J-S26001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RECARDO RUSSAW                             :
                                               :
                       Appellant               :   No. 1459 WDA 2018

          Appeal from the Judgment of Sentence Entered June 26, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0012241-2016


BEFORE:      MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                FILED JUNE 17, 2020

        Recardo Russaw (Appellant) appeals from the judgment of sentence

imposed after the trial court found him guilty of burglary of an overnight

accommodation with persons present, robbery, persons not to possess a

firearm, and recklessly endangering another person (REAP).1 We affirm.

        Appellant appeared for a bench trial on April 6, 2018. The trial court

summarized the evidence as follows:

              On the night of April 4, 2015, Beverly Williams [(Williams)]
        was asleep with her two young children (ages 2.5 and 7) at her
        home on Webster Avenue in the Hill District section in the City of
        Pittsburgh. [Appellant] broke in the rear door of the residence,
        entered Williams’ bedroom, turned the light on, and threatened
        her with a gun. During the encounter, Appellant pointed the gun
        at [] Williams, and asked her, “where the guns and weed was at.”

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3502(a)(1)(ii), 3701(a)(1)(i), 6105(a)(1), and 2705.
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      [Appellant] instructed [] Williams not to move, as he rummaged
      through her dresser drawers looking for guns and marijuana.
      Appellant told Williams he would not hurt her or her children, that
      he was looking for “Deli.” “Deli” was the nickname of Trula
      Dobbins [(Dobbins)], Williams’ boyfriend and father of the two
      children; Dobbins was incarcerated in the Allegheny County Jail at
      the time of the incident. Appellant then leaned over top of her
      and began kissing her right ear and telling her she was “cute.”
      Appellant repeatedly asked her why she was in a relationship with
      [Dobbins], and told her to tell [Dobbins] he was “dead.” Appellant
      took her phone and $200, and told Williams to put her face in her
      pillow until she heard the door shut.

            When [Appellant] left the room[,] Williams immediately
      called 911 from her home phone. Police quickly responded, and
      [Appellant] was still in the residence when officers approached the
      front door. The police knocked and announced their presence.
      From behind the door, [Appellant] attempted to disguise his voice
      as female and assure the police that everything was okay. The
      police forced the door, but [Appellant] fled out the rear door and
      escaped.

            Shortly after this incident [Dobbins] was released from the
      Allegheny County Jail and returned to reside in the Hill District.
      On April 21, 2015[, Dobbins] was shot and killed in a Hill District
      Bar. Several witnesses implicated [Appellant] in that shooting and
      [Appellant] was arrested and charged for both incidents[.]

Trial Court Opinion, 8/28/19, at 6-7 (citations omitted).

      The trial court convicted Appellant of the aforementioned crimes

committed on April 4, 2015, and acquitted Appellant of Dobbins’ murder. The

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

investigation (PSI) report.

      On June 26, 2018, the trial court sentenced Appellant to an aggregate

20 to 40 years of incarceration. Appellant filed a timely post-sentence motion,

which the trial court denied on September 24, 2018.         This timely appeal



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followed. Both Appellant and the trial court have complied with Pennsylvania

Rule of Appellate Procedure 1925.

      Appellant presents three issues for review:

      [1.] UNDER PENNSYLVANIA LAW, DOES THE COMMONWEALTH
      PROVE THEIR CASE BEYOND A REASONABLE DOUBT WHEN THEIR
      CASE IS BASED SOLELY ON AN EYEWITNESS WHO PREVIOUSLY
      MISIDENTIFIED ANOTHER SUSPECT, WAS UNSURE OF HER
      IDENTIFICATION DURING ANOTHER PRE-TRIAL IDENTIFICATION
      AND WHOSE FINAL IDENTIFICATION AMOUNTED TO A PURE
      GUESS?

      [2.] UNDER PENNSYLVANIA LAW, DOES A VERDICT BASED
      SOLELY ON AN EYEWITNESS WHO PREVIOUSLY MISIDENTIFIED
      ANOTHER PERSON AND WAS UNSURE OF HER IDENTIFICATION
      DURING ANOTHER PRE-TRIAL IDENTIFICATION SHOCK THE
      CONCSCIENCE AND WARRANT A NEW TRIAL WHEN TRIAL [sic]?

