J-S48034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GARY L. HOLLOW, JR.,

                            Appellant                 No. 2107 MDA 2016


           Appeal from the Judgment of Sentence November 7, 2016
              in the Court of Common Pleas of Lancaster County
              Criminal Division at No.: CP-36-CR-0001688-2016

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 26, 2017

        Appellant, Gary L. Hollow, Jr., appeals from the judgment of sentence

entered on November 7, 2016, following his open guilty plea to five counts

of burglary, five counts of theft by unlawful taking, and five counts of

criminal mischief.1      On appeal, Appellant challenges both the legality and

discretionary aspects of his sentence. For the reasons discussed below, we

affirm the judgment of sentence.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On August 25, 2016,


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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3502(a)(2), 3921(a), and 3304(a)(5), respectively.
J-S48034-17


Appellant entered an open guilty plea to the aforementioned charges. These

arose from Appellant’s January 2016 spate of burglaries, wherein he

damaged and entered five homes, stealing property valued at approximately

$10,000.00. On November 7, 2016, after consideration of the pre-sentence

investigation report (PSI), the trial court sentenced Appellant to an

aggregate term of incarceration of not less than ten nor more than twenty-

three years, to be followed by a consecutive term of probation.

      On November 16, 2016, Appellant filed a motion to modify sentence.

The trial court denied the motion on November 17, 2016.           The instant,

timely appeal followed.      On December 21, 2016, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).      On January 9, 2017, Appellant filed a timely Rule

1925(b) statement. See id. On February 27, 2017, the trial court issued an

opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      I.    Was the [t]rial [c]ourt’s sentence of [not less than ten nor
            more than twenty-three] years of incarceration manifestly
            excessive under the circumstances and an abuse of the
            [c]ourt’s discretion?

      II.   Did the [t]rial [c]ourt err as a matter of law by failing to
            merge predicate criminal mischief offenses with burglary
            offenses during imposition of sentence?

(Appellant’s Brief, at 6).




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       In his first issue, Appellant challenges the discretionary aspects of his

sentence.2     Specifically, he maintains that the trial court’s sentence was

“manifestly excessive . . . [and] unduly harsh” because it was imposed

consecutively,     and    the    court   did   not    properly   consider   mitigating

circumstances and Appellant’s rehabilitative needs. (Appellant’s Brief, at 12;

see id. at 11-13, 16-18). We disagree.

       The right to appeal the discretionary aspects of a sentence is not

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004), appeal denied, 860 A.2d 122 (Pa. 2004).                   When an appellant

challenges the discretionary aspects of the sentence imposed, he must

present “a substantial question as to the appropriateness of the sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).      An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the     fundamental        norms    underlying    the   sentencing     scheme.”3

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted); see
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2
  We note that Appellant preserved his discretionary aspects of sentence
claim by filing a timely post-sentence motion for reconsideration of
sentence. See Commonwealth v. McAfee, infra at 275.
3
 Here, Appellant has included a Rule 2119(f) statement in his brief. (See
Appellant’s Brief, at 11-13).



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Pa.R.A.P. 2119(f).    If an appellant’s Rule 2119(f) statement meets these

prerequisites, we have found that a substantial question exists.          See

Commonwealth v. Goggins, 748 A.2d 721, 727-28 (Pa. Super. 2000) (en

banc), appeal denied, 759 A.2d 920 (Pa. 2000). “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (emphases in original).

     Here, Appellant claims that his sentence was harsh and excessive

because of its consecutive nature and, further, that the trial court failed to

consider the mitigating circumstances and his rehabilitative needs.      These

contentions   raise   a   substantial   question.   See   Commonwealth      v.

Johnson-Daniels, --- A.3d ---, 2017 WL 2855091, at *9 (Pa. Super. filed

July 5, 2017).

     Our standard of review is settled.

             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.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).




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     In the instant matter, the record demonstrates that the trial court had

the benefit of a pre-sentence investigation report (PSI).         (See N.T.

Sentencing, 11/07/16, at 7). We have stated that:

            [w]hen imposing a sentence, a court is required to
     consider the particular circumstances of the offense and the
     character of the defendant. . . . 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. Further, where a sentence is within
     the standard range of the guidelines, Pennsylvania law views the
     sentence as appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(quotation marks and citations omitted). Here, the sentencing court stated

that it had reviewed the PSI, the sentencing guidelines, the character and

remarks of Appellant, counsels’ arguments, and the information in the victim

impact statements. (See id. at 7-8). It then imposed a sentence wherein

each individual sentence was in the standard range.         (See id. at 8).

Moreover, we have long stated that “. . . 42 Pa.C.S.[A.] section 9721 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.”    Johnson-Daniels, supra at *10 (citations

omitted).   Thus, Appellant’s challenge to the discretionary aspects of his

sentence lacks merit. See Commonwealth v. Zeigler, 112 A.3d 656, 662

(Pa. Super. 2015) (holding sentence not manifestly unreasonable where




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sentencing court considered PSI, details of crime, and explained reasons for

sentence); see also Moury, supra at 171.

       In his second issue, Appellant contends that his sentence is illegal

because the trial court sentenced him on both criminal mischief and

burglary, charges that he believes merge for purposes of sentencing. 4 (See

Appellant’s Brief, at 18-21).           Specifically, Appellant states “[c]riminal

mischief may serve as a predicate offense constituting the basis for a

burglary. . . . [and Appellant] entered the residences with the burglarious

intent to commit the crimes of theft by unlawful taking and criminal mischief

when he broke the basement windows of the residences. . . .” (Id. at 19,

20-21).5 We disagree.


