of the Kennett
      Square Police Department testified about statements made by
      the witness at this trial. They’re not to be considered for their
      truth or in any other way by you in reaching a verdict in this
      case.

N.T. Trial, 8/31/18, at 905.

      On appeal, Appellant argues that the trial court misapplied the law by

instructing the jury about Nunez’s unavailability.        Appellant’s Brief at 49.

Appellant asserts that “the Commonwealth should have been very cognizant

of the witness’s Fifth Amendment right, raised it pretrial, and avoided

mentioning this witness until the [trial] court had ruled.” Id. at 48. Further,



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Appellant contends that the Commonwealth benefited from its own mistake

because the jury instruction further highlighted the Commonwealth’s

references to Nunez. Id. at 49. Finally, Appellant argues that “[t]here were

no    facts   dictating”   a   jury   instruction   relating   to   Nunez   and   “the

Commonwealth should have been held accountable for the prejudice caused

by its lack of foresight.” Id.

       The Commonwealth responds that Appellant “failed to establish that

this jury instruction was error or that it was prejudicial.” Commonwealth’s

Brief at 37.    Instead, the Commonwealth argues that trial court “correctly

instructed the jury concerning a witness it deemed unavailable. Moreover,

[Appellant] suffered no prejudice as a result of the jury instruction.” Id. at

40.

       Our review is governed by the following principles:

       We review a challenge to a jury instruction for an abuse of
       discretion or an error of law. We must consider the charge as a
       whole, rather than isolated fragments. We examine the entire
       instruction against the background of all evidence presented, to
       determine whether error was committed.          A jury charge is
       erroneous if the charge as a whole is inadequate, unclear, or has
       a tendency to mislead or confuse the jury rather than clarify a
       material issue. Therefore, a charge will be found adequate
       unless the issues are not made clear to the jury or the jury was
       palpably misled by what the trial judge said. Furthermore, our
       trial courts are invested with broad discretion in crafting jury
       instructions, and such instructions will be upheld so long as they
       clearly and accurately present the law to the jury for its
       consideration.

Commonwealth v. Rush, 162 A.3d 530, 540 (Pa. Super. 2017) (citations

omitted and formatting altered).

                                         - 15 -
J-S07028-20



      Furthermore, this Court has explained:

      If we conclude that the charge was erroneous, we will grant a
      new trial unless we determine the error to be harmless. An error
      can be harmless only if the appellate court is convinced beyond a
      reasonable doubt that the error is harmless. Whenever there is
      a reasonable possibility that an error might have contributed to
      the conviction, the error is not harmless.

Commonwealth v. Rivera, 597 A.2d 690, 694 (Pa. Super. 1991).               Here,

the trial court addressed Appellant’s claim as follows:

      The instruction was legally permissible and necessary to explain
      to the jury why they would not hear the testimony of an
      important witness despite being told otherwise by the prosecutor
      during opening statements. It is important to keep in mind that
      the jury instruction at issue, when viewed in connection with the
      [trial c]ourt’s series of instructions given throughout the trial,
      explained the missing witness’s testimony.

                                  *     *      *

      If the [trial c]ourt had not given the requested instruction, the
      Commonwealth may have been unfairly prejudiced by the [trial
      c]ourt’s prior ruling. Absent the instruction, the jury would have
      been left to speculate and may have drawn the improper
      inference that the prosecutor chose not to call Nunez because his
      testimony would be adverse to the Commonwealth. Lastly, the
      [trial c]ourt emphasizes that the instruction was the most
      prudent way to handle the issue, so as not to allow defense
      counsel to make a confusing or misleading, missing witness,
      argument. Because [Appellant] has failed to plead and prove
      how the legally permissible instruction resulted in actual
      prejudice, and we can discern none; any error resulting from the
      instruction is clearly harmless.

Trial Ct. Op. at 10-11.

