J-A05044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JOSHUA GARNER                           :
                                         :   No. 1637 EDA 2016
                    Appellant

            Appeal from the Judgment of Sentence May 5, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002730-2015


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

MEMORANDUM BY STEVENS, P.J.E.:                          FILED MAY 14, 2018

      Appellant, Joshua Garner, appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County, after he pleaded

guilty to charges of Robbery, Aggravated Assault, and Possessing an

Instrument of Crime. Sentenced to an aggregate sentence of nine and one-

half to 25 years’ incarceration, Appellant challenges both the legality and

discretionary aspects of his sentence. We affirm.

      The trial court sets forth the facts and procedural history of the case as

follows:

      The underlying undisputed facts stem from a violent attack that
      occurred on March 2, 2015, upon Mr. Bruce Kates inside the “We
      Buy Gold” store, located [in] . . . Northeast Philadelphia. On that
      date, at about 10:30 a.m., Mr. Kates was operating his business
      as usual when Appellant entered the store as a returning
      customer, inquiring about the sale status of a previously pawned
      “Aztec” ring. Appellant previously successfully pawned multiple

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05044-18


     jewelry items that he had taken from family members to support
     his drug habit. After briefly speaking, Appellant exited the store
     stating that he would return later.

     Appellant returned to the store roughly 45 minutes later, sat down
     at a desk across from Mr. Kates and struck up a conversation
     during which Appellant inexplicably erupted and pulled out a B.B.
     pistol, pointed it at Mr. Kates’ head and threatened him. A violent
     struggle ensued during which Mr. Kates successfully wrestled the
     pistol away from Appellant.         Appellant reacted with further
     violence and produced a four-inch blade-folding knife and stabbed
     Mr. Kates multiple times slicing him in the face, head, neck and
     back. . . . Mr. Kates survived this vicious assault by fighting with
     Appellant. He received emergency treatment at the Aria Hospital,
     Torresdale Division, including numerous stitches for stab wounds
     to the left side of his face below his ear, under his face on the right
     side, under his neck area, and at least two more in his back.

     During the course of the attack, Appellant removed roughly
     between $600.00 and $800.00 from Mr. Kates’ office desk. Mr.
     Kates unequivocally identified Appellant as the perpetrator[,
     whom he clearly knew well.] Appellant was later arrested at his
     home . . . five hours after the assault.

     ...

     Appellant was charged with [18 Pa.C.S.A. § 901(A), Criminal
     Attempt-Murder] graded as a Felony of the First Degree; [18
     Pa.C.S.A. § 3701(A)(1)(ii)], Robbery, graded as a Felony of the
     First Degree; [18 Pa.C.S.A. § 2702(A)], Aggravated Assault,
     graded as a Felony of the First Degree; [18 Pa.C.S.A. § 907(A)],
     Possessing an Instrument of Crime, graded as a Misdemeanor of
     the First Degree; [18 Pa.C.S.A. § 2701(A)], Simple Assault,
     graded as a Misdemeanor of the Second Degree; and [18
     Pa.C.S.A. 2705], Recklessly Endangering Another Person, graded
     as a Misdemeanor of the Second Degree. Following arraignment
     and [a] preliminary hearing, the case was eventually scheduled
     for a jury trial.

     On February 1, 2016, which was the scheduled date of the jury
     trial, Appellant [decided to] tender[] a guilty plea to [the trial
     judge], the Honorable Anne Marie B. Coyle, to the charges of
     Robbery (F1), Aggravated Assault (F1), and Possessing [an]
     Instrument of Crime (M1). Pursuant to negotiations, all other

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J-A05044-18


     offenses, including the most serious offense of Attempted Murder
     were marked “Nolle Prosequi” or withdrawn by the
     Commonwealth’s representative, Assistant District Attorney Erica
     Rebstock.

