J-S36041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ANTHONY MARCUS DAVIS,

                            Appellant              No. 1325 MDA 2015


             Appeal from the Judgment of Sentence June 25, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0004356-2014

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JULY 06, 2016

       This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Dauphin County after a jury convicted Appellant of

Criminal Solicitation—Kidnap to Facilitate a Felony.1       Sentenced to a

mandatory term of incarceration of not less than 120 months nor more than

240 months2, which the court ran consecutively to an existing 20 ½ to 41

year sentence Appellant was serving for robbery, aggravated assault,

burglary, and multiple counts of kidnapping for ransom, Appellant raises

challenges to the weight of the evidence and the imposition of consecutive

sentences. We affirm.

____________________________________________


1
  18 Pa.C.S. § 902(A).
2
  This sentence was mandatory under the second strike provision of the
recidivist sentencing statute at 42 Pa.C.S. § 9714(a).



*Former Justice specially assigned to the Superior Court.
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      The trial court has aptly summarized the pertinent procedural and

factual history of Appellant’s case as follows:

            Appellant, Anthony Marcus Davis, was charged with a
      single count [of] Criminal Solicitation—Kidnap to Facilitate a
      Felony. Following a jury trial held on June 8-9, 2015, Appellant
      was found guilty. On June 25, 2015, sentence was imposed at
      which [Appellant] was committed to incarceration for a term of
      not less than 120 months nor more than 240 months set to run
      consecutively with his sentence at Lancaster County Docket No.
      CP-36-CR-5282-2005.

           Appellant timely filed a post-sentence motion.         In his
      Motion, Appellant requested an arrest of judgment asserting that
      the verdict was against the weight of the evidence as the
      Commonwealth had failed to disprove the defense of
      renunciation beyond a reasonable doubt. He also asked that this
      Court modify his sentence contending it was excessive and
      unreasonable in that it had been set to run consecutively with
      the sentence he was already serving on a Lancaster County
      docket. Upon review of his motion and the Commonwealth’s
      response, [the trial court] denied his request for relief by order
      dated July 1, 2015.

             On July 31, 2015, Appellant timely filed a Notice of Appeal
      to the Superior Court. In compliance with this Court’s order, he
      also timely filed his Concise Statement of Matters Complained of
      on Appeal in accordance with Pa.R.A.P. 1925(b). On appeal,
      Appellant raises [issues challenging the weight of the evidence
      and the discretionary aspects of his sentence].

            A jury trial held on June 8-9, 2015, established the
      following facts: At the time of trial, George Zozos (“MDJ Zozos”)
      had been a Magisterial District Justice (“MDJ”) in Dauphin County
      for 34 years. (N.T., Trial 6/8/15 at 34). MDJ Zozos’ wife is
      named Ginger (“Mrs. Zozos”). On or about July 15, 2014, MDJ
      Zozos became aware of Appellant’s plot to kidnap him and his
      wife by way of a meeting with Detective John Goshert (“Chief
      Goshert”), Chief of the Dauphin County Criminal Investigation
      Department (“CID”). (N.T. at 35-38). Based on the threat, MDJ
      Zozos and his wife were placed under guard by the Harrisburg
      City Bureau of Police. (N.T. at 36).

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           The kidnapping came to light when Kenneth Lee Pailen
     (“Lee” or “Mr. Pailen”) gave a July 9, 2014, letter he had
     received from Appellant to his parole officer and, subsequently,
     to detectives investigating the case. (N.T. 6/9/15 at 71). Chief
     Goshert, Detective Sergeant Todd Johnson (“Det. Sgt. Johnson”)
     and Detective Peter Fure (“Det. Fure”) proceeded to investigate
     the plan to kidnap MDJ Zozos outlined in the letter.

           Matthew Zeno (“Zeno”) met Appellant while they were
     housed on the same cell block in SCI-Rockview. (N.T. 6/9/15 at
     10). The pair began an emotional and sexual relationship that
     lasted approximately one year until Zeno was released on
     parole. (N.T. at 10-12). Zeno was paroled on June 14, 2014, at
     which time he moved to an approved residence at 317 North
     Sixth Street, in Reading, Pennsylvania. (N.T. at 12-15).