      After analyzing the trial court’s jury charge as a whole, we conclude

that the trial court’s jury charge was clear and did not mislead the jury. See



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Rush, 162 A.3d at 540.               To the extent Appellant argues that the

Commonwealth was not entitled to an instruction explaining Nunez’s

absence, we discern no abuse of discretion when the trial instructed the jury

not to consider the testimony about Nunez’s statement in reaching a verdict.

Lastly, to the extent Appellant asserts that he was prejudiced because the

instruction could have highlighted the Commonwealth’s and Detective

Wenrich’s references to Nunez’s statements, our Supreme Court has stated

that “[t]he law presumes that the jury will follow the instructions of the

court.”    Commonwealth v. Spotz, 896 A.2d 1191, 1224 (Pa. 2006)

(citations omitted).      In light of the passing references to Nunez in the

Commonwealth’s opening statement and Detective Wenrich’s testimony

during the course of a five-day trial, we discern no basis to conclude that the

jury could not follow the trial court’s instruction.7 See Spotz, 896 A.2d at

1224. Therefore, Appellant is not entitled to relief on this claim.
____________________________________________


7Even if we accepted Appellant’s premise that the instruction highlighted the
Commonwealth’s and Detective Wenrich’s references to Nunez’s statements,
we agree with the trial court’s analysis that any error was harmless.

With respect to the November 1, 2016 burglary, Anita Hersh testified that
she, Appellant and Christopher Hersh burglarized the home. N.T. Trial,
8/28/18, at 339-44. Specifically, Anita Hersh testified that she drove to the
house, and Appellant kicked in the door. Id. at 339-40. Appellant and
Christopher Hersh went inside the house, while Anita Hersh drove her
vehicle around until Appellant called her cell phone or sent her a text
message. Id. at 340-41. When Anita Hersh drove back, Appellant and
Christopher Hersh came out with items they had taken from the house. Id.
Anita Hersh’s testimony was corroborated by pawnshop records indicating
that she sold some of the property taken on November 1, 2016, that same
(Footnote Continued Next Page)


                                          - 17 -
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                        Prosecutor’s Closing Argument

      In his next claim, Appellant argues that the trial court erred by

overruling his objection to the Commonwealth’s statements during closing


(Footnote Continued)_______________________

afternoon, as well as the homeowners’ identifications of their missing
property sold that day. Id. at 248-49. Additionally, the Commonwealth
presented cellphone records indicating that Appellant’s phone and Anita
Hersh’s phone were in the area of the burglarized home at approximately
10:00 a.m., and that Anita Hersh made calls to both Appellant’s phone and
Christopher Hersh’s phone between 10:00 a.m. and 11:00 a.m. N.T. Trial,
8/30/18, at 715-16, 728-30, 732. Appellant’s phone was also used for
internet searches for items taken from the home and was near the same
pawnshop at which Anita Hersh sold some of the items around the time of
the sale. Id. at 716, 730-31, 785-90. N.T. Trial, 8/28/18, at 341-44.

The Commonwealth also presented circumstantial evidence supporting Anita
Hersh’s testimony that Appellant was involved in the other burglaries,
including expert evidence linking Appellant’s shoes to two other homes, the
sales of stolen items at pawnshops in Delaware, and internet searches made
from Appellant’s phone. N.T. Trial, 8/30/18, at 777-96; Commonwealth’s
Exhibit 106. As discussed above, the Commonwealth presented the videos
showing Appellant with Anita and Christopher Hersh at various pawnshops.
N.T. Trial, 8/27/18, at 194-200; N.T. Trial, 8/28/18, at 329-34.

Lastly, the Commonwealth introduced recorded statements that Appellant
made to Christopher Hersh after a detective interviewed Appellant about the
burglaries. N.T. Trial, 8/27/18, at 207-08; Commonwealth Ex. 31A. In the
recording, Appellant stated “they know everything” and he would be “doin a
long time.” Commonwealth Ex. 31A. Appellant also discussed being asked
about the November 1, 2016 robbery, and told Christopher Hersh that he
was not able to delete the contents of his cellphone. Id.