     Following . . . [an] oral and written colloquy of Appellant, [the
     trial court] accepted the entry of the guilty pleas as proffered
     intelligently, knowingly, and voluntarily. [The trial court] then . .
     . directed the completion of Presentence Investigative Reports and
     Mental Health Assessments and deferred the sentencing hearing
     until April 8, 2016. Appellant’s bail remained the same as within
     pre-trial status. On April 8, 2016, the sentencing was further
     continued to April 15, 2016, due to defense counsel’s
     unavailability.

     ...

     [On April 15, 2016,] evidence from recorded prison calls were
     introduced establishing that after being placed in custody,
     Appellant bragged that he intended to pretend to be mentally
     infirm to avoid prosecution for this assault. In addition, the
     Commonwealth introduced a video recording previously made by
     Appellant using his cellular telephone when he was in his
     bathroom at his home that he had proudly posted on the internet
     via You Tube. Appellant used the camera in his phone to voice his
     multiple intentional homicidal ideations before the attack upon Mr.
     Kates.

     ...

     [A]fter the . . . evidentiary hearing and review of all sentencing
     factors and data submitted, including the Presentence
     Investigative Reports and the Mental Health Assessments, [the
     trial court] formally sentenced Appellant as follows:

           [Aggravated Assault - State term of confinement for a
           minimum period of seven years six months to a
           maximum period of twenty years to run concurrently
           to the sentence imposed for Robbery;

           Robbery - State term of confinement for a minimum
           period of seven years six months to a maximum
           period of twenty years; and


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J-A05044-18


           Possession of Instrument of Crime - State term of
           confinement for a minimum period of two years to a
           maximum period of five years to run consecutively to
           the sentence imposed for Robbery.]

     Thus, the aggregate sentence imposed totaled a state term of
     confinement for a minimum period of nine and one-half to twenty-
     five years. The [statutory] maximum sentence that [the trial
     court] could have imposed . . . was a minimum period of
     confinement of twenty-two and one-half years to the maximum
     period of forty-five years.

     As part of the Sentencing Order, Appellant was ordered to be fully
     evaluated and treated for any mental health and addictive
     conditions once classified within the State Correctional Institution.
     [The trial court] recommended that Appellant’s sentence be
     served at State Correctional Institution Waymart in an effort to
     properly address Appellant’s [history of mental illness and drug
     addiction]. Additional conditions were imposed to reduce the risk
     of Appellant’s predicted recidivism. These requirements included
     Appellant’s compliance with recommended mental health and
     drug and alcohol treatment and the taking of prescribed
     medication. State parole authorities were directed to conduct
     random drug and alcohol testing and perform random visits upon
     Appellant’s future residence during the parole period.

     [The trial court] ordered that Appellant be paroled, when eligible,
     to a mental health facility consistent with recommended treatment
     in lieu of residence with his parents. This condition was fashioned
     due to [the trial court’s] stated concerns for the future safety of
     the Appellant’s parents gleaned from testimony presented during
     sentencing hearings and concerns raised within the evaluative
     investigative reports. [The trial court also noted its concerns
     caused by] Appellant’s premeditative homicidal intentions
     evidence within Appellant’s self-video recording taken in his
     bathroom shortly before [he] attacked Mr. [Kates]. As a result,
     as part of the sentence, Appellant was ordered to have no contact
     [with Mr. Kates] or with his place of business while under [the trial
     court’s] supervision.

     ...

     On April 22, 2016, a Motion for Reconsideration of Sentence was
     filed by Attorney Brian Fishman, Esquire, on behalf of Appellant.

                                     -4-
J-A05044-18


      After an additional hearing conducted on May 5, 2016, the trial
      court entered an Amended Sentencing Order [imposing new
      sentences of five and one-half to 15 years for Robbery, four to 10
      years for Aggravated Assault, to run consecutive to Robbery, and
      six months to five years for PIC, to run concurrently to Robbery].
      In essence, the aggregate sentence, although restructured,
      remained an imposed minimum period of confinement of nine and
      one-half to 25 years within the State Correctional Institution.

