J-S34029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHAWN A. STEWART

                            Appellant               No. 1622 MDA 2015


        Appeal from the Judgment of Sentence entered August 3, 2015
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0005521-2014


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JULY 25, 2016

        Appellant, Shawn A. Stewart, appeals from the judgment of sentence

entered on August 3, 2015 in the Court of Common Pleas of Dauphin County

following his convictions of, inter alia, robbery, burglary and criminal

conspiracy.1 Appellant contends the evidence was insufficient to support his

convictions, that his convictions were against the weight of the evidence,

that a Commonwealth witness offered false testimony, that the prosecutor

committed prejudicial misconduct in the Commonwealth’s closing argument,

and that his sentence was excessive. Following careful review, we affirm.

        In its November 20, 2015 opinion, the trial court provided a thorough

factual summary of this case, the accuracy of which is confirmed by our
____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a), 3502(a)(1) and 903(a), respectively.
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review of the record. See Trial Court Opinion (“T.C.O.”), 11/20/15, at 1-8.

We adopt the trial court’s summary as our own and incorporate it herein by

reference as if fully set forth.

      Briefly, in the two years leading up to early January 2014, Appellant

and Sandra Matos (“Sandra”) were engaged in a “friends with benefits”

relationship.     As   of   January    2014,   Sandra   lived   in   a   Middletown,

Pennsylvania townhome with her 13-year old twin sons. In the two months

leading up to January 6, 2014, Sandra’s father, Samuel Matos (“Matos”),

lived with Sandra and her sons after moving to Middletown from Puerto Rico.

      On the morning of Monday, January 6, 2014, Sandra was at work and

her sons were at school when Matos heard a knock on the front door of the

townhome.       He opened the door to find two males and one female who

asked for Sandra.      When Matos explained she was not there, the three

entered the home uninvited.           One intruder put a gun to Matos’ chest,

ordered him to the floor, zip-tied his wrists behind him, and placed an item

over his head.      The other two intruders went upstairs and ransacked

Sandra’s bedroom and Matos’ bedroom before leaving the home with a small

blue suitcase belonging to Matos.

      Matos was able to leave the home and summon assistance from a

neighbor who called the police.         The police, in turn, called Sandra who

returned to the home. In the course of discussions with the police, Sandra

explained that she had fabricated a story—playing to Appellant’s perpetual


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interest in money—telling Appellant she was traveling to Puerto Rico over

the January 3-5 weekend to conduct business for her father and she was

returning to Middletown with $87,000 in a locked bag.

       Following a police investigation, Appellant was arrested and charged

with burglary, robbery, conspiracy and other crimes. Following trial, a jury

found Appellant guilty of all ten counts against him. On August 3, 2015, the

trial court sentenced Appellant to consecutive terms of imprisonment

totaling not less than 28 years nor more than 56 years in a state correctional

institution, plus fines totaling $4,000.2 Each of the sentences fell within the

standard range for the crime committed. T.C.O., 11/20/15, at 8-9.

       Appellant filed post-sentence motions, which the trial court denied.

This timely appeal followed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

       Appellant presents the following five issues for our consideration, the

same five issues raised in his Rule 1925(b) statement of errors complained

of on appeal:
____________________________________________


2
  The aggregate sentence included 8-1/2 to 17 years plus a $1,000 fine for
robbery; 7 to 14 years plus a $1,000 fine for burglary; 6 to 12 years plus a
$500 fine for criminal conspiracy to commit robbery; 4 to 8 years plus a
$500 fine for criminal conspiracy to commit burglary; 1-1/2 to 3 years plus a
$500 fine for criminal conspiracy to commit unlawful restraint; and 1 to 2
years plus a $500 fine for recklessly endangering another person. The trial
court did not impose any further sentence for criminal conspiracy to commit
false imprisonment, simple assault, theft by unlawful taking, or criminal use
of a communication facility. Costs of prosecution were also assessed for all
ten counts. Sentencing Hearing, 8/3/15, at 14-16.



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      A. Whether Appellant’s conviction for “home invasion” crimes,
         including robbery and burglary, must be overturned and
         judgment arrested because the evidence is insufficient to
         demonstrate beyond a reasonable doubt that he was one of
         the three perpetrators of the crimes, particularly because
         the victim repeatedly testified that the Appellant was not the
         male who pointed the gun at him and could not identify him
         as the other male, and the remaining circumstantial
         evidence was too weak to sustain the convictions otherwise?

