J-A35016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

SHAUN D. ROSARIO,

                        Appellant                    No. 933 WDA 2014


          Appeal from the Judgment of Sentence March 20, 2014
           In the Court of Common Pleas of Washington County
 Criminal Division at No(s): CP-63-CR-0001227-2011, CP-63-CR-0001821-
                                   2011


BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED JANUARY 11, 2016

      Appellant, Shaun D. Rosario, appeals from the judgment of sentence

entered on March 20, 2014, at Washington County docket numbers CR-

1227-2011 and CR-1821-2011. We affirm.

      The factual history of this case was set forth by the trial court as

follows:

            On or about May 10, 2011, [Appellant] was arrested and
      charged with various offenses stemming from conduct that
      occurred May 9, 2011 through May 10, 2011.19
           19
               (The numerals following the initials TT refer to the
           official transcript of the jury trial proceedings
           conducted from December 11, 2013, through
           December 12, 2013.) TT 146; 150.

            During trial, the jury heard evidence that Officer Michael
      Parry of the Donora Police Department received a call on the
      morning of May 9, 2011, from Mr. Timothy Durka. Mr. Durka,
J-A35016-15


     supervisor of the Borough of Donora’s street commission,
     informed Officer Parry that someone had broken into the
     borough’s dump truck and stole his hammer. Mr. Durka testified
     that the truck was ransacked. The glove compartment was
     broken out of the dashboard and his articles were scattered
     around the truck.

            Later that morning, Officer Parry received a call that an
     unresponsive male was found in the Borough of Donora in an
     alley. When Officer Parry arrived at the scene, he observed a
     male lying facing down at the edge of a roadway near a gravel
     parking lot. Officer Parry identified the unresponsive individual
     as [Appellant], Shaun Rosario (hereinafter referred to as
     “[Appellant]”).

            At the scene, Officer Parry further observed that
     [Appellant] was holding a hammer with an orange string
     attached to it in his left hand. Mr. Durka arrived at the scene and
     identified the hammer in [Appellant’s] possession as the one
     stolen from his truck. Mr. Durka testified that his hammer had
     an orange string attached to it, which aids him in his line and
     leveling work. The same orange string was identified in the cab
     of Mr. Durka’s truck.

           While   the   paramedics were    treating  [Appellant],
     Officer Parry observed puncture marks on [Appellant’s] arms.
     [Appellant] was transported by paramedics to Mon Valley
     Hospital.20
           20
                TT 26-37; 42-47.

           It was determined at Mon Valley Hospital that [Appellant]
     was suffering the effects of an overdose of an unidentified
     opiate. Stacy Hoffman, a registered nurse at Mon Valley
     Hospital, testified that she was assigned to observe [Appellant]
     while he was a patient. When she first encountered [Appellant]
     he was unconscious. When he regained consciousness,
     [Appellant] expressed his desire to be released from the
     hospital. The treating physician, Dr. Gene Manzetti, M.D.,
     explained to [Appellant] the necessity that [Appellant] remain
     under the care of the hospital. [Appellant] became upset at that
     news and insisted that he had the right to leave. At this
     juncture, Dr. Manzetti informed [Appellant] that there was a
     warrant out for his arrest and when he was discharged from

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     medical care the police would have to be informed regarding the
     warrant.

            Testimony   demonstrated     that  upon    hearing   this
     information [Appellant] became irate and began yelling at
     Dr. Manzetti. However, [Appellant] ultimately decided to stay at
     the hospital overnight. Approximately 1:15 a.m. on May 10,
     2011, [Appellant] became agitated and demanded information
     about his treatment. Ms. Hoffman provided him with the results
     of his toxicology screen. [Appellant] read over the report and
     then queried whether there was anyone in the building with
     weapons. [Appellant] then began to stand up with the aid of
     Ms. Hoffman and nursing assistant Carol May. Nurse Hoffman
     testified that [Appellant] then suddenly pushed past them and
     slammed the door shut, trapping everyone inside. [Appellant]
     expressed that he was not going to go to jail and no one was
     leaving the room until he could go home.

