J-S69042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRIAN CHRISTOPHER MCCLASKEY,

                            Appellant                No. 887 EDA 2015


          Appeal from the Judgment of Sentence of January 12, 2015
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-0002018-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 30, 2015

        Appellant, Brian Christopher McClaskey, appeals from the judgment of

sentence of ten to 20 years of incarceration imposed on January 12, 2015,

after the trial court convicted Appellant of burglary, criminal attempted

indecent assault, criminal trespass, and false imprisonment.1 Upon review,

we affirm.

        The trial court recited the factual and procedural background of this

case as follows:

        [The victim] was at home alone on February 16, 2013, sick in
        bed in her residence[.] To her great horror, at around 9:00
        p.m., a man wearing a mask and gloves came through the door
        to her second-floor bedroom. He jumped on top of her in bed
        and told her he wanted to kiss her all over. [The victim]
____________________________________________


1
    18 Pa.C.S.A. §§ 3502, 901, 3503 and 2903, respectively.
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     struggled with her then-unknown assailant, who reeked of
     alcohol, and eventually removed his mask. She recognized the
     man as [Appellant], her neighbor.

     [Appellant] had gained access to [the victim’s] house, without
     her permission, through a door leading to a common basement
     shared by their respective residences. [The victim] was afraid
     [Appellant] was going to rape her and succeeded in talking him
     out of it. During their discussion, [Appellant] indicated that he
     had been interested in her for some time. [The victim], in
     contrast, only knew [Appellant] as her neighbor and had never
     spoken to him prior to this incident.

     [The victim] eventually convinced [Appellant] to leave.
     [Appellant] told her to stay in bed and he would leave on his
     own, but [the victim] walked downstairs with him because she
     wanted to make sure he left. She asked how [Appellant] had
     gotten into her house and he said through the kitchen door.
     [The victim] noticed, however, that her kitchen door was still
     locked; she realized he had come in through the common
     basement. [Appellant] left through the kitchen door.

     Moments later [the victim] heard [Appellant] knocking on the
     same door. He begged to be let back in because he had locked
     himself out of his house and wanted to get back through the
     basement. She allowed [Appellant] back in and locked the
     basement door after he left. She called her sister and then the
     police.

     Police arrived and eventually encountered [Appellant].    In
     response to being asked if he knew why they were there,
     [Appellant] stated[,] “Yes. I know I did wrong.” He also
     volunteered to police that he had heard them talking about a
     mask and gloves.      He told police those items were in the
     basement.

     [Appellant] initially entered an open guilty plea to burglary and
     criminal attempt indecent assault, but withdrew the plea prior to
     sentencing. The case proceeded to a stipulated bench trial. The
     [trial court] found [Appellant] guilty of burglary, criminal attempt
     at indecent assault, criminal trespass and false imprisonment.
     He later was sentenced to ten to twenty years in prison for the
     burglary offense. He also was sentenced to consecutive terms of
     probation of five years for criminal attempt, seven years for
     criminal trespass and two years for false imprisonment.


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      [Appellant] filed a post-sentence motion in which he claimed the
      sentence was illegal because burglary and criminal trespass
      should have merged for purposes of sentencing and because he
      should not have been sentenced for criminal attempt and false
      imprisonment as they were the offenses he intended to commit
      when he unlawfully entered [the victim’s] residence. He also
      claimed [the trial] court abused its discretion by imposing an
      excessive sentence.

      After response from the Commonwealth, [the trial] court vacated
      the sentences imposed on the criminal attempt and false
      imprisonment convictions and left the remainder of the sentence
      intact. [Appellant] subsequently appealed and, at the direction
      of th[e trial] court, filed a Pa.R.A.P. 1925(b) statement of errors.

Trial Court Opinion, 5/15/15, at 1-3 (footnotes omitted).