      B. Whether Appellant’s convictions for “home invasion” crimes,
         including robbery and burglary, were against the weight of
         the evidence and must be vacated and a new trial granted
         because the evidence is insufficient for a reasonable jury to
         conclude beyond a reasonable doubt that he was one of the
         three perpetrators of the crimes, particularly because the
         victim repeatedly testified that the Appellant was not the
         male who pointed the gun at him and could not identify him
         as the other male, and the remaining circumstantial
         evidence was too weak to sustain the convictions otherwise?

      C. Whether the arresting officer wrongly and prejudicially
         testified at trial that the Appellant was observed in one of
         the vehicles near the scene of the “home invasion” at the
         relevant time on surveillance video, which testimony was
         flatly false and contrary to the evidence because, in fact,
         there were no photos showing him in any of the vehicles?

      D. Whether the prosecutor committed prejudicial misconduct
         by arguing in his closing speech to the jury that the
         Appellant “might” have been the male who held the gun to
         the victim’s chest during the home invasion, which
         argument was contrary to the evidence the Commonwealth
         itself adduced at trial, to wit, the victim repeatedly testified
         that the Appellant was not the male who pointed the gun at
         him and could not identify him as the other male?

      E. Whether Appellant’s aggregate judgment of sentence of 28
         to 56 years of incarceration is manifestly excessive and far
         too harsh a punishment because, although the individual
         sentences were in the standard range of the applicable
         guidelines, the sentencing court ran the sentences
         consecutively, thereby focusing solely on the severity of the


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          offenses to the exclusion of mitigating evidence           and
          effectively circumventing the guidelines in the process?

Appellant’s Brief at 8-9.

      In his first issue, Appellant contends the evidence was insufficient to

support his convictions. As this Court has explained:

      The standard we apply in reviewing the sufficiency of evidence is
      whether, viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the factfinder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for that of
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Jones, 954 A.2d 1194, 1196-97 (Pa. Super. 2008)

(citations and brackets omitted).

      The trial court determined Appellant’s sufficiency challenge was limited

to his convictions for robbery and burglary, as well as conspiracy to commit

both of those crimes, based on his phrasing of the issue in his Rule 1925(b)

statement.   In his 1925(b) statement, as in his brief filed with this Court,

Appellant states that his convictions for “home invasion crimes, including


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robbery and burglary” must be overturned for insufficiency of evidence

because the victim testified that Appellant was not the male who pointed the

gun at him, he could not identify Appellant as the second male intruder, and

the “remaining circumstantial evidence was too weak to sustain the

convictions.”     Rule 1925(b) Statement at 1; Appellant’s Brief at 8.     We

believe the trial court appropriately confined its review to the issues

preserved in Appellant’s 1925(b) statement, i.e., whether the evidence was

sufficient to support the home invasion crimes “including robbery and

burglary.”

       The Commonwealth argues Appellant has waived the sufficiency issue

entirely for failure to identify the elements of the crimes Appellant contends

were not proven.3       The Commonwealth relies on a recent decision by this

Court in which we reiterated:


____________________________________________


3
  Pursuant to 18 Pa.C.S.A. § 3701(a), “A person is guilty of robbery if, in the
course of committing a theft, he . . . (ii) threatens another with or
intentionally puts him in fear of immediate serious bodily injury[.]” Further,
pursuant to 18 Pa.C.S.A. § 3502(a)(1), “A person commits the offense of
burglary if, with the intent to commit a crime therein, the person: (1) enters
a building or occupied structure[.]” Finally, “A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he: (1) agrees with such other
person or persons that they or one or more of them will engage in conduct
which constitutes such crime or an attempt or solicitation to commit such
crime; or (2) agrees to aid such other person or persons in the planning or
commission of such crime or of an attempt or solicitation to commit such
crime.” 18 Pa.C.S.A. § 903(a).



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      If an appellant wants to preserve a claim that the evidence was
      insufficient, then the 1925(b) statement needs to specify the
      element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      Where a 1925(b) statement does not specify the allegedly
      unproven elements, the sufficiency issue is waived on appeal.