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4
  Appellant raised this claim for the first time in his Rule 1925(b) statement.
However, challenges to the legality of sentence are non-waivable and an
appellant may raise it for the first time on appeal. See Commonwealth v.
Dickson, 918 A.2d 95, 99 (Pa. 2007) (“challenges to sentences based upon
their legality” are not subject to waiver).
5
  Appellant fails to point to anything in the certified record to support his
contention that, in the instant matter, criminal mischief served as a
predicate offense to burglary. Rather the record reflects that the thefts by
unlawful taking counts were predicate offenses to burglary and merged for
sentencing. (See N.T. Guilty Plea, 8/25/16, at 2; N.T. Sentencing, at 8).
Further, the record shows that the criminal mischief occurred prior to the
burglaries when Appellant broke windows in order to gain entry into the
residences. (See Information, 8/24/16, at 2-3); see also 18 Pa.C.S.A. §
3502(d) (“A person may not be sentenced both for burglary and for the
offense which it was his intent to commit after the burglarious entry or for
an attempt to commit that offense, unless the additional offense constitutes
a felony of the first or second degree.”) (emphasis added).



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     “Whether Appellant’s convictions merge for sentencing is a question

implicating the legality of Appellant’s sentence.”       Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). We have stated:

     The issue of whether a sentence is illegal is a question of law;
     therefore, our task is to determine whether the trial court erred
     as a matter of law and, in doing so, our scope of review is
     plenary. Additionally, the trial court’s application of a statute is
     a question of law that compels plenary review to determine
     whether the court committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005)

(citations and quotation marks omitted). Section 9765 of the Judicial Code,

which governs the merger of sentences, provides:

     No crimes shall merge for sentencing purposes unless the crimes
     arise from a single criminal act and all of the statutory elements
     of one offense are included in the statutory elements of the
     other offense. Where crimes merge for sentencing purposes, the
     court may sentence the defendant only on the higher graded
     offense.

42 Pa.C.S.A. § 9765. When interpreting Section 9765, our Supreme Court

has directed that the courts apply an elements-based test when determining

questions of merger at the time of sentencing:

     A plain language interpretation of Section 9765 reveals the
     General Assembly’s intent to preclude the courts of this
     Commonwealth from merging sentences for two offenses that
     are based on a single criminal act unless all of the statutory
     elements of one of the offenses are included in the statutory
     elements of the other.

Baldwin, supra at 837 (footnote omitted).     We have explained:

     [T]he threshold question is whether Appellant committed one
     solitary criminal act. The answer to this question does not turn
     on whether there was a break in the chain of criminal activity.

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        Rather, the answer turns on whether the actor commits multiple
        criminal acts beyond that which is necessary to establish the
        bare elements of the additional crime[.]      If so, then the
        defendant has committed more than one criminal act. This focus
        is designed to prevent defendants from receiving a volume
        discount on crime[.]

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (quotation marks omitted).

        As stated above, Appellant complains that his sentence for criminal

mischief merges with his burglary sentence.            To commit burglary, an

individual must: (1) enter a building or occupied structure, (2) with intent

to commit a crime therein.6           See 18 Pa. C.S.A. § 3502(a).   To commit

criminal mischief, a person must intentionally damage property of another.

See 18 Pa.C.S.A. § 3304(a)(5). Each of these statutes contains an element

the other does not. Burglary requires entry into a building or occupied

structure, whereas criminal mischief does not.        Criminal mischief requires
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6
    We note that:

        The common-law concept of burglary encompassed breaking and
        entering the dwelling house of another at night with the intent to
        commit a felony therein. The scope of the offense had been
        enlarged by judicial interpretation and legislation, however, with
        the result that, at least under the most comprehensive of the
        statutes in force at the time the Model Penal Code was drafted,
        the offense could be committed by entry alone, in the daytime
        as well as night, in any building or structure, or vehicle with the
        intent to commit any criminal offense.

MODEL PENAL CODE § 221.1 cmt. 1 (1980). We derive our current burglary
statute from this section of the MPC. Burglary in Pennsylvania prior to the
Crimes Code required a breaking.



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damage to property, which burglary does not.      Since “both crimes require

proof of at least one element that the other does not, then the sentences do

not merge.” Commonwealth v. Johnson, 874 A.2d 66, 70 (Pa. Super.

2005), appeal denied, 899 A.2d 1122 (Pa. 2006). Appellant’s challenge to

the legality of sentence lacks merit.7

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2017


____________________________________________


7
  Moreover, Appellant’s reliance on In the Interest of Golden, 365 A.2d
157, 159 (Pa. Super. 1976) (en banc), is misplaced. Golden does not
address the issue of merger, rather, in Golden, the appellants argued that
the evidence was insufficient to sustain their conviction for burglary because
the summary offense of criminal mischief was not a crime “within the
description of the offense of burglary as defined in the Crimes Code.” Id. at
158. Moreover, in Golden, the criminal mischief was committed after entry
into the building when the appellants drank beer, broke the bottles, and
broke the fronts of vending and cigarette machines to gain entry to the
contents. See id. Further, the appellants expressly admitted that their
purpose in breaking into the building was to find a place to drink the beer
and to get some food. See id. Thus, Golden is both factually and legally
distinct from the instant matter. See id. at 158-59.



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