Therefore, in comparison to the evidence that was properly admitted at trial,
we conclude that any prejudicial effect from an emphasis on Nunez’s
statement regarding a heavy set male and a skinnier male arriving at, and
then leaving the scene of the November 1, 2016 burglary was insignificant
and could not have contributed to the jury’s verdict. See Rivera, 597 A.2d
at 695.



                                         - 18 -
J-S07028-20



arguments.    Appellant’s Brief at 50.   Specifically, Appellant refers to the

Commonwealth’s characterization of the expert testimony of Sergeant

Klinger.

      By way of background to this claim, at trial, Sergeant Klinger testified

that she examined the Appellant’s size twelve Air Jordan Retro 88 shoes,

Christopher Hersh’s size nine Timberlands workmen’s boots, and the

shoeprints taken from several of the burglarized homes. N.T. Trial, 8/29/18,

at 578-91. She concluded that the tread design of the Nike Air Jordan Retro

3 and Nike Air Jordan 3 Retro 88 shoes, which included the word “Jordan,”

corresponded with the shoeprints lifted from the sites of two of the

burglaries. Id. at 583-87. She also concluded that the impressions taken

from the crime scenes corresponded with Appellant’s Air Jordan shoes. Id.

at 598-99, 609-10.     However, she stated that she had not identified a

specific shoe as the source of the prints. Id. at 620.

      During closing arguments, the Commonwealth discussed Sergeant

Klinger’s testimony as follows:

      Sergeant Klinger has certain investigative standards she has to
      follow. I submit to you she is rather conservative about the
      conclusions that she chooses to come to. And that’s probably a
      good thing. They understand the nature of the conclusions that
      they make. And it’s important that they do it the way they do. I
      will go further. This is the same shoe. This is identical. It fits
      right over perfectly the two holes here at the base of the heel,




                                    - 19 -
J-S07028-20


       fits completely perfectly. The [“]Jordan[”]words[8] fit completely
       perfectly. This is a size twelve shoe. The reason it didn’t matter
       whether or not [Christopher] Hersh also had some other kind of,
       quote, Jordan, this isn’t made by a size nine shoe. This is
       completely identical.

       I’m not saying with one hundred percent certainty. That’s not
       what we’re required to prove. It’s not a raging coincidence that
       the shoes that are taken off of his person seem to match with
       unbelievable fitness to the shoe mark that is on the [first] door.
       That’s just the [first] door. Then we have the [second] door.
       Again, what a raging coincidence when his phone hits a house
       twenty minutes later, just happens to be -- again, this is the
       scaled version of the picture. She takes the picture from the
       [second] door and uses the scale on the size so she can scale it
       to be life size and again takes the print from the original shoe
       and tries to match it up. And again it is identical. It fits like a
       glove. The hole at the bottom of the heel there fits right cleanly
       in. The marking from the way the heel curved this way fits that
       way. That wouldn’t happen unless it was the same size shoe.
       So it would have to have been somebody else wearing an Air
       Jordan Three, size twelve. I’m sure there’s somebody else out
       there. In fact, there’s probably a number of people who might
       have a size twelve Air Jordan Three. Make no mistake. This
       isn’t just bad luck for [Appellant]. Someone didn’t just happen
       to have a size twelve shoe. This matches perfectly.

N.T. Trial, 8/31/18, at 874-75.

       Immediately after the Commonwealth’s closing, Appellant’s counsel

requested a sidebar, during which the following exchange occurred:

       [Appellant’s counsel]: I’d like to note an objection to [the
       prosecutor’s] characterization of the shoe that was in evidence
       as identical to the shoe print, because that is contrary to the
       evidence presented through Sergeant Klinger and her expert
       opinion.
____________________________________________


8 The word “Jordan” is part of the tread design of the Nike Air Jordan Retro 3
and Nike Air Jordan 3 Retro 88, which was visible in the footprints found at
the burglarized homes.



