J-S77019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ALEO SEH

                            Appellant                  No. 266 EDA 2014


          Appeal from the Judgment of Sentence December 17, 2013
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0002496-2013,
                          CP-09-CR-0002499-2013


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.:                        FILED FEBRUARY 03, 2015

        Appellant Aleo Seh (“Appellant”) appeals from the judgments of

sentence entered in the Bucks County Court of Common Pleas on October

28, 2013, following his guilty plea and nolo contendere convictions for

terroristic threats,1 criminal trespass,2 simple assault,3 recklessly




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2706.
2
    18 Pa.C.S. § 3503.
3
    18 Pa.C.S. § 2701.
J-S77019-14



endangering      another     person,4    harassment,5   delivery   of   a   controlled

substance,6 conspiracy,7 and criminal use of a communication facility.8 After

careful review, we affirm in part and vacate in part.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case as follows:

              On October 28, 2013, [Appellant], Aleo Seh, pleaded guilty
        to Delivery of a Controlled Substance, an ungraded felony,
        Conspiracy to Deliver a Controlled Substance, an ungraded
        felony, and Criminal Use of a Communication Facility, a felony of
        the third degree, based upon his participation in a “controlled
        buy” of cocaine on June 9, 2012. [Appellant] also pleaded guilty
        to charges arising out of crimes he committed against his
        mother, Olivia Saywhah, on March 8, 2013. In that matter,
        [Appellant] pleaded guilty to Criminal Trespass, a felony of the
        third degree, Terroristic Threats, a felony of the third degree,
        Simple Assault by physical menace, a misdemeanor of the
        second degree and Harassment, a misdemeanor of the third
        degree. He entered a plea of nolo contendere to Recklessly
        Endangering Another Person, a misdemeanor of the second
        degree. [Appellant] was sentenced to an aggregate minimum
        term of incarceration of five years. [Appellant] appealed from
        the judgment of sentence challenging the discretionary aspects
        of sentence.

              The following facts served as the basis for the guilty plea
        in [Appellant’s] drug case. On June 9, 2012, a confidential
        informant contacted [Appellant’s] brother, Robert Nuahn, to
____________________________________________


4
    18 Pa.C.S. § 2705. Appellant pleaded nolo contendere to this charge.
5
    18 Pa.C.S. § 2709.
6
    35 P.S. § 780-113(a)(30).
7
    18 Pa.C.S. § 903.
8
    18 Pa.C.S. § 7512.



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     negotiate the purchase of cocaine. Nuahn told the informant to
     contact [Appellant] and to arrange for the delivery.         The
     informant contacted [Appellant] by telephone as instructed and
     negotiated the delivery of cocaine. At approximately 1:25 p.m.
     that same date, [Appellant] arrived at 2701 Veteran Highway,
     Bristol Township, Bucks County, in a vehicle registered to Nuahn
     and delivered 1.87 grams of cocaine to the informant.

           The following facts served as the basis for the guilty plea
     in the case involving [Appellant’s] mother. Ms. Saywhah had for
     some time been attempting to exclude [Appellant] from her
     home located at 42 Ironwood Road, Bristol Township, Bucks
     County. Prior to the incident on trial, she had changed the locks
     to her residence numerous times, but [Appellant] kept finding
     ways to enter her home without her permission, including
     climbing on the roof to gain access through a window. Prior to
     March 2, 2013, [Appellant’s] mother obtained a temporary
     Protection From Abuse (PFA) order against [Appellant]. On that
     date, [Appellant] once again returned to the property. As of that
     time, the temporary order had not yet been served upon
     [Appellant]. [Appellant] was, however, aware that the order had
     been issued. His mother had verbally advised him that she had
     obtained a court order excluding him from her residence. Ms.
     Saywhah called the police and two Bristol Township Police
     Officers responded to her home. When the police arrived, Ms.
     Saywhah asked that they arrest [Appellant] for violating the
     temporary PFA order. The officers advised Ms. Saywhah that
     they could not arrest [Appellant] since the order had not yet
     been served, but advised her that they would serve the order
     and direct [Appellant] to leave the premises. The police then
     entered Ms. Saywhah’s residence, served [Appellant] with the
     temporary PFA order and notice of hearing regarding Ms.
     Saywhah’s request for a final PFA order, and directed him to
     leave the residence. Officer Mark Titus, one of the officers who
     responded to the scene on that date, described [Appellant’s]
     response as “not tak[ing] us serious.” When police allowed
     [Appellant] to retrieve his belongings, he got his belongings “one
     shoe at a time.” [Appellant] prolonged the process for so long
     that the responding police were forced to call for assistance.
     When [Appellant] finally left the residence after backup arrived,
     he stood on the edge of the property smiling.

