J-S61035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH EARL GIMBER                         :
                                               :
                       Appellant               :   No. 551 EDA 2019

       Appeal from the Judgment of Sentence Entered November 6, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0005442-2017


BEFORE:      BOWES, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 15, 2020

        Appellant Joseph Earl Gimber appeals the judgment of sentence entered

by the Court of Common Pleas of Montgomery County after Appellant pled

guilty to aggravated assault, burglary (threaten to commit bodily injury), and

possession of an instrument of crime (“PIC”).           Appellant challenges the

discretionary aspects of his sentence. We affirm.

        The lower court aptly summarized the factual background and

procedural history of this case as follows:

              On June 4, 2017 at 4:47 a.m., officers were dispatched to a
        residence in Perkiomenville, PA due to a report of a domestic
        incident in progress. The caller, [Appellant’s] ex-wife Angelique
        Gimber, reported to dispatchers that [Appellant] broke into her
        house carrying a baseball bat and had struck her friend over the
        head with the bat.


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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           When officers entered the residence through the front door,
     they encountered shards of glass throughout the first floor of the
     property. A glass sliding door at the rear of the home had been
     shattered. Officers met with Ms. Gimber who was visibly shaken
     and informed police that [Appellant] had just left in a silver truck.
     Ms. Gimber stated that [Appellant] had used a baseball bat to
     smash in the rear glass sliding door to gain access to the home.
     [Appellant] subsequently walked upstairs and encountered Ms.
     Gimber, whom he shoved out of the way. [Appellant] walked over
     to Ms. Gimber’s friend, Brian Gallen, and struck him over the head
     with the baseball bat before leaving the residence.

           During their examination of the second floor of the
     residence, officers observed a large blood stain on the carpet of
     the doorway to the walk-in closet and blood smeared on the side
     wall of the walk-in closet. Officers observed Mr. Gallen had
     suffered a gaping wound to his head which was approximately
     three (3) inches in length and authorities had him transported to
     the hospital for treatment.

            Authorities subsequently searched the surrounding area for
     [Appellant] and the silver truck described by Ms. Gimber. Officers
     eventually found the truck at an abandoned house marked with
     “No Trespassing” signs and located [Appellant] approximately
     three hundred (300) yards away on the wood line. [Appellant]
     refused to obey commands and ran back into the woods. Officers
     utilized a tracking K-9 and a state police helicopter to locate
     [Appellant] in the woods. [Appellant] again refused to listen to
     commands and officers apprehended him following a brief foot
     pursuit.

           On May 9, 2018, [Appellant] entered an open guilty plea to
     the charges referenced above. On November 6, 2018, the court
     imposed a sentence of sixty (60) to one-hundred and twenty
     (120) months of imprisonment with respect to the aggravated
     assault charge, forty-two (42) to eighty-four (84) months of
     imprisonment with respect to the burglary charge and three (3)
     years of probation with respect to the [PIC] charge. The court ran
     these sentences consecutively, resulting in an aggregate sentence
     of one hundred and two (102) to two-hundred and four (204)
     months of imprisonment [eight and one-half (8½) to seventeen
     (17) years] and three (3) years of probation consecutive to the
     expiration of parole on the burglary charge. On November 16,
     2018, [Appellant] filed timely post–sentence motions which the
     court denied on January 22, 2019.

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           On February 14, 2019, [Appellant] filed a timely notice of
      appeal. On February 21, 2019, the court issued an Order directing
      [Appellant] to file a concise statement of matters complained of
      on appeal pursuant to Pa.R.A.P. 1925(b) (the “Concise
      Statement”) within twenty-one (21) days. On February 28,
      201[9], [Appellant] filed a timely Concise Statement.

Trial Court Opinion (“T.C.O.”), 4/12/19, at 1-3.

      Appellant raises one issue for review on appeal:

      Did the Trial Court abuse its discretion in sentencing [Appellant]
      to a total term of not less than eight and one-half (8½) nor more
      than seventeen (17) years of total incarceration on the charges of
      Aggravated Assault and Burglary; where the applicable
      Sentencing Guidelines for said charges set forth Standard Ranges
      of sixty (60) to seventy eight (78) months and thirty (30) to forty
      two (42) months, respectively; and the charges were part of a
      single criminal episode?