      [3] UNDER PENNSYLVANIA LAW, DID THE TRIAL COURT ABUSE
      ITS DISCRETION BY SENTENCING [APPELLANT] BASED ON
      EVIDENCE AND INFORMATION ALREADY FACTORED INTO THE
      SENTENCING GUIDELINES?

Appellant’s Brief at 13.

      In his first issue, Appellant purports to challenge the sufficiency of the

evidence.   See Appellant’s Brief at 18.   Specifically, Appellant argues that

Williams’ testimony identifying him as the individual who burglarized her home

and robbed her on April 4, 2015 is insufficient to support his convictions where

Williams’ “eyewitness account was so unreliable because it amounted to

nothing more than a guess.”       Id. at 22.   Appellant further asserts that

Williams’ identification was unreliable because she initially identified a

different individual and questioned her selection of Appellant during a

subsequent photo array. Id. at 24-28.

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       Appellant’s challenge goes to the weight, not the sufficiency, of the

evidence. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014)

(“An argument regarding the credibility of a witness’[] testimony goes to the

weight    of    the     evidence,     not   the    sufficiency   of    the       evidence.”);

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(“variances in testimony go to the credibility of the witnesses and not the

sufficiency of the evidence”). Appellant concedes that “any uncertainty in an

eyewitness’s identification of a defendant is a question of the weight of the

evidence,      not    its   sufficiency.”      Appellant’s   Brief    at   19,    see   also

Commonwealth v. Edwards, --- A.3d ----, 2020 WL 702571, *7 (Pa. Super.

Feb. 12, 2020) (citation omitted). Our Supreme Court has confirmed that an

“appellant’s challenge to the sufficiency of the evidence must fail” where an

appellant phrases an issue as a challenge to the sufficiency of the evidence,

but the argument that appellant provides goes to the weight of the evidence.

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999).                             Accordingly,

Appellant sufficiency claim lacks merit.

       In his next claim, Appellant properly challenges the weight of the

evidence supporting his convictions for burglary, robbery, persons not to

possess a firearm, and REAP.2 We have explained:

       When the challenge to the weight of the evidence is predicated on
       the credibility of trial testimony, our review of the trial court’s
____________________________________________


2 Appellant preserved this issue in compliance with Pa.R.Crim.P. 607 by raising
it with the trial court in a post-sentence motion. Appellant’s Post-Sentence
Motion, 7/3/18, at 3-4.

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      decision is extremely limited. Generally, unless the evidence is so
      unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not cognizable
      on appellate review. Moreover, where the trial court has ruled on
      the weight claim below, an appellate court’s role is not to consider
      the underlying question of whether the verdict is against the
      weight of the evidence. Rather, appellate review is limited to
      whether the trial court palpably abused its discretion in ruling on
      the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “[I]t is for the fact-finder to make credibility determinations, and

the finder of fact may believe all, part, or none of a witness’s testimony.” Id.

(citation omitted).   Therefore, “[a]n 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, as the trial judge is in the best positon to view the evidence

presented.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). To allow an appellant “to prevail on a challenge to

the weight of the evidence, the evidence must be so tenuous, vague and

uncertain   that   the     verdict   shocks   the   conscience   of   the   court.”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 2016) (citation

omitted).

      Appellant argues that the trial court’s determination that Williams was

credible “should plainly shock the conscience and warrant a new trial when

considering her prior misidentification and subsequent doubtful identification.”

Appellant’s Brief at 30.


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     The trial court explained its denial of Appellant’s weight claim:

            Appellant alleges [the verdicts were] contrary to the weight
     of the evidence because [Williams] failed to identify Appellant as
     the perpetrator of the crimes immediately following the incident;
     [Williams] identified another suspect as the possible perpetrator
     of the crimes; the investigating officers investigated the crimes
     committed and developed another suspect; the Commonwealth
     failed to produce evidence of positively identifying [Appellant] as
     the perpetrator of the crimes charged; the [t]rial [c]ourt failed to
     consider the factors set forth in Pennsylvania Standard Jury
     Instruction 4.078 Identification - Accuracy in Doubt; and the
     [t]rial [c]ourt failed to consider the factors set forth in
     Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) regarding
     standards pertaining to eyewitness testimony. . . . These claims
     are without merit.