Commonwealth Brief at 18 (quoting Commonwealth v. Tyack, 128 A.3d

254, 260 (Pa. Super. 2015) (citations and brackets omitted)).        We agree

with the Commonwealth that Appellant’s sufficiency issue does not specify,

in the traditional sense, which element or elements of robbery and burglary

were not established by sufficient evidence.     However, we also recognize

that Appellant has specified that the Commonwealth failed to establish

perhaps the most basic “element” of the crimes of which he was convicted,

i.e., that he was “the person” who perpetrated the crimes. Therefore, we

decline to find Appellant has waived his sufficiency challenge entirely.

      We shall limit our sufficiency review to the crimes of robbery, burglary

and conspiracy, as the trial court has done, and as Appellant has done in his

brief. See Appellant’s Brief at 28-38.

      At the outset, we recognize, as this Court did in Jones, that the

Commonwealth may sustain its burden of proving elements of a crime by

circumstantial evidence and, importantly, that the jury passes upon the

credibility of witnesses and the weight of the evidence produced.          While

Appellant suggests Sandra’s testimony was incredible and should be

completely discounted, that determination was for the jury, which heard

Sandra testify and even admit to lying about things she told Appellant.

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      Appellant argues that Sandra’s story was “crazy” and “bizarre” and

that Sandra is a “major-league liar” who should not be believed. Appellant’s

Brief at 29, 31, 32.    Despite Appellant’s denunciation of Sandra and her

testimony, our review establishes that parts of her testimony were

supported by testimony of other Commonwealth witnesses.            Records from

Sprint revealed that from Friday, January 3, until Monday, January 6, 2014,

Appellant’s phone and Sandra’s phone “communicated with each other 234

times.” Notes of Testimony, 6/9/15, at 134. Further, an expert in the field

of historical cellular record analysis testified he was able to track the location

of Appellant’s cell phone, showing its movement from New York City on the

evening of Sunday, January 5, to Sandra’s Middletown neighborhood on the

morning of Monday, January 6, after the weekend during which Sandra

pitched Appellant her fabricated story of being in possession of a significant

amount of cash. Id. at 96-103.

      Sandra’s testimony revealed that in a conversation on the morning of

January 6, Appellant asked Sandra if her sons were going to school. Id. at

50. She found the question odd because she and Appellant never discussed

her family. Id. During Sandra’s final conversation with Appellant before she

started work at 8 a.m. on January 6, Appellant told Sandra he was “coming

to get that money.”      Id. at 52.    Appellant had been to Sandra’s home

approximately 30 times, and had been on the second floor where her

bedroom was located.      Id. at 66-68.     Again, only her bedroom and the


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bedroom in which Matos was staying were ransacked. Id. at 56-57. As one

of the responding detectives observed, “It looked like whoever had done this

had known where they were looking—where they were going to look and had

found what they were looking for.” Id. at 118.

     Sandra testified that she called Appellant at approximately 10 a.m., as

she was driving from work to her home after being contacted by the police

about the home invasion. She explained that Appellant “was disrespectful.

Angry. Yelling at Me. Cursing at me. . . . And he said to me, ‘Where’s the

fucking bag? I can’t find the bag.’” Id. at 54-55. Sprint records reveal that

the final communication—either call or text—between the two phones took

place at a time consistent with Sandra’s testimony concerning that

conversation. Id. at 134.

     The   Commonwealth      also   presented    surveillance   evidence   from

cameras in Sandra’s neighborhood that showed three vehicles “casing” the

area before the home invasion and then driving in tandem after the invasion.

Id. at 131-32, 137-43. One of the three vehicles was an uncommon light

silver-blue Mercury SUV.    Id. at 137, 141.    Based on Appellant’s frequent

communications from prison with Maritza Melendez, who was identified as

Appellant’s girlfriend, the police drove to her address and observed “the

exact same vehicle in her driveway.” Id. at 142.

     Appellant relies heavily on the testimony of Matos, contending that

he—as the victim of the crime—“repeatedly testified that Appellant was not


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the male who pointed the gun at him” and could not identify him as the

second male intruder. Appellant’s Brief at 28. However, Matos’ testimony

was not as unequivocal as Appellant suggests. When asked if the man who

held the gun to his chest was in the courtroom, Matos replied, “I believe no.”

Id. at 30. However, Matos also testified that he never saw the face of the

other male.    Id. at 20-21.    When asked if he recalled testifying at the

preliminary hearing that Appellant was not one of the people in his home, he

answered, “Well, I didn’t see him. Because one of those men, I didn’t see

their face.” Id. at 34.

