J-S28004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 SHAWN A. STEWART                         :
                                          :
                     Appellant            :   No. 1817 MDA 2019

     Appeal from the Judgment of Sentence Entered October 15, 2019
   In the Court of Common Pleas of Dauphin County Criminal Division at
                     No(s): CP-22-CR-0005521-2014


BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 24, 2020

      Shawn A. Stewart appeals from the October 15, 2019 judgment of

sentence of seventeen and one-half to thirty-five years of imprisonment,

imposed when he was re-sentenced for robbery, burglary, recklessly

endangering another person (“REAP”), simple assault, theft by unlawful

taking, criminal use of a communication facility, and four counts of conspiracy.

Appellant challenges discretionary aspects of his sentence.       After careful

review, we affirm.

      The pertinent facts underlying Appellant’s convictions were set forth by

the trial court and summarized by this Court on direct appeal:

      Briefly, in the two years leading up to early January 2014,
      Appellant and Sandra Matos (“Sandra”) were engaged in a “friends
      with benefits” relationship. As of January 2014, Sandra lived in a
      Middletown, Pennsylvania townhome with her 13-year old twin
      sons. In the two months leading up to January 6, 2014, Sandra’s
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      father, Samuel Matos (“Matos”), lived with Sandra and her sons
      after moving to Middletown from Puerto Rico.

      On the morning of Monday, January 6, 2014, Sandra was at work
      and her sons were at school when Matos heard a knock on the
      front door of the townhome. He opened the door to find two males
      and one female who asked for Sandra. When Matos explained she
      was not there, the three entered the home uninvited. One
      intruder put a gun to Matos’[s] chest, ordered him to the floor,
      zip-tied his wrists behind him, and placed an item over his head.
      The other two intruders went upstairs and ransacked Sandra’s
      bedroom and Matos’[s] bedroom before leaving the home with a
      small blue suitcase belonging to Matos.

      Matos was able to leave the home and summon assistance from a
      neighbor who called the police. The police, in turn, called Sandra
      who returned to the home. In the course of discussions with the
      police, Sandra explained that she had fabricated a story—playing
      to Appellant’s perpetual interest in money—telling Appellant she
      was traveling to Puerto Rico over the January 3-5 weekend to
      conduct business for her father and she was returning to
      Middletown with $87,000 in a locked bag.

      Following a police investigation, Appellant was arrested and
      charged with burglary, robbery, conspiracy and other crimes.
      Following trial, a jury found Appellant guilty of all ten counts
      against him. On August 3, 2015, the trial court sentenced
      Appellant to consecutive terms of imprisonment totaling not less
      than 28 years nor more than 56 years in a state correctional
      institution, plus fines totaling $4,000. Each of the sentences fell
      within the standard range for the crime committed.

Commonwealth v Stewart, 154 A.3d 869 (Pa.Super. 2016) (unpublished

memorandum). This Court affirmed judgment of sentence. Id.

      Appellant filed a timely PCRA petition in which he alleged, inter alia, that

trial counsel was ineffective for failing to raise issues pertaining to sentencing,

specifically, that the trial court erred in imposing consecutive sentences for

conspiracy to commit burglary, conspiracy to commit robbery, and conspiracy



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to commit unlawful restraint. We determined that there was one common

plan or scheme to achieve a common, single, comprehensive goal, and hence,

the imposition of consecutive sentences on the inchoate crimes of conspiracy

was error. Since conspiracy to commit burglary and robbery were the higher-

graded offenses, i.e., first-degree felonies, we directed the trial court on

remand to determine which of these felonies would stand. Commonwealth

v. Stewart, 219 A.3d 228 (Pa.Super. 2019) (unpublished memorandum).

      On October 15, 2019, the court resentenced Appellant to eight and one-

half to seventeen years imprisonment for robbery at count one; a consecutive

term of six to twelve years of imprisonment for burglary at count two; three

to six years of imprisonment for conspiracy to commit robbery at count three,

to run consecutive to the sentence imposed at count two; three to six years

of imprisonment for conspiracy to commit burglary at count four, to run

concurrent to the sentence imposed at count three; the costs of proceedings

and no further sentence at counts five and six for conspiracy; a fine and cost

for REAP at count seven; and no further sentence at counts eight, nine and

ten, simple   assault,   theft   by   unlawful taking, and   criminal use   of

communication facility, respectively.    The aggregate term of imprisonment




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was seventeen and one-half to thirty-five years.1           N.T. Resentencing,

10/15/19, at 12-14.

       Appellant timely appealed to this Court, and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.         Appellant presents the following issues for our

review:

       I.     Whether the sentencing court abused its discretion when it
              applied the deadly weapon enhancement where the trial
              evidence was insufficient to establish that [Appellant]
              possessed or used a deadly weapon at the time of the
              robbery?