      [Appellant timely filed a counseled] Notice of Appeal . . . on May
      19, 2016. [The trial court issued an] Order pursuant to Pa.R.A.P.
      1925(b) on May 25, 2016. Counsel for Appellant filed a Statement
      of Matters Complained of on Appeal [asserting] that [the trial
      court] erred when imposing [an allegedly excessive and
      manifestly unreasonable aggregate sentence].

Trial Court Opinion, 2/7/17 at 1-6.

      In his brief, Appellant presents the following question for our

consideration:

      DID THE TRIAL COURT ABUSE ITS DISCRETION IN
      IMPOSING    AN    EXCESSIVE    AND     MANIFESTLY
      UNREASONABLE AGGREGATE SENTENCE OF NINE AND
      ONE-HALF (9½) TO TWENTY-FIVE (25) YEARS ON
      ROBBERY, AGGRAVATED ASSAULT AND POSSESSING AN
      INSTRUMENT OF CRIME, WHERE APPELLANT HAD A PRIOR
      RECORD SCORE OF ZERO, PLEAD[ED] GUILTY, EXPRESSED
      REMORSE, PROVIDED THE COURT WITH ABUNDANT
      MITIGATION IN A SENTENCING MEMORANDUM AND THE
      COURT FAILED TO CONDUCT AN INDIVIDUALIZED
      ASSESSMENT OF APPELLANT’S REHABILITATIVE NEEDS
      AND   INSTEAD   SENTENCED    SOLELY    BASED   ON
      RETRIBUTION AND PUNISHMENT, FAILED TO PROVIDE
      REASONS ON THE RECORD JUSTIFYING ITS DECISION AND
      WHERE THE COURT MERELY REFASIONED [SIC] THE SAME
      PUNITIVE SENTENCE FOLLOWING THE FILING OF POST-
      SENTENCE MOTIONS TO FIT THE EXCESSIVE AND UNJUST
      SENTENCE WITHIN THE SENTENCING GUIDELINES AFTER
      THE COURT FAILED TO DO SO AT THE ORIGINAL
      SENTENCING HEARING?




                                      -5-
J-A05044-18



Appellant’s brief at 14.1

       Appellant raises several challenges to the discretionary aspects of his

sentence. Our standard and scope of review is as follows:

       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 a 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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014) (citation

omitted). Before we reach the merits of Appellant's claim, we observe that

there is no automatic right to appeal from the discretionary aspects of

sentencing.     Id. at 759.     To invoke this Court’s jurisdiction, we must first

determine whether:

       (1) the appellant preserved the issue either by raising it at the
       time of sentencing or in a post-sentence motion; (2) the appellant
       filed a timely notice of appeal; (3) the appellant set forth a concise
       statement of reasons relied upon for the allowance of his appeal
       pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
       substantial question for our review.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011) (citation

and footnotes omitted).            If the appeal satisfies each of these four

requirements, we will then proceed to decide the substantive merits of the

case. Antidormi, 84 A.3d at 759.


____________________________________________


1Appellant’s question presented is virtually identical to his Pa.R.A.P. 1925(b)
concise statement filed with the trial court.

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J-A05044-18



       In Appellant’s Pa.R.A.P. 2119(f) statement, he first contends the trial

court misapplied the sentencing guidelines for the robbery offense by using

an Offense Gravity Score (“OGS”) of 12 instead of 10 in its calculations. See

204 Pa.Code § 303.15 (F1 Robbery at 18 Pa.C.S. § 3701(a)(1)(ii) carries OGS

of 10). The court imposed a 66-month sentence for the robbery, which would

have represented a low-end standard range sentence for a robbery with an

OGS of 12, but, as it was, represented an aggravated range sentence for

Appellant’s robbery offense that carried an OGS of 10. Had the court correctly

applied an OGS of 10 within the enhanced matrix, see 204 Pa.Code § 303.18,

infra, it is reasonable to conclude the court would have imposed a low-end

standard range sentence of 40 months, Appellant contends.