           Security was called to the area. [Appellant] blockaded the
     door with his body and pulled out his IV and catheter. As a
     result, blood began pouring out of the IV and [Appellant] began
     deliberately spraying it all over the room.            Testimony
     demonstrated that [Appellant], who had previously been
     diagnosed with hepatitis C, spilled blood onto Ms. Hoffman.
     [Appellant] then demanded Ms. Hoffman remove the catheter.
     [Appellant] permitted another nurse to retrieve a needleless
     syringe, which was necessary for the removal, and provide it to
     Ms. Hoffman. After the catheter was removed, two security
     guards, Edward Swick and Robert Ashbaugh, arrived and
     attempted to make entry to the room, but [Appellant] continued
     to block the door with his body.

           [Appellant] picked up the syringe and began waiving it
     around and threatening Ms. Hoffman, Ms. May and the security
     guards stating he would stab them. [Appellant] then attempted
     to grab a chair at which time he took some of his weight off of
     the door and security was able to make entry into the room.
     [Appellant] then grabbed Ms. May and put her in front of him to
     block himself from security. He then lifted Ms. May off of the
     ground. While Ms. May was still in his grasp, the security guards
     grabbed [Appellant] and put him onto the bed. He continued
     threatening that he was going to stab everyone and making
     motions to that effect. Testimony demonstrated that he swung
     at the upper body and neck areas of the security guards and

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     nurses numerous times with the syringe. Ms. May was finally
     freed from [Appellant’s] grasp and she and Ms. Hoffman were
     able to exit the room. [Appellant] finally was subdued on the
     hospital bed, but not before he suddenly lunged up at the
     security guards and grabbed their shirts and attempted to take
     pens from the front pockets of their shirts.21
          21
               TT 59-72; 79-80; 88-97; 107-114.

           Police and Constable Walter Fronzaglio arrived at the scene
     at about 1:35 a.m. Constable Fronzaglio testified that he knew
     [Appellant] from a prior incident and spoke briefly to make sure
     that he was calm. [Appellant] was discharged, handcuffed,
     shackled and taken out of the hospital in a wheelchair by
     Constable Fronzaglio. As [Appellant] was being taken out of the
     hospital, [Appellant] asked Ms. Hoffman for a pen, but she did
     not oblige.22
          22
               TT 72-75. 115-117; 124-127; 137-138.

           Constable Fronzaglio escorted [Appellant] to his van. The
     Constable testified that his van was modified for transporting
     purposes. Primarily, this modification was due to a prior escape
     that occurred in 2009 by [Appellant]. The van’s middle row of
     seats had been removed and there was a chain attached to the
     seat to secure offenders. However, there was no cage protecting
     the Constable from the prisoners being transported. [Appellant]
     was placed in the back passenger side of the van and his leg
     shackles were secured to the frame of the seat by the chain.

           During the transport of [Appellant] to the Washington
     County Correctional Facility, the Constable offered to stop and
     get [Appellant] a hamburger and coffee which [Appellant]
     acknowledged, “I appreciate that Wal.” However, soon after that
     conversation, [Appellant] attacked Constable Fronzaglio.
     [Appellant] began screaming “I want out of this fucking van. I’m
     getting the fuck out of here. I want to be free.” Constable
     Fronzaglio testified that [Appellant] then jumped on him while he
     was driving and reached for his gun on his right hip. Constable
     Fronzaglio was carrying a .40 caliber pistol in a leather snap
     holster. In response, Constable Fronzaglio let go of the steering
     wheel and grabbed [Appellant’s] hand that was on his gun.
     Constable Fronzaglio also grabbed [Appellant’s] head and tried


                                   -4-
J-A35016-15


     to pull him away from his person. During the struggle the van
     veered off the road and flipped over.23
           23
                TT 142-151; 217-220.

           The van landed upside down on an embankment.
     Constable Fronzaglio testified he could not see anything and was
     disoriented. He believed he was lying on the roof of the van and
     was still struggling with [Appellant]. [Appellant] then tried to
     crawl out of the van. Constable Fronzaglio began punching him
     in the head and yelled for [Appellant] to get back into the van.
     Constable Fronzaglio was able to free himself and crawl out of an
     opening near the passenger side window and exited the van.
     [Appellant] was still trapped in the van.24
           24
                TT 151-152; 220-224.