          On March 6, 2013, a final PFA order was entered. On
     March 8, 2013, in violation of that order and while his drug case
     was pending, [Appellant] again entered his mother’s home. At

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     approximately 9:15 a.m., Ms. Saywhah returned home from
     work and was confronted by [Appellant]. [Appellant] came down
     the steps from the second floor of the residence and began
     cursing at her. He took her phone from her hand and refused to
     return it. He then poured a brown substance on her clothing and
     told her he was “going to burn you and the house down.” He
     told her, “You are lucky I don’t have a match or I would set you
     ablaze” and then began searching for something to ignite a fire.
     When he was unsuccessful, he stood in front of the door and
     would not allow his mother to leave her home. When police
     arrived, the officers observed a brown substance that smelled
     like paint thinner on the front of Ms. Saywhah’s shirt and the
     back of her coat. [Appellant], who had run upstairs and locked
     himself in a bedroom, refused to open the bedroom door and
     repeatedly told police, “You are going to have to kick the door in
     or shoot me through the door.” The police forced open the door
     and took [Appellant] into custody. After he was placed in the
     back of a patrol vehicle, [Appellant] continued to use vulgar
     language, screaming at both his mother and police. While being
     transported to police headquarters, [Appellant] repeatedly
     threatened the officers, stating “I will kick your a--. You haven’t
     seen the last of me. You don’t know who I am or who my
     friends are. I don’t care how long I am sent away for, I will be
     back for you.” [Appellant] continued to threaten officers while at
     police headquarters.

           At the time of sentencing, Ms. Saywhah was 63 years old.
     [Appellant] was 36 years old. [Appellant’s] criminal history is as
     follows. In 1994, [Appellant] was adjudicated delinquent of
     Indecent Assault for an incident that occurred on June 16, 1994
     in Bucks County. In 1994, [Appellant] was also adjudicated
     delinquent of Terroristic Threats for an incident that occurred
     August 2, 1994 in Bucks County. In 1995, he was adjudicated
     delinquent of Indecent Exposure for an incident that occurred on
     March 29, 1995 in Bucks County. In 1996, he was convicted of
     Carrying Weapons without Permission in Minnesota. In 1998, he
     was convicted of False Reports in Philadelphia. In 2006, he was
     convicted of Resisting Arrest and Possession of a Controlled
     Substance in Bucks County. In 2008, [Appellant] was convicted
     of summary Disorderly Conduct, Defiant Trespass and Excessive
     Noise. In 2009, [Appellant] was convicted of Defiant Trespass.
     In April 2014, [Appellant] was convicted on four Disorderly
     Conduct offenses, two Simple Trespass offenses, Harassment
     and Criminal Mischief.


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J-S77019-14


            The 2009 Defiant Trespass case involved circumstances
     that were very similar to those involved in the instant case. In
     that matter, [Appellant] had been issued a non-traffic citation for
     trespassing into his mother’s home and was advised by police
     not to return to the residence. Despite police intervention,
     [Appellant] returned to the residence two days later.
     [Appellant’s] Mother called the police to report his presence.
     When police arrived, [Appellant] was taken into custody. While
     in police custody, [Appellant] directed profanity at the officers.

           On October 28, 2013, [Appellant] was sentenced as
     follows.   On count two of Information number 2499-2013,
     Delivery of a Controlled Substance, [Appellant] was sentenced to
     a term of incarceration of one to five years. A consecutive term
     of incarceration of one to five years was imposed on count one,
     Conspiracy to Deliver a Controlled Substance.        No further
     penalty was imposed on count three, Criminal Use of a
     Communication Facility. On Information number 2496-2013,
     [Appellant] was sentenced to a term of incarceration of 18
     months to 36 months on count five, Criminal Trespass, and a
     consecutive term of incarceration of 18 to 36 months on count
     four, Terroristic Threats.22 No further penalty was imposed on
     counts six, seven and eight, Simple Assault, Recklessly
     Endangering Another Person and Harassment. The sentences on
     the two cases were run consecutively to one another for an
     aggregate minimum sentence of five years.
        22
            The [c]ourt [originally] imposed a maximum sentence
        of seven years [84 months] on each count. On December
        17, 2013, the [c]ourt reduced the maximum sentences to
        36 months on each count.

           On November 6, 2013, [Appellant] filed a motion for
     reconsideration of sentence. On December 17, 2013, a hearing
     was held on [Appellant’s] motion.           At that hearing, the
     Commonwealth submitted corrected sentencing guidelines. The
     original guidelines reflected a prior record score of two as a
     result of the improper inclusion of [Appellant’s] juvenile
     adjudications in calculating the prior record score. The corrected
     guidelines reflected a prior record score of one. The [c]ourt
     noted that the standard range of the guidelines for Delivery of a
     Controlled Substance and Conspiracy to Deliver a controlled
     Substance as reflected in the original guidelines called for a
     minimum sentence of 9 to 16 months. The corrected guidelines
     called for 6 to 14 months. The [c]ourt imposed a minimum

                                    -5-
J-S77019-14


     sentence of 12 months. The [c]ourt intended to impose a
     sentence within the standard range of the sentencing guidelines.
     Since the sentence imposed fell within the standard range of
     both the original guidelines and the corrected guidelines, the
     prior record score error had no impact on the [c]ourt’s
     sentencing decision.

            The original guidelines for the Criminal Trespass called for
     an aggravated sentence of 9 to 12 months. The corrected
     guidelines called for an aggravated range of 6 to 9 months. The
     original guidelines for the crime of Terroristic Threats called for
     14 to 17 months. The corrected guidelines called for 12 to 15
     months. In imposing the original sentence, the [c]ourt imposed
     sentences of 18 to 84 months on each offense, sentences
     outside the aggravated ranges of the sentencing guidelines. The
     corrected guidelines were not significantly different with regard
     to the top of the aggravated ranges. The Criminal Trespass
     guidelines differed by three months. The Terroristic Threats
     guidelines differed by two months. The [c]ourt found that [the]
     difference did not warrant a modification of the minimum
     sentence. The [c]ourt did modify the maximum sentence on
     each count, reducing the original maximum sentences imposed
     from 84 months to 36 months.

Trial Court Pa.R.A.P. 1925(a) Opinion, April 11, 2014 (“1925(a) Opinion”),

pp. 1-6 (some footnotes omitted). Appellant timely appealed the December

17, 2013 sentences.     Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

     Appellant raises the following issues for our review:

     A. Did the sentencing court err in imposing a sentence that
     exceeded the guidelines for a defendant with a prior record score
     of “1”, where the Commonwealth agreed that Appellant’s prior
     record score is “1”, but the court sentenced Appellant well
     outside those guidelines?

     B. Did the sentencing court err in ordering that Appellant may
     only interact with his mother while he is incarcerated and not
     after he is released, even though Appellant’s mother was present



                                    -6-
J-S77019-14


      during sentencing to support Appellant and did not request any
      such order be imposed?

Appellant’s Brief, p. 7 (all capitals omitted).

      Appellant first claims the trial court erred in sentencing him beyond

the standard range of the sentencing guidelines and did not adequately

specify reasons for the upward departure. See Appellant’s Brief, pp. 14-22.

      This claim raises a challenge to the discretionary aspects of Appellant’s

sentence.   “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”      Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super.2011).         Before this Court can address such a

discretionary challenge, an appellant must comply with the following

requirements:

      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.

Allen, 24 A.3d at 1064. “The determination of whether a particular issue

raises a substantial question is to be evaluated on a case-by-case basis.”

Commonwealth         v.   Fiascki,   886   A.2d    261,   263   (Pa.Super.2005).

“Generally, however, in order to establish a substantial question, the

appellant must show actions by the sentencing court inconsistent with the

Sentencing Code or contrary to the fundamental norms underlying the


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sentencing process.”         Commonwealth v. Titus, 816 A.2d 251, 255

(Pa.Super.2003).