           Zeno remained in telephone contact with Appellant after
     he was released. (N.T. at 13). Later, Zeno received a letter
     postmarked June 24, 2014, that had a return address reading
     “Anthony Davis, HM6876, 301 Institution Drive, Bellefonte, PA
     16823[, the mailing address for SCI_Benner Township,] and was
     addressed to Zeno’s Reading residence. (N.T. at 16-17). The
     greeting was addressed to “La” and the closing was signed by
     “Guy, Guy” which Zeno confirmed were nicknames for himself
     and Appellant. (N.T. at 18, 22). Upon inspection of the letter,
     Zeno testified to recognizing the hand writing on the envelope
     and letter as belonging to Appellant. (N.T. at 17, 22).

            The prosecutor had Zeno read the letter aloud for the jury.
     The beginning of the letter included a thank you for a birthday
     card sent by Zeno to Appellant and a long recitation of
     Appellant’s expressions of love, appreciation and longing for
     Zeno. (N.T. at 19-20). The letter went on to indicate that
     Appellant needed Zeno to do a favor for him, “I really need you
     to pull off the impossible, which I need—which I know now is
     possible because I believe in you and trust you more than ever.”
     (N.T. at 20). The favor Appellant had asked for in the letter read
     as follows:

          I need you to get me out of jail by July 14, 2014. If
          you love me like you say you do and you’re my ride
          or die soulmate bitch get the ball moving because
          unless you do this, me – or we won’t be together

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           and can’t be together.     Actions speak louder than
           word [sic].

           Read carefully. Find one or two people you trust to
           ride with you on this.
           ***
           Get some gloves, duct tape, rope, taser gun, and
           everything you think you might need to pull off a
           kidnapping.

           ***
           Find transportation, someone who can drive. Find a
           safe location to keep a hostage at for a day or two.

           ***
           Search the computer to find the home addresses of
           the following people, Harrisburg, Camp Hill, New
           Cumberland, et cetera area.      John E. Wetzel,
           Secretary of Corrections. Tammy Ferguson, acting
           warden here at Benner.

           ***
           P.S., make this a priority, La.   Don’t play with me.
           I’m in no mood.

     (N.T. at 22-23).

             Det. Fure conducted a recorded interview with Zeno on
     July 31, 2014, along with Det. Sgt. Johnson. (N.T. at 101-103).
     Det. Fure testified with respect to a transcribed version of the
     recorded interview by reviewing and reading certain portions of
     the question and answer. (N.T. at 102-103). The interview
     revealed that Zeno had a telephone conversation with
     [Appellant] after receiving the letter outlining the kidnapping plot
     instructions during which [Appellant] told Zeno to forget the plan
     as “I got Lee. I got someone else to do it.” (N.T. at 103).
     When questioned about the last time he had spoken to
     [Appellant], Zeno relayed to the Detectives that Appellant
     initially indicated that he did not want them to go through with
     the plot anymore but, as the conversation continued he directed
     Zeno “to call Lee and ask Lee if his is going to do it or not.”
     (N.T. at 104).       Det. Fure testified that, during the entire
     interview, Zeno never said the plan was just a joke. (N.T at
     105).

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            Kenneth Lee Pailen[,] a former inmate who goes by the
     name Lee met [Appellant] when they were housed together at
     SCI-Benner Township. (N.T. at 42-43). They were initially on
     the same block and eventually became cellmates. (N.T. at 43).
     Pailen and [Appellant] engaged in an emotional and sexual
     relationship while incarcerated. (N.T. at 43).

           Pailen was paroled from SCI-Benner Township on June 8,
     2014. (N.T. at 44). Pailen testified that prior to his release, he
     and [Appellant] had had discussions about ways to get
     [Appellant] out of prison.      (N.T. at 44-45).     He said that
     [Appellant] discussed the idea of kidnapping MDJ Zozos. (N.T.
     at 45). More specifically, Pailen said that Appellant’s plan was to
     kidnap and hold MDJ Zozos and his family captive so that they
     could be exchanged for his release. (N.T. at 46). Pailen said
     that the pair discussed the plan as late as 20 minutes before his
     release. (N.T. at 46).