       II.    Whether the sentencing court abused its discretion when it
              sentenced [Appellant] to an aggravated range sentence on
              the robbery count of [eight] years, where the sentencing
              guidelines even with the application of the deadly weapon
              enhancement was 78 to 90 months, and the court did not
              state its reasons for the aggravated range sentence?

       III.   Whether the sentencing court abused its discretion by
              imposing consecutive sentences on the robbery, burglary
              and conspiracy counts where the entire criminal episode was
              part of one continuous incident and objective[,] thereby
              resulting in an aggregate sentence that was unreasonable?



____________________________________________


1As Appellant notes, the trial court stated in its opinion that the new aggregate
sentence was fourteen and one-half to twenty-nine years of imprisonment,
maintaining that it imposed no further penalty at count three. However, the
sentencing order and the sentencing transcript confirm that the court imposed
a three-to-six-year term of imprisonment for conspiracy to commit robbery at
count three. The court may have taken into consideration the fact that the
sentence of three to six years at count four (conspiracy to commit burglary),
and one to two years at count seven, were run concurrent to the sentence at
count three and count one, respectively, resulting in an aggregate sentence
of fourteen and one-half to twenty-nine years of imprisonment.

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Appellant’s brief at 4.

      All of Appellant’s issues implicate discretionary aspects of his sentence.

An appellant is not entitled as a matter of right to review of such challenges.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Rather,

we treat appellant’s brief on such issues as a petition for permission to appeal.

Commonwealth v. Best, 120 A.3d 329, 348 (Pa.Super. 2015); see also 42

Pa.C.S. § 9781(b). Prior to reaching the merits of a discretionary sentencing

issue, we conduct a four-part analysis to determine: (1) whether appellant

has filed a timely notice of appeal; (2) whether the issue was preserved at

sentencing or in a motion to modify or reconsider sentence; (3) whether

appellant has supplied a Pa.R.A.P. 2119(f) statement in his appellate brief;

and (4) whether appellant has presented a substantial question under the

Sentencing Code. See Moury, supra at 170. We determine what constitutes

a substantial question on a case-by-case basis. Commonwealth v. Battles,

169 A.3d 1086, 1090 (Pa.Super. 2017). “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).

      Appellant filed a timely notice of appeal. Although he did not file a post-

sentence motion, he raised the issues at the resentencing hearing. See N.T.


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Resentencing, 10/15/19, at 6-7. His appellate brief contains the requisite Rule

2119(f) statement. Therein, he relies upon Commonwealth v. Rhoades, 8

A.3d 912 (Pa.Super. 2010), in support of his claim that allegations of error in

the application of the deadly weapon enhancement present a substantial

question. Appellant cites Commonwealth v. Booze, 953 A.2d 1263, 1278

(Pa.Super. 2008), and Commonwealth v. Wellor, 731 A.2d 152, 155

(Pa.Super. 1999), for the proposition that the trial court’s failure to recite its

reasons for imposing an aggravated range sentence on the robbery count

presents a substantial question.       Finally, in support of his claim that

consecutive sentencing on the robbery, burglary, and conspiracy to commit

robbery resulted in an excessive sentence presents a substantial question,

Appellant relies upon Commonwealth v. Foust, 180 A.3d 416 (Pa.Super.

2018).

      We find that Appellant’s first two claims present substantial questions.

As to Appellant’s third issue, which is a challenge to the reasonability of

imposing consecutive sentences, the following principles inform our review.

“Generally, 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.          Any challenge to the

exercise of this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013); see also

42 Pa.C.S. § 9721(a) (providing that the court may impose sentences


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“consecutively or concurrently”); Commonwealth v. Johnson, 873 A.2d

704, 709 n.2 (Pa.Super. 2005) (noting that challenges to the trial court's

discretion to impose consecutive or concurrent sentences ordinarily does not

raise a substantial question).   “The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Commonwealth v. Radecki, 180 A.3d 441, 470 (Pa.Super. 2018); accord

Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.Super. 2012) (en banc).

      The sentence herein does not rise to that level. We agree with the trial

court that the aggregate sentence of fourteen and one-half to twenty-nine

years is not unduly harsh nor an abuse of discretion when one considers the

nature of the crimes committed. See Commonwealth v. Wright, 832 A.2d

1104, 1107 (Pa.Super. 2003) (court has discretion to determine whether a

sentence should be consecutive or concurrent). While the court imposed an

aggravated range sentence on the robbery count, it reduced the term of

imprisonment on the burglary charge from seven to fourteen years to six to

twelve years. In accordance with this Court’s directive, the court imposed

sentence on conspiracy to commit robbery, which was for a term of

imprisonment of three to six years instead of six to twelve years, a concurrent

sentence on the conspiracy to commit burglary, and no sentence on the

remaining two conspiracy counts. At Count seven, REAP, the court imposed


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a sentence of one to two years to run concurrent to the sentence imposed at

count one. No additional penalty was imposed on the simple assault, theft by

unlawful taking, or criminal use of a communication facility. The aggregate

sentence of imprisonment was substantially lower than the sentence originally

imposed, and much lower than the sentence that could have been imposed.