       Compounding this problem, Appellant maintains in his Rule 2119(f)

statement,     is   that    the    court       also   applied   the   Deadly   Weapon

Enhancement/Used (“DWE/Used”) Matrix2 at 204 Pa.Code § 303.18 instead of
____________________________________________


2The Sentencing Guidelines explains the “use” deadly weapon enhancement
as follows:

       (a) Deadly Weapon Enhancement.

       ...

       (2) When the court determines that the offender used a deadly
       weapon during the commission of the current conviction offense,
       the court shall consider the DWE/Used Matrix (§ 303.18). An
       offender has used a deadly weapon if any of the following were
       employed by the offender in a way that threatened or injured
       another individual:




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J-A05044-18



the Basic Sentencing Matrix at 204 Pa.Code § 303.16, as it erroneously found

the knife he used on the victim was a deadly weapon. As the trial court clearly

intended to sentence Appellant in the low-end standard guideline range,

Appellant posits, this panel should grant remand to permit the court to impose

the proper low-end standard range sentence within the proper matrix, which

is the Basic Sentencing Matrix.

       Challenges to the trial court's application of the sentencing guidelines

address     the   discretionary      aspects     of   Appellant's   sentence.   See

Commonwealth v. Krum, 533 A.2d 134, 135 (Pa. Super. 1987) (en banc).

See also Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super.2010)

(en banc) (“a challenge to the application of the deadly weapon enhancement

implicates the discretionary aspects of sentencing.”); Commonwealth v.

Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (explaining that a sentencing

court's application of an allegedly incorrect Offense Gravity Score challenges

the discretionary aspects of sentencing).

       As noted above, “[i]ssues challenging the discretionary aspects of

sentence must be raised in a post-sentence motion or by presenting the claim

____________________________________________


       (i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded
       or unloaded, or

       (ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or

       (iii) Any device, implement, or instrumentality capable of
       producing death or serious bodily injury.

204 Pa.Code § 303.10(a)(2).

                                           -8-
J-A05044-18



to the trial court during the sentencing proceedings. Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.” Commonwealth

v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004 (citations and internal

quotations marks omitted).

      Here, Appellant waived his claim that the court used the wrong OGS in

calculating his sentence, as he failed to raise it with the trial court at either of

his sentencing hearings or in his motion for reconsideration of sentence.

Indeed, in both the first sentencing hearing and Appellant’s motion for

reconsideration, he agreed with the court that his robbery offense carried an

OGS of 12 and his aggravated assault offense carried an OGS of 11. See

Sentencing Hearing, 4/5/16 at 5-9; see also Appellant’s Motion to Vacate and

Reconsider Sentence, 4/22/16, at 3.           Moreover, at Appellant’s second

sentencing hearing of May 15, 2016, counsel stated in his argument for a

standard range sentence that for “robbery, which is the lead offense, the top

of the standard range is seven years [(84 months),]” which corresponds with

the DWE/Used Matrix where a prior record of zero and an OGS of 12 applies.

N.T., 5/15/16, at 8. Appellant also failed to object to the OGS at any other

time during the hearing, even when the court and Commonwealth likewise

identified the standard range sentence for his robbery offense as 66 to 84

months.     N.T., 5/15/16 at 14.        Finally, Appellant filed no motion for

reconsideration of sentence after the court imposed his new sentence.

Accordingly, his OGS-based challenge is waived.




                                       -9-
J-A05044-18



      With respect to Appellant’s challenge against the court’s use of the

DWE/Used Matrix, it survives our threshold inquiries, as he raised this

objection in both his post-sentence motion and Pa.R.A.P. 1925(b) concise

statement, and because it presents a substantial question as to sentencing

discretion. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.