                                *      *     *

            Pursuant to Pennsylvania Standard Jury Instruction 4.07B,
     the factors to be considered when the accuracy of an identification
     is in doubt are: (1) if the witness because of bad position, poor
     lighting, or other reasons did not have a good opportunity to
     observe the criminal; (2) if the witness in his/her testimony is not
     positive as to identity; (3) if the witness’s positive testimony as to
     identity is weakened by qualifications, hedging, or inconsistencies
     in the rest of his/her testimony by his/her not identifying the
     defendant, or identifying someone else, as the criminal at a lineup,
     when shown photographs before trial. See Pa.S.S.J.I. (Criminal)
     §[] 4.07B.

            This particular instruction is dictated by the principles set
     forth in Kloiber, 150 A.2d at 820. A Kloiber charge instructs the
     jury that an eyewitness’ identification should be viewed with
     caution where the eyewitness: (1) did not have an opportunity to
     clearly view the defendant; (2) equivocated on the identification
     of the defendant; or (3) had a problem making an identification in
     the past. Id. . . .

           The [t]rial court was certainly aware of the Kloiber factors
     and their potential applicability here. The [t]rial [c]ourt had the
     opportunity to scrutinize and evaluate the demeanor and
     testimony of [Williams] — her explanation of the misidentification,


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     as well as the level of certainty expressed at trial that [Appellant]
     was the perpetrator of the crimes.

           This [c]ourt considered the Kloiber and SSJI factors and in
     fact noted at the time of the entry of the verdicts:

                  As to the burglary, robbery, persons not to
           possess and REAP, that case hinges on the testimony
           of Ms. Williams[,] there was a protracted identification
           process here from the initial identification,
           misidentification as is the circumstance [sic], did not
           contain a photograph of Appellant and eventually she
           identified him in the photo array process and in open
           court under oath. The [c]ourt finds the trauma and
           dynamics that attach to the crime itself, that there is
           no question about the break-in by the physical
           evidence, there is no question about the items taken
           and a gun, it is not contested. The only thing
           contested is identification. The [c]ourt finds based on
           her demeanor in court, the identification process that
           unfolded in which she positively identified Appellant,
           and under oath . . . in court and 100 percent sure,
           [Appellant] is found guilty of those four charges.

     (T.T. 190-191.)

           The   fact    the    trial  court   found     Williams’ trial
     testimony/identification believable perforce does not indicate an
     abuse of discretion, rather it indicates that the [t]rial [c]ourt
     performed its function, first as the finder of fact, and second as
     the reviewing court at the post-trial motions phase.

Trial Court Opinion, 8/28/19, at 11-15.

      Our review reveals that the trial court did not abuse its discretion in

denying Appellant’s weight claim.      At trial, Williams positively identified

Appellant as the individual who broke into her home and robbed her on April

4, 2015. N.T., 4/6/18, at 78. The trial court also heard Williams’ testimony

that during the first photo array, she identified an individual who was not



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Appellant.    Id. at 85-86.      Williams testified that she misidentified the

perpetrator because she was traumatized from the incident, but remembered

“more and more as the time went along.” Id. at 86. Williams further testified

that in the second photo array, she identified Appellant as the person who

broke into her home. Id. at 91-92.

      While identifying Appellant in the second photo array, Appellant stated

to detectives, “[n]ot for certain. I’m afraid to pick the wrong person.” N.T.,

4/6/18, at 92. Williams testified that she qualified her identification because

she was afraid for the safety of her children and herself. Id. at 94. Williams

further testified that she again identified Appellant in a third photo array. Id.

at 96. On the instruction sheet for the third photo array, Appellant wrote,

“I’m 100 percent sure that this is the person.”          Id. at 96-97.     Williams

emphasized at trial that she was 100% certain Appellant was the person who

broke into her home on April 4, 2015. Id. at 132-33.

      Appellant assails the credibility of Williams’ identification testimony.

However, this Court may not substitute our judgment for that of the factfinder

— whether a jury or the trial court — because it is the province of the factfinder

to assess the credibility of the witnesses. See Commonwealth v. DeJesus,

860 A.2d 102 (Pa. 2004); Commonwealth v. Johnson, 668 A.2d 97, 101

(Pa. 1995) (“an appellate court is barred from substituting its judgment for

that of the finder of fact.”). “When the challenge to the weight of the evidence

is predicated on the credibility of trial testimony, our review of the trial court’s

decision is extremely limited. Generally, unless the evidence is so unreliable

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and/or contradictory as to make any verdict based thereon pure conjecture,

these     types   of   claims   are   not   cognizable    on   appellate   review.”

Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa. Super. 2017), citing

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004).

        Here, the trial court “scrutinize[d] and evaluate[d] the demeanor and

testimony of [Williams] — her explanation of the misidentification, as well as

the level of certainty expressed at trial that [Appellant] was the perpetrator

of the crimes.” Trial Court Opinion, 8/28/19, at 14. We may not substitute

the trial court’s credibility determinations with our own. Johnson, 668 A.2d

at 101. In sum, we discern no abuse of discretion by the trial court in denying

Appellant’s weight claim.

        In his final claim, Appellant challenges the discretionary aspects of his

sentence.     “The right to appellate review of the discretionary aspects of a

sentence is not absolute, and must be considered a petition for permission to

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.

2014).     “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether:

        (1) the appellant preserved the issue either by raising it at the
        time of sentencing or in a post[-]sentence motion; (2) the
        appellant filed a timely notice of appeal; (3) the appellant set forth
        a concise statement of reasons relied upon for the allowance of
        appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
        a substantial question for our review.




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Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted). “A defendant presents a substantial question when he sets forth a

plausible argument that the sentence violates a provision of the sentencing

code or is contrary to the fundamental norms of the sentencing process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations

omitted).

      Appellant has complied with the first three prongs of the test by raising

his discretionary sentencing claim in a timely post-sentence motion, filing a

timely notice of appeal, and including in his brief a Rule 2119(f) concise

statement. See Appellant’s Brief at 31-32. Therefore, we examine whether

Appellant presents a substantial question.

      Appellant argues that the trial court imposed an excessive sentence and

considered an impermissible factor. Appellant’s Brief at 13. Appellant’s claim

raises a substantial question. See Commonwealth v. Allen, 24 A.3d 1058,

1064-65 (Pa. Super. 2011) (“claim that a sentence is excessive because the

trial court relied on an impermissible factor raises a substantial question.”).

Appellant further contends that the court did not adequately consider multiple

mitigating factors. Appellant’s Brief at 31. This claim also raises a substantial

question. See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.

2015) (“This Court has also held that an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.”).


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      Preliminarily, we recognize:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge. The standard employed when reviewing the
      discretionary aspects of sentencing is very narrow. We may
      reverse only if the sentencing court abused its discretion or
      committed an error of law. 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. We must accord
      the sentencing court’s decision great weight because it was in the
      best position to review the defendant’s character, defiance or
      indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (citations

omitted).

      The relevant portion of 42 Pa.C.S.A. § 9721(b) states:

      In selecting from the alternatives set forth in subsection (a), the
      court shall 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 to the impact
      on the life of the victim and on the community, and the
      rehabilitative needs of the defendant. . . . In every case in which
      the court imposes a sentence for a felony or misdemeanor . . . the
      court shall make as a part of the record, and disclose in open court
      at the time of sentencing, a statement of the reason or reasons
      for the sentence imposed.

Id.

      Additionally:

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a presentence investigation report, it will be presumed
      that he or she was aware of the relevant information regarding

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      the defendant’s character and weighed those considerations along
      with mitigating statutory factors.

Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006) (citing

Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)).

      Appellant claims the trial court abused its discretion by considering an

impermissible factor in fashioning his sentence. Appellant’s Brief at 32-35.

Specifically, Appellant argues that the court “considered and factored

Appellant’s criminal history as an aggravating factor when such was already

calculated into the guidelines and impermissible under our jurisprudence and

Sentencing Code.” Id. at 35.

      With regard to impermissible sentencing factors, we have stated:

      A sentence is invalid if the record discloses that the sentencing
      court may have relied in whole or in part upon an impermissible
      consideration.     This is so because the court violates the
      defendant’s right to due process if, in deciding upon the sentence,
      it considers unreliable information, or information affecting the
      court’s impartiality, or information that it is otherwise unfair to
      hold against the defendant.

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)

(citations omitted).   We are only required to vacate the sentence if we

conclude the court relied upon impermissible factors when imposing its

sentence.

