J-S46018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 RENWICK EUGENE STOTER, A/K/A            :
 RENWICK STROTER                         :
                                         :   No. 3889 EDA 2017
                   Appellant             :

            Appeal from the Judgment of Sentence July 7, 2017
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0001533-2015


BEFORE:     BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 06, 2018

      Appellant, Renwick Eugene Stoter, also known as Renwick Stroter,

appeals from the judgment of sentence entered on July 7, 2017, in the Chester

County Court of Common Pleas. We affirm.

      The trial court summarized the relevant facts and procedural history of

the case as follows:

            [Appellant] was arrested and charged with theft by unlawful
      taking, receiving stolen property, criminal mischief, recklessly
      endangering another person, fleeing or attempting to elude police,
      criminal trespass and criminal conspiracy to commit theft. On
      March 11, 2015, [Appellant, and co-defendants, Robert McNamara
      and Anne Bottorf,] removed $15,801.30 worth of tires from
      vehicles belonging to Fred Beans Ford, West Goshen, Chester
      County, Pennsylvania.

            On January 23, 2017, [Appellant] entered an open guilty
      plea to one count of theft by unlawful taking and one count of
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        conspiracy to commit theft.[1] On July 7, 2017, [Appellant] was
        sentenced to an aggregate sentence of 36 months to 72 months
        incarceration,[2] given credit for time served from August 26, 2016
        to February 17, 2017 and ordered to pay restitution in the amount
        of $572.35, joint and several with the two co-defendants.
        [Appellant] was deemed eligible for RRRI after serving 27 months.

              On July 14, 2017, [Appellant] filed a Motion for
        Reconsideration and Reduction of Sentence. Following a hearing
        on October 31, 2017, [Appellant’s] motion was denied. [Appellant]
        timely filed the instant appeal on November 15, 2017.

Trial Court Opinion, 1/12/18, at 1-2. Both the trial court and Appellant have

complied with Pa.R.A.P. 1925.

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

consideration:

        1. Whether the trial court’s sentence was excessive, given the
        Sentencing Guideline ranges and the Appellant’s cooperation with
        the prosecution?

        2. Did the sentencing court abuse its discretion by failing to
        adequately state, on the record, the reason for the lack of a large
        disparity between the sentences imposed upon the cooperating
        Appellant and the non-cooperating co-defendant, Robert
        McNamara, who pled guilty to the same offenses, plus an
        additional offense, and had a somewhat more serious criminal
        history?


____________________________________________


1   18 Pa.C.S. §§ 3921(a) and 903(c), respectively.

2The trial court sentenced Appellant to a term of eighteen to thirty-six months
of incarceration for theft by unlawful taking and a consecutive sentence of
eighteen to thirty-six months of incarceration for conspiracy. N.T., 7/7/17, at
21. Both crimes were graded as felonies of the third degree with offense
gravity scores of five. Guilty Plea Colloquy, 1/23/17, at 1; 204 Pa.Code §
303.16. Additionally, Appellant had a prior record score of five. N.T., 7/7/17,
at 5. Accordingly, each of Appellant’s sentences was within the standard
range of the Sentencing Guidelines. 204 Pa.Code § 303.16.

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Appellant’s Brief at 7.

      Appellant’s issues present challenges to the discretionary aspects of his

sentence. It is well settled that when an appellant challenges the discretionary

aspects of his sentence there is no automatic appeal; rather, the appeal will

be considered a petition for allowance of appeal. Commonwealth v. W.H.M.,

932 A.2d 155, 162 (Pa. Super. 2007). Furthermore, as this Court noted in

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

      An appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction by satisfying a four-part test:

            [W]e conduct a four-part analysis to determine: (1)
            whether [the] 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 [the] 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.A. §9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)).

      Appellant has satisfied the first and third elements of the four-part test

from Moury.      Appellant filed a timely notice of appeal and provided a

statement of reasons for allowance of appeal from the discretionary aspects

of his sentence pursuant to Pa.R.A.P. 2119(f) in his brief.      However, with

respect to the second prong, we are constrained to point out that Appellant

preserved only his first issue on appeal concerning the trial court’s alleged


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failure to consider Appellant’s cooperation with law enforcement after his

arrest. Appellant did not raise the disparity between his sentence and co-

defendant Robert McNamara’s sentence in his post-sentence motion or at

sentencing. Accordingly, Appellant’s second issue is waived.        Moury, 992

A.2d at 170; Pa.R.Crim.P. 720.

