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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
LOIS WILSON,                             :          No. 515 MDA 2017
                                         :
                         Appellant       :


         Appeal from the Judgment of Sentence, February 9, 2017,
            in the Court of Common Pleas of Lancaster County
            Criminal Division at Nos. CP-36-CR-0002883-2016,
           CP-36-CR-0002884-2016, CP-36-CR-0002885-2016,
           CP-36-CR-0002886-2016, CP-36-CR-0002887-2016,
                         CP-36-CR-0005284-2014


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED SEPTEMBER 21, 2017

      Lois Wilson appeals the February 9, 2017 judgment of sentence in

which the trial court sentenced her to serve an aggregate sentence of 6½ to

18 years. After careful review, we affirm.

      The facts and procedural history, as recounted by the trial court, are

as follows:

                    On December 11, 2014, [appellant] was
              charged on information No. 5284-2014 with one
              count      of    delivery     of    a      controlled
              substance,[Footnote 1] heroin, and one count of
              criminal conspiracy.[Footnote 2] She pled guilty to
              these offenses on October 15, 2015, and, on
              December 29, 2015, was sentenced to five years[’]
              intermediate punishment with the first six months to
              be served under house arrest with electronic
              monitoring.
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               [Footnote 1]: 35 P.S. § 780-113(a)(30).

               [Footnote 2]: 18 Pa.C.S.[A.] § 903(a).

                On June 22, 2016, [appellant] was charged on
          information     Nos.     2883-2016,       2884-2016,
          2885-2016, 2886-2016 and 2887-2016 with five
          counts of delivery of a controlled substance, heroin,
          two counts of criminal conspiracy and five counts of
          criminal use of a communication facility.[Footnote 3]
          These offenses all took place between November 23,
          2015, and December 29, 2015. During this time,
          [appellant] was free on bail awaiting sentencing on
          her earlier charges. The charges on information
          No. 2886-2016 arose from [appellant’s] sale of
          heroin to an undercover officer later on the day on
          which she was actually sentenced on those earlier
          charges.

               [Footnote 3]: 18 Pa.C.S.[A.] § 7512.

                On July 5, 2016, a hearing was held at which
          the Court found [appellant] to be in violation of the
          terms of her intermediate punishment sentence. The
          Court revoked her intermediate punishment sentence
          and deferred sentencing until disposition of the new
          charges.

                 [Appellant] pled guilty to the new charges on
          December 1, 2016, and, on February 9, 2017, was
          sentenced for these offenses as well as for the
          intermediate punishment violation relating to her
          earlier guilty plea.       On each of the 2016
          informations, [appellant] was sentenced to a period
          of incarceration of 1 to 3 years. On the intermediate
          punishment violation, [appellant] was sentenced to a
          period of incarceration of 1½ to 3 years.          All
          sentences were to run consecutively for an
          aggregate sentence of 6½ to 18 years.

                On February 21, 2017, [appellant] filed a
          post[-]sentence motion for reconsideration of
          sentence which was denied on March 6, 2017.


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              [Appellant] filed her notice of appeal on March 10,
              2017, and her concise statement of errors
              complained of on appeal on April 10, 2017.

                    The only issue raised in [appellant’s] concise
              statement of errors complained of on appeal is that
              the aggregate sentence imposed is “manifestly
              excessive under the circumstances and an abuse of
              the Court’s discretion.”

Trial court opinion, 5/2/17 at 1-2.

         Appellant raises the following issue for this court’s review: “Was the

[trial] court’s aggregate sentence of not less than six and one-half (6½) nor

more than eighteen (18) years of incarceration manifestly excessive under

the circumstances and an abuse of the Court’s discretion?” (Appellant’s brief

at 8.)

         Appellant challenges the discretionary aspects of her sentence.

              [T]he proper standard of review when considering
              whether      to    affirm    the    sentencing    court’s
              determination is an abuse of discretion. . . . [A]n
              abuse of discretion is more than a mere error of
              judgment; thus, a sentencing court will not have
              abused its discretion unless the record discloses that
              the     judgment        exercised     was     manifestly
              unreasonable, or the result of partiality, prejudice,
              bias or ill-will. In more expansive terms, our Court
              recently offered: An abuse of discretion may not be
              found merely because an appellate court might have
              reached a different conclusion, but requires a result
              of   manifest      unreasonableness,      or   partiality,
              prejudice, bias, or ill-will, or such lack of support so
              as to be clearly erroneous.

              The rationale behind such broad discretion and the
              concomitantly deferential standard of appellate
              review is that the sentencing court is in the best
              position to determine the proper penalty for a


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            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (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,    42     Pa.C.S.A.
                  § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).