      In deciding whether a trial judge considered only permissible
      factors in sentencing a defendant, an appellate court must, of
      necessity, review all of the judge’s comments. Moreover, in
      making this determination it is not necessary that an appellate
      court be convinced that the trial judge in fact relied upon an
      erroneous consideration; it is sufficient to render a sentence



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     invalid if it reasonably appears from the record that the trial court
     relied in whole or in part upon such a factor.

Commonwealth v. Scott, 860 A.2d 1029, 1030 (Pa. Super. 2004) (citation

omitted).

     At sentencing, the trial court stated:

     As to [Appellant], [the court] notes that for purposes of the
     record, in this instance I went through [] the charged offense that
     [Appellant] was previously convicted of robbery, [3701(a)(1)(ii)],
     sentenced to a period of [5] to 10 years [of] incarceration on July
     2nd, 1999 in that regard. [Appellant] also pled guilty at CC 1999
     09932 on April 25, 2000, criminal attempted homicide of a police
     officer, aggravated assault; and sentenced to 6 to 12 years [of]
     incarceration for those offenses. And the [c]ourt notes that those
     are the qualifying offenses uncontested, that makes [Section]
     9714 applicable. Additionally, while not qualifying as a conviction
     under 9714, [Appellant] also pled guilty to three counts of
     aggravated assault as felonies of the second degree, and two
     counts of simple assault on November 15th, 2000. [The court]
     notes that the incident, the criminal attempt homicide of a police
     officer began when [Appellant] brandished a firearm at a youth
     who was evidently setting off firecrackers. The city police arrived,
     a foot chase ensued, and [Appellant] brandished a weapon, a 357
     revolver with both hands in a pointing and shooting stance at the
     police officer at that time. He was also, upon arrest, found with
     two weapons in his possession. On January 26, 2000 [Appellant]
     while incarcerated assaulted a jail [o]fficer, or Sergeant
     Besserman, while Sergeant Besserman was trying to remove
     another prisoner, and a small melee occurred at the jail where
     three officers were injured during the course of that offense. [The
     court] notes [Appellant] is not [RRRI] eligible. Previous attempts
     at community supervision as well as periods of incarceration have
     proved to be of no avail in terms of modifying or changing
     [Appellant’s] conduct. [The court], of course, notes his history of
     violence, history of firearms possession and use, his disregard for
     the law, and his disregard for the safety of police officers and
     regular members of the community. [The court] notes the
     statement of [the grandfather] as to the trauma inflicted on the
     seven year old in the burglary and robbery here; and [the court]
     takes all that into account. [The court] also takes into account
     [Appellant’s] past in terms of his social history detailed in the

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     presentence report, the positive letters submitted on his behalf by
     Mr. Baskin, his statement on his behalf arguing for certain leniency
     or mitigation in terms of the nature of the sentence that I am
     about to impose. [The court] has taken into account the statutory
     obligation, the impact of the crime on the community, the
     particular persons involved, the safety and protection of the
     community, [Appellant’s] rehabilitative needs, and the factors
     articulated in Title 42 that surround my sentencing obligation.
     [The court] believes based on all of that, the following sentence is
     appropriate . . .

N.T., 6/26/18, at 18-22.

     The trial court subsequently opined:

           The trial court did not abuse its discretion when it imposed
     a 20-40 year term of imprisonment. . . . Here, at the time of
     sentencing the trial court set forth on the record that the
     Commonwealth had filed notice of their intention to seek the
     mandatory minimum provisions under 42 Pa.C.S.A. §[] 9714 of
     ten years for each of the crimes of violence (robbery and
     burglary).

           Further, 42 Pa.C.S.A. § 9721(b) specifies that “the sentence
     impose should call for confinement that is consistent with the
     protection of the public, the gravity of the offense as it relates to
     the impact on the life of the victim and on the community, and
     the rehabilitative needs of the defendant.” [Id.]

           At sentencing[,] the trial court noted that it had received
     and reviewed two presentence reports, dated May 29, 2018 and
     June 29, 2018, and that it had considered the applicable
     sentencing guidelines. Specifically, the guidelines at the burglary
     count carried an offense gravity score of nine, with Appellant
     having a prior record score of five, thus giving him a standard
     guideline range of 120 months. As to the robbery count, the trial
     court noted that it carried an offense gravity score of ten, prior
     record score of five, thus giving it a standard range of 120 months
     as well. Additionally, the trial court noted that the firearms count
     carried 60 months in the standard range and the REAP count
     carried twelve months in the standard range.

