J-S41012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JOSHUA BRIAN FETTEROLF,

                            Appellant                    No. 45 MDA 2017


           Appeal from the Judgment of Sentence December 5, 2016
                in the Court of Common Pleas of Union County
              Criminal Division at No.: CP-60-MD-0000145-2015


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JULY 27, 2017

        Appellant, Joshua Brian Fetterolf, appeals from the judgment of

sentence imposed following remand to the trial court for re-sentencing on

his conviction of indirect criminal contempt (ICC)1 at Docket No. CP-60-MD-

0000145-2015. We affirm.

        A previous panel of this Court, in a consolidated appeal, set forth the

background of this matter as follows:

              On October 9, 2014, the trial court entered an Order
        pursuant to the Protection from Abuse Act (“PFA”) Act[, 23
        Pa.C.S.A. §§ 6101-6122,] in favor of Delann Fetterolf,
        Appellant’s wife (“Wife”). The Order prohibited Appellant from
        having “any contact with [Wife], either directly or indirectly . . .
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    23 Pa.C.S.A. § 6114(a).
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     .” It also directed that, “[Appellant] shall not contact [Wife] . . .
     by telephone or by any other means, including through third
     persons.”

           On November 21, 2014, the Commonwealth filed an ICC
     complaint against Appellant at CP-60-MD-0000340-2014 alleging
     [eighteen] counts of violating the October 9, 2014 PFA Order.

          On April 27, 2015, the Commonwealth filed a second ICC
     complaint against Appellant at CP-60-MD-0000109-2015 alleging
     two additional violations of the same PFA order.

                                 *    *    *

           Following [a May 8, 2015] hearing, the trial court found
     Appellant guilty of ICC on four counts of the complaint at CP-60-
     MD-0000340-2014[.] . . . On May 13, 2015, the court sentenced
     Appellant to an aggregate term of 12 to 48 months’
     incarceration.

            With respect to the complaint at CP-60-MD-0000109-2015,
     the trial court found Appellant guilty on one count[.] . . . On May
     13, 2015, the court sentenced Appellant to a term of 3 to 6
     months’ incarceration, to be served consecutively with the term
     imposed at 340-2014.

           Appellant timely filed a notice of appeal from each of the
     court’s judgments of sentence. . . .

           Meanwhile, during the pendency of Appellant’s appeals, on
     July 7, 2015, the Commonwealth filed another ICC complaint
     against Appellant at [the instant docket number,] CP-60-MD-
     0000145-2015 alleging two additional violations of the same PFA
     order. The trial court held a hearing on the complaint on July
     20, 2015. Corrections Officer Pamela Klinger testified that on
     May 15, 2015, Appellant asked her if she would give Wife a
     message from him. She reported that she told Appellant, “no,
     that [she] couldn’t, wasn’t able to do that.” She also testified
     that since that time he “would ask occasionally in passing if
     [she] had seen her, heard from her.”

           Wife also testified at this hearing. She testified that she
     received a letter from Appellant dated April 22, 2015, in which


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       Appellant wrote, among other              things,   that   he   had   seen
       Corrections Officer Klinger.

             Following the hearing, the trial court found Appellant guilty
       of both counts of ICC. The court sentenced Appellant to two
       consecutive terms of [three] to [six] months’ incarceration, to be
       served consecutively with the terms imposed at 109-2015 and
       340-2014. . . .

(Commonwealth v. Fetterolf, Nos. 1016 MDA 2015, 1017 MDA 2015,

1645 MDA 2015, unpublished memorandum at *2-3, *5-6 (Pa. Super. filed

May 19, 2016)) (record citations, footnote, and some capitalization omitted).

On appeal, this Court concluded that the evidence was insufficient to sustain

Appellant’s conviction of one of the two counts of ICC at CP-60-MD-

0000145-2015. We affirmed the judgment of sentence in part and vacated

it in part, and remanded CP-60-MD-0000145-2015 for resentencing. (See

id. at *2, *11).

       On December 5, 2016, the trial court held a resentencing hearing and

sentenced Appellant to a term of not less than three nor more than six

months’ incarceration, to be served consecutive to his other sentences.

(See N.T. Resentencing, 12/05/16, at 4). Appellant filed a timely motion to

modify sentence on December 14, 2016, requesting that the court modify

the sentence to run concurrent to his existing sentences.               The trial court

denied the motion on December 16, 2016. This timely appeal followed. 2

____________________________________________


2
   Appellant filed a concise statement of errors complained of on appeal
contemporaneous with his notice of appeal. See Pa.R.A.P. 1925(b). The
trial court did not file an opinion. See Pa.R.A.P. 1925(a).