      On appeal, Appellant presents two issues for our review:

      WHETHER THE TEN TO TWENTY YEARS SENTENCE OF TOTAL
      CONFINEMENT IMPOSED BY THE TRIAL COURT ON JANUARY 12,
      2015,    AND  THE  FOURTEEN    YEARS   OF   PROBATION
      CONSECUTIVE TO HIS PAROLE WITH RESPECT TO APPELLANT’S
      CONVICTIONS    FOR  BURGLARY,    ATTEMPTED   INDECENT
      ASSAULT, CRIMINAL TRESPASS, AND FALSE IMPRISONMENT
      FOR REASONS ALREADY INCORPORATED IN THE GUIDELINES
      AND OTHER INAPPROPRIATE REASONS, WAS UNDULY HARSH,
      TOO SEVERE A PUNISHMENT FOR HIS PARTICULAR OFFENCE
      [sic], AND IN EXCESS OF WHAT IS NECESSARY FOR THE
      PROTECTION OF THE PUBLIC AND A VIOLATION OF THE NORMS
      OF THE SENTENCING PROCESS AND THEREFORE AN ABUSE OF
      DISCRETION[?]

      WHETHER THE TRIAL COURT ERRED IN FAILING TO MERGE THE
      SENTENCES IMPOSED FOR THE CRIMES OF BURGLARY AND
      CRIMINAL TRESPASS[?]

Appellant’s Brief at 9.

      In his first issue, Appellant challenges the discretionary aspects of his

sentence.    Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super.

2010) (claim that sentence is excessive is a challenge to the discretionary

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aspects of a sentence). It is well-settled that “sentencing is a matter vested

in the sound discretion of the sentencing judge, whose judgment will not be

disturbed absent an abuse of discretion.” Commonwealth v. Ritchey, 779

A.2d 1183, 1185 (Pa. Super. 2001).          Moreover, pursuant to statute,

Appellant does not have an automatic right to appeal the discretionary

aspects of his sentence.   See 42 Pa.C.S.A. § 9781(b).     Instead, Appellant

must petition this Court for permission to appeal the discretionary aspects of

his sentence. Id.

      Recently, this Court reiterated:

      The right to appellate review of the discretionary aspects of a
      sentence is not absolute, and must be considered a petition for
      permission to appeal. See [Commonwealth v. Hoch, 936 A.2d
      515, 518 (Pa. Super. 2007)] (citation omitted). An appellant
      must satisfy a four-part test to invoke this Court's jurisdiction
      when challenging the discretionary aspects of a sentence.

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant's brief
      has a fatal defect; and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code.

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

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa. Super.

2013) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014).

      “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


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      which underlie the sentencing process.” Commonwealth v.
      Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citations and
      internal quotation marks omitted).

Buterbaugh, 91 A.3d at 1266.

      Instantly, Appellant filed a timely notice of appeal, preserved his

sentencing challenge in his post-sentence motion, and included a separate

Rule 2119(f) concise statement in his appellate brief. See Appellant’s Brief

at 17-20.    To the extent Appellant argues that the trial court failed to

consider a multitude of mitigating factors, see Appellant’s Brief at 17-20, his

assertion that the trial court failed to consider mitigating facts does not raise

a substantial question.    Buterbaugh, 91 A.3d at 1266.          However, with

regard to Appellant’s contention that the trial court abused its discretion by

sentencing him to a “maximum sentence that was ten times what the

Guidelines called for,” such claim presents a substantial question.         See

Appellant’s Brief at 20; Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.

Super. 2001) (claim that the sentencing court imposed an unreasonable

sentence by sentencing outside the guideline ranges presents a substantial

question). Thus, we consider Appellant’s sentencing claim. In doing so, we

are mindful of prevailing case law, which this Court recently summarized:

      “In every case in which the court imposes a sentence for a
      felony or a misdemeanor, the court shall make as a part of the
      record, and disclose in open court at the time of sentencing, a
      statement of the reason or reasons for the sentence imposed.”
      Commonwealth v. Mouzon, 812 A.2d 617, 620–21 (Pa.
      2002); see 42 Pa.C.S. § 9721(b). The sentencing guidelines are
      not mandatory, and sentencing courts retain “broad discretion in
      sentencing matters, and therefore, may sentence defendants
      outside the [g]uidelines.” Id. (citing Commonwealth v. Ellis,

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     700 A.2d 948, 958 (Pa. Super. 1997)). “In every case where
     the court imposes a sentence ... outside the guidelines adopted
     by the Pennsylvania Commission on Sentencing ... the court
     shall provide a contemporaneous written statement of the
     reason or reasons for the deviation from the guidelines.” 42
     Pa.C.S. § 9721(b). However, “[t]his requirement is satisfied
     ‘when the judge states his reasons for the sentence on the
     record and in the defendant's presence.’” Commonwealth v.
     Widmer, 667 A.2d 215, 223 (1995), reversed on other grounds,
     689 A.2d 211 (1997). Consequently, all that a trial court must
     do to comply with the above procedural requirements is to state
     adequate reasons for the imposition of sentence on the record in
     open court. See [Commonwealth v.] Robinson, 931 A.2d
     [15, 26 (Pa. Super. 2007)] (quoting Commonwealth v. Walls,
     846 A.2d 152, 158 (Pa. Super. 2004), reversed on other
     grounds, 926 A.2d 957 (Pa. 2007)) (“If a court chooses to
     sentence a defendant outside of the sentencing guidelines, it
     should state on the record adequate reasons for the deviation.”).