           Upon noticing Constable Fronzaglio waving his arms on the
     side of the road, a truck driver, Lawrence Prenni, called 9-1-1
     and pulled over to see if he could be of assistance. Constable
     Fronzaglio asked Mr. Prenni to assist him in pulling [Appellant]
     out of the van. As the Constable was pulling [Appellant] from
     the wreckage, [Appellant] stabbed Constable Fronzaglio in the
     calf with a knife. Mr. Prenni grabbed the knife from [Appellant]
     and threw it.      Mr. Prenni subdued [Appellant] until the
     Pennsylvania State Police arrived.25
           25
                TT 152-154; 224-227; 239-246.

            The Pennsylvania State Police arrived at the scene and
     were able to pull [Appellant] from the van. Constable Fronzaglio
     testified that he had articles from other prisoners in his van that
     he holds in safe keeping until offenders retrieve them, as such
     articles are not permitted to go into the jail. He testified he had
     a knife in the van from such an instance. [Appellant] was
     searched at the scene by the Pennsylvania State Police and they
     discovered [Appellant] had one of the Constable’s spare .40
     caliber magazines in his pocket.26
           26
                TT 154-157; 175; 228; 262-264.

          Constable Fronzaglio was taken to the hospital by the
     Donora Police. At Mon Valley Hospital he was treated for a stab


                                    -5-
J-A35016-15


      wound to the right calf and bumps and bruises sustained during
      the crash. [Appellant] was taken into custody.27
            27
                 TT 158-174; 232.

            On May 19, 2011, [Appellant] was transported to
      Magistrate Judge Thompson’s office by Pennsylvania State Police
      Trooper    Ryan      Deems    and    Trooper    Douglas     Rush.
      Trooper Deems stated to [Appellant] that he did not want to
      have any problems on the return trip to the Washington County
      Correctional Facility. In response, [Appellant] stated, “If I was
      locked up like this in the first place, none of this would have
      happened,”28 referring to the manner in which he was secured in
      the State Police vehicle.
            28
                 TT 282-284; 298-299.

Trial Court Opinion, 1/2/15, at 8-13.

      On December 12, 2013, the jury found Appellant guilty of aggravated

assault to an enumerated person (attempt to cause serious bodily injury);

aggravated assault to an enumerated person (causing bodily injury);

aggravated assault with a deadly weapon; assault by prisoner; disarming a

law enforcement officer; criminal attempt (escape); six counts of simple

assault; two counts of terroristic threats; two counts of false imprisonment;

and two counts of unlawful restraint.

      Following the preparation and review of a pre-sentence investigation

(“PSI”), the trial court sentenced Appellant as follows:

      At No. 1227 -2011:

      1.   On the charge of Aggravated Assault to Enumerated Person-
           Attempt to Cause Serious Bodily Injury to Constable Walter
           Fronzaglio, A Felony of the 1st Degree, the Court sentenced
           [Appellant] to pay the costs of prosecution; pay restitution
           to Walter Fronzaglio in the amount of $5200; be confined to

                                     -6-
J-A35016-15


          an appropriate state correctional institution for no less than
          seven and one half (7½) years and no more than fifteen
          (15) years. [Appellant] was further ordered to be assessed
          for alcohol and other drug addiction, receive a mental health
          evaluation and complete a course of anger management.

     2.   On the charge of Aggravated Assault to Enumerated Person
          -Causing Bodily Injury to Walter Fronzaglio, a Felony of the
          2nd Degree, the Court imposed no further sentence as the
          Court found that charge merged with the charge of
          Aggravated Assault-Attempt to Cause Serious Bodily Injury.

     3.   On the charge of Aggravated Assault-Causing Bodily Injury
          with a Deadly Weapon, the Court imposed no further
          sentence as that charge merged for sentencing purposes.

     4.   On the charge of Assault by a Prisoner, a Felony of the 2 nd
          Degree, the Court found that count does not merge and
          sentenced [Appellant] to an appropriate State Correctional
          Facility for no less than two (2) years to no more than four
          (4) years to run concurrently to the Aggravated Assault and
          under the same terms and conditions.