      One of the responding detectives, Detective Appleby, testified about

showing Matos a photo lineup, stating:

      [W]e had placed [Appellant’s] photo in with seven other people
      who look similar in nature to him.

      And we’ve done these for years, and we do a lot of them. When
      I set the photo array down for [] Matos to look at, he
      immediately pointed to [Appellant] and said, “Not him.
      Definitely not him.” I’ve never seen anybody do that in my
      entire career as a police officer. He just immediately said, “that
      is not him,” and pointed at his picture—[Appellant’s].

Id. at 127.      Detective Appleby was asked about Matos’ demeanor

throughout the investigation and responded that Matos was “scared to

death.   I don’t think this a situation he’s ever been in before, but he and

Sandra both seemed extremely scared of this situation. Sandra had stated

to us, too, that she had feared retaliation.” Id. at 129.




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       Based on the entire record,4 we conclude the evidence was sufficient

to support Appellant’s convictions of robbery and burglary.        To the extent

Appellant preserved a challenge to his conspiracy convictions, we find the

evidence was sufficient to support those convictions as well.         As the trial

court noted:

       [E]ven if the jury were unable to determine [Appellant’s] precise
       role in the robbery and burglary, evidence supported his
       participation as a conspirator. The Commonwealth’s burden to
       establish that a defendant was part of a joint effort may be
       established by wholly circumstantial evidence.         Further, the
       general rule of law [] pertaining to the culpability of conspirators
       is that each member of the conspiracy is criminally responsible
       for the acts of his co-conspirators committed in the furtherance
       of the conspiracy.

T.C.O., 11/20/15, at 12-13 (quotations and citations omitted).

       Viewing all of the evidence, including circumstantial evidence, in the

light most favorable to the Commonwealth, we find the evidence was

sufficient to support Appellant’s convictions. Appellant’s first issue fails.

       Appellant next contends that the verdict was against the weight of the

evidence. Appellant preserved this issue by raising it in his post-sentence

motion. Post-Sentence Motion, 8/13/15, at 2-3. See R.Crim.P. 607(A) (“A

claim that the verdict was against the weight of the evidence shall be raised

with the trial judge in a motion for a new trial . . . (3) in a post-sentence

motion.”)
____________________________________________


4
 We note that Appellant did not present any testimony or evidence on his
own behalf.



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     Our Supreme Court has instructed:

     A motion for new trial on the grounds that the verdict is contrary
     to the weight of the evidence, concedes that there is sufficient
     evidence to sustain the verdict.             Commonwealth v.
     Whiteman, 336 Pa. Super. 120, 485 A.2d 459 (1984). Thus,
     the trial court is under no obligation to view the evidence in the
     light most favorable to the verdict winner. An allegation that the
     verdict is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Brown, 538
     Pa. 410, 648 A.2d 1177 (1994).

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citation

omitted). Further:

     Appellate review of a weight claim is a review of the exercise of
     discretion, not of the underlying question of whether the verdict
     is against the weight of the evidence. Because the trial judge
     has had the opportunity to hear and see the evidence presented,
     an appellate court will give the gravest consideration to the
     findings and reasons advanced by the trial judge when reviewing
     a trial court’s determination that the verdict is against the weight
     of the evidence. One of the least assailable reasons for granting
     or denying a new trial is the lower court’s conviction that the
     verdict was or was not against the weight of the evidence and
     that a new trial should be granted in the interest of justice.

Id. at 753 (citations omitted).   “It has often been stated that a new trial

should be awarded when the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is imperative so

that right may be given another opportunity to prevail.” Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal quotations and citations

omitted).

     The trial court concluded the evidence supported the jury’s findings

and “demonstrated that [Appellant] schemed to locate the supposed cash,


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forced his way in to the residence, tied up and held [] Matos at gunpoint and

removed a suitcase believed to contain the cash.” T.C.O., 11/20/15, at 14.

As reflected in our discussion of the evidence above, the Commonwealth

introduced ample evidence, including circumstantial evidence, to support

Appellant’s convictions. The jury was free to weigh the evidence as it did

and return a verdict of guilty.     We cannot conclude that the trial court

abused its discretion by rejecting Appellant’s weight of evidence challenge.

Widmer, 744 A.2d at 751-52. Appellant’s second issue fails.