     “When imposing sentence, a court is required to consider ‘the
     particular circumstances of the offense and the character of the
     defendant.’” Commonwealth v. McClendon, 589 A.2d 706,
     712–13 (Pa. Super. 1991) (en banc) (quoting Commonwealth
     v. Frazier, 500 A.2d 158, 159 (Pa. Super. 1985)). “In
     considering these factors, the court should refer to the
     defendant’s prior criminal record, age, personal characteristics
     and potential for rehabilitation.”     Id. “Where pre-sentence
     reports exist, we shall ... 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.” Commonwealth v. Devers,
     546 A.2d 12, 18 (Pa. 1988).

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014),

appeal denied, 95 A.3d 275 (2014).

     In examining the merits of Appellant’s claim, we recognize that the

primary consideration in our review of the discretionary aspects of a

sentence imposed by a trial court is whether the court imposed an


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individualized   sentence,    and   whether   the   sentence   was   nonetheless

unreasonable for sentences falling outside the guidelines. Commonwealth

v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). Also, “[a] trial court need

not undertake a lengthy discourse for its reasons for imposing a sentence or

specifically reference the statute in question, but the record as a whole must

reflect the sentencing court’s consideration of the facts of the crime and

character of the offender.”     Commonwealth v. Crump, 995 A.2d 1280,

1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010).

      Here, we find no basis to disturb the trial court’s determination that

Appellant’s “sentence was appropriate under the circumstances.” Trial Court

Opinion, 5/15/15 at 4. Our review of the record reveals that the sentence

imposed by the trial court was not unreasonable, and reflected the trial

court’s consideration of the facts of the crime and the character of Appellant.

      At sentencing, the trial court heard from Mr. Bill Bishop, who testified

to working as a mentor to Appellant at the Montgomery County Correctional

Facility.   Mr. Bishop testified that Appellant availed himself of numerous

prison programs, and was “doing everything … to put himself in a position to

succeed.” N.T., 1/12/15, at 9. Mr. Bishop stated that he “saw goodness” in

Appellant, and was “hoping he is judged gently.”       Id. The trial court also

considered letters submitted from Appellant’s wife, father-in-law, and

mother.     Id. at 11-12.    Finally, the trial court heard from Appellant, who

testified to having a loving family, but suffering from depression and


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substance abuse. Id. at 38. Appellant admitted to his actions regarding the

victim as “harmful and shameful,” expressed his regret, and apologized to

both the victim and his family. Id. Appellant also recounted rehabilitative

measures he has pursued in prison, such as mental health counseling and

Alcoholics Anonymous. Id. at 40.

      Conversely, the Commonwealth presented testimony from the victim,

who read a detailed statement on the record, noting in doing so that it was

“exhausting” and “very upsetting.” Id. at 17. The victim stated that during

the assault, “there was electricity in my body and my heart was doing things

I never thought it could.” Id. at 18. The victim’s entire statement, id. at

15-29, was admitted into evidence as Commonwealth Exhibit C-1.               It

included her averment that “there are no words to say to you to get you to

understand what I had to deal with both during and after the events … I

have been alone with the horror, the fears, the tears.” Id. at 26, 28. The

victim asked the trial court, “Please, Your Honor, please don’t take it easy on

this man. Please don’t let him go away or get away with this.” Id. at 27.

      At the conclusion of the hearing, the trial court commented at length

as follows:

      In this present case, I have considered [Appellant’s] age, the
      information about [him] which [he has] given me and which is in
      the Pre-Sentence Investigation and that which [he] just testified
      to, as well as the evidence of the circumstances of the offense.

      The facts as to [Appellant’s] personal background and
      circumstances are not in dispute. The facts of the offense have
      been admitted.


