J-S24045-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT AKERS                               :
                                               :
                       Appellant               :   No. 1787 EDA 2018

         Appeal from the Judgment of Sentence Entered October 7, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000096-2015


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED MAY 21, 2019

       Appellant Robert Akers appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County on October 7, 2015,

following his guilty plea to Burglary, Criminal Trespass, Theft by Unlawful

Taking, and Receiving Stolen Property.1 Upon review, we affirm.

        On February 21, 2014, police responded to a report of a burglary in

progress at the victim’s home in Philadelphia. When they arrived, officers

observed Appellant, who matched the flash description, inside the enclosed

porch of the home in the process of moving items out of a broken window.

The items were holiday gifts belonging to the seventy-year-old victim who was

not at home at the time, as she had been moved to a nursing home

temporarily. N.T. 2/25/15, at 4-5.

____________________________________________


1   18 Pa.C.S.A. §§ 3502; 3503; 3921; 3925, respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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        When police questioned him, Appellant stated he worked for the victim

and had permission to be on the premises. Id. at 5. When officers told him

he was under official investigation, Appellant provided them with an incorrect

date of birth. Id. Without being questioned further, Appellant stated he “had

an addiction to weed,” and committed the burglary to supplement that

addiction. Id. at 6.

        When contacted, the victim indicated Appellant did not have permission

to be in her home and stated his description sounded like the individual who

previously had stolen two hundred dollars from her checking account after she

provided him with her debit card to pay for repairs he had made at her home.

Id.    After viewing a photo array, the victim identified Appellant as the

individual who had done the repair work for her. Id.

        On February 25, 2015, Appellant pled guilty to all charges. The trial

court accepted his plea and deferred sentencing to obtain a Presentence

Investigation Report (PSI) and a Mental Health Evaluation. On October 7,

2015, the trial court sentenced Appellant to an aggregate term of three (3)

years to ten (10) years in prison to be followed by ten (10) years of probation.

        On November 23, 2015, Appellant filed a pro se notice of appeal, and

on December 7, 2015, he filed a pro se petition pursuant to the Post Conviction

Relief Act (PCRA).2 On January 19, 2016, this Court remanded the case for

the trial court to appoint appellate counsel. Counsel was appointed and filed

____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

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a concise statement of the matters complained on appeal on March 1, 2016.

On April 8, 2016, this Court quashed the appeal as untimely filed.

       Appellant filed a counselled PCRA petition on May 10, 2016, and

following an evidentiary hearing on April 23, 2018, the trial court granted

Appellant’s petition and reinstated his appellate rights nunc pro tunc.3 On May

3, 2018, Appellant filed a motion for reconsideration of sentence, and the trial

court denied the same on May 21, 2018.

       Appellant filed a notice of appeal with this Court on June 19, 2018. The

trial court did not order Appellant to file a concise statement of the matters

____________________________________________


3 In a Per Curiam Order filed on July 20, 2018, this Court directed Appellant
to show cause within ten days of that date why his appeal filed on June 19,
2018, should not be quashed as untimely. We stated that according to the
trial court docket, Appellant’s appeal rights had been reinstated on April 23,
2018; however, there was no indication thereon that his post-sentence motion
rights had been reinstated.
       In his response to this Court’s Order to Show Cause, Appellant explained
that at the evidentiary hearing held on April 23, 2018, the trial court had
provided the Commonwealth with an opportunity to appeal the reinstatement
of Appellant’s appellate rights within thirty days and scheduled a status
hearing for May 21, 2018, which interfered with the finality of the
reinstatement and Appellant’s ability to file a notice of appeal within thirty
days. Our review of the hearing transcripts reveals that, indeed, the trial court
indicted it was “reinstating [Appellant’s] rights to file a reconsideration. . .
reinstating his rights so he can take an appeal if he wants to. The
Commonwealth has 30 days to appeal [its] decision. . . .” N.T. 4/23/18, at
44. The trial court did not specify a time by which Appellant was to file an
appeal. Thus, we agree with Appellant that he “can only appeal final orders;
the opportunity for appeal that the [trial court] granted to the Commonwealth
implied that the order reinstating [ ] Appellant’s appellate rights was not final,
as that order could be overturned by an appeal by the Commonwealth.” See
Response to the Court’s Order to Show Cause, 7/30/18, at ¶ 5. Therefore, we
will deem the instant appeal, filed on June 19, 2018, and less than thirty days
after the status hearing, to be timely filed.