Thus, as to Appellant’s third issue, we find no substantial question.

      Accordingly, we proceed to review the merits of Appellant’s first two

issues, mindful of our standard of review.

      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.

             ....

      When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant's prior criminal record, age, personal characteristics
      and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa.Super. 2014).

Further, the trial court exercises considerable discretion when sentencing a

defendant.    Although the Commission on Sentencing has promulgated

sentencing guidelines, those guidelines are not mandatory. Id. at 760.

      First, Appellant contends that the trial court imposed the deadly weapon

enhancement when the evidence was insufficient to support it. Although the

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trial court denied that it applied the enhancement, Appellant maintains that

the court’s denial cannot be reconciled with its imposition of a term of eight

and one-half to seventeen years of imprisonment on the robbery count, which

was identical to the sentence that it originally imposed for that crime.

Appellant’s brief at 17.   Appellant argues further that since the original

guideline form submitted at the first sentencing hearing and the ones prepared

for the resentencing both contained a deadly weapon used enhancement for

the robbery, burglary, and conspiracy offenses, the sentencing court applied

the enhancement. Moreover, Appellant argues that when his counsel argued

that the enhancement should not be applied, the sentencing court did not

expressly state that it was not applying the enhancement. He contends that

the court’s numbers do not add up for a “straight aggravated range sentence.”

Id. at 19.

      Appellant argues further that before a deadly weapon enhancement can

be applied, the sentencing judge must first determine whether a defendant

possessed the weapon during the commission of the offense.               See

Commonwealth v. Greene, 702 A.2d 547 (Pa.Super. 1997). That did not

occur here. Finally, Appellant contends that there was no evidence to support

the application of the deadly weapon enhancement because the victim

testified at trial that Appellant was not the male who possessed the gun and

there was no evidence that it was within his immediate control, citing

Commonwealth v. Greene, 702 A.2d 547 (Pa.Super. 1997).


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      In response to Appellant’s claim that it applied a deadly weapon

enhancement at resentencing, the trial court stated:         “we did not, as

Defendant asserts, apply a deadly weapon enhancement in fashioning the

sentence. Our record makes no reference to a deadly weapon enhancement.

Rather, we sentenced in the aggravated range based upon appropriate

reasons which we stated on the record.”       Trial Court Opinion, 7/18/13, at

unnumbered 11.

      We see no indication in the record that the trial court applied a deadly

weapon enhancement to the sentence for robbery.          It did not make the

requisite finding that Appellant used a deadly weapon or announce its

intention to apply an enhancement. Moreover, the sentencing court had the

discretion to impose the sentence it did on the robbery count without applying

such an enhancement. Hence, we find no abuse of discretion.

      Second, Appellant directs our attention to Commonwealth v. Mrozik,

213 A.3d 273 (Pa.Super. 2019), reaffirming that a court is obligated to state

its reasons on the record when it imposes an aggravated range sentence. He

alleges that the trial court failed to do so when it imposed an aggravated range

sentence on the robbery count, and that remand is necessary.

      At the resentencing on October 15, 2019, the Commonwealth asked the

court to impose the same aggregate sentence or something “very close to it.”

N.T. Resentencing, 10/15/19, at 12. Appellant’s counsel represented to the

court that his client had no significant disciplinary infractions while


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incarcerated. Furthermore, Appellant completed some course work, but was

ineligible for a core program because his minimum sentence was too high. A

witness addressed the court and explained what a good man Appellant was to

her when her father died, and how he took care of her mother and his mother.

Id. at 10. She also testified that Appellant is a good father to his own children.

Id. at 11. The sentencing court stated that the witness’s pleas caused him to

fashion a more favorable sentence for Appellant.

      The trial court offered the following reasons in Appellant’s presence for

the sentence imposed. The court noted the serious impact of the crime upon

the elderly victim, and pointed out that the victim’s fear of Appellant was

palpable at trial.    Furthermore, the court noted that “the crime was very

deliberate, very planned, very organized,” and expressed fear for what may

have occurred.       Trial Court Opinion, 7/18/13, at 3-4 (unnumbered).       The

specific facts supporting this particular robbery and its effect upon the victim

are appropriate factors upon which to base an aggravated sentence.           See

Commonwealth v Fullin, 892 A.2d 843 (Pa.Super. 2006) (holding an

aggravated range sentence justified where the appellant showed extreme

indifference for the consequences of his actions and because of the extreme

nature of the harm to the victim).

      Having previously concluded that Appellant’s third issue fails to raise a

substantial question, we affirm.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/24/2020




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