      Here, we begin our analysis by determining whether appellant has

complied with the procedural requirements of challenging the discretionary

aspects of her sentence.    First, appellant timely filed her notice of appeal

pursuant to Pa.R.A.P. 903. Second, appellant raised the issue that the trial

court imposed a sentence that was excessive and did not take into account

her rehabilitative needs in her post-sentence motion which essentially is the

issue before this court. Third, appellant included a Rule 2119(f) statement


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in her brief in which she avers she raises a substantial question because the

trial court did not focus on her rehabilitative needs and, instead, focused on

the seriousness of the offenses such that the sentence imposed was not

consistent with the protection of the public, the gravity of the offenses, and

her rehabilitative needs.   Fourth, this court must next determine whether

appellant raised a substantial question for this court’s review.

      We determine whether an appellant raises a substantial question on a

case-by-case basis. Commonwealth v. Swope, 123 A.3d 333 (Pa.Super.

2015).   “A substantial question exists only when an appellant advances a

colorable argument that the sentencing judge’s actions were either:       (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”       Id. at

338 (citation omitted).

      Appellant argues that the appeal presents a substantial question for

essentially two reasons. First, she argues that the sentence was excessive

because the trial court failed to consider her rehabilitative needs. Second,

she argues that the sentence was excessive due to the consecutive nature of

the sentences.   This court has held that a challenge to the imposition of

consecutive sentences as unduly excessive, together with a claim that the

trial court failed to consider a defendant’s rehabilitative needs when

fashioning its sentence, presents a substantial question.     Commonwealth




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v. Bonner, 135 A.3d 592 (Pa.Super. 2016). As appellant has presented a

substantial question, we will address this claim on the merits.

      With respect to the trial court’s alleged failure to consider the

rehabilitative needs of appellant, such as her drug addiction, history of

suffering from abuse, mental health issues, and low IQ, the trial court stated

at sentencing:

                  I’ve considered your rehabilitative needs.
            There is no question that you have mental health
            problems.    There is no question that you have
            substance abuse problems. I’ve considered what
            Mr. Straszynski [(appellant’s attorney)] said on your
            behalf.    I’ve considered the position of the
            Commonwealth and I have considered what you
            have told me.

                   Now, [appellant] --

            ....

                  I’ve been involved in the legal system far too
            long to take anything personally. I want to assure
            you of that. The fact that you came in and pled
            guilty and went right out and committed more of
            these offenses, it doesn’t surprise me, quite
            honestly, nor does it disappoint me. The fact that
            you were sentenced and went right out and
            committed a similar transaction, again, it’s not
            something that is unexpected.

                  Unfortunately, what this demonstrates to me is
            that you have virtually no interest in rehabilitation.
            Absolutely none.

Notes of testimony, 2/9/17 at 15-16.

      Furthermore, the trial court considered the Pre-Sentence Investigation

Report (“PSI”) and referred to it extensively at the sentencing hearing.


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“Where a [PSI] exist[s], we [] presume that the [trial court] was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating factors. A [PSI] constitutes the record

and speaks for itself.”   Commonwealth v. Antidormi, 84 A.3d 736, 761

(Pa.Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). This court finds

no merit to the charge that the trial court did not consider appellant’s

rehabilitative needs when it fashioned the sentence.

      Appellant   also    challenges   the   aggregate   sentence   as   clearly

unreasonable, at least in part, because the trial court imposed consecutive

rather than concurrent sentences.

      Section 9721 of the Sentencing Code (“Code”), 42 Pa.C.S.A. § 9721,

permits the sentencing court to use its discretion to impose a sentence

consecutively or concurrently to other sentences that the sentencing court is

imposing. “In imposing a sentence, the trial judge may determine whether,

given the facts of a particular case, a sentence should run consecutive to or

concurrent with another sentence being imposed.”          Commonwealth v.

Perry, 883 A.2d 599, 603 (Pa.Super. 2005).

      Here, the trial court imposed consecutive standard range sentences for

the charges for which appellant pled guilty. The trial court explained that it

considered the PSI, the Commonwealth’s sentencing memorandum, the

intermediate punishment program violation summary submitted by the

probation department, and various incident reports submitted by the



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Commonwealth.      The trial court also considered the Sentencing Code, the

sentencing guidelines, the authorized penalties for the offenses, the

circumstances of appellant’s new offenses, the nature of the first offense,

the need to protect the public, and appellant’s rehabilitative needs.   (Trial

court opinion, 5/2/17 at 5.)

      The trial court carefully considered the relevant factors set forth in

Section 9721(b) of the Code, 42 Pa.C.S.A. § 9721(b), when it sentenced

appellant.   The trial court explained in detail the reasons for its decision.

The trial court did not abuse its discretion when it imposed consecutive

sentences for appellant’s crimes.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2017




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