           Upon release, Pailen was living with his mother and
     grandmother at 4319 Avon Drive, Harrisburg, Pennsylvania.
     N.T. at 46. Pailen stated that during a July 8, 2014, phone call,
     [Appellant] told him that he would write him a letter expressing
     his love and providing instructions on what to do. (N.T. at 48-
     49; 52-53). The call was received at the number 545-3785
     which Pailen verified was his land line telephone number at the
     4319 Avon Drive location. (N.T. at 50-51). Pailen identified
     Appellant’s voice on two July 8, 2014 recorded phone calls which
     were played for the jury. (N.T. at 49-53; Commw. Exh. – 1).

            Pailen received a letter from Appellant postmarked July 9,
     2014, which bore a return address from SCI-Benner Township.
     (N.T. at 48). Pailen read the five (5) page letter aloud for the
     jury. (N.T. at 54-59; Commw. Exh. – 3). A large portion of the
     beginning of the letter contained expression of [Appellant]’ love
     for Pailen and his desire to have a relationship with him outside
     of prison. (N.T. at 54-56). Beginning on page three (3) of the
     letter, Appellant outlined in detail the kidnapping plan he was
     asking Pailen to carry out. The detailed instructions included the
     following:

           [I]f he has a wife, get her…trust me, stay positive
           and have faith.


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          ***
          [I]f George Zozos has a wife, that’s the target and
          who you need to get and you can get her while he’s
          at work or luring her somewhere.

          If he doesn’t have a wife, he is the target. He is an
          MDJ so you know he works 8:00 A.M. to 4:00 P.M.
          Monday through Friday. So when he is at work, it’s
          open opportunity to get his wife or wait until he
          comes home to get him.

          ***
          …altered appearance…you will need a disguise,
          gloves for no fingerprints, a high voltage taser gun
          to drop someone, duct tape for the mouth, two sets
          of handcuffs for the wrists and the other for the
          ankles, transportation, a safe house or spot to hold
          the hostage and a prepaid cell phone so the hostage
          can relay the demands.

          If you get the wife, the demands are made to George
          Zozos. If you get him, the demands are made to his
          brother Dmitri Zozos, the bail bondsman.

          ***
          [M]ake sure they are secured with the handcuffs
          tight.

          ***
          [M]ake sure they don’t have anything electronic on
          them that can be traced to the location where they
          will be kept.

          Monday 7-14-14, that morning if it is the wife, I
          need you to get her. But if it is George Zozos, that
          afternoon or night.

          Monday night, demands are made…tell whoever that
          is held hostage to relay the following message: That
          they are being held hostage a[t] gunpoint this very
          moment. This is their one and only call…[t]hey have
          until 10 A.M. Wednesday morning 7-16-14 to court
          order inmate Anthony Davis, state constable and
          yourself…pick him up an release him at the Friendly’s

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           in Camp Hill, Pennsylvania no later than 10:00 a.m.
           Wednesday morning 7-16-14 and they won’t die. No
           cops, no games, no dead body. Make sure they get
           that message and understand it.

           ***
           7-15-14 Tuesday morning my mom will call you. If
           you say chocolate chip cookies, that means
           everything is good. So between 8:00 A.M. and 9:00
           A.M. be home and alter [sic] waiting for my call.

           7-16-14, Wednesday, if all goes well, be in Arby’s
           parking lot in a disguise with your car running with
           some money for us to last a few days.

           Listen, you know what to do. Get it done….

     (N.T. at 56-59).      Pailen testified that he recognized the
     handwriting in the July 9, 2014, letter to be Appellant’s. (N.T. at
     59).

     Pailen had been in telephone contact with Mr. Zeno 15 to 20
     times. (N.T. at 60). According to Pailen, at no time by phone or
     in writing did [Appellant] tell him not to go through with his
     instructions. (N.T. at 60). However, he conceded on cross-
     examination that one time during a phone call [Appellant] said “I
     am not feeling this at all” without further explanation. (N.T. at
     70). Pailen gave the July 9, 2014, letter to his parole officer and
     detectives investigating the case. (N.T. at 71).