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     I have relied upon the Pre-Sentence Investigation and I have
     considered the risk assessment in addition to the letters I
     received prior to this hearing today and the correspondence I
     received from [Appellant’s] mother on different occasions. …

     Okay. And I’m making the PSI and the risk assessment part of
     the record along with the sentencing guidelines that are part of
     the PSI.

     [Appellant has] a long history of mental health issues. [He has]
     had multiple inpatient stays for violent sexual thoughts toward
     women, suicidal ideations, and homicidal thoughts as well.

     [Appellant has] been placed into institutions, mental health
     institutions, to try to help [him] in the past, according to the
     PSI.

     Also noted is that [Appellant was] sexually abused as a boy,
     most deviantly by [his] brother.

     It is also noted that you have a long history of drug and alcohol
     abuse as well and have sought treatment at different occasions.
     …

     You also have a pornography addiction.           That was also
     mentioned.

     I am at an absolute loss that the – and I must mention that the
     risk assessment states that you have a low risk for recidivism –
     after just mentioning the horrific background that you have, not
     criminal on your part, but the mental illness that you suffer from
     and the substance abuse, sexual abuse, and the ideations that
     you have, that they would with a straight face make that in their
     report. I totally disagree with that based upon my experience in
     criminal court and in the practice of law for 35 years.

     Let’s face it, you are every woman’s nightmare. Look what
     you’ve done to this woman. Do you see her back there? …

     The worst thing that you have done to her in my mind that is so
     obvious to anyone who sat here is that she doubts herself.

     She spent 25 minutes apologizing for what you did to her. You
     made her question her own sanity. She has been apologizing
     since she opened her mouth about this really happened, I swear
     to God it happened, I was there.



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      Unfortunately, she was there. And unfortunately, what you have
      taken away from her is her confidence, her security in the
      simplest things in life: Walking to her apartment, a noise she
      hears, foreboding, someone behind her, making sure the lights
      are on, the light’s off, was this in this place or that place. This is
      her life now because of what you did.

      I have to balance what is best for you and what is best for
      society when I fashion a sentence. …

Id. at 42-46.

      The trial court then rendered its sentence, adding:

      This sentence considered the fact that I consider [Appellant] an
      undue risk.     That during a period of probation or partial
      confinement, [Appellant] will commit another crime.         That
      [Appellant is] in need of correctional treatment that can be
      provided most effectively by [his] commitment to an institution,
      and a lesser sentence would depreciate the seriousness of
      [Appellant’s crimes].      That is why I decided to sentence
      [Appellant] to total confinement.

      I would also point out that I think [Appellant] is an absolute risk
      at this juncture to repeat this type of behavior.

      Also, the damage that has been done to this victim is
      irreparable.

Id. at 52.

      The trial court’s rationale indicates that it applied an individualized and

reasonable   sentence    consistent with the      sentencing   jurisprudence   of

Pennsylvania. Antidormi, supra. We therefore find no abuse of discretion

by the trial court, nor merit to Appellant’s first issue regarding his sentence.

      In his second issue, Appellant argues that the trial court erred by

failing to merge his convictions for burglary and criminal trespass. Appellant

specifically asserts that there is no jurisprudence “definitively indicat[ing]


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that burglary and criminal trespass do not merge.” Appellant’s Brief at 51.

Appellant further contends that Commonwealth v. Quintua, 56 A.3d 399

(Pa. Super. 2012), should be reversed as it expands on the holding of

Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009), to an extreme. Id.

at 52. Appellant’s merger claim is spurious.

      The trial court accurately and succinctly recited the applicable legal

authority as follows:

      [Appellant] contends th[e trial] court imposed an illegal sentence
      because burglary and criminal trespass should have merged for
      purposes of sentencing.      He relies on Commonwealth v.
      Jones, 912 A.2d 815 (Pa. 2006), a plurality decision in which
      our Supreme Court held that the two offenses merged for
      sentencing. [Appellant’s] reliance is misplaced.

      In the wake of our Supreme Court’s post-Jones decision in
      Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009), the
      crimes of criminal trespass and burglary have been found not to
      merge for purposes of sentencing. See Commonwealth v.
      Quintua, 56 A.3d 399 (Pa. Super. 2012). As such, [Appellant]
      is not entitled to relief.

Trial Court Opinion, 5/15/15, at 4.

      In asserting that “the Quintua case should be reversed,” