J-S58035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

ROBERT WILLIAM DIXON, JR.

                             Appellant                  No. 490 WDA 2014


           Appeal from the Judgment of Sentence February 11, 2014
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000364-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED OCTOBER 10, 2014

        Appellant, Robert William Dixon, Jr., appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

open guilty plea to criminal conspiracy, aggravated assault, and recklessly

endangering another person (“REAP”).1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On October 28, 2012, the victim was delivering pizza to a residence on West

11th Street in Erie.        When the victim exited his vehicle, Appellant and an

unidentified female approached. Appellant struck the victim in the head with

the firearm and demanded money. The victim wrestled with Appellant, and

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1
    18 Pa.C.S.A. §§ 903, 2702, 2705.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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the firearm fell to the ground. Appellant ordered his companion to retrieve

the firearm and shoot the victim.              Appellant’s companion picked up the

weapon, but she did not open fire.             Instead, Appellant’s companion fled.

Appellant fled shortly thereafter.

       On March 20, 2013, the Commonwealth filed a criminal information

charging Appellant with conspiracy, robbery, aggravated assault, terroristic

threats, possessing instruments of crime, and REAP. Appellant subsequently

filed a motion to suppress evidence, which the court denied.2 Following trial,

a jury could not reach a verdict on any of the charges, and the court

declared a mistrial.

       On   December       17,   2013,     Appellant   pled   guilty   to   conspiracy,

aggravated assault, and REAP. In exchange, the Commonwealth agreed to

withdraw the remaining charges.            The parties also agreed that the court

would apply the deadly weapon “used” sentencing matrix.                      The plea

agreement did not include a negotiated sentence.                  Following an oral

colloquy, the court accepted Appellant’s plea.

       With the benefit of a pre-sentence investigation (“PSI”) report, the

court conducted Appellant’s sentencing hearing on February 11, 2014.                At

the conclusion of the hearing, the court sentenced Appellant to sixty-six (66)

to one hundred thirty-two (132) months’ imprisonment for the conspiracy
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2
  The suppression motion, suppression hearing transcripts and exhibits, and
order disposing of the suppression motion are not in the certified record.



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conviction.     The court ordered the sentence to run consecutive to another

sentence at an unrelated docket number.                For the aggravated assault

conviction, the court sentenced Appellant to twenty-seven (27) to fifty-four

(54)    months’    imprisonment,    concurrent    to    the   conspiracy   sentence.

Additionally,    the   court   determined   the   REAP     conviction   merged   for

sentencing purposes with the aggravated assault conviction.

       On February 21, 2014, Appellant timely filed a post-sentence motion

to modify and/or reduce sentence. In it, Appellant claimed he had already

received a minimum term of ten (10) years nine (9) months’ imprisonment

for the conviction at the unrelated docket number.                Further, Appellant

indicated he had “another active case with Allegheny County” that could

result in additional incarceration.   (Post-Sentence Motion, filed 2/21/14, at

2).    Appellant explained he has “a long standing drug addiction problem,”

and he committed the current offenses “while under the influence of illegal

substances.” (Id.) Nevertheless, Appellant “graduated high school and has

completed a fiber optics certification program and has a long life ahead of

him at the current age of twenty-eight (28).”             (Id.)    Based upon the

foregoing, Appellant asked the court to, inter alia, impose the instant

sentences concurrent to the sentence at the unrelated docket number. The

court denied Appellant’s post-sentence motion on February 24, 2014.

       Appellant timely filed a notice of appeal on March 26, 2014. On April

2, 2014, the court ordered Appellant to file a concise statement of errors


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complained of on appeal, pursuant to Pa.R.A.P. 1925(b).       Appellant timely

filed a Rule 1925(b) statement on April 23, 2014.

      Appellant now raises two issues for our review:

         THE COURT ERRED IN DENYING [APPELLANT’S] PRETRIAL
         MOTIONS WHEN IT RULED THAT THE POLICE DID NOT
         VIOLATE [APPELLANT’S] CONSTITUTIONAL RIGHTS WHEN
         ITS INVESTIGATION AND PHOTO LINEUP WAS NOT BASED
         ON REASONABLE SUSPICION AND/OR PROBABLE CAUSE
         AND THAT THE ARREST WHICH FOLLOWED THUS WAS
         NOT BASED ON PROBABLE CAUSE[.]

         THE SENTENCE IN THIS CASE WAS MANIFESTLY
         EXCESSIVE AND CLEARLY UNREASONABLE, AS [CERTAIN
         FACTORS] WERE NOT CONSIDERED IN FASHIONING
         [APPELLANT’S] SENTENCE.

(Appellant’s Brief at 2) (internal footnote omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Ernest J.

DiSantis, Jr., we conclude Appellant’s issues merit no relief. The trial court’s

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed May 5, 2014, at 3-7) (finding: 1)

Appellant’s decision to enter guilty plea resulted in waiver of suppression

claim; 2) record belies Appellant’s claim that court failed to consider

mitigating factors; court considered PSI report, Sentencing Code, guidelines,

Appellant’s remorse, and statements made by Appellant and counsel; court

tailored sentence to Appellant’s individual situation, and court provided on-

the-record statement of reasons for sentence; court appropriately decided to

impose sentences consecutive to sentence at unrelated docket number;

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Appellant was not entitled to “volume discount” for multiple convictions).

Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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