J-S04005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GLENN C. BRENNAN,

                            Appellant                 No. 1490 EDA 2016


           Appeal from the Judgment of Sentence December 28, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0003262-2015


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                         FILED FEBRUARY 10, 2017

        Appellant, Glenn C. Brennan, appeals from the judgment of sentence

entered on December 28, 2015, in the Bucks County Court of Common

Pleas. We affirm.

        The record reveals that Appellant committed and conspired to commit

multiple robberies of commercial establishments between January 11, 2015,

and February 28, 2015.          In connection with those crimes, on March 19,

2015, Appellant was charged with eleven counts of robbery (threatening to

commit serious bodily injury),1 eleven counts of conspiracy to commit


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
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robbery (threatening to commit serious bodily injury),2 eleven counts of

robbery (inflicting serious bodily injury, threatening to inflict serious bodily

injury, or intentionally putting one in fear of immediate bodily injury),3

eleven counts of conspiracy to commit robbery (inflicting serious bodily

injury, threatening to inflict serious bodily injury, or intentionally putting one

in fear of immediate bodily injury),4 eleven counts of theft by unlawful

taking,5 eleven counts of conspiracy to commit theft by unlawful taking,6

eleven counts of receiving stolen property,7 eleven counts of conspiracy to

commit receiving stolen property,8 ten counts of making terroristic threats,9

ten counts of possessing an instrument of crime,10 ten counts of simple

assault,11 and ten counts of recklessly endangering another person.12

____________________________________________


2
    18 Pa.C.S. § 903(a)(1).
3
    18 Pa.C.S. § 3701(a)(1)(iv).
4
    18 Pa.C.S. § 903(a)(1).
5
    18 Pa.C.S. § 3921(a).
6
    18 Pa.C.S. § 903(a)(1).
7
    18 Pa.C.S. § 3925(a).
8
    18 Pa.C.S. § 903(a)(1).
9
    18 Pa.C.S. § 2706(a)(1).
10
     18 Pa.C.S. § 907(a).
11
     18 Pa.C.S. § 2701(a)(3).
(Footnote Continued Next Page)


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        On July 27, 2015, Appellant entered guilty pleas to all charges.           On

December 28, 2015, the trial court sentenced Appellant to consecutive terms

of eighteen to thirty-six months of incarceration on the eleven counts of

robbery (threatening to commit serious bodily injury), and a concurrent term

of twenty years of probation for one count of conspiracy to commit robbery

(threatening to commit serious bodily injury).                No further penalty was

imposed at the remaining counts. This resulted in an aggregate sentence of

sixteen and one-half to thirty-three years of incarceration and a concurrent

term of twenty years of probation.               On January 6, 2016, Appellant filed a

timely post-sentence motion for reconsideration of his sentence. Following a

hearing, the trial court denied Appellant’s post-sentence motion. This timely

appeal followed, and both Appellant and the trial court have complied with

Pa.R.A.P. 1925.

        On appeal, Appellant presents the following issue for this Court’s

consideration:

        A. Did the sentencing court err in imposing consecutive
           sentences resulting in an aggregate sentence that was unduly
           harsh considering the nature of the crime (no one was
           physically injured), the Appellant’s admitted drug addictions,
           the Appellant’s previous work history, and the Appellant’s
           overall rehabilitation needs?

Appellant’s Brief at 4 (full capitalization omitted).
                       _______________________
(Footnote Continued)


12
     18 Pa.C.S. § 2705.




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      This is a challenge to the discretionary aspects of his sentence. It is

well settled that a challenge to the discretionary aspects of a sentence is a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.   Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super.

2014).   “An appellant must satisfy a four-part test to invoke this Court’s

jurisdiction when challenging the discretionary aspects of a sentence,” by (1)

preserving the issue in the court below, (2) filing a timely notice of appeal,

(3) including a Rule 2119(f) statement, and (4) raising a substantial

question for our review.   Commonwealth v. Tejada, 107 A.3d 788, 797

(Pa. Super. 2015) (citation omitted).

      Appellant has met the first three parts of the four-prong test:

Appellant filed a timely appeal; Appellant preserved the issue in a post-

sentence motion; and Appellant included a statement pursuant to Pa.R.A.P.

2119(f) in his brief.   Thus, we assess whether Appellant has raised a

substantial question with respect to the issues he presents.

      A determination as to whether a substantial question exists is made on

a case-by-case basis.   Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).    “A substantial question exists only when the 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




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process.”    Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.

2015), appeal denied, 126 A.3d 1282 (Pa. 2015).

      Appellant submits that a substantial question exists in this case

because the consecutive sentences imposed on his convictions resulted in a

manifestly excessive and unreasonable sentence. Appellant’s Brief at 11–12.

We conclude that Appellant has presented a substantial question.           See

Commonwealth v. Dodge, 77 A.3d 1263, 1269 (stating that claims of a

manifestly excessive    sentence   due   to   the   imposition of consecutive

sentences raises substantial question); Commonwealth v. Swope, 123

A.3d 333, 340 (Pa. Super. 2015) (challenge to the imposition of consecutive

sentences as unduly excessive, together with claim that court failed to

consider rehabilitative needs and mitigating factors presented substantial

question).

      The imposition of sentence is vested within the sound discretion of the

trial court, which, absent an abuse of that discretion, will not be disturbed on

appeal.     “An abuse of discretion is more than an error in judgment—a

sentencing court has not abused its discretion unless the record discloses

that the judgment exercised was manifestly unreasonable, or the result of

partiality, prejudice, bias or ill-will.” Commonwealth v. Colon, 102 A.3d

1033, 1043 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015).

Moreover, the decision to impose consecutive rather than concurrent




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sentences is left to the discretion of the sentencing court. Commonwealth

v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014).

