J-S28032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                     Appellee                :
                                             :
                        v.                   :
                                             :
EMIRE ROSENDARY,                             :
                                             :
                     Appellant               :     No. 1503 WDA 2016

               Appeal from the Judgment of Sentence May 13, 2016
                   in the Court of Common Pleas of Erie County
               Criminal Division, at No(s): CP-25-CR-0000036-2014

BEFORE:        OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED JULY 10, 2017

         Emire Rosendary (Appellant) appeals from the judgment of sentence

imposed after he was found guilty of robbery, conspiracy, possession of

instruments of a crime, and two counts of terroristic threats.1 We affirm.

         Because of the issues raised herein, a full recitation of the factual and

procedural history is not necessary. Pertinent to this appeal, Appellant was

charged with, inter alia, the above-mentioned offenses from an incident that


1
    As set forth by the trial court,

         [t]he jury verdict slips for Counts Three, Four, Five, Six,
         Seven[,] and Eight, indicate “Merged by Court – No Verdict” and
         each verdict slip for these counts was signed by Judge Shad
         Connelly on March 25th, 2015. Furthermore, the verdict slip for
         Count Nine indicates “Judgement of Acquittal” and [was also
         signed by Judge Connelly on March 25th].

Trial Court Opinion, 12/1/2016, at 2.


*Retired Senior Judge assigned to the Superior Court.
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occurred in December 2013.        Specifically, Appellant was found guilty of

robbing a store at gunpoint and threatening the employees inside. Appellant

received an aggregate sentence of six and one half years to 13 years’

incarceration.2

       Appellant timely filed a motion to modify and/or reconsider his

sentence on May 26, 2015.       No hearing was held, and on May 29, 2015

Appellant’s motion was denied. No direct appeal was filed.

       On May 11, 2016, Appellant filed pro se a petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Therein, Appellant

requested the reinstatement of his direct appeal rights nunc pro tunc.

Counsel was appointed, filed an amended petition, and following an

evidentiary hearing, the trial court granted Appellant’s request, directing

that he file a notice of appeal within thirty days, which he did. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Appellant states the following issues for this Court’s

consideration:

    1. Whether the sentencing court committed legal error and abused
       its discretion in failing to afford due consideration and deference
       to the mitigating factors presented and otherwise discernible on
       behalf of the appellant?




2
  Specifically, Appellant was sentenced as follows: Count 1, 36 to 72 months’
incarceration; Count 2, 42 to 84 months’ incarceration, to run consecutive to
count 1; Count 10, three to 24 months’ incarceration, concurrent to count
two; Count 11, six to 24 months’ incarceration, concurrent with count 10;
Count 12, six to 24 months’ incarceration, concurrent to count 10.

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   2. Whether the sentencing court committed legal error and abused
      its discretion in imposing a consecutive sentencing scheme
      without a legally sufficient contemporaneous statement in
      support of that sentencing election?

      Appellant’s questions challenge the discretionary aspects of his

sentence. Accordingly, we bear in mind the following.

      Challenges to the discretionary aspects    of sentencing do not
      entitle an appellant to review as of       right.   An appellant
      challenging the discretionary aspects of   his [or her] sentence
      must invoke this Court’s jurisdiction by   satisfying a four-part
      test:

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

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted).

      Here, Appellant filed timely a post-sentence motion and a notice of

appeal, and included a statement pursuant to Rule 2119(f) in his brief. We

now turn to consider whether Appellant has presented substantial questions

for our review.

      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.     Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007). “A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge’s actions

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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. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation and quotation marks omitted).

      In his 2119(f) statement, Appellant set forth the following issues: “the

sentencing court failed to afford due weight and consideration to mitigating

factors presented by [Appellant.] Moreover, the [sentencing] court failed to

proffer a legally sufficient statement on the record in support of the

imposition of a consecutive sentence.” Appellant’s Brief at 4.

      Upon review, we find Appellant’s first issue, alleging the sentencing

court failed to afford “due weight and consideration of mitigating factors”

does not raise a substantial question. See Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa. Super. 2013) (“[T]his Court has held on numerous

occasions that a claim of inadequate consideration of mitigating factors does

not raise a substantial question for our review.”) (quoting Commonwealth

v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)).                  See also

Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e

have held that a claim that a court did not weigh the factors as an appellant

wishes does not raise a substantial question.”).3


3
   Moreover, the sentencing court had the benefit of a pre-sentence
investigation report (PSI). “Where the sentencing court had the benefit of a
[PSI], we can assume the sentencing court ‘was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Commonwealth v.