       Here, Appellant filed a timely notice of appeal, and preserved his

issues in a motion for reconsideration of sentence. Further, Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal pursuant to Pa.R.A.P. 2119(f).               See Appellant’s Brief, pp. 14-15.

Accordingly, we now determine whether Appellant has raised a substantial

question for review and, if so, proceed to a discussion of the merits of the

claim.    Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d 17

(Pa.1987).

       In his Pa.R.A.P. 2119(f) statement, Appellant alleges that the trial

court imposed an unreasonable sentence because (1) it sentenced him in the

aggravated range of the sentencing guidelines without providing adequate

reasons for the upward departure,9 and (2) it decided to run certain

sentences consecutive to one another. See Appellant’s Brief, pp. 14-15.

       Initially,   we    note   that   Appellant’s    claim   that   his    sentence   is

unreasonable because the trial court decided to run certain portions of it

consecutive to one another does not raise a substantial question for our

review.       See        Commonwealth          v.    Marts,    889    A.2d    608,   612


____________________________________________


9
  Appellant concedes the trial court employed the correct sentencing
guidelines at the December 17, 2013 resentencing. See Appellant’s Brief, p.
18.



                                           -8-
J-S77019-14



(Pa.Super.2005) (a claim that the consecutive nature of sentences violates

the Sentencing Code fails to raise a substantial question for review).

       Appellant additionally alleges the trial court did not provide adequate

reasons for sentencing him beyond the standard guidelines range. “In every

case where a sentencing court imposes a sentence outside of the sentencing

guidelines, the court must provide in open court a contemporaneous

statement of reasons in support of its sentence.”         Commonwealth v.

Curran, 932 A.2d 103, 106 (Pa.Super.2007) (citing 42 Pa.C.S. § 9721). A

claim that the sentencing court did not sufficiently state its reasons for the

sentence raises a substantial question.     Commonwealth v. Twitty, 876

A.2d 433, 439 (Pa.Super.2005); see also Commonwealth v. Macias, 968

A.2d 773, 776 (Pa.Super.2009) (“The failure to set forth adequate reasons

for the sentence imposed has been held to raise a substantial question.”);

Commonwealth v. Reynolds, 835 A.2d 720, 734 (Pa.Super.2003) (an

allegation that a judge failed to offer specific reasons for a sentence raises a

substantial question).

       Based on this authority, we conclude that Appellant raises a

substantial question for review because he asserts that the trial court did not

adequately place reasons on the record as to why it imposed the sentence it

did.   We will therefore address the merits of Appellant’s discretionary

aspects of sentencing claim.

       Where this Court reviews the sentence, we apply the following

standard of review:

                                     -9-
J-S77019-14


     [S]entencing is vested in the discretion of the trial court, and will
     not be disturbed absent a manifest abuse of that discretion. An
     abuse of discretion involves a sentence which was manifestly
     unreasonable, or which resulted from partiality, prejudice, bias
     or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted). “[T]his Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Macias, 968 A.2d at 776-777.

     Section 9781(c) of the Sentencing Code provides:

     (c) Determination on appeal.--The appellate court shall
     vacate the sentence and remand the case to the sentencing
     court with instructions if it finds:

        (1) the sentencing court purported to sentence within the
        sentencing   guidelines   but   applied  the   guidelines
        erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application   of  the    guidelines   would  be   clearly
        unreasonable; or

        (3) the sentencing court sentenced outside the sentencing
        guidelines and the sentence is unreasonable.

     In all other cases the appellate court shall affirm the
     sentence imposed by the sentencing court.

42 Pa.C.S. § 9781(c) (emphasis provided).

     Section 9781(d) of the Sentencing Code provides that when this Court

reviews the record on appeal, we must have regard for:

     (1) The nature and circumstances of the offense and the history
     and characteristics of the defendant.



                                    - 10 -
J-S77019-14


     (2) The opportunity of the sentencing court to observe the
     defendant, including any presentence investigation.

     (3) The findings upon which the sentence was based.