                                          - 20 -
J-S07028-20


      [The Commonwealth]: It’s argument. It was closing argument.
      I’m allowed to argue that.

      THE COURT: I’ll remind them that their recollection of the
      evidence controls. I think it’s legitimate argument, whether or
      not it’s the shoe. I don’t believe it was that objectionable, quite
      honestly.

N.T. Trial, 8/31/18, at 900-01. Appellant’s counsel did not request a mistrial

or object to the trial court’s proposed curative instruction. Id.

      On appeal, Appellant argues that the prosecutor’s statements were

“not an accurate representation or inference from the expert testimony.”

Appellant’s Brief at 53.         Appellant asserts that the Commonwealth

mischaracterized Sergeant Klinger’s testimony and “purposely misstated the

facts.” Id. Further, Appellant claims that “[o]ther than Anita Hersh, whose

significant deficiencies were discussed [previously], the only evidence tying

Appellant to [two of the burglaries] was the shoe impression.               The

prosecutor’s mischaracterization of the expert testimony was, therefore,

clearly prejudicial.”   Id.   Appellant concludes that the trial court erred by

overruling his objection.

      The Commonwealth responds that the trial court properly overruled

Appellant’s objection.      Commonwealth’s Brief at 41.    The Commonwealth

notes that “the law affords a prosecutor reasonable latitude in closing

arguments and that a prosecutor may discuss the evidence and suggest

reasonable inferences.”       Id. at 42-43.    Additionally, the Commonwealth

asserts that any alleged prejudicial effect of the prosecutor’s comments must




                                      - 21 -
J-S07028-20



be evaluated in context.     Id. at 41-42.      Therefore, the Commonwealth

contends that Appellant’s claim is meritless.

      “[I]n reviewing a claim of improper prosecutorial comments, our

standard of review ‘is whether the trial court abused its discretion.’”

Commonwealth v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018) (citation

omitted).

      [I]t is well settled that statements made by the prosecutor to the
      jury during closing argument will not form the basis for granting
      a new trial unless the unavoidable effect of such comments
      would be to prejudice the jury, forming in their minds fixed bias
      and hostility toward the defendant so they could not weigh the
      evidence objectively and render a true verdict. The appellate
      courts have recognized that not every unwise remark by an
      attorney amounts to misconduct or warrants the grant of a new
      trial. Additionally, like the defense, the prosecution is accorded
      reasonable latitude, may employ oratorical flair in arguing its
      version of the case to the jury, and may advance arguments
      supported by the evidence or use inferences that can reasonably
      be derived therefrom.

Id. (citation omitted).

      Although a defendant is required to raise a contemporaneous

objection, “there is often some leeway provided with this rule with regard to

opening and closing statements, where, by custom, it often preferred to

reserve objections until the end of such statements . . . .” Commonwealth

v. Cole, 167 A.3d 49, 77 (Pa. Super. 2017) (footnote omitted). However,

“even where a defendant objects to specific conduct, the failure to request a

remedy such as a mistrial or curative instruction is sufficient to constitute

waiver.”    Commonwealth v. Sandusky, 77 A.3d 663, 670 (Pa. Super.


                                    - 22 -
J-S07028-20



2013) (citation omitted and formatting altered); see also Jones, 191 A.3d

at 837 (finding that the defendant waived his claims relating to the

Commonwealth’s opening statements even though the defense objected

twice to the prosecutor’s statements, because the defense did not request

further relief).

       Here, the trial court found that Appellant waived this issue by failing to

“raise the objection at the earliest possible stage of the Commonwealth’s

closing argument.”       Trial Ct. Op. at 12.      The trial court further concluded

that even if Appellant properly preserved his claim, the Commonwealth’s

statements were “a fair comment on the actual evidence presented at trial.”

Id.

       While our review of the record confirms that Appellant waived this

claim, we reach this conclusion on a different basis than the trial court.9

Although Appellant objected to the prosecutor’s closing statement, he did

not object to the trial court’s curative jury instruction or request a mistrial.