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complained of on appeal, and Appellant did not file a concise statement. The

trial court filed an Opinion pursuant to Pa.R.A.P.1925(a) on July 9, 2018.

      In his brief, Appellant presents the following Statement of Questions

Involved:
            Did the trial court abuse its discretion when it sentenced
      [Appellant] to an aggregate sentence of 3-10 years[’]
      incarceration followed by 10 years[’] reporting probation where
      the sentencing court did not follow the dictates of 42 Pa.C.S. §
      9721(b) which requires the court to at least consider the particular
      circumstances of the offense and the character of the defendant?

Brief for Appellant at 3.

      Appellant posits the trial court “unfairly focused on the circumstances of

the crime, failing to take into account mitigating information that was

important to fashioning an individualized sentence.”     Id. at 10.   Appellant

posits the punishment was disproportionate to the crime because he suffered

from a severe controlled substance addiction and was in need of drug

treatment, and the items were recovered immediately and returned to the

victim who was not at home at the time. Id. at 10-11.

      This issue implicates the discretionary aspects of Appellant’s sentence,

and in considering it 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


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          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), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013).

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

appeal, and he included a statement of reasons for allowance of appeal

pursuant to Rule 2119(f) in his appellate brief. Thus, we proceed to consider

whether Appellant has presented a substantial question for our review. In

doing so we are mindful that 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 were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Griffin, 65 A.3d

at 935 (citation and quotation marks omitted).

      In his 2119(f) statement, Appellant argues that he has raised a

substantial question because the sentencing court “imposed a manifestly and

unjustifiably excessive sentence” and “did not consider [Appellant’s] unique

circumstances in any manner or consider his rehabilitative needs relating to

those offenses, but instead focused solely on the seriousness of the offenses


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and the age and circumstances of the victim [when] merely sentence[ing]

[Appellant] to an aggregate of the statutory maximum for each offense.” Brief

for Appellant at 7-8. While Appellant does not overtly assail the consecutive

nature of the sentence, he does so implicitly by challenging the length of his

aggregate sentence. Therefore, he essentially challenges the aggregate term

of incarceration and probation as excessive and claims that the trial court

failed to consider his rehabilitative needs.

      Following our review, we conclude Appellant has forwarded a plausible

argument that his sentence is unreasonable and, therefore, he has advanced

a substantial issue for our review. See Commonwealth v. Caldwell, 117

A.3d 763, 770, appeal denied, 633 Pa. 774, 126 A.3d 1282 (2015) (“challenge

to the imposition of [defendant's] consecutive sentences as unduly excessive,

together with [a] claim that the court failed to consider [ ] rehabilitative needs

upon fashioning its sentence, presents a substantial question.”). As such, we

turn to a consideration of the merits of his claim.   Our 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, 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

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      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)

(internal citations and quotation marks omitted). In addition, Pennsylvania’s

sentencing scheme is “indeterminate, advisory, and guided” in its nature.

Thus, trial courts retain broad discretion to sentence up to and including the

maximum sentence authorized by statute; “the only line that a sentence may

not cross is the statutory maximum sentence.” Commonwealth v. Gordon,

596 Pa. 231, 244-45, 942 A.2d 174, 182 (2007) (citations omitted), cert.

denied, 553 U.S. 1024, 128 S.Ct. 2094 (2008). “Traditionally, the trial court

is afforded broad discretion in sentencing criminal defendants ‘because of the

perception that the trial court is in the best position to determine the proper

penalty for a particular offense based upon an evaluation of the individual

circumstances before it.’ ” Commonwealth v. Mouzon, 571 Pa. 419, 423,

812 A.2d 617, 620 (2002); see also Commowealth v. Melvin, 172 A.3d 14,

21 (Pa.Super. 2017), appeal denied, 187 A.3d 207 (2018) (“To be clear, while

the court must consider the guidelines, the court is also afforded broad

discretion in sentencing matters, as it is in the best position to evaluate the

individual circumstances before it.”).