     Det. Sgt. Johnson interviewed Appellant on July 29, 2014, at
     SCI-Benner Township.     (N.T. at 83).   After Mirandizing[ ]
     [Appellant], Johnson proceeded to question him about his
     relationship with Mr. Pailen.    (N.T. at 83-84).    Appellant
     confirmed he knew Pailen from SCI-Benner Township but denied
     that he was involved in any type of intimate relationship with
     him. (N.T. at 84). Instead, [Appellant] said that since Pailen
     was being released, he was using him “to get $50 on his books
     [meaning to have someone deposit money to an inmate personal
     account]” every week and send narcotics to the prison so he
     could make money selling them. (N.T. at 84).

     When Det. Sgt. Johnson questioned Appellant about the plot to
     kidnap MDJ Zozos, he said that Pailen was responsible for the

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      idea. (N.T. at 84). When [Appellant] was shown the July 9,
      2014, letter provided by Pailen, he responded by saying that
      Pailen sent the letter to him and he, along with some unknown
      person, rewrote it and sent it back. (N.T. at 84). [Appellant]
      refused to identify the person who purportedly helped him
      rewrite the letter. (N.T. at 84-85). Appellant also denied that
      the July 9, 2014, letter was written in his own handwriting.
      (N.T. at 84-85). Further, he completely denied knowing Mr.
      Zeno in any capacity. (N.T. at 85). [Appellant] kept telling the
      Detectives that a crime had not been committed but, if he were
      charged he would take responsibility and waive a preliminary
      hearing so he did not have to be housed in Dauphin County
      Prison. (N.T. at 85). Appellant insulted the Detectives by calling
      them “retarded” and claimed to have an attorney but would not
      supply the attorney’s name. (N.T. at 85).

Trial Court Opinion, filed 12/18/15, at 1-9.

      Appellant raises the following issues for our review:

            I.     DID NOT THE LOWER COURT ABUSE ITS
                   DISCRETION BY FAILING TO GRANT [APPELLANT] A
                   NEW TRIAL ON THE BASIS THAT THE GUILTY
                   VERDICT WAS AGAINST THE WEIGHT OF THE
                   EVIDENCE WHEN THE TOTALITY OF THE EVIDENCE
                   ON THE BASIC ISSUES OF THE CASE WAS SO
                   INCONSISTENT AS TO BE IRRECONCILABLE?

            II.    WAS A MANDATORY SENTENCE OF 10-20 YEARS,
                   WHEN IMPOSED CONSECUTIVELY TO AN EXISTING
                   SENTENCE OF 20 ½ - 41 YEARS, CLEARLY
                   UNREASONABLE, SO MANIFESTLY EXCESSIVE AS TO
                   CONSTITUTE AN ABUSE OF DISCRETION, AND
                   INCONSISTENT WITH THE PROTECTION OF THE
                   PUBLIC, THE GRAVITY OF THE OFFENSES, AND
                   DEFENDANT’S REHABILITATIVE NEEDS?

Appellant’s brief at 7.

      Appellant contends that the trial court abused its discretion when it

denied his post-sentence motion alleging that the verdict was against the




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weight of the evidence. We apply the following standard of review to a

challenge that a verdict is against the weight of the evidence:

      An appellate court's standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

            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.

      This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.        In
      describing the limits of a trial court's discretion, we have
      explained:

            The term “discretion” imports the exercise of
            judgment, wisdom and skill so as to reach a
            dispassionate conclusion within the framework of the
            law, and is not exercised for the purpose of giving
            effect to the will of the judge. Discretion must be
            exercised on the foundation of reason, as opposed to
            prejudice, personal motivations, caprice or arbitrary
            actions.   Discretion is abused where the course
            pursued represents not merely an error of judgment,
            but where the judgment is manifestly unreasonable
            or where the law is not applied or where the record
            shows that the action is a result of partiality,
            prejudice, bias or ill-will.



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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Renunciation as a defense to solicitation is set out in the Criminal

Solicitation statute:

      It is a defense that the actor, after soliciting another person to
      commit a crime, persuaded him not to do so or otherwise
      prevented the commission of the crime, under circumstances
      manifesting a complete and voluntary renunciation of his
      criminal intent.