     5.   On the charge of Disarming Law Enforcement Officer, with
          respect to Walter Fronzaglio, a Felony of the 3rd Degree, the
          Court sentenced [Appellant] to an appropriate State
          Correctional Institution for no less than one and one half
          (1½) years to no more than three (3) years to run
          consecutively to the Aggravated Assault and under the same
          terms and conditions.

     6.   On the charge of Criminal Attempt-Escape with a Deadly
          Weapon, a Felony of the 3rd Degree, the Court sentenced
          [Appellant] to an appropriate State Correctional Institution
          for no less than two (2) years and no more than four (4)
          years to run consecutively to the Aggravated Assault and
          under the same terms and conditions.

     7.   On the charge of Simple Assault, two counts, with respect to
          Walter Fronzaglio, the Court imposed no further sentence as
          the Court found that charge merged with the Aggravated
          Assault. The Court further ordered that [Appellant] have no
          contact with Walter Fronzaglio.


                                    -7-
J-A35016-15


     At No. 1821-2011:

     8.   On the charge of Terroristic Threats with the Intent to
          Terrorize Another, with respect to Edward Swick, a
          Misdemeanor of the 1st Degree, the Court sentenced
          [Appellant] to pay the costs of prosecution; be confined in
          an appropriate State Correctional Institution for no less than
          one (1) year and no more than two (2) years to run
          consecutively to No. 1227-2011 and under the same terms
          and conditions.

     9.   On the charge of Terroristic Threats with the Intent to
          Terrorize Another, with respect to Robert Ashbaugh, a
          Misdemeanor of the 1st Degree, the Court sentenced
          [Appellant] to an appropriate State Correctional Institution
          for no less than one (1) year[] and no more than two (2)
          years consecutive to Count (1), Terroristic Threats, and
          consecutive to No. 1227-2011, and under the same terms
          and conditions.

     10. On the charge of Simple Assault, with respect to Carole May,
         a Misdemeanor of the 2nd Degree, the Court sentenced
         [Appellant] to an appropriate State Correctional Institution
         for no less than one (1) year to no more than two (2) years
         consecutive to the Terroristic Threats counts and
         consecutive to No. 1227-2011 and under the same terms
         and conditions.

     11. On the charge of Simple Assault, with respect to Stacy
         Hoffman, Misdemeanor of the 2nd Degree, the Court
         sentenced [Appellant] to an appropriate State Correctional
         Institution for no less than one (1) year and no more than
         two (2) years to run consecutively to the sentences above
         and consecutive to No. 1227-2011 and under the same
         terms and conditions.

     12. On the charge of Simple Assault, with respect to Edward
         Swick, a Misdemeanor of the 2nd Degree, the Court
         sentenced [Appellant] to an appropriate State Correctional
         Institution for no less than one (1) year and no more than
         two (2) years to run concurrently to the sentences above
         and under the same terms and conditions.




                                    -8-
J-A35016-15


     13. On the charge of Simple Assault, with respect to Robert
         Ashbaugh, a Misdemeanor of the 2nd Degree, the Court
         sentenced [Appellant] to an appropriate State Correctional
         Institution for no less than one (1) year and no more than
         two (2) years to run concurrently to the sentences above
         and under the same terms and conditions.

     14. On the charge of Unlawful Restraint-Exposing Another to
         Risk of Serious Bodily Injury, with respect to Carole May, a
         Misdemeanor of the 1st Degree, the Court sentenced
         [Appellant] to an appropriate State Correctional Institution
         for no less than one (1) year and no more than two (2)
         years consecutive to the sentences above and under the
         same terms and conditions.

     15. On the charge of Unlawful Restraint-Exposing Another to
         Risk of Serious Bodily Injury, with respect to Stacy Hoffman,
         Misdemeanor of the 1st Degree, the Court sentenced
         [Appellant] to an appropriate State Correctional Institution
         for no less than one (1) year and no more than two (2)
         years consecutive to the sentences above and under the
         same terms and conditions.

     16. On the charge of False Imprisonment, two counts, the Court
         imposed no further sentence as the Court found that charge
         merged for sentencing purposes.

     17. An added condition of [Appellant’s] sentence is that [he]
         have no contact with Edward Swick, Robert Ashbaugh,
         Carole May, Stacy Hoffman or any of their families and that
         he have no contact with Mon Valley Hospital.