      Next, we must determine if Appellant has raised a substantial question

for our review. Moury, 992 A.2d at 170.

            A substantial question requires a demonstration that “the
      sentence violates either a specific provision of the sentencing
      scheme set forth in the Sentencing Code or a particular
      fundamental norm underlying the sentencing process.”
      Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
      2005). This Court’s 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. Whether a substantial question has been raised is
      determined on a case-by-case basis; the fact that a sentence is
      within the statutory limits does not mean a substantial question
      cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
      (Pa. Super. 2003). However, a bald assertion that a sentence is
      excessive does not by itself raise a substantial question justifying
      this Court’s review of the merits of the underlying claim. Id.

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).

      In his Pa.R.A.P. 2119(f) statement, Appellant avers that his sentence

was unduly harsh, and the trial court failed to consider Appellant’s cooperation

with the authorities and his remorse. Appellant’s Brief at 11. While not artfully

drafted, we conclude that Appellant has raised a substantial question. See

Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa. Super. 2013) (a claim




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that a sentence is excessive, in conjunction with an assertion that the trial

court did not consider mitigating factors, raises a substantial question).3

       It should be noted that “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.” Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is

not merely an error in judgment; rather, an appellant must establish that the

trial court ignored or misapplied the law, exercised its judgment for reasons

of partiality, prejudice, bias, or ill will, or reached a manifestly unreasonable

decision. Id.

       The trial court addressed this issue as follows:

              [Appellant] first argues that the sentence imposed by the
       Court was excessive in light of his cooperation with law
       enforcement and the sentencing guidelines. [Appellant] pled
       guilty to one count of theft by unlawful taking and one count of
       criminal conspiracy to commit theft. A presentence investigation
       report (PSI) was ordered by the Court to assist the court in
       rendering a sentence. [Appellant] did not appear for the PSI
       interview, despite phone calls from Chester County Adult
       Probation to arrange an interview.

             The PSI revealed [Appellant] has multiple convictions from
       three different states as well as a federal conviction. These
       convictions date back to 1988 and include convictions for theft by
       deception, passing bad checks, fraud (checks), unauthorized use
       of a credit card, false reports, attempted forgery, identity theft
       and federal charge of credit card fraud. [Appellant] was also
____________________________________________


3 This Court has provided less than clear guidance as to what constitutes a
substantial question relative to claims of an excessive sentence and the
consideration that the sentencing courts give to mitigating factors. See
Dodge, 77 A.3d at 1272 n.8.

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     convicted of possession of a controlled substance and possession
     with intent to deliver a controlled substance. [Appellant] served
     periods of incarceration ranging from one month to three years,
     as well as being subject to periods of probation. [Appellant]
     absconded from supervision in 1988, 1994 and 1997. [Appellant]
     was on supervision when he committed the offenses in Chester
     County and while on bail for these offenses, failed to report to the
     Chester County Department of Pretrial Services on five separate
     occasions between March 2016 and April 2017.

           While on bail in Chester County, [Appellant] committed
     another crime in Bucks County. [Appellant] pleaded guilty to
     criminal solicitation-identity theft (3rd degree felony) on February
     17, 2017. While incarcerated in Bucks County, [Appellant]
     provided information to the FBI leading to the arrest of a suspect
     in a bank robbery. (N.T. 7/7/2017, 6). Based upon this
     information, the deputy district attorney agreed to lift the Chester
     County detainer to allow [Appellant] to be released from Bucks
     County Prison in order to assist law enforcement with obtaining
     information regarding other crimes. (N.T. 7/7/2017, 6). On
     February 13, 2017, [Appellant] was released in order to cooperate
     with law enforcement. Once released from prison, [Appellant]
     failed to provide any additional information about any other
     crimes. (N.T. 7/7/20[1]7, 7). [Appellant] would not return the FBI
     agent’s calls and would only contact the FBI on the agent’s desk
     phone in the middle of the night when he knew the agent was not
     there. (N.T. 7/7/2017, 7). [Appellant] was involved with one
     controlled buy for the Bensalem Police Department, but did not
     provide any other information to law enforcement. (N.T.
     7/7/2017, 6-7).