See N.T. Trial, 8/31/18, at 900-01. Therefore, Appellant cannot now claim

that the trial court erred by failing to grant relief that he did not request.10

See Sandusky, 77 A.3d at 670; see also Jones, 191 A.3d at 837.
____________________________________________


9Although our analysis differs from that of the trial court, we may affirm on
any legal basis supported by the certified record. Commonwealth v.
Clemens, 66 A.3d 373, 381 n.6 (Pa. Super. 2013).

10In any event, as noted herein, the trial court instructed the jury to rely on
their own recollection of the evidence and emphasized that the parties’
(Footnote Continued Next Page)


                                          - 23 -
J-S07028-20



                      Discretionary Aspects of Sentence

      In his final claim, Appellant argues that the trial court abused its

discretion by imposing an aggregate sentence of nine to twenty years’

incarceration.    Appellant’s Brief at 33.      Appellant asserts that although his

sentences were within the sentencing guidelines, “the case involves

circumstances     where     the   application     of   the   guidelines     was   clearly

unreasonable as applied.”         Id. at 34 (citing 42 Pa.C.S. § 9781(c)(2)).

Appellant contends that, “as applied consecutively,” his sentence was

“unreasonable and excessive.” Id. at 35. Appellant asserts that “the trial

court failed to consider . . . mitigating factors” such as Appellant’s

“disruptive childhood” or his “history of substance abuse.”               Id. at 35, 39.

Appellant also points to his lack of a substantial criminal history, the fact

that he has two children, and his failure to successfully complete drug and

alcohol treatment.       Id. at 40.       Appellant argues that “[a]lthough the

sentences take into account the protection of the public and the impact on


(Footnote Continued)_______________________

arguments do not constitute evidence. See N.T. Trial, 8/31/18, at 829.
Further, the trial court’s cautionary instruction, given without defense
objection, was sufficient to instruct the jury concerning the Commonwealth’s
closing statements. See Spotz, 896 A.2d at 1224 (holding that the law
presumes that the jury will follow the court’s instructions). Therefore, even
if Appellant had moved for a mistrial, the trial court had discretion to deny it.
See Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016) (stating
that we review a trial court’s denial of a motion for a mistrial for an abuse of
discretion and reiterating that “a mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice” (citation omitted and
formatting altered)).



                                         - 24 -
J-S07028-20



the victims, the sentences do not take into account the mitigating factors or

Appellant’s rehabilitative needs.”      Id.   Therefore, Appellant concludes that

his sentence was unreasonable. Id.

      The     Commonwealth     responds       that   Appellant     failed    to   raise    a

substantial    question.    Commonwealth’s           Brief   at   24.       Further,      the

Commonwealth contends that the trial court was “aware of and appropriately

weighed all relevant information regarding [Appellant’s] character along with

any alleged mitigating factors, and adequately explained the reasons for its

sentence.” Id. at 30. Therefore, the Commonwealth asserts that Appellant

is not entitled to relief. Id. at 35.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,

991 (Pa. Super. 2016) (citation omitted). Before reaching the merits of such

claims, we must determine:

      (1) whether the appeal is timely; (2) whether Appellant
      preserved his issues; (3) whether Appellant’s brief includes a
      [Pa.R.A.P. 2119(f)] 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 inappropriate under the
      sentencing code.

Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations

omitted).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d



                                        - 25 -
J-S07028-20



1086, 1090 (Pa. Super. 2017) (citation omitted).      “A substantial question

exists only when the appellant advances a colorable argument that the

sentencing judge’s actions 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. Grays, 167

A.3d 793, 816 (Pa. Super. 2017) (citation omitted).