      Appellant   next   argues   that   the   arresting    officer   “wrongly   and

prejudicially testified at trial that the Appellant was observed in one of the

vehicles near the scene of the ‘home invasion.’”           Appellant’s Brief at 45.

Appellant contends that the officer’s testimony was false and misleading

because there were no photographs showing Appellant in any of the

vehicles.

      The testimony in question involved an exchange between Appellant’s

trial counsel and the arresting officer as follows:

      Q. And I asked you about the vehicles. You don’t know who was
      in those vehicles. You never got a shot. You think [another
      suspect] may have been in one of them but –

      A. [Appellant] was in one of them. I don’t know about the other
      guys.

      Q. I’m sorry?

      A. Shawn Stewart was in one of them.

      Q. Do you have a picture of it?

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      A. No.

      Q. Well, the pictures that we saw here don’t show anybody in
      those vehicles. Those windows are all blacked out; correct?

      A. I don’t know if they’re all tinted.

      Q. Well, when you testified you didn’t show us who was in those
      vehicles, correct?

      A. Correct. What I’m saying to you is those three vehicles—in
      my experience as a police officer and detective—were the ones
      that committed the crimes. We charged [Appellant]. I believe
      he was in those vehicles.

      Q. You believe?

      A. I believe, yeah.

      Q. That’s fair.

      A. I believe that was how he got there and how he left.

Notes of Testimony, 6/9/15, at 155-56.

      Appellant argues that the detective’s testimony was “false, misleading

testimony.”    Appellant’s Brief at 45.        We cannot agree.   The detective

testified to his belief based on his experience.      In fact, he used the word

“believe” three times in the course of the exchange.         As the trial court

determined, the detective’s belief that Appellant was in one of the three

vehicles “constituted a credibility determination within the province of the

jury.” T.C.O., 11/20/15, at 14. “The jury was free to accept or reject any

and all facts and conclusions to which [the detective] testified [] in deciding

whether [Appellant] occupied one of the vehicles in the vicinity at the time



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surrounding the robbery.”           Id. at 16.          We likewise reject Appellant’s

contention that the testimony constitutes a Brady5 violation because the

Commonwealth failed at trial to correct the detective’s testimony. The rule

of Brady involves the discovery, after trial, of information known to the

prosecution but unknown to the defense. See United States v. Agurs, 427

U.S. 97, 103 (1976). Among other things, Brady holds “that a conviction

obtained by the knowing use of perjured testimony is fundamentally unfair.”

Id. Because, as stated, the detective testified as to his belief that Appellant

was in one of the vehicles based upon his experience as a police officer and

detective, the testimony could not be considered perjured and the jury was

free to accept or reject the testimony.6 Appellant’s third issue fails for lack

of merit.

        In his fourth issue, Appellant claims prosecutorial misconduct for a

statement     made     by   the    prosecutor      in   the   Commonwealth’s   closing

argument.      In the course of discussing the various crimes at issue, the

prosecutor stated, “So robbery. [Appellant] threatened serious bodily injury

or put in fear of serious bodily injury [] Matos.                  Well, he was an

accomplice, or we don’t know; he might have been the one holding

____________________________________________


5
    Brady v. Maryland, 373 U.S. 83 (1963).
6
  In light of our disposition of this issue, we decline to entertain Appellant’s
suggestion that the “plain error” federal standard be adopted in
Pennsylvania.



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the gun right in [] Matos’ chest.       I mean, that’s the threat of death.”

Excerpted Transcript of Proceedings – Closing Arguments, 6/10/15, at 21-22

(emphasis added).

      The trial court determined that Appellant’s fourth issue was waived for

lack of objection.    T.C.O., 11/20/15, at 16.       We agree.   See, e.g.,

Commonwealth v. Andrulewicz, 911 A.2d 162, 167-68 (Pa. Super. 2006)

(failure to object to statements in prosecutor’s closing argument results in

waiver on appeal).      However, even if not waived, we would dismiss

Appellant’s argument as meritless. As the Commonwealth notes, “Generally,

comments by the district attorney do not constitute reversible error unless

the unavoidable effect of such comments would be to prejudice the jury,

forming in their minds fixed bias and hostility toward the defendant so that

they could not weigh the evidence objectively and render a true verdict.”