Super. 2014) (claim that trial court wrongfully applied deadly weapon

enhancement raises substantial question). Nevertheless, we find the issue

lacks merit.

      Specifically, there is no dispute that Appellant attacked Mr. Kates with

a knife in the course of committing the robbery, stabbing him multiple times

in the face, neck and back with the four-inch blade before Mr. Kates managed

to dispatch Appellant from the store. Such facts established that Appellant

used a knife in such a manner to cause potentially serious bodily injury or

even death. Therefore, no abuse of discretion attended the court’s application

of the DWE/Used Matrix in imposing sentence for the offense of robbery. See

Commonwealth v. Chapman, 528 A.2d 990, 992 (Pa.Super. 1987) (finding

razor blade held to victim’s face during robbery had sufficient potential to

cause harm to justify application of deadly weapon enhancement).

      The next discretionary aspects challenge Appellant asserts in his

Pa.R.A.P. 2119(f) statement is that the trial court ignored significant

mitigating     circumstances,   including     his   pleading   guilty,   accepting

responsibility for his crime, and expressing remorse.          In this regard, he

asserts more fully that he “was afforded no consideration for his tortured

                                     - 10 -
J-A05044-18



history of mental health and substance abuse problems, his past educational

and employment background, his community support, the fact that he

[pleaded] guilty and took responsibility for his actions, and showed remorse

for his crimes by apologizing to the complainant and his family.” Appellant’s

Rule 2119(f) statement, at 13.

      This challenge has as its corollary the claim that the trial court therefore

failed to conduct an individualized assessment of Appellant, as the court

chose, instead, to impose a purely punitive sentence without consideration of

his mitigating circumstances or his rehabilitative needs.      As Appellant has

preserved this claim by raising it with the trial court at his second sentencing

hearing and incorporating it in his Rule 1925(b) statement, we consider

whether this claim raises a substantial question.

            An allegation that the sentencing court failed to consider
      certain mitigating factors generally does not necessarily raise a
      substantial question. Commonwealth v. McNabb, 819 A.2d 54,
      57 (Pa. Super. 2003). Accord Commonwealth v. Wellor, 731
      A.2d 152, 155 (Pa. Super. 1999) (reiterating allegation that
      sentencing court “failed to consider” or “did not adequately
      consider” certain factors generally does not raise substantial
      question). Compare Commonwealth v. Felmlee, 828 A.2d
      1105, 1107 (Pa. Super. 2003) (en banc) (stating substantial
      question is raised, however, where appellant alleges sentencing
      court imposed sentence in aggravated range without adequately
      considering mitigating circumstances).

            When imposing a sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.
      Super. 2002), appeal denied, 582 Pa. 671, 868 A.2d 1198 (2005),
      cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162 L.Ed.2d 902
      (2005). “In particular, the court should refer to the defendant's
      prior criminal record, his age, personal characteristics and his

                                     - 11 -
J-A05044-18


     potential for rehabilitation.” Id. Where the sentencing court had
     the benefit of a presentence investigation report (“PSI”), we can
     assume the sentencing court “was aware of relevant information
     regarding the defendant's character and weighed those
     considerations along with mitigating statutory factors.”
     Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12,
     18 (1988). See also Commonwealth v. Tirado, 870 A.2d 362,
     368 (Pa. Super. 2005) (stating if sentencing court has benefit of
     PSI, law expects court was aware of relevant information
     regarding defendant's character and weighed those considerations
     along with any mitigating factors). Further, where a sentence is
     within the standard range of the guidelines, Pennsylvania law
     views the sentence as appropriate under the Sentencing Code.
     See Commonwealth v. Cruz-Centeno, [ ] 668 A.2d 536 ([Pa.
     Super.] 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996)
     (stating combination of PSI and standard range sentence, absent
     more, cannot be considered excessive or unreasonable). Although
     Pennsylvania's system stands for individualized sentencing, the
     court is not required to impose the “minimum possible”
     confinement. Walls, supra at 570, 926 A.2d at 965. Under 42
     Pa.C.S.A. § 9721, the court has discretion to impose sentences
     consecutively or concurrently and, ordinarily, a challenge to this
     exercise of discretion does not raise a substantial question.
     Commonwealth v. Pass, 914 A.2d 442, 446-47 (Pa.Super.
     2006). The imposition of consecutive, rather than concurrent,
     sentences may raise 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. Id. (holding challenge to court's imposition of
     sentence of six (6) to twenty-three (23) months imprisonment
     and sentence of one (1) year probation running consecutive, did
     not present substantial question). Compare Dodge II, supra
     (holding imposition of consecutive sentences totaling 58 ½ to 124
     years imprisonment for thirty-seven (37) counts of theft-related
     offenses presented a substantial question because total sentence
     was essentially life sentence for forty-two year-old defendant who
     committed non-violent offenses with limited financial impact).