          [Appellant’s] total aggregate sentence was seventeen (17)
          years to no more than thirty-four (34) years in an
          appropriate state correctional institution.

Trial Court Opinion, 1/2/15, at 2-6 (internal quotation marks omitted).

     Appellant filed a timely post-sentence motion for reconsideration or

modification of his sentence, which the trial court denied on May 8, 2014.




                                    -9-
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This timely appeal followed.      Both Appellant and the trial court have

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

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

consideration:

      1. Appellant was denied effective assistance of counsel
      guaranteed by the Fifth and Sixth Amendments to the United
      States Constitutions. Multiple counsel over the pendency of the
      proceedings created a systemic failure resulting in ineffective
      assistance of counsel in contradiction of the Constitution and
      Pennsylvania Rules of Professional Conduct.

      2. The Pennsylvania Sentencing Guidelines are unconstitutional
      because specific and detailed findings of fact are not required to
      be made on the record considering, among other factors,
      sentencing factors, mitigation criteria, protection of the public,
      gravity of the offense, and rehabilitative needs of Appellant and
      the ambiguous and unconstitutional sentences should be
      reversed.

      3. The sentences imposed violated the Pennsylvania Sentencing
      Code and the fundamental norm underlying the sentencing
      process because the consecutive sentences were manifestly
      excessive to the crimes, application of the guidelines were
      clearly unreasonable in light of mitigating factors, and an
      individualized sentence was not imposed and, as a result, the
      sentences should be reversed.

      4. A sentence imposed with credit of 444 days for time served
      failed to include all time during which Appellant was detained
      after arrest and therefore violated Appellant’s constitutional right
      to liberty and freedom and, as such, the sentence should be
      reversed.

Appellant’s Brief at 2-3.

      In his first issue, Appellant avers that he was denied the effective

assistance of counsel; however, this issue is not properly before our Court.

In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme

                                     - 10 -
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Court reiterated the holding from Commonwealth v. Grant, 813 A.2d 726

(Pa. 2002), and stated that generally, “claims of ineffective assistance of

counsel are to be deferred to PCRA[1] review; trial courts should not

entertain claims of ineffectiveness upon post-verdict motions; and such

claims should not be reviewed upon direct appeal.”                Holmes, 79 A.3d at

576. The Holmes Court, however, recognized two exceptions to the general

rule whereby claims of ineffective assistance of counsel could be raised on

direct appeal: (1) where the trial court determines that a claim of

ineffectiveness is both meritorious and apparent from the record so that

immediate consideration and relief is warranted; or (2) where the trial court

finds good cause for unitary review, and the defendant makes a knowing

and express waiver of his entitlement to seek PCRA review from his

conviction and sentence, including an express recognition that the waiver

subjects further collateral review to the time and serial petition restrictions

of the PCRA. Id. at 564, 577 (footnote omitted).

       Here,    Appellant    did   not    satisfy   either   of   the   aforementioned

exceptions.     The trial court did not conclude that Appellant’s claim of

ineffectiveness is meritorious and apparent from the record necessitating

immediate consideration, and Appellant has not expressly waived his right to

pursue PCRA review.         Trial Court Opinion, 1/2/15, at 14.         Accordingly, we

____________________________________________


1
    Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.



                                          - 11 -
J-A35016-15


dismiss this claim without prejudice to Appellant’s right to seek collateral

review under the PCRA.

      In Appellant’s second issue, he avers that the Pennsylvania Sentencing

Guidelines are unconstitutional because they do not require findings of fact

concerning mitigating factors, protection of the public, gravity of the offense,

and rehabilitative needs to be made on the record. Appellant’s Brief at 10-

11.   After review of Appellant’s brief on appeal, we conclude that this

challenge to the constitutionality of the Pennsylvania Sentencing Guidelines

is woefully undeveloped.      Appellant presents a bald challenge to the

Pennsylvania Sentencing Guidelines and quotes a portion of 18 U.S.C.

§ 3553 concerning federal sentences.      Appellant’s Brief at 11.    However,

Appellant never develops or supports any argument on this claim of alleged

constitutional dimension, and he fails to state which constitutional provision

was breached. See Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa.