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       Appellant raises one issue for our review: “Whether the [trial] [c]ourt

abused its discretion and failed in sentencing the Appellant to three to six

months consecutive to CP-60-CR-0000045-1999,[3] CP-60-MD-0000340-

2014, and CP-60-MD-0000109-2015, instead of granting him a concurrent

sentence[?]” (Appellant’s Brief, at 7). Appellant argues that the court “did

not take into account the fact that a concurrent sentence would serve the

requirements of sentencing for deterrents, incapacitation, retribution and

rehabilitation.” (Id. at 12).

       Appellant challenges the discretionary aspects of his sentence. “It is

well settled that a challenge to the discretionary aspects of a sentence is a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.”    Commonwealth v. Williams, 151 A.3d 621, 625 (Pa. Super.

2016) (citation omitted). Before this Court may review the merits of such

claim,

             [w]e 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).

Id. (case citations omitted).

____________________________________________


3
  Information relating to Appellant’s conviction at CP-60-CR-0000045-1999
is not apparent from his brief or the record.



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      Here, Appellant filed a timely appeal, preserved his issue in motion to

modify sentence, and included a generic statement pursuant to Pa.R.A.P.

2119(f) in his brief.      However, we agree with the position taken by the

Commonwealth that Appellant’s Rule 2119(f) statement is deficient, and that

he   failed   to   raise   a   substantial   question   for   our   review.   (See

Commonwealth’s Brief, at 1-4).

                    A substantial question will be found where an
              appellant advances a colorable argument that the
              sentence imposed is either inconsistent with a
              specific provision of the Sentencing Code or is
              contrary to the fundamental norms which underlie
              the sentencing process. At a minimum, the Rule
              2119(f) statement must articulate what particular
              provision of the code is violated, what fundamental
              norms the sentence violates, and the manner in
              which it violates that norm.

                                   *   *     *

                    We have stated that the imposition of
              consecutive rather than concurrent sentences lies
              within the sound discretion of the sentencing court.
              Long standing precedent of this Court recognizes
              that 42 Pa.C.S.A. § 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. A
              challenge to the imposition of consecutive rather
              than concurrent sentences does not present a
              substantial question regarding the discretionary
              aspects of sentence. We see no reason why [a
              defendant] should be afforded a “volume discount”
              for his crimes by having all sentences run
              concurrently.

            However, we have recognized that a sentence can be so
      manifestly excessive in extreme circumstances that it may
      create a substantial question. When determining whether a

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J-S41012-17


       substantial question has been raised, we have focused upon
       whether the decision to sentence consecutively raises the
       aggregate sentence to, what appears upon its face to be, an
       excessive level in light of the criminal conduct in this case.

Commonwealth v. Zirkle, 107 A.3d 127, 132–34 (Pa. Super. 2014),

appeal denied, 117 A.3d 297 (Pa. 2015) (case citations, footnote, and most

quotation marks omitted).

       Here, Appellant’s single-paragraph Rule 2119(f) statement consists of

boilerplate law setting forth the above-mentioned four part test, and fails to

even attempt to “articulate what particular provision of the [sentencing]

code is violated, what fundamental norms the sentence violates, and the

manner in which it violates that norm.” Id. at 132 (citation omitted); (see

also Appellant’s Brief, at 10). Thus, Appellant’s Rule 2119(f) statement fails

to comply with minimum requirements.             See Zirkle, supra at 132.

Furthermore, Appellant’s criminal conduct involved his repeated violation of

the same PFA order and continued threatening behavior towards the victim,

despite the Commonwealth’s earlier ICC complaints. (See N.T. Sentencing,

7/20/15, at 25).      Given the charges and pattern of behavior involved, the

sentence was not so manifestly excessive on its face as to raise a substantial

question. See Zirkle, supra at 134. Because Appellant has not raised a

substantial question, we do not reach the merits of his appeal.4
____________________________________________


4
  Moreover, we note for the sake of completeness that the court emphasized
Appellant’s lack of remorse, his threats toward the victim and the court, his
display of “out-of-control” rage, and its finding that he posed an obvious
threat to society, in directing that the sentence run consecutively. (N.T.
(Footnote Continued Next Page)


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J-S41012-17



      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




                       _______________________
(Footnote Continued)

Sentencing, 7/20/15, at 28; see id. at 23, 25); (N.T. Resentencing,
12/05/16, at 2, 4). Even if we were to address the merits of Appellant’s
claim, we would discern no abuse of discretion. See Zirkle, supra at 132.



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