Commonwealth Brief at 31 (quoting Commonwealth v. Strong, 563 A.2d

479, 483 (Pa. 1989) (internal quotations, citation and brackets omitted)).

Further, when delivering closing arguments, “the prosecutor is permitted

wide latitude in making argument to the jury.”           Commonwealth v.

Chester, 587 A.2d 1367, 1377 (Pa. 1991).            Because the prosecutor’s

remarks were not likely to prejudice the jury or prevent them from weighing

the evidence objectively, we decline to find that the remarks approach the

level of prosecutorial conduct warranting relief.




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      In his fifth and final issue, Appellant argues that his sentence was

manifestly excessive due to the fact the trial court imposed his sentences

consecutively.   Appellant also contends the trial court “focused exclusively

on the severity of the offenses arising from the home invasion to the total

exclusion of mitigating factors and his rehabilitative       needs, thereby

effectively circumventing the Sentencing Code’s mandate that a sentence be

‘individualized.’” Appellant’s Brief at 54.

      “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa. Super. 2011). As this Court explained in Allen,

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

Id.

      In this case, Appellant filed a timely notice of appeal and preserved

the issue in a motion to modify his sentence.      Appellant’s Post-Sentence

Motion, 8/13/15, at 2. Also, in his brief, Appellant included a Rule 2119(f)

Statement of the Reasons to Allow an Appeal to Challenge the Discretionary

Aspects of [his] Sentence.    See Appellant’s Brief at 21-27. Therefore, we




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must determine whether Appellant has presented a substantial question that

the sentence appealed from is not appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”        Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa. Super. 2011). “An appellant making an excessiveness claim

raises a substantial question when he sufficiently articulates the manner in

which 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. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014)

(internal citations and quotations omitted).

      A court’s exercise of discretion in imposing a sentence concurrently or

consecutively    does   not   ordinarily     raise   a   substantial   question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010),

appeal denied, 14 A.3d 825 (Pa. 2011).          The imposition of consecutive

rather than concurrent sentences will present a substantial question in only

“the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment.”    Commonwealth v. Lamonda, 52 A.3d 365, 372 (Pa.

Super. 2012) (en banc), appeal denied, 75 A.3d 1281 (Pa. 2013).

      Nevertheless, as this Court has explained:

         [A] defendant may raise a substantial question where he
         receives consecutive sentences within the guideline ranges

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         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.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013), appeal

denied, 91 A.3d 161 (Pa. 2014) (emphasis in original). This Court has since

held that an appellant’s “challenge to the imposition of his consecutive

sentences as unduly excessive, together with his claim that the court failed

to consider his rehabilitative needs upon fashioning its sentence, presents a

substantial question.”   Commonwealth v. Caldwell, 117 A.3d 763, 770

(Pa. Super. 2015) (en banc), appeal denied, 126 A.3d 1282 (Pa. 2015). We

likewise find that Appellant’s claim of excessiveness, paired with his claim

the trial court failed to consider mitigating factors and rehabilitative needs,

presents a substantial question. Therefore, we grant the petition for

allowance of appeal and shall consider the merits of Appellant’s claim.

      Appellant asserts that the trial court “looked entirely at the crimes with

which Appellant was convicted and the retributive aspect of the punishment,

and no weight at all was given to his rehabilitative needs and potential for

redemption.” Appellant’s Brief at 56-57. “Nor was the Appellant’s judgment

of sentence in keeping with the protection of the public, the gravity of the

offenses and his rehabilitative needs.” Id. at 57. We cannot agree.

      As the trial court explained, “In properly exercising its discretion to

impose consecutive sentences, the court considered numerous relevant



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factors including the violent crimes upon an elderly man, [Appellant’s] lack

of amenability to rehabilitation and the danger he poses to the community.”

T.C.O., 11/20/15, at 16-17.       The transcript from Appellant’s sentencing

hearing bears this out.

        During the hearing, the Commonwealth provided a synopsis of

Appellant’s extensive criminal history, dating back to 1994, when Appellant

was 17 years old.      Sentencing Hearing, 8/3/15, at 4-6.     Before imposing

sentence, the trial court explained, “For the record, I have reviewed the

presentence report.     I have also reviewed letters from Reverend Assistant

Pastor Anita Braxton of the McLamb Memorial Church of the Living God;

Gloria Stewart, [Appellant’s] mother; Maritza Melendez; Shaisa White. . . .

