J-S40044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

STEWARD MICHAEL LAZARUS

                         Appellant                   No. 219 MDA 2014


         Appeal from the Judgment of Sentence November 20, 2013
            In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-CR-0005165-2012
                                         CP-CR-0005166-2012
                                        CP-CR-0005171-2012
                                        CP-CR-0005172-2012


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.                      FILED SEPTEMBER 04, 2014

      Appellant, Steward Michael Lazarus, appeals from the judgment of



the Honorable Howard F. Knisely, Court of Common Pleas of Lancaster

County, following his guilty plea to, inter alia, 28 counts of burglary.   On

appeal, Lazarus challenges the discretionary aspects of his sentence.      No

relief is due.

      The trial court summarized the history of this case as follows:

            On March 19, 2011 and April 19, 2011, police received a
      report of a burglary in Millersville, PA. Between March 1, 2012
      and September 18, 2012, police received thirty-five (35) reports
      of residences burglarized in Millersville and contingent
      townships. Police discovered signs of forced entry and received
      reports from victims of missing jewelry, coins, cash, paintings,
      firearms, and various other items. On September 16, 2012,
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     officers responded to a burglary in progress at a Millersville
     residence. Upon arrival, officers established a perimeter and
     located [Lazarus] in the home. [Lazarus] could not provide a
     lawful reason for his presence and was placed under arrest.
     While officers escorted [Lazarus] to a police cruiser, [Lazarus]
     indicated there were other suspects in the house. When the
     officers turned to look toward the house, [Lazarus] pulled away
     and escaped custody; he was taken back into custody at his
     home address.

           [Lazarus] was taken to the police station, where he was
     advised of his Miranda warnings and interviewed.          In the
     interview, he admitted to breaking into the residence where he
     was originally found with the intent to commit theft. He was
     questioned about the numerous other burglaries in the area and
     confirmed his involvement in several of them. Police seized
                                                    hed the property,
     and had the victims of the various burglaries identify items that
     belonged to them. As a result of this investigation, [Lazarus]
     was charged at docket 5172-2012 with 25 counts of Burglary,
     one count of Escape, three counts of Criminal Attempt, four
     counts of Theft by Unlawful Taking, and one count of Possession
     of Marijuana with Intent to Deliver. At docket 5171-2012,
     [Lazarus] was charged with eight counts of burglary. At docket
     5166-2012, [Lazarus] was charged with one count of Burglary.
     At docket 5165-2012, [Lazarus] was charged with one count of
     Burglary and one count of Theft by Unlawful Taking.

           On August 26, 2013, [Lazarus] pled guilty on docket 5172-
     2012 to 20 counts of Burglary, one count of Escape, there counts
     of Criminal Attempt, four counts of Theft by Unlawful Taking,
     and one count of Possession of Marijuana with Intent to Deliver;
     on docket 5171-2012 to six counts of Burglary; on docket 5166-
     2012 to one count of Burglary; [and] on docket 5165-2012 to
     one count of Burglary and one count of Theft by Unlawful Taking.
     [Lazarus] was sentenced on November 20, 2013. On docket
     5172-2012, [Lazarus] was sentenced to 1-2 years for each of
     the burglaries, to be served consecutively to each other and the
                                    bation for escape, to be served

     each of the criminal attempt counts, to be served concurrently
     with each other and concurrent with the escape count; 1-2 years
     for each of the theft by unlawful taking counts where firearms
     were taken, to be served consecutively with each other and the
     burglary counts.      On docket 5171-2012, [Lazarus] was

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      sentenced to 1-2 years on each of the burglary counts, to be
      served consecutively with each other and the other dockets. On
      docket 5166-2012, [Lazarus] was sentenced to 1-2 years for
      [b]urglary, to be served consecutively with the other dockets.
      On [d]ocket 5165-2012, [Lazarus] was sentenced to 1-2 years
      for the [b]urglary, to be served consecutively with the other
      dockets and 1-2 years for the Theft by Unlawful Taking where a
      firearm was taken, also to be served consecutively.          The
      aggregate sentence imposed on [Lazarus] as to a State
      Correctional Institution was 33 years to 66 years. [Lazarus] was
      sentenced within the standard range of the guideline sentence.

            On November 26, 2013, [Lazarus] filed a Motion to Modify
      Sentence, requesting the sentence be modified so as to permit
      [Lazarus] to serve the bottom of the standard range of his
      guidelines, resulting in
      incarceration. On December 20, 2013, the Commonwealth filed


      Modify Sentence, explaining in the order the reasons for denial.
      The instant timely appeal followed.

Trial Court Opinion, 2/28/14 at 1-3 (footnotes omitted).

      On appeal, Lazarus argues that his aggregate sentence was clearly

unreasonable   under   the      circumstances   of   this   case   and   improperly

constituted a virtual life sentence.      See

standard when reviewing sentencing matters 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 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. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)

(en banc) (citation omitted).


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        Lazarus challenges the discretionary aspects of his sentence.              A

challenge to the discretionary aspects of a sentence must be considered a

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

absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.

2004).

        An   appellant    challenging   the   discretionary   aspects   of   his

        four-part test:

        [We] 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,

        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).

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

(quotation marks and some citations omitted).

        Here, Lazarus filed a timely appeal and challenged his sentence in a

post-



cumulative sentence of thirty-three to sixty-

unreasonable, and so manifestly excessive as to constitute an abuse of

discretion. See

focused exclusively on the gravity of the offense in imposing the sentence.

Even assuming these claims raise a substantial question, Lazarus is not

entitled to relief.


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J-S40044-14



      Here, Lazarus does not dispute that the individual sentences imposed

are indisputably within the guideline range, notwithstanding the trial court's

imposition of consecutive sentences. Although Lazarus claims that the trial

court erred in imposing a sentence that was inconsistent with the protection

of the public, the gravity of the offenses, and his rehabilitative needs, we

note that the trial court had prepared and reviewed a pre-sentence report.

See id. at 17.    Where the trial court had the benefit of reviewing a pre-

sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court's discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).

As the trial court in this case did have the benefit of a pre-sentence report,

we must presume that he considered all relevant sentencing factors and did

not impose a sentence based solely on the gravity of the offenses.



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     We are further satisfied that the trial court adequately stated its

reasons for imposing the sentence as follows:


     is a theme, much of what you heard already. But those themes
     are items that must be taken into account by the [c]ourt in
     rendering a sentence. For example, stole our sense of security
     and innocence; defenseless, elderly people asleep in their beds
     were burglarized; priceless items taken; the feeling of no longer
     being safe in a loving town.

           Most people who were burglarized and who were victims of
     thievery were people known to you. An elderly man has his
     home burglarized four-and-a-half months after his wife passed
     away and you knew that. All feel violated, frightened and
     insecure.   Many felt extremely threatened and vulnerable,
     showing extreme anxiety. People, if not most, afraid to be alone
     in their homes.

          You stole family histories, not only in jewelry, but other
     possessions.
                                                th
                                              birthday party and
     burglarized his home within a month. Children were frightened
     to the point of illness, to the point of hiding their personal
     possessions.

           This rang out throughout not only Millersville, though

     charges are from West Lampeter, the second from Southern
     Regional, the third from Manor Township. But the vast majority
     from Millersville Borough.

          Incarceration is warranted because a lesser sentence
     would depreciate the seriousness of the crimes.

N.T., Sentencing, 11/20/13 at 28-29.




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sentence appears, on its face, manifestly excessive. Accordingly, we discern

no abuse of discretion in the sentence imposed by the trial court.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2014




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