Commonwealth v. Moury, 992 A.2d 162, 171–72 (Pa. Super. 2010).




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J-A05044-18



       In the instant case, Appellant’s four-year minimum sentence for

Aggravated Assault3 was in the mitigated guideline range while his five and

one-half year minimum sentence for robbery was in the aggravated guideline

range.4    To the extent Appellant claims the court improperly imposed his

aggravated       assault     sentence      without   considering   his   mitigating

circumstances, he fails to raise a substantial question warranting merits

review.    See McNabb, supra; Moury, supra (recognizing precedent that

where trial court had benefit of presentence investigation report, imposition

of standard range sentence, absent more, cannot be considered excessive or

____________________________________________


3 Initially, we note that neither the charging information nor any other part of
the record specifies a numerical subsection to the charge of Aggravated
Assault at 18 Pa.C.S. § 2702(a). Because the offense is identified specifically
as an “F1” offense, however, the only subsection that reasonably applies to
the facts of the case is subsection (a)(1). Moreover, the Commonwealth
indicated at the outset of the guilty plea hearing that it was an F1 Aggravated
Assault “causing serious bodily injury” rather than “attempts to cause serious
bodily injury” to which Appellant was pleading guilty. Appellant thereafter
confirmed his understanding that he was pleading guilty to aggravated
assault, causing serious bodily injury, which corresponds only with subsection
(a)(1). N.T., 2/1/16, at 5, 12.

4Aggravated Assault (causes serious bodily injury) at 18 Pa.C.S. § 2702(a)(1)
carries an offense gravity score of 11. See 204 Pa.Code § 303.15. Under the
DWE/Used Matrix at 204 Pa.Code § 303.18, an OGS of 11 coupled with a prior
record score of zero results in a standard range minimum sentence of 54 to
72 months, plus or minus 12.

Robbery (threatens another with or intentionally puts him in fear of immediate
serious bodily injury) at 18 Pa.C.S. § 3701(a)(1)(ii), carries an offense gravity
score of 10. See 204 Pa.Code § 303.15. Under the DWE/Used Matrix at 204
Pa.Code § 303.18, an OGS of 10 coupled with a prior record score of zero
results in a standard range minimum sentence of 40 to 54 months, plus or
minus 12 months.

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J-A05044-18



unreasonable).    A substantial question is raised, however, by Appellant’s

related claim that the trial court failed to consider his rehabilitative needs in

fashioning his aggravated assault sentence.           See Commonwealth v.

Downing, 990 A.2d 788, 793 (Pa. Super. 2010).

      As for his claim that the court imposed his aggravated range robbery

sentence without consideration of individualized circumstances, mitigating

factors, or rehabilitative needs, this Court has previously held such a claim

presents a substantial question warranting merits review.          See Felmlee,

supra; Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)

(addressing merits where appellant alleges sentencing court erred by

imposing aggravated range sentence without consideration of mitigating

circumstances); Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super.