And finally I have the letter from [Appellant].” Sentencing Hearing, 8/3/15,

at 9.    The court then summarized the evidence, which it characterized as

“overwhelming.” Id. at 9-11. The court next considered Appellant’s record,

stating:

              Let’s take a look at his record. He has a prior record score
        of 5. [On] October 10, 1994, he was charged with aggravated
        assault, criminal conspiracy.      It was reduced to recklessly
        endangering another person, three days to six months,
        immediate release. He would have been –

              Second, July 10, 1996, two years later, he’s found guilty of
        endangering – recklessly endangering another person, six
        months to two years SCI; carrying a firearm without a license,
        six months to one year SCI consecutive; recklessly endangering
        another person, six months to one year SCI, consecutive one
        and a half to three years. That was in ’96. In September of ’96,
        he receives a one and a half to five year sentence for unlawful
        possession of drug paraphernalia and criminal conspiracy

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     possession with intent to deliver, and he receives one and a half
     to five years for that. In 2005, he’s found guilty by a jury of
     criminal conspiracy, attempted burglary, and receiving stolen
     property and gets 18 to 60 months SCI, one and [a] half to five
     years. That’s in 2005. In 2006, he’s sentenced to five years in
     Federal prison for possession with intent to deliver a controlled
     substance, and he we are in 2014. So 2006, he would have
     gotten out[,] I would think, in 2011 or so, and within three years
     of that he is – or close to four years – convicted of robbery,
     burglary, criminal conspiracy to commit robbery and burglary,
     criminal conspiracy to commit unlawful restraint, false
     imprisonment, recklessly endangering another person, simple
     assault by physical menace, theft by unlawful taking, and
     criminal use of a communication facility.

           Of course, we’ve reviewed the entire presentence report.
     We’ve taken into consideration the letters that were introduced.
     Quite frankly, with all due respect, because everybody is sincere
     in their beliefs, but I find it hard to believe that some of those
     people that wrote those letters know this young man because
     they’re certainly contrary to his record and to the present case.

           In sentencing a [d]efendant, the [c]ourt has to consider
     the offense committed, the danger to the community that he
     poses, the need for rehabilitation and the amount that is needed.
     Of course, I have to consider his past record, which is extremely
     violent, his past positive things that some of the letters spelled
     out but that are – that pale next to the horrific crime that was
     committed here, and it was very clear he believed that there was
     a great deal of money in the house. [Sandra] foolishly was
     testing him, and she’s lucky it didn’t end with the death of her
     father.

           Based on all of the information presented, a complete
     review of this presentence report – And I note in particular what
     the police said in here. He has a propensity for violence and is
     concerned – this was Detective Appleby – about him being a free
     man.

           Well, based on all that I’ve indicated here, the
     overwhelming evidence against him in the trial, and the fact to
     give any lesser sentence to this man would place all of society in
     danger, we sentence him as follows: . . . .


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J-S34029-16


Sentencing Hearing, 8/3/15, at 11-14.         The trial court then imposed the

sentence set forth previously in this memorandum, totaling 28 to 56 years in

a state correctional institution, plus fines and costs. Id. at 14-16.

       The provisions of 42 Pa.C.S.A. § 9781 specifically allow the imposition

of consecutive sentences and direct that the sentencing court “shall follow

the general principle that the sentence imposed should call for confinement

that is consistent with the protection of the public, the gravity of the offense

as it relates to the impact on the life of the victim and on the community,

and the rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9781(a) and

(b).    Our review establishes that the trial court imposed consecutive

sentences as authorized by § 9781(a) and followed the mandates of

§ 9781(b).    In doing so, the trial court neither ignored nor misapplied the

law. Further, we find that the trial court did not exercise its judgment for

reasons of partiality, prejudice, bias or ill will and did not impose a

manifestly unreasonable sentence.      Therefore, we hold that the trial court

did not abuse its discretion in imposing Appellant’s aggregate sentence.

Appellant is not entitled to relief on his fifth issue challenging the

discretionary aspects of his sentence.

       We find that each of Appellant’s issues is either waived or fails for lack

of merit. Therefore, we shall affirm his judgment of sentence. In the event

of further proceedings, the parties shall attach a copy of the trial court’s




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November 20, 2015 opinion to their filings in light of our incorporation

herein of the trial court’s summary of the factual background of this case.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2016




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