18 Pa.C.S.A. § 902(b). Appellant contends the Commonwealth failed in its

obligation to disprove his renunciation defense, which consisted of Matthew

Zeno’s testimony that Appellant: angrily rebuked him over the phone on July

11, 2014, directing him to call Pailen and tell him “fuck him and fuck you”;

did not contact either man for the next 9 days; and, when contacted by

Zeno on July 20, 2014, and was asked if he still wished the kidnapping to

take place replied “I don’t know, I don’t know, I don’t know.”

      Appellant also posits that an apparent conflict in testimony regarding

the July 20, 2014, phone conversation bears on the question of renunciation.

Whereas Matthew Zeno admitted on cross-examination that it was he, and

not Appellant, who broached the topic of whether to advance the kidnapping

plot, Dauphin County Detective Peter Fure related a July 31, 2014, interview

of Zeno in which Zeno first indicated Appellant no longer cared about the

plot but then, at the end of the conversation, instructed Zeno to call Pailen

and ask him if he was going to do it or not. For his part, Zeno testified that



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he was not lying to Detective Fure when he characterized his July 20, 2014,

telephone conversation with Appellant in this way.

      After   reviewing   this   record,   the   trial   court   concluded   the

Commonwealth carried its burden of disproving Appellant’s defense of

renunciation, opining “that a review of the evidence shows if there ever was

an intent to renounce on the part of Appellant, which point is not conceded

in any way, the renunciation was never complete and voluntary.” Trial Court

Opinion at 14. We discern no error in the court’s exercise of discretion on

this point, which was reasonably based on a record establishing, at best,

Appellant’s equivocation about executing his plan. Indeed, his expression of

doubt about persisting in the plan was too vague—paling in comparison to

his intense and highly specific directive to gain his release from prison—to

constitute a renunciation of the plan.

      To this end, we agree with the trial court’s reasoning where it notes

“importantly…, despite any purported inconsistencies in their [Zeno’s and

Pailen’s] stories at various points in the investigation, each witness clearly

testified that [Appellant] never said the plan was a joke and never said they

should not go through with it.”      Trial Court Opinion at 15.      Therefore,

confronted with no evidence that Appellant persuaded Zeno and Pailen to

desist from the plan or otherwise sought to prevent the commission of the

crime, as required under Section 902(b), the trial court appropriately

exercised its discretion in denying Appellant’s weight of the evidence claim.



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     Appellant next challenges the court’s decision to impose his mandatory

10 to 20 year sentence consecutively to a 20 ½ to 40 year prison sentence

he is already serving. At 30 years old, and having already served 10 years

of his existing sentence at the time he received sentence in the present

case, Appellant will serve no less than 20 ½ years in prison under the

current consecutively-run scheme and faces the possibility of serving a

maximum of 50 years if both sentences run to their upper limits.         This

potentiality represents an abuse of discretion, Appellant maintains, as

Appellant may not gain release until he reaches his eighties, making his

sentence a de facto life sentence. Such a sentence is clearly unreasonable,

particularly where the court “focused solely on the nature of the criminal

conduct and the need to protect others,” he asserts.        Appellant’s brief

(Pa.R.A.P. 2119(f) Statement), at 22.

     “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518

(Pa.Super. 2007) (citation omitted). To reach the merits of a discretionary

issue, this Court must determine:

     (1) whether the appeal is timely; (2) whether Appellant
     preserved his issue; (3) whether Appellant's brief includes a
     concise statement of the reasons relied upon for allowance of
     appeal with respect to the discretionary aspects of sentence; and
     (4) whether the concise statement raises a substantial question
     that the sentence is appropriate under the sentencing code.




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Commonwealth v. Edwards, 71 A.3d 323, 329–330 (Pa.Super. 2013)

(citation omitted).

      Appellant complied with the procedural requirements for this appeal by

filing a timely post-sentence motion for modification of sentence, and

subsequent notice of appeal, and by including in his appellate brief a

statement of reasons relied upon for appeal pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987), and Pa.R.A.P. 2119(f). Therefore, we

must determine whether Appellant raised a substantial question justifying

our review.