1925(b) statement, 2/28/19, at 1.

      The following principles apply to our consideration of Appellant’s

challenge to the discretionary aspects of his sentence:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, 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.A. § 9781(b).

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court’s jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code. The requirement that an
      appellant separately set forth the reasons relied upon for
      allowance of appeal furthers the purpose evident in the

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      Sentencing Code as a whole of limiting any challenges to the trial
      court’s evaluation of the multitude of factors impinging on the
      sentencing decision to exceptional cases.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and emphasis omitted).

      In this case, Appellant has: (1) timely filed a notice of appeal, (2)

preserved the instant issue in a post-sentence motion, and (3) included a Rule

2119(f) statement in his brief. We turn to the next requirement: whether

Appellant raised a substantial question meriting our discretionary review.

      The determination of what constitutes a substantial question must
      be evaluated on a case-by-case basis. 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.

Id. (quotation marks and some citations omitted).

      Appellant’s sentencing claim challenges the trial court’s decision to

impose consecutive sentences.

      A sentencing court's decision to impose consecutive as opposed
      to concurrent sentences generally does not present a substantial
      question. See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
      Super. 2014) (noting that the decision to impose consecutive or
      concurrent sentences lies within the discretion of the trial court).
      However, “the imposition of consecutive, rather than concurrent,
      sentences may raise a substantial question... where the aggregate
      sentence is unduly harsh, considering the nature of the crimes and
      length of imprisonment.” Commonwealth v. Moury, 992 A.2d
      162, 171–172 (Pa. Super. 2010). Accord Commonwealth v.
      Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010) (“[A
      substantial question is presented when] 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 at issue”).


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Commonwealth v. Sarvey, 199 A.3d 436, 455–56 (Pa.Super. 2018).

      [A] defendant may raise a substantial question where he receives
      consecutive sentences within the guideline ranges if the case
      involves circumstances where the application of the guidelines
      would be clearly unreasonable, resulting in an excessive sentence;
      however, a bald claim of excessiveness due to the
      consecutive nature of a sentence will not raise a substantial
      question.

Commonweatlh v. Diehl, 140 A.3d 34, 45 (Pa.Super. 2016) (citation

omitted).

      In his concise statement, Appellant raised a bald claim of excessiveness

based on the consecutive nature of his sentences, claiming that his aggravated

assault and burglary charges were part of a single criminal episode. However,

in his post-sentence motion and appellate brief, Appellant claimed the trial

court failed to consider his rehabilitative needs. A “challenge to the imposition

of consecutive sentences as unduly excessive, together with a claim that the

trial court failed to consider the defendant's rehabilitative needs upon

fashioning its sentence, presents a substantial question.” Commonwealth v.

Bonner, 135 A.3d 592, 604 (Pa. Super. 2016) (quoting Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc)).

      Nevertheless, Appellant is not entitled to any relief on his sentencing

claim. While Appellant challenges his aggregate term of imprisonment of 8½

to 17 years’ imprisonment, he fails to recognize that the trial court imposed

individual standard range sentences for each offense. Further, the trial court

considered a pre-sentence investigation report (PSI) before imposing his

sentence. It is well-established that:

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       where the sentencing court had the benefit of a PSI, we can
       assume the sentencing court was aware of the 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. Radecki, 180 A.3d 441, 471 (Pa.Super. 2018) (quoting

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013)) (internal

brackets omitted).

       Appellant committed two distinct crimes against two different victims.

Appellant broke into his former wife’s home in the middle of the night, invading

the sanctity of her home by smashing her glass sliding door with a baseball

bat.   Thereafter, Appellant violently assaulted his former wife’s friend with a

deadly weapon by hitting him in the head with the bat. Appellant does not

address these distinctions and suggests he is entitled to a volume discount.

       It is well-established that “defendants convicted of multiple offenses are

not    entitled   to   a   ‘volume    discount’   on   their   aggregate   sentence.”

Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.Super. 2018). This Court

has held that “[t]he mere fact that the crimes arose out of the same incident

does not mean that Appellant is entitled to receive concurrent sentences.”

Bonner, 135 A.3d at 605.             Accordingly, we conclude that the trial court

properly exercised its discretion in imposing consecutive sentences.

       For the foregoing reasons, we affirm.

       Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/20




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