      Here, Appellant preserved his sentencing claims in a post-sentence

motion, filed a timely notice of appeal, and included a Rule 2119(f)

statement in his brief. See id. Further, Appellant has raised a substantial

question for our review.   See Commonwealth v. Swope, 123 A.3d 333,

338 (Pa. Super. 2015) (stating that a “challenge to the imposition of [the

defendant’s] consecutive sentences as unduly excessive, together with [a]

claim that the court failed to consider [the defendant’s] rehabilitative needs

and mitigating factors upon fashioning its sentence, presents a substantial

question”); see also Commonwealth v. Caldwell, 117 A.3d 763, 769-70

(Pa. Super. 2015) (stating that an allegation that a sentence was excessive

along with a claim that the court failed to consider certain mitigating factors

raises a substantial question).    Therefore, we will review the merits of

Appellant’s claim.

      Our well-settled standard of review is as follows:

      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,

                                    - 26 -
J-S07028-20


      that the sentencing court ignored or misapplied the law,
      exercised its judgments for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010)

(citation omitted). Further, where a PSI exists, “we shall . . . 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. Conte, 198 A.3d 1169,

1177 (Pa. Super. 2018) (citation omitted), appeal denied, 206 A.3d 1029

(Pa. 2019).

      Where a sentence is imposed within the guidelines, we may only

reverse the trial court if we find that the circumstances of the case rendered

the application of the guidelines “clearly unreasonable.”       42 Pa.C.S. §

9781(c)(2).   Our review of the reasonableness is based upon the factors

contained in 42 Pa.C.S. § 9781(d) and the trial court’s consideration of the




                                     - 27 -
J-S07028-20



general sentencing standards contained in 42 Pa.C.S. § 9721(b). 11         See

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). However,

“[w]e 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) (citation omitted).

       Finally, it is well settled that “Pennsylvania law affords the sentencing

court discretion to impose its sentence concurrently or consecutively to other

sentences being imposed at the same time or to sentences already

imposed.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)

(citation omitted); see also Commonwealth v. Zirkle, 107 A.3d 127, 134

(Pa. Super. 2014) (reiterating that a defendant “is not entitled to a ‘volume

discount’ because the various crimes occurred in one continuous spree.”

(citation and quotation marks omitted)).

       Here, at sentencing, the trial court stated:



____________________________________________


11 Section 9721(b) states that “the sentence imposed should call for total
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).

Section 9781(d) provides that, in reviewing the record, we must have regard
for: “(1) The nature and circumstances of the offense and the history and
characteristics of the defendant[;] (2) The opportunity of the sentencing
court to observe the defendant, including any presentence investigation[;]
(3) The findings upon which the sentence was based[; and] (4) The
guidelines promulgated by the commission.” 42 Pa.C.S. § 9781(d).



                                          - 28 -
J-S07028-20


     The courts are required to follow the general principle 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 on the impact on the life of the victim and on the
     community, as well as addressing the rehabilitative needs of the
     defendant. I also am required to consider the guidelines. . . .

     Th[is c]ourt has considered all the factors specified in our
     sentencing code. And the difficult part is balancing the specific
     background and character and circumstances of the defendant
     with the circumstances of the crime to determine the need to
     incarcerate him to prevent future offenses by him, as well as the
     possibility of his rehabilitation.  So as you can see, it’s a
     mouthful.

     I studied the PSI. In my balancing, there were things that were
     favorable to the defense. And in my balancing there were things
     favorable to the Commonwealth, as most of the time there are.
     This young man did come from a difficult childhood. To quote
     his mother, difficulty raising her children by herself and
     contemplating putting her children up for adoption. And his
     father took the defendant to Mexico. And he lived there for
     years and so forth.

     He had juvenile problems and just seems like he never adjusted
     even after going to the Youth Forestry School and so forth. I
     also, when I tried this case with the jury, I obviously had no idea
     what his record would be. . . . [H]e really graduated from theft
     ‘07, false ID to police in ‘15 and DUI in ‘15. And in ‘04 he had
     paraphernalia. Graduating from these misdemeanors to these
     major, serious felonies is quite a jump.