1991) (stating the minimum factors to be presented and briefed by a party

challenging the constitutionality of a statute).   Accordingly, we deem the

issue waived.   See Commonwealth v. Gonzalez, 112 A.3d 1232, 1240

(Pa. Super. 2015) (reiterating that where an appellant’s brief fails to provide

any discussion of a claim with citation to relevant authority or fails to

develop it in any meaningful fashion, that issue is waived).

      In his third issue on appeal, Appellant avers that the sentences

imposed by the trial court violated the Pennsylvania Sentencing Code and


                                     - 12 -
J-A35016-15


the fundamental norms underlying the sentencing process because the

consecutive sentences were manifestly excessive and clearly unreasonable.

This assertion of error presents a challenge to 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. Treadway, 104 A.3d 597, 599

(Pa. Super. 2014). Before this Court may review the merits of a challenge

to the discretionary aspects of a sentence, we must engage in the following

four-pronged analysis:

      [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).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

      We note that Appellant has met the first three parts of the four-prong

test: Appellant timely filed an appeal; Appellant preserved the issues in a

post-sentence motion; and Appellant included a statement pursuant to




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J-A35016-15


Pa.R.A.P. 2119(f) in his brief.2 Thus, we next assess whether Appellant has

raised a substantial question with respect to the issues he raised.

       A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.

2000). This Court will grant the appeal “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.”           Id. at

912–913.

       In his brief, Appellant argues that the consecutive sentences imposed

on his convictions resulted in a manifestly excessive and unreasonable

sentence.      Appellant’s Brief at 11.            We conclude that Appellant has

presented a substantial question. See Dodge, 77 A.3d at 1269 (stating that

claims of a manifestly excessive sentence due to the imposition of

consecutive sentences raises substantial question).

       However, Appellant also complains that the trial court failed to

consider mitigating factors. Appellant’s Brief at 12. “[T]his Court has held

____________________________________________


2
   While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief
at 6, it is deficient because it fails to articulate how his sentence violates a
particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013). However, because the Commonwealth
has not objected to this deficiency, and because appellate review is not
hampered, we decline to find waiver. Id.



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on numerous occasions that a claim of inadequate consideration of

mitigating factors does not raise a substantial question for our review.”

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)

(citation omitted)). Accordingly, we conclude Appellant’s argument that the

trial court failed to give adequate weight to mitigating factors does not

present a substantial question appropriate for our review.3

       Our standard of review in appeals of sentencing is well 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. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

              In determining whether a sentence is manifestly excessive,
       the appellate court must give great weight to the sentencing
       court’s discretion, as he or she is in the best position to measure
       factors such as the nature of the crime, the defendant’s
       character, and the defendant’s display of remorse, defiance, or
       indifference.

Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
____________________________________________


3
   Were we to reach this issue, we would conclude it to be meritless. As
noted above, the trial court had the benefit of a PSI. It is well settled that
where the sentencing court had the benefit of a PSI, this Court can assume
the sentencing court “was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Moury, 992 A.2d at 171 (citations omitted).



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       “Generally, Pennsylvania law ‘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. Any challenge

to the exercise of this discretion ordinarily does not raise a substantial

question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011)

(quoting Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa. Super.

2006)); 42 Pa.C.S. § 9721; see also Commonwealth v. Hoag, 665 A.2d

1212, 1214 (Pa. Super. 1995) (stating appellant is not entitled to “volume

discount” for his crimes by having all sentences run concurrently).

       The trial court sentenced Appellant in the standard range of the

Sentencing Guidelines on each of his eighteen separate criminal convictions.

While the trial court ordered some of Appellant’s sentences to be served

consecutively to one another, the trial court also ordered several of the

sentences to be served concurrently. The trial court addressed Appellant’s

challenge as follows:

              As set forth on the record, the Sentencing Court
       articulated several aggravating circumstances which it felt
       warranted sentencing [Appellant] to consecutive sentences with
       respect to the charges, including the fact that multiple crimes
       and multiple victims were involved.[4] The Trial Court found it
____________________________________________


4
    In the sentencing transcript, the trial court discussed the PSI and
mitigating factors such as Appellant’s drug use and depression. N.T.,
3/20/14, at 58. However, the trial court also noted aggravating factors such
as the existence of five victims, Appellant was on parole when committed
the instant crimes, Appellant blamed others for his actions, and he lacked
remorse. Id. at 58-59.