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      While the trial court’s failure to consider adequately mitigating factors

does not raise a substantial question for our review, Appellant’s averment

that the sentencing court “failed to proffer a legally sufficient statement on

the record in support of the imposition of a consecutive sentence[,]” does.

See Commonwealth v. Flowers, 149 A.3d 867, 871 (Pa. Super. 2016)

(Noting that an appellant raises “a substantial question for our review by

asserting that the trial court failed to state adequate reasons on the record

for [an a]ppellant’s sentence.”).

      In support of this argument, Appellant avers that the record fails to

show that “the sentencing court afforded due and adequate consideration to

mitigating factors” at the time of sentencing.        Appellant’s Brief at 5.

Appellant further argues that “the recitation of factors in support of the

imposition of consecutive sentences was insufficient” and that the court

erred in failing to provide “a legally sufficient contemporaneous statement in

support of the imposition of consecutive sentences.” Id.

      Prior to imposing Appellant’s sentence, the sentencing court stated the

following:

            [t]he [sentencing court] has considered the Pennsylvania
      Sentencing Code, the [PSI] and the Pennsylvania guidelines on
      sentencing.      The [sentencing court] has considered the
      statements made by [d]efense counsel, [Appellant], and the
      attorney for the Commonwealth.         The [sentencing court]
      considered [Appellant’s] age, his background, his character and
      his rehabilitative needs, the nature, circumstances and the

Griffin, 65 A.3d 932, 937 (Pa. Super. 2013) (quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988)).

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     seriousness of the offense, the protection of the community, the
     impact the offense had upon the victims. The [sentencing court]
     would acknowledge [Appellant’s] young age. The [sentencing
     court] also notes that [Appellant’s] mother and father have
     testified on behalf of [Appellant]

          The fact that [Appellant] has pending charges, which there
     has not been a preliminary hearing yet, will play very little or
     none at all with the [court] in terms of its consideration today.

           This offense, however, was serious. [Appellant] stuck a
     gun in the victims’ faces, ordered them around the store with his
     codefendant and showed little or no regard for their safety or
     wellbeing. And it was pretty obvious, from the video, that the
     victims were scared and rightfully so. And, in fact, as a result of
     this offense, the one victim has noted in her statement that this
     has had a sever[e] impact upon her. And, in fact, two of the
     victims have quit the store because of this incident. And I
     believe the other one has transferred to another position in
     another store. So, this has significantly impacted at least two or
     three people.

           And it was pretty clear, from the video, that [Appellant]
     did not show any concern or regard for his family while he was
     engaged in his desire to take money that didn’t belong to him.

           And the [court] is certainly aware, because the crime is on
     tape, as to what [Appellant] did and how he did it.

            The [sentencing court] also note[s] that [Appellant] has
     shown remorse here today. And I don’t know what happened
     prior to [Appellant’s] trial, but certainly there was no remorse or
     responsibility taken by [Appellant] to the [court] before today.
     I’m not sure, but I hope that [Appellant] sincerely means what
     he has said about the victims and his crime and his actions, but
     I’m not entirely convinced that also wasn’t to diminish his
     sentence with the [court] here today. It will be up to [Appellant]
     to prove, in the future, what kind of person he really is, but for
     today’s purpose, he’s before the [court] as a criminal who has
     committed serious felony offenses and he must face the
     consequences of his decisions, his actions and his words in terms
     of his threats to his victims during his crime.




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           The [sentencing court] having considered all of those
     things will order the following sentence which is of the standard
     range of the Pennsylvania Sentencing Guidelines[.]

N.T., 5/13/2015, at 19-21.

     In this case, prior to sentencing, the court provided a summary of

what it considered when fashioning Appellant’s sentence, which included

statements by Appellant and his family, as well as the PSI. We reiterate that

when a sentencing court has had the opportunity to review a PSI, “we can

assume the sentencing court ‘was aware of relevant information regarding

the defendant’s character and weighed those considerations along with

mitigating statutory factors.’” Griffin, 65 A.3d at 937 (quoting Devers, 546

A.2d at 18). Despite this information, for the reasons given, the sentencing

court found that consecutive standard range sentences were appropriate.

We discern no abuse of discretion in the court’s determination.

     Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to

disturb his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017



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