2008) (noting claim that sentencing court failed to state adequate reasons on

record for imposing aggravated-range sentence raises substantial question).

      Though Appellant’s statement is adequate to raise a substantial question

for our review, he must still show his sentences were inconsistent with the

gravity of the offense, the protection of the public, or Appellant's rehabilitative

needs. With respect to the last sentencing consideration, Appellant argues

that the court altogether disregarded Appellant's rehabilitative needs.

      The record belies Appellant's claim. At the sentencing hearing of May

5, 2016, the court's observations, stated on the record, reflected a




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J-A05044-18



consideration of Appellant's individual circumstances,5 both aggravating and

mitigating, and his rehabilitative needs before it imposed sentence:

       THE COURT:          Well, number one, had the defendant not
       entered a plea of guilt and been found guilty before a jury, I can
       guarantee you that the sentence that would have been imposed
       by this court would have been commensurate with that and would
       possibly have been doubled, at the very least. So to say that I
       did not take into account the mitigating circumstance of an entry
       of a plea is a misnomer. To say that I did not take into account
       his individual situation is so off the grid, I find it offensive, because
       I took great pains to evaluate all aspects of this defendant.

       Unfortunately, --and I did not create this difficulty – at this point
       in time I have a defendant who is potentially deadly to the persons
       that care about him the most. I listened very carefully. And you
       [Mother] keep shaking your head and I understand you love your
       son. I get that. . . .But, ma’am, you’re the same person who told
       this court and revised history with respect to the time period when
       you could have pursued a matter within the court’s supervision,
       and you discounted the danger that your son posed to you. And
       you told this court when I asked you why did you drop the assault
       charge, you gave this court a rendition of facts that indicated to
       this court that your love for your son sometimes blinds your ability
       to deal with difficulties.

       The difficulties are so great. He stopped using his medicine. He
       becomes an immediate danger. Everyone here knows full well
       and has tried time and time and time again to help him. It hasn’t
       worked. He acknowledged himself that when he’s not taking his
       medicine all bets are off. I don’t know whether the use of PCP
       preceded the mental health difficulties or was commensurate with
       that. I don’t know that. I can only glean from the information
       that’s been given to me. . . .But I fashioned within my sentence
       the court’s attempt to do just what you asked me to do, which is
       [to] help him become someone who is not a danger.


____________________________________________


5At the first sentencing hearing of April 15, 2016, the court acknowledged
having the benefit of the PSI report and mental health assessments. N.T.
4/15/16 at 4.

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J-A05044-18


     The person that I saw – have a seat. The person that I saw – just
     give me, let me go through it here with you. All right? I know
     this is hard. I know this is heart-breaking. The person I saw on
     [Appellant’s self-video in which he describes his plan to attack Mr.
     Kates] sent chills down my spine. As I watched the video, I
     watched your son and his lack of how he responded to the video
     was telling to me.

     I have to bear into account the protection of the public and the
     likelihood for recidivism with respect to his sentence, because the
     person or persons that are possibly at risk include you [Mother],
     his brother, his father, because by all accounts there was a good
     relationship between the victim and the defendant preceding this.

     The person who I saw on the video exhibited all kinds of mental
     difficulties, homicidal ideations, the likes of which the only thing
     that I can compare it to is the same ideations that one sees in
     folks in Columbine and similar circumstances. I can’t help that.
     The only person that can help that is the defendant by doing his
     best to follow the recommended treatment, which he did not.

     I also bear in mind the defendant’s statements to his girlfriend,
     who was also listed as a prior victim on one of the cases who
     withdrew the matter, wherein he identified his intent to use the
     mental health difficulties as a way to get away with what horrific
     act he did.

     I balanced all of that with the fact that he did accept responsibility
     for his actions. And as he sits here before me today and that day,
     I do believe that he is remorseful. I’m quite sure he wishes he
     could turn back time, but you can’t.

     ...