           Further, the trial court reviewed Appellant’s prior
     convictions for robbery for which he was sentenced to five to ten

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     years’ incarceration on July 22, 1999; and criminal attempt
     homicide of a police officer and aggravated assault for which he
     was sentenced to six to twelve years’ incarceration on April 25,
     2000. The trial court also noted that Appellant had convictions
     beyond those that the Commonwealth used to invoke the
     provisions of 42 Pa.C.S.A. § 9714; three counts of aggravated
     assault and two counts of simple assault on November 15, 2000.
     The trial court noted that the criminal attempt homicide of the
     police officer began when Appellant brandished a firearm at a
     youth who had been setting off firecrackers. When the police
     arrived a foot chase ensued, and Appellant pointed a .357 revolver
     at the police officer. Upon his arrest, Appellant was found in
     possession of two firearms. The trial court noted that, on January
     26, 2000, while incarcerated, Appellant assaulted a corrections
     officer while the officer was attempting to move another prisoner,
     and that three corrections officers were injured during that
     incident.

            The trial court noted that several previous sentences of
     community supervision, as well as periods of incarceration had
     failed to modify or change Appellant’s violent conduct. The trial
     court noted [Appellant’s] profound and unabated history of
     violence and possession of firearms, as well has his disregard for
     the law, the safety of the police and members of the community.
     The trial court also took into account the victim impact
     statements.

           The trial court noted that it had reviewed and considered
     the two letters submitted on behalf of the Appellant, Appellant’s
     social history as outlined in the presentence report, and
     Appellant’s allocution.

           Thus[, the trial court] acknowledged and put into effect all
     sentencing factors articulated in Title 42 § 9721(b) (Sentencing
     generally, General standards) including, the impact of the crime
     on the community, the victims of these crimes, the safety and
     protection of the community; as well as Appellant’s allocution and
     his potential for rehabilitation. As such, the trial court did not
     abuse its discretion when imposing the 20-40 years period of
     incarceration in this matter. See generally Commonwealth v.
     Green, 458 A.2d 951 (Pa. Super. 1983) (trial court has discretion
     whether to impose consecutive sentences for multiple offenses[).]




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Trial Court Opinion, 8/28/19, at 16-19 (citations to notes of testimony,

footnotes, and unnecessary capitalization omitted).

      Upon review, we are not persuaded that the trial court relied upon

Appellant’s prior convictions as an aggravating factor in fashioning his

sentence. Rather, as reproduced above, at the sentencing hearing and in its

opinion, the trial court stated that it reviewed Appellant’s prior convictions to

determine the applicability of 42 Pa.C.S.A. § 9714 (providing mandatory

minimum sentences for repeat violent offenders). See N.T., 6/26/18, at 19;

Trial Court Opinion, 8/28/19, at 17. Thus, we cannot conclude that the court

relied upon an impermissible factor. See Scott, 860 A.2d at 1030.

      Further, “[w]here the sentencing court imposed a standard-range

sentence with the benefit of a pre-sentence report, we will not consider the

sentence excessive.”     Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.

Super. 2011). “In those circumstances, 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.”       Id.

Here, in addition to reading and referencing the PSI report, the trial court

specifically addressed Appellant’s social history, rehabilitative needs, letters

submitted on his behalf, the impact of his crimes on his victims and the

community, his statements prior to sentencing, and the applicability of

Pennsylvania’s statute mandating minimum sentences for repeat violent

offenders.


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      Ultimately, and in its discretion, the trial court determined that

Appellant’s crimes necessitated consecutive sentences for his burglary and

robbery convictions. See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.

Super. 2014) (“We have stated that the imposition of consecutive rather than

concurrent sentences lies within the sound discretion of the sentencing

court.”) (citations omitted).   Thus, the record reflects that the trial court

weighed the appropriate factors and properly fashioned an individualized

sentence.

      For the above reasons, we find no merit to Appellant’s claims of error,

and therefore affirm the trial court.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2020




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