     (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

     As to the function of the Sentencing Guidelines, this Court has noted:

           When imposing a sentence, the sentencing court is
     required to consider the sentence ranges set forth in the
     Sentencing Guidelines, but it [is] not bound by the Sentencing
     Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d
     1111, 1118 (2007) (“It is well established that the Sentencing
     Guidelines are purely advisory in nature.”); Commonwealth v.
     Walls, [592 Pa. 557, 570,] 926 A.2d 957, 965 (referring to the
     Sentencing     Guidelines   as   “advisory   guideposts”   which
     “recommend ... rather than require a particular sentence”). The
     court may deviate from the recommended guidelines; they are
     “merely one factor among many that the court must consider in
     imposing a sentence.” Yuhasz, 923 A.2d at 1118. A court may
     depart from the guidelines “if necessary, to fashion a sentence
     which takes into account the protection of the public, the
     rehabilitative needs of the defendant, and the gravity of the
     particular offense as it relates to the impact on the life of the
     victim and the community.” Commonwealth v. Eby, 784 A.2d
     204, 206 (Pa.Super.2001). When a court chooses to depart
     from the guidelines however, it must “demonstrate on the
     record, as a proper starting point, his awareness of the
     sentencing guidelines.” Eby, 784 A.2d at 206. Further, the
     court must “provide a contemporaneous written statement of the
     reason or reasons for the deviation from the guidelines.” 42
     Pa.C.S.[] § 9721(b).

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.Super.2008).              “[A]

court can satisfy the requirement to prepare a contemporaneous written

statement of reasons for deviating from the sentencing guidelines by stating




                                   - 11 -
J-S77019-14



those     reasons   on    the   record    in   the   presence   of   the    defendant.”

Commonwealth v. Jones, 942 A.2d 903, 908 (Pa.Super.2008).

        When a sentence is outside the guidelines, therefore, our review

centers upon whether the sentence was unreasonable.                     42 Pa.C.S. §

9781(c)(3).     A sentence may be determined unreasonable after review of

the four elements contained in Section 9781(d) of the Sentencing Code or if

the sentencing court failed to consider the factors outlined in Section

9721(b) of the Sentencing Code.10              Macias, 968 A.2d at 777 (quoting

Walls, 926 A.2d at 963-964).             “[W]hen the proper standard of review is

utilized, ‘rejection of a sentencing court’s imposition of sentence on

unreasonableness         grounds    [should]    occur   infrequently,      whether   the

sentence is above or below the guidelines ranges.’”             Macias, 968 A.2d at

777 (quoting Walls, 926 A.2d at 964).
____________________________________________


10
     Section 9721(b) of the Sentencing Code provides, in pertinent part:

        (b) General standards.--In selecting from the alternatives set
        forth in subsection (a), the 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. The court shall also consider any guidelines for
        sentencing and resentencing adopted by the Pennsylvania
        Commission on Sentencing and taking effect under section
        2155[.]


42 Pa.C.S. § 9721(b).




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J-S77019-14



      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion.   Instead, the trial court imposed a sentence that

was consistent with the protection of the public, took into account the

gravity of the offense as it related to the impact on the life of the victim and

on the community, and considered Appellant’s rehabilitative needs, as

required by 42 Pa.C.S. § 9721(b).

      The record in this case reveals that the trial court properly considered

all relevant sentencing factors in fashioning Appellant’s sentence outside of

the aggravated range of the sentencing guidelines.        Specifically, the trial

court considered the sentencing guidelines, the nature and circumstances of

the offenses, Appellant’s background, character, and rehabilitative needs,

the protection of the public and the impact of the crimes, and the testimony

of various Commonwealth and defense witnesses at sentencing.           See N.T.

10/28/2013, N.T. 12/17/2013.

      At sentencing following Appellant’s motion for reconsideration, the trial

court explained the sentences imposed as follows:

      THE COURT:       All right.   I have reviewed the sentencing
      guidelines that were submitted to me at the time of the original
      sentencing. I have reviewed the new sentencing guidelines that
      were submitted to me with the corrected prior record score. I
      reviewed my notes of the facts that were presented at the time
      of the sentencing.      I have reviewed -- I obviously have
      considered the facts that were admitted here today.

            I want to be clear on what has actually changed in terms
      of the sentencing guidelines.