     His adjustment to probation as a juvenile was poor.           He
     continued drug usage, fighting in school, causing disturbances, I
     mentioned that, as well about his RRRI eligibility. I believe on
     term number 2199 of ‘07, it’s his sixth violation. I do note this
     young man has two children.             He used heroin and
     methamphetamine, I believe, according to the PSI. He has not
     completed any drug and alcohol treatment successfully.

     A couple things come up. The way these homes were entered
     and so forcefully, so damagingly, it was appalling. I pictured the
     entrances like it happened yesterday because I saw all the
     photographs. People work very hard to buy a home, pay off a
     mortgage, only to have people such as this fellow destroying
     their dreams, the sanctity of their home. The feeling of security

                                   - 29 -
J-S07028-20


     is forever taken. It was mentioned here. The victims fear is now
     great. The sense of security is gone.

     Irreplaceable items are gone. It was horrific horror to these
     victims.   The entry was very, very violent.        It was very
     dangerous. The situation with the person being home was
     dangerous. There were multiple current convictions. Until now
     there was little remorse by this fellow.     There was some
     remorse. I noticed an apology. But I have to -- if I give a lesser
     sentence than I’m going to give, I believe would depreciate the
     seriousness of the crime, extreme disregard to people’s
     property, multiple victims.

     I’m considering the recommendation of the prosecutor. The
     property damage here was extreme and unnecessary. The mode
     of entry was very violent. And some of the things in the house,
     the way they were tampered with and destroyed showed a
     complete, utter distain for law abiding citizens and their
     property. I remember papers were destroyed. And it was just
     an awful situation.

N.T. Sentencing Hr’g, 11/20/18, at 37-39.

     In its Rule 1925(a) opinion, the trial court further explained:

     [Appellant] merely contends that the imposed sentences fail to
     address his rehabilitative needs and does not account for
     mitigating circumstances.      [Appellant] fails to state with
     particularity how the court failed to address his rehabilitative
     needs or which mitigating circumstances the [trial c]ourt failed
     to consider. [Appellant’s] boilerplate allegations in this case are
     inadequate to meet his burden of demonstrating that the [trial
     c]ourt committed an error of law.         We are constrained to
     conclude that the aforesaid assertions are undeveloped,
     confusing, or too vague, and, therefore, impede meaningful
     review. Accordingly, these issues are waived and can form no
     successful basis for relief.

     Even if this claim is not waived, [Appellant] is otherwise not
     entitled to the requested relief. The record reflects that the [trial
     c]ourt considered all of the sentencing factors relevant to
     [Appellant], including both aggravating and mitigating factors.
     At sentencing, the [trial c]ourt had the benefit of reviewing the
     PSI, which was completed by Chester County Adult Probation.
     The PSI described in great detail [Appellant’s] prior criminal

                                    - 30 -
J-S07028-20


     history, attempts, or lack thereof of rehabilitation, and abysmal
     supervision history.      Specifically, the PSI revealed that
     [Appellant] has been on supervision in [Chester] County since
     2007. At the time of sentencing on the present case, [Appellant]
     was on his sixth probation/parole violation on Criminal Docket
     Number CP-15-CR-2199-2007 and second probation/parole
     violation on CP-15-CR-4650-2015. [Appellant’s] violations on
     those cases resulted from absconding, continuing drug use, and
     the filing of new criminal charges, including the present cases.
     Because [Appellant’s] sentence was legal, within the Sentencing
     Guidelines, and substantially less than the sentence requested
     by the Commonwealth; this issue lacks arguable merit.

                                *     *      *

     In the present case, we emphasize that the jury found
     [Appellant] guilty of all charges. These offenses stemmed from
     [Appellant] and co-defendants’ systematic string of burglaries
     encompassing four separate homes, and an attempted burglary
     of a fifth home, all of which occurred over a nine day span. This
     is not a case where the same home was broken into multiple
     times or a case in which all of the homes at issue were
     burglarized on the same day.