      A substantial question exists when an appellant sets forth “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

underlying the sentencing process.” Commonwealth v. Ventura, 975 A.2d

1128, 1133 (Pa.Super. 2009). Although a challenge to the court's discretion

to impose a consecutive sentence ordinarily does not raise a substantial

question, Commonwealth v. Johnson, 873 A.2d 704, 709 n. 2 (Pa.Super.

2005), we held in Commonwealth v. Marts, 889 A.2d 608 (Pa.Super.

2005), that this issue must be examined on a case-by-case basis.          In

Commonwealth v. Gonzalez–Dejusus, 994 A.2d 595, 599 (Pa.Super.

2010), this Court stated that the key to determining whether a consecutive

sentencing scheme presents a substantial question is “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 at

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issue in the case.” Accord Commonwealth v. Moury, 992 A.2d 162, 171–

172 (Pa.Super. 2010) (holding such a claim may be addressed when the

defendant alleges the “aggregate sentence is unduly harsh, considering the

nature of the crimes and the length of imprisonment.”). Therefore, because

we find Appellant’s claim nominally raises a substantial question, we proceed

to an examination of his argument on appeal.

      When    considering   a   challenge     to   the   discretionary   aspects   of

sentencing we must bear in mind the following:

      Sentencing is a matter vested in the sound discretion of the
      judge, and will not be disturbed on appeal absent a manifest
      abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa.Super. 2008) (citation

omitted).

      We find no evidence in 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. Disalvo, 70 A.3d 900, 903 (Pa.Super. 2013). The court

imposed sentence at the conclusion of a sentencing hearing in which the

only issue to decide was whether the sentence would run concurrently or

consecutively.   Defense counsel apprised the court of Appellant’s positive

achievements during his 10-year prison stay, including his satisfactory


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performance of work details, completion of “some programming,” tutoring

students working toward their GEDs, and incurring no “write-ups” for violent

behavior. N.T. 6/25/15 at 18-19. Counsel also presented the argument that

a consecutive sentence could conceivably keep Appellant in prison until his

eighties. N.T. at 19-20.

      Under the record before the trial court, the fact that Appellant’s

sentence   was   run   consecutively   does   not   render   it   excessive   or

unreasonable, and we, thus, discern no abuse of discretion in the sentence

imposed. See Commonwealth v. Bowen, 55 A.3d 1254, 1265 (Pa.Super.

2012) (holding trial court determines whether a sentence should run

consecutive to or concurrent with another sentence). The court articulated

clearly that both the seriousness of the present offense and Appellant’s

violent history tracing back to his juvenile years—comprising ten prior first-

degree felony offenses, two second-degree felonies, and two third-degree

felonies—necessitated a consecutive sentence for the protection of the

public.

      Moreover, the failure of rehabilitative efforts during Appellant’s ten

years’ incarceration is manifest from his attempt to solicit others to commit

the same violent, terrifying crime for which he was already imprisoned, the

court opined. Appellant knew from the victim testimony given at his prior

criminal trial of the horrifying experience endured by his victims—a family of

three including a 12 year-old boy—during a home invasion and kidnapping at

gunpoint. N.T. at 8-15, 21-23. Appellant demonstrated a blatant disregard

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for both the terrible physical and emotional pain endured by his previous

victims and the same fate his intended victims would suffer had Zeno and

Pailen carried out his orders in the present case.

      Appellant’s long, violent history coupled with his continued disregard

for the misery his crimes have caused in the past and would have

imminently caused in the present case clearly supports the consecutive

sentence meted out below. As such, the case sub judice is distinguishable

from Commonwealth v. Dodge, 859 A.2d 771 (Pa.Super. 2004) , where

we found a claim that consecutive standard range sentences on thirty-seven

counts of non-violent, theft-related offenses for an aggregate sentence of 58

1/2 to 124 years of imprisonment was excessive. Accordingly, we perceive

no abuse of sentencing discretion in imposing the present sentence

consecutively to the sentence Appellant currently serves.

      Judgment of sentence is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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