           Let’s start with the possession with intent to deliver case,
      2449 [sic] of 2013. The sentencing guidelines as they currently

                                     - 13 -
J-S77019-14


     read with [a] prior record score of one call for a standard range
     of six to 14 for both possession with intent to deliver and
     criminal conspiracy.

           The sentence imposed by the [c]ourt of one to five is
     within the standard range of those sentencing guidelines, so
     nothing has changed in terms of the sentence the [c]ourt
     imposed.

          Nothing -- the fact that the guidelines have shifted haven’t
     changed the standard range that was imposed.

           The case of 2496 of 2013, the criminal trespass did call for
     -- with a prior record score of two -- restorative sanctions to
     nine months in the standard range. It now calls for restorative
     sanctions to six months in the standard range.

           With a prior record score of two it called for [an]
     aggravated sentence of nine to 12.       It now calls for [an]
     aggravated sentence with [a] prior record score of one of six to
     nine.

           I notice -- I note that the sentence of the [c]ourt was
     outside the sentencing guidelines when it was a prior record
     score of two and, therefore, would be outside of the sentencing
     guidelines with the corrected prior record score.

           The crime of terroristic threats with a prior record score of
     two called for a standard sentence of three to 14 months with an
     aggravated sentence of 14 to 17 months. The sentence of the
     [c]ourt exceeded those -- that sentencing guidelines range.

            The sentencing guidelines now call with [a] prior record
     score of one for a standard range of one to 12 and [an]
     aggravated change [sic] range of 12 to 15. There is not a
     significant difference in the sentencing guidelines with a prior
     record score of two versus a prior record score of one.

           In any case, the sentence imposed by the [c]ourt in both -
     - even when it was a prior record score of two, the [c]ourt felt it
     was important and necessary to exceed the guidelines based on
     the fact that this individual has been involved in violent and
     dangerous offenses since 1994. He has continued in his criminal
     conduct despite the repeated intervention of law enforcement.
     He has demonstrated his unwillingness to abide by the dictates
     of the law regarding his presence on other people’s property.


                                   - 14 -
J-S77019-14


             He has specifically victimized this particular individual
       before. It is supposed to be somebody he loves and cherishes,
       but he has continued and, in my opinion, will continue to
       victimize her in the future.

             I find that he is a danger to the community and I find that
       he will continue to engage in criminal offenses. It is necessary
       to incarcerate him for an extended period of time to protect his
       mother and to protect the community, and it is necessary to
       incarcerate him for an extended period of time because he will
       continue to reoffend as his criminal record going back to 1994
       demonstrates.

              So based on that on case [sic] -- and I incorporate all my
       reasons as stated on the record at the time of the initial
       sentencing.[11] In case 2449 [sic] of 2013, on the count of
       possession with intent to deliver, [Appellant] is sentenced to pay
       the cost of prosecution and shall undergo imprisonment for one
       to five years. On [conspiracy to commit] possession with intent
       to deliver, one to five years. On the conspiracy to deliver, those
       sentences shall run consecutive to one another and not
       concurrent.

            On case 2496 of 2013, a felony committed while he was
       pending sentence on the drug felony, I also find another
       aggravating circumstance. On the count of criminal trespass, I
       am sentencing outside the sentencing guidelines.

             I have stated the reasons that I believe this case calls for a
       sentence outside the aggravated range of the guidelines given
       his criminal record, the fact that he was already pending
       sentence as a drug dealer when he committed these crimes
       against his mother, the fact that he has continued to repeatedly
       engage in the same criminal conduct of defiant trespass and all
       of the other reasons he is sentenced on the count of criminal
       trespass to 18 to 36 months.
____________________________________________


11
   The aggravating factors noted by the court at the original sentencing
conducted on October 28, 2013 included Appellant’s extensive criminal
record, the specific torturous nature of the physical harm with which he
threatened his mother, the fact that his felonious behavior against his
mother occurred while he was also charged with drug felonies, and his
complete lack of remorse. See N.T. 10/28/2013, pp. 68-76.



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J-S77019-14


           On the crime of terroristic threats he is sentenced to a
      sentence of 18 to 36 months. Those sentences shall all run
      consecutive to one another and not concurrently.

N.T. 12/17/2013, pp. 17-22.