     We write further on this issue to point out that the aggregate
     sentence in this case of nine to twenty years did not exceed the
     statutory limits nor was it manifestly excessive as to constitute
     an abuse of discretion. Not only did [Appellant and his co-
     defendants]     burglarize   or    attempt   to  burglarize   the
     aforementioned homes and steal anything they deemed to have
     value, but they also ransacked the homes, broke things, and
     ripped up important documents. [Appellant] is not entitled to a
     “volume discount” for his crimes by having the sentences run
     concurrently.     To impose such a volume discount would
     depreciate the seriousness of the burglaries and would
     incorrectly appear that the [trial c]ourt somehow placed a higher
     emphasis on certain burglaries over others.        Burglary is a
     personal injury crime and can have long-lasting effects on
     victims.

     Whereas here, despite four of the homeowners not actually
     being present during the commission of the crimes; burglary is
     still a very traumatic experience for these victims. Not only is
     the home, which is supposed to be a sacred place, invaded but
     items of great personal value, monetary and/or sentimental,


                                    - 31 -
J-S07028-20


      were stolen or destroyed, many of which were never recovered
      and cannot be replaced.

      A look at the planning and execution of these burglaries makes
      clear why [Appellant] needs a substantial state sentence. This
      was far more than an impulsive decision to break into a house,
      steal items that belonged to homeowners, and sell them [sic]
      items for quick cash for drugs. [Appellant] violated the intimacy
      of five homes and took valuable, sentimental, items from
      homeowners, which can never be replaced. Thus, concurrent
      sentences would not have had the same deterrent effect, would
      not have adequately protected the public, and would have
      inherently revictimized the homeowners. Lastly, it is important
      to note that all of the burglaries were committed while
      [Appellant] was already under Chester County supervision for
      two other unrelated cases.

      Based on a review of the record, we are compelled to conclude
      that this issue is meritless.    An extensive three-hour long
      sentencing hearing was conducted in which the background of
      [Appellant] was exhaustively probed. The record reveals that
      the court was informed by a PSI and that it clearly stated the
      reasons for the guideline sentence imposed.

Trial Ct. Op. at 7-9 (citations omitted and some formatting altered).

      As noted previously, the trial court had the benefit of a PSI report,

which it reviewed prior to sentencing.       See N.T. Sentencing Hr’g at 37.

Further, based on our review of the record, it is evident that the trial court

considered the relevant information and mitigating factors in fashioning

Appellant’s sentence. See Conte, 198 A.3d at 1177. Additionally, the trial

court explicitly referred to Appellant’s difficult childhood, his history of

substance abuse, and the fact that he was the father of two children. See

N.T. Sentencing Hr’g at 37-38.     Therefore, to the extent Appellant claims

that the trial court failed to consider his mitigating circumstances, he is not

entitled to relief.

                                    - 32 -
J-S07028-20



        Based on our review of the record, we discern no abuse of discretion

by the trial court in fashioning Appellant’s sentence. In addition to the PSI

report, the trial court also considered the nature and circumstances of the

offenses, the impact on the victims, and the protection of the public. See 42

Pa.C.S. § 9721(b); see also Baker, 72 A.3d at 663.            Although the trial

court imposed consecutive sentences, the trial court explained that a lesser

sentence “would depreciate the seriousness of the crime.” N.T. Sentencing

Hr’g at 39. Under these circumstances, we cannot conclude that Appellant’s

sentence was “clearly unreasonable” or excessive.            See 42 Pa.C.S. §

9781(d); see also Austin, 66 A.3d at 808; see also Zirkle, 107 A.3d at

134. Accordingly, Appellant is not entitled to relief. See Raven, 97 A.3d at

1253.

        For the reasons herein, we affirm the trial court’s judgment of

sentence.

        Judgment of sentence affirmed.

        Judge Strassburger joins the memorandum.

        Judge King did not participate in the consideration or decision of this

        case.




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J-S07028-20


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2020




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