     The trial court addressed Appellant’s challenge as follows:

            The sentences imposed in the instant matter were not
     clearly unreasonable or, as [Appellant] asserts, unduly harsh.
     The sentence for each of the robberies fell within the mitigated
     range of the sentencing guidelines.4 The fact that this Court
     ordered that the sentences run consecutive to one another does
     not alter the conclusion that the sentence imposed was
     reasonable. In imposing sentence, a court has discretion to run
     the sentence concurrently with or consecutively to other
     sentences being imposed. Commonwealth v. Mouzon, 828 A.2d
     1126, 1130 (Pa.Super.2003). Moreover, separate felony offenses
     committed against separate victims appropriately calls for
     consecutive sentences. Commonwealth v. Swope, 123 A.3d
     333[,] 341 (Pa.Super.2015) (citation omitted) (“Appellant is not
     entitled to a volume discount for his crimes.”); Commonwealth
     v. Zirkle, 107 A.3d 127, 134 (Pa.Super.2014), appeal denied,
     117 A.3d 297 (Pa.2015). Where, as here, separate violent felony
     offenses are individually planned and executed against multiple
     individuals and multiple local business entities, a separate
     sentence is warranted in recognition of the fact that a separate
     and distinct harm is intended and is caused by the commission
     of each criminal episode.5
           4
            The applicable guidelines are as follows: mitigated
           – 18 months; standard – 30 to 42 months;
           aggravated – 54 months.
           5
             With regard to planning, [Appellant] testified that
           on the date of his arrest, he was “casing a joint” but
           “scratched” any idea of robbing the place when he
           “felt” a police presence. [Appellant] testified that he
           thought he had successfully lost the police vehicles
           trailing him and proceeded to a friend’s home. When
           he stopped at the residence, he was confronted by
           police and found to be in possession of a pellet gun.
           N.T. 12/28/15 pp. 26-27.

           In support of his claim that the sentence was unduly
     harsh, [Appellant] points to several factors, i.e. his “previous

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     work history,” his “admitted drug addiction,” his overall
     rehabilitative needs and the fact that no one was physically
     injured. These factors do not, however, support his claim for
     relief.

           As this Court noted at the time of sentencing, [Appellant’s]
     need for money, whether caused by a downturn in his
     employment or by the need to fund a drug habit, does not justify
     violent crime and cannot mitigate [Appellant’s] decision to take
     the property of others by use of force and threat of violence.6
     Moreover, [Appellant’s] use of drugs as a juvenile and his
     continued use of drugs as an adult does not mitigate the
     offenses. The fact that [Appellant] was an active drug abuser
     when he committed these crimes makes those encounters all the
     more dangerous. [Appellant’s] failure to seek drug treatment as
     a juvenile and as an adult demonstrated to this Court that he is
     not committed to changing his lifestyle.7
           6
               N.T. 12/28/15 p. 23; N.T. 4/19/16 pp. 30-31.
           7
               N.T. 12/28/15 pp. 17-18.; N.T. 4/19/16 pp. 17-18

            Throughout the proceedings before this Court, [Appellant]
     demonstrated a complete lack of empathy for the victims of his
     crimes. His statements at both the sentencing and the
     reconsideration hearings made it clear that he does not
     appreciate the nature and seriousness of his crimes. He has
     failed to take responsibility for his conduct, consistently blaming
     others for his failures. The fact that no one was physically
     injured during [Appellant’s] crime spree is a testament to the
     composure and sound judgment of the victims and the
     effectiveness of the police in removing him from the street
     before one side or the other, victim or [Appellant], decided to
     escalate the violence. It is not proof of any conscious decision by
     [Appellant] to avoid using physical violence. By introducing a
     weapon into the situation, [Appellant] certainly created a grave
     risk of injury. It is also very important to note that, although the
     victims in this case escaped physical injury, the emotional and
     psychological impact of these crimes upon victims and the
     surrounding members of the community is always substantial. In
     addition, the distinction [Appellant] is attempting to use as a
     factor to mitigate his sentence is a distinction that has already
     been factored into sentencing by virtue of the statute defining
     the offense. The statutory scheme delineates different types of

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       robbery based on whether an injury is threatened or one is
       inflicted and the degree of injury that is threatened or inflicted.
       18 Pa.C.S. § 3701. Those distinctions are reflected in the
       applicable offense gravity scores which correspondingly increase
       or decrease based on the nature of the injury threatened or
       inflicted for purposes of the sentencing guidelines. See, 204 Pa.
       Code § 303.15.

             In imposing sentence, this Court considered the nature of
       the crimes committed, including the sophistication and planning
       of the crimes, the number of victims involved, both individuals
       and businesses, the impact of the crimes on the victims and the
       community, and the history, character and rehabilitative needs
       of [Appellant]. Based on all of these circumstances, this Court
       reasonably concluded that a lengthy term of incarceration was
       warranted. 8
              8
                  N.T. 12/28/15 pp. 27-34; N.T. 4/19/16 pp. 27-32.

Trial Court Opinion, 7/11/16, at 8-10.

       We agree with the trial court and conclude that this is an example of a

defendant who, after being convicted of multiple criminal acts committed at

separate times with separate victims, is now seeking that which is not

permitted: a volume discount on his crimes.13         We discern no abuse of

discretion in the trial court imposing consecutive mitigated-range sentences,

and we affirm the judgment of sentence.

       Judgment of sentence affirmed.


____________________________________________


13
   “We see no reason why a defendant should be afforded a ‘volume
discount’ for his crimes by having all sentences run concurrently.” Zirkle,
107 A.3d at 133 (quoting Commonwealth v. Hoag, 665 A.2d 1212, 1214
(Pa. Super. 1995)).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2017




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