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     appropriate that [Appellant] receive separate and distinct
     sentences for each criminal activity. Nevertheless, [Appellant]
     was sentenced within the statutory limits. Under the
     circumstances, the Court does not find [Appellant’s] sentence to
     be excessive.

                                  *      *   *

           A review of the sentencing transcript reveals that all
     relevant factors, including [Appellant’s] work, criminal, and
     family history, were considered in arriving upon [Appellant’s]
     sentence. Additionally, the Trial Court considered the sentencing
     guidelines when determining the appropriateness of the
     sentence.

           The Trial Court’s sentence was reasonable and not the
     result of any prejudice, bias or ill-will. Accordingly, the Trial
     Court did not abuse its discretion and [Appellant’s] sentence is
     appropriate.

Trial Court Opinion, 1/2/15, at 23-24.

     We agree with the trial court, and we discern no abuse of discretion in

the sentences imposed individually or in the aggregate.    Moreover, aside

from Appellant’s sweeping claim of excessiveness, he has failed to explain

how the sentences imposed were an abuse of discretion, and we conclude

that Appellant is not entitled to any further “volume discount” for his

multiple offenses.   Hoag, 665 A.2d at 1214.     Based upon the foregoing,

Appellant’s sentence is not excessive or unreasonable in light of the crimes

committed and the sentencing court’s consideration of the individual

circumstances of this case.    Prisk, 13 A.3d at 533; Commonwealth v.

McWilliams, 887 A.2d 784, 787 (Pa. Super. 2005) (holding that standard-

range sentences were not excessive even though they ran consecutively).


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         While Appellant raised a substantial question concerning the sentences

imposed, after review, we conclude that there is no merit to his claim and no

relief is due.    The sentences were not manifestly excessive, and the trial

court did not abuse its discretion.

         Lastly, Appellant argues that the trial court erred in failing to provide

proper credit for time served. Appellant’s argument on this issue consists of

only one sentence: “A sentence imposed with credit of 444 days for time

served failed to include all time during which Appellant was detained after

arrest and therefore violated Appellant’s constitutional right to liberty and

freedom and, as such, the sentence should be reversed.” Appellant’s Brief

at 14.

         Although Appellant provided no argument on this issue, we shall

address this issue because a challenge to the trial court’s failure to award

time-credit implicates the legality of the sentence and cannot be waived.

Commonwealth v. Tout-Puissant, 823 A.2d 186, 188 (Pa. Super. 2003).

Furthermore, issues relating to the legality of a sentence are questions of

law; our standard of review over such questions is de novo, and our scope of

review is plenary. Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.

Super. 2014) (citations and quotation marks omitted).

         Appellant was arrested and incarcerated on May 10, 2011, in the

instant case.     The 601 days between May 10, 2011, and December 31,

2012, were credited to a sentence Appellant was serving for crimes


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committed in Westmoreland County. N.T., 3/20/14, at 40.             The 444 days

between January 1, 2013, and March 20, 2014, the day upon which

Appellant was sentenced in the instant case, were credited toward the

sentence in the case at bar.          Id. at 40, 67.   This Court has held that a

criminal defendant is not entitled to “receive credit against more than one

sentence for the same time served.”            Commonwealth v. Ellsworth, 97

A.3d 1255, 1257 (Pa. Super. 2014) (quoting Commonwealth v. Merigris,

681 A.2d 194, 195 (Pa. Super. 1996)); and see 42 Pa.C.S. § 9760(4).5

Accordingly, we cannot conclude that the trial court failed to award Appellant

proper credit for time served, and we discern no error.

       For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

       Judgment of sentenced affirmed.




____________________________________________


5
    Section 9760(4) provides as follows:

       If the defendant is arrested on one charge and later prosecuted
       on another charge growing out of an act or acts that occurred
       prior to his arrest, credit against the maximum term and any
       minimum term of any sentence resulting from such prosecution
       shall be given for all time spent in custody under the former
       charge that has not been credited against another sentence.



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J-A35016-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2016




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