            During the hearing on post-sentence motions on October
     31, 2017, Detective Jeff McGee, a Plymouth Township police
     detective who was working with the FBI violent crimes task force
     and has known [Appellant] since 2001, testified that he eventually
     contacted the deputy district attorney on the instant matter and
     informed her he could no longer work with [Appellant] because he
     was untrustworthy. [Appellant] attempted to make a deal with law
     enforcement while he was in Bucks County Prison before providing
     the information regarding the robbery. While Detective McGee
     attempted to arrange a meeting with [Appellant], he never met
     with [Appellant] because [Appellant] was unavailable for various
     reasons, including health problems.1 Although [Appellant]
     testified he called Detective McGee five times during business

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     hours to arrange a meeting and Detective McGee identified the
     number called as being desk phone number, [Appellant] never
     met with Detective McGee.

          1 It was noted during sentencing that [Appellant] sent
          correspondence to the Court seeking to be released
          from prison in order to have a biopsy for prostate
          cancer, which according to [Appellant] was an urgent
          matter. (N.T. 7/7[/]2017, 24). [Appellant] had the
          biopsy done, but did not have surgery. (N.T.
          7/7/2017, 24-25).

           Contrary to [Appellant’s] argument, [Appellant’s] sentence
     was not excessive given the extent of [Appellant’s] actual
     cooperation with law enforcement. [Appellant] did not provide any
     additional information to law enforcement once he was released
     from Bucks County Prison. [Appellant] attempted to use one law
     enforcement group against another in order to further his own
     agenda. (N.T. 7/7/2[0]17, 6-7). [Appellant] was free on bail for
     five months prior to being sentenced, when he would have
     otherwise been incarcerated pending sentencing on the charges in
     Chester County. This was a consideration of the Court when
     fashioning [Appellant’s] sentence.

            [Appellant’s] lack of actual cooperation with law
     enforcement was not the only factor considered by the Court in
     rendering a sentence. [Appellant’s] prior lengthy criminal history
     as well as commission of a new crime while on bail and the serious
     nature of the crimes committed contributed to the formulation of
     [Appellant’s] sentence. [Appellant’s] testimony during the post
     sentence hearing, that he attempted to contact Detective McGee
     five times during business hours in order to set up a time for an
     interview, does not change the reality that [Appellant] never met
     with Detective McGee and failed to provide any additional
     information to law enforcement after he was released from Bucks
     County Prison.

           [Appellant] received a sentence within the standard range
     of the sentencing guidelines. Given [Appellant’s] prior record
     score of 5, the standard sentencing range for theft by unlawful
     taking is 12 to 18 months [of] incarceration; the standard
     sentencing range for criminal conspiracy to commit theft is also
     12 to 18 months [of] incarceration. The maximum sentence on
     each of these crimes is 7 years imprisonment. [Appellant] was

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       given a sentence in the higher range of the guidelines due to his
       lengthy criminal history, the serious nature of the crimes
       committed and the fact that he committed another crime while
       released on bail, thereby violating the terms of his bail.
       [Appellant] was not given a sentence in the aggravated range due
       to the information he provided to law enforcement while he was
       in Bucks County Prison.

             The reasons for the sentence are fully set forth by the Court
       in the transcript of the sentencing on July 7, 2017. We hereby
       incorporate the transcript as the Opinion of the Court for the
       purposes of the appeal on this issue.

Trial Court Opinion, 1/12/18, at 3-6.

       As noted, the trial court had the benefit of a pre-sentence investigation

report (“PSI”), which gives rise to a presumption that the trial court properly

considered and weighed all relevant factors.         See Commonwealth v.

Finnecy, 135 A.3d 1028, 1038 (Pa. Super. 2016) (“[W]here the sentencing

judge had the benefit of a [PSI] report, it will be presumed that he or she was

aware of the relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”).

Moreover, the trial court was aware of Appellant’s assistance of law

enforcement and his cessation in assisting law enforcement. N.T., 7/7/17, at

6-7.   The trial court stated that it considered Appellant’s recidivism and

repeated failures to avail himself of the opportunities to rehabilitate. Id. at

20-21.   For these reasons, we conclude that the trial court considered all

relevant factors, and that his sentence was not excessive in light of those

factors, when imposing Appellant’s standard-range sentences. Accordingly,




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Appellant is entitled to no relief, and we affirm Appellant’s judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/18




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