     The only reason that I did not go as far as part of my brain is
     thinking maybe I should have is that he did accept responsibility,
     and I do have within the back part of this sentence supervision
     through the state parole board with specific conditions of
     compliance with mental health and drug and alcohol components
     and recommended and ordered that when he is released, that he
     is not to go home. He is to go, first and foremost, into a facility
     that will help him step down the process to going back into the
     civilian population.


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       The reason for the court’s recommendation of the sentence to be
       served at SCI Waymart was because as an individual that I
       considered, I considered his need for what I believed to be the
       best place that has mental health treatment and counseling and
       [the] best supervision to the point where one does not have to
       worry about where he is and what he’s doing at what particular
       point in time.

5/5/16 at 14-19.

       On balance of all mitigating and aggravating considerations addressed

above, the court determined that a nine and one-half to 15 year aggregate

sentence comprising guideline sentences was fair and reasonable, and we

discern no abuse of discretion in that conclusion. We note, further, that the

imposition of consecutive sentences for the crimes of violence at issue, which

Appellant also assails, does not amount to a virtual life sentence, as Appellant

will be eligible for parole at age 34.6

       Finally, Appellant raises a challenge to the legality of his sentence where

he posits that his robbery and aggravated assault offenses merged for
____________________________________________


6 To the extent Appellant's discretionary aspects argument focuses on the
imposition of consecutive sentences, we refer to our well-settled
jurisprudence, cited supra, that a sentencing court has discretion to impose
consecutive sentences, 42 Pa.C.S.A. § 9721, and that the imposition of
consecutive sentences may raise 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.”
Lamonda, 52 A.3d at 372.

Here, the imposition of an aggregate sentence of nine and one-half to 15 years
is not manifestly excessive given the violent nature of Appellant’s crime, which
included pointing a bb handgun in the store owner’s face before cutting and
stabbing him in the face, neck, and back multiple times with a knife in
furtherance of a robbery. Therefore, we deny that Appellant’s challenge to his
consecutive sentences raised a substantial question.


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purposes of sentencing. Contrary to Appellant’s position, the crimes do not

merge.

      “A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law.” Commonwealth v. One, 88 A.3d 983,

1020 (Pa. Super. 2014). Accordingly, our standard of review is de novo and

our scope of review is plenary. See Commonwealth v. Brougher, 978 A.2d

373, 377 (Pa. Super. 2009).

      The Sentencing Code provides as follows:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the other
      offense. Where crimes merge for sentencing purposes, the court
      may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.     “Accordingly, merger is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included within

the statutory elements of the other.” Commonwealth v. Raven, 97 A.3d

1244, 1249 (Pa. Super. 2014).

      While the crimes in the instant case arise from the same criminal

episode, the statutory elements of Appellant’s robbery and aggravated assault

convictions are plainly different, as each crime requires proof of one element

that the other does not.    Specifically, Appellant pled guilty to first-degree

felony aggravated assault at 18 Pa.C.S.A. § 2702(a)(1), one element of

which—causing serious bodily injury--is not an element to robbery at 18

Pa.C.S.A. § 3701(a)(1)(ii). Appellant’s robbery offense, in turn, contains the

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J-A05044-18



element of theft, which aggravated assault does not.              See, e.g.,

Commonwealth v. Walls, 950 A.2d 1028, 1030-32 (Pa. Super. 2008)

(holding sentences for robbery at Section 3701(a)(1)(ii) and aggravate assault

at Section 2702(a)(1) arising from same facts do not merge because each

requires proof of an element which the other does not); see also

Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa. Super. 2005)

(Concluding crimes of aggravated assault and robbery “do not merge, for

robbery requires proof of theft, which aggravated assault does not, and

aggravated assault as a felony of the first degree requires proof of

circumstances manifesting extreme indifference to the value of human life,

which robbery does not.”). This claim fails.

      Judgment of sentence is AFFIRMED.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/18




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