      Furthermore, the trial court indicated that it had received and

considered a pre-sentence investigation (PSI) report prior to sentencing. See

N.T. 10/7/2015, at 17. This Court recently reiterated:


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             When imposing a sentence, the sentencing court must
      consider the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact on
      victim and community, and rehabilitative needs of the defendant.
                                       ***
           A judge's statement of the reasons for imposing a particular
      sentence must clearly show that he has given individualized
      consideration to the character of the defendant. In addition:
               Where pre-sentence reports exist, we shall continue
           to presume that the sentencing judge was aware of
           relevant    information    regarding     the    defendant's
           character and weighed those considerations along with
           mitigating statutory factors. A presentence report
           constitutes the record and speaks for itself. In order to
           dispel any lingering doubt as to our intention of engaging
           in an effort of legal purification, we state clearly that
           sentencers are under no compulsion to employ
           checklists or any extended or systematic definitions of
           their punishment procedure. Having been fully informed
           by the pre-sentence report, the sentencing court's
           discretion should not be disturbed.
      Accordingly, where the sentencing judge had the benefit of a
      pre-sentence report, it will be presumed that he was aware
      of relevant information regarding appellant's character and
      weighed those considerations along with the mitigating
      statutory factors.

Commonwealth v. Conte, 198 A.3d 1169, 1176-77 (Pa.Super. 2018)

(citations and quotations omitted).

      In light of the foregoing, because the trial court herein had the benefit

of a PSI report and specifically indicated it had considered the same prior to

fashioning it sentence, we presume that it considered the required statutory

factors when fashioning Appellant’s sentence.

      Finally, upon our review of the sentencing transcript, we conclude that

the trial court detailed the reasoning in employed when fashioning Appellant’s

sentence which included a consideration of           Appellant's potential for

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rehabilitation. In response to Appellant’s acknowledgement that he had been

wrong, the trial court remarked that it took “32 arrests, 20 convictions, eight

violations of probation and 13 misconducts in custody for[] –this vision to

come to [him]- this epiphany to come to [him.]” N.T., 10/7/15, at 17.

      The trial court further indicated that it had taken into consideration the

fact that Appellant had pled guilty, the PSI report, the victim’s testimony, and

counsel’s statements regarding the care Appellant provides to family

members. Id. 17-18. The trial court also explained its concern that Appellant

had a history of burglarizing vulnerable individuals and had misled the victim

herein by taking money from her under the false pretenses of making repairs.

Id.   The trial court stated that for these reasons it gave Appellant probation

and imposed its sentence “to protect the public, to rehabilitate, and to prevent

further crime in the community.” Id. at 18-19. The trial court concluded:

      The victim here is a senior. We realize that seniors and children
      must be protected. They are in vulnerable classes, so I take this
      action. The sentence will be 3 to 10 years, plus 10 years
      consecutive probation on the burglary F-1.

Id. at 18.

      When Appellant remarked that at sixty years old he felt he would die in

prison, the trial court informed Appellant of his right to seek to have the court

reconsider his sentence and added:

            I was gracious to you. Do you know why I was gracious to
      you? Because your mother is sick and you’re taking care of her,
      and I balanced it with taking care of this victim, and your—I
      understand people have problems, but you cannot burglarize
      people and take advantage of people.

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Id. at 20.

      As such, we reject Appellant's argument that the trial court failed to

consider rehabilitation when fashioning its sentence.   Finding no abuse of

discretion, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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