      While it is evident that Appellant’s sentence exceeded the guideline

ranges, we reiterate that the sentencing guidelines are but one, albeit

important, factor when determining an individualized sentence.              See

Sheller, supra.     Proper appellate review dictates this Court not disturb a

trial court’s sentence absent a finding that the trial court failed to weigh the

sentencing considerations in a meaningful fashion.            When reviewing

sentencing matters, “[w]e must accord the sentencing court great weight as

it is in the best position to view the defendant’s character, displays of

remorse, defiance or indifference, and the overall effect and nature of the

crime.”   Commonwealth v. Miller, 965 A.2d 276, 277 (Pa.Super.2009)

(citation omitted).    Clearly, the trial court acted within its discretion.

Accordingly, Appellant’s discretionary aspects of sentencing claim fails.

      In his second claim, Appellant alleges the trial court improperly

directed him to stay away from his mother as a part of his sentence because

the trial court lacked authority to enter such a condition.    See Appellant’s

Brief, pp. 23-24.     This claim raises a question as to the legality of the

sentence, which is a question of law over which we exercise de novo plenary

review.    See     Commonwealth       v.   Hawkins,    45   A.3d   1123,    1130

(Pa.Super.2012).




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     Our Legislature has vested exclusive authority in the Pennsylvania

Board of Probation and Parole (“Board”) over parole determinations for

prisoners sentenced to a maximum term of two years or more. 61 Pa.C.S. §

6132. The relevant statute provides, in pertinent part:

        § 6134. Sentencing court to transmit records to board

     (b) Recommendations from judge.--

        (1) A judge may make at any time a recommendation to
        the board respecting the person sentenced and the term of
        imprisonment the judge believes that person should be
        required to serve before a parole is granted to that person.

        (2) A recommendation made by a judge under
        paragraph (1) respecting the parole or terms of
        parole of a person shall be advisory only. No order in
        respect to the recommendation made or attempted to be
        made as a part of a sentence shall be binding upon the
        board in performing the duties and functions conferred on
        it by this chapter.

61 Pa.C.S. § 6134 (emphasis provided).      Accordingly, a sentencing court

may make a recommendation to the Board at any time regarding a

prisoner’s parole date or the terms of parole.   See 61 Pa.C.S. § 6134(b).

However, such recommendations are merely advisory. See id.

     The trial court acknowledged that Appellant correctly challenged the

portion of his sentence that directed him to stay away from his mother, but

noted that the condition was merely advisory. See 1925(a) Opinion, p. 7.

The court noted:

            On appeal, [Appellant] correctly challenges that portion of
     the sentence imposed on Information number 2496-2013
     directing that he have no contact with his mother upon his
     release from incarceration. The Pennsylvania Board of Probation

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     and Parole has exclusive authority to determine parole when the
     offender is sentenced to a maximum term of imprisonment of
     two or more years. 61 Pa.C.S. § 6132. A judge may make a
     recommendation to the board. However, “[a] recommendation
     made by a judge respecting the parole or terms of parole of a
     person shall be advisory only. No order in respect to the
     recommendation made or attempted to be made as a part of a
     sentence shall be binding upon the board in performing the
     duties and functions conferred upon it.”         61 Pa.C.S. §
     6134(b)(2). Therefore, any condition this [c]ourt purported to
     impose on [Appellant] is advisory only.

1925(a) Opinion, pp. 6-7.   The Commonwealth agrees that the trial court

improperly imposed the stay-away condition on Appellant, but suggests that

remand for sentencing is unnecessary because the condition did not affect

Appellant’s aggregate sentence. See Commonwealth’s Brief, pp. 17-18.

     We agree that the trial court lacked authority to impose the condition

that Appellant stay away from his mother while on parole as part of his

sentence, and we vacate this condition of his sentence. See 42 Pa.C.S. §

706 (“An appellate court may affirm, modify, vacate, set aside or reverse

any order brought before it for review[.]”).      Remand is unnecessary,

however, as our correction of the sentence does not alter the trial court’s

sentencing structure.   See Commonwealth v. Thur, 906 A.2d 552, 569

(Pa.Super.2006) (explaining that, if Superior Court decision does not alter

the overall sentencing scheme, remand is not required).

     Sentence condition that Appellant must stay away from his mother

while on parole vacated.     Judgment of sentence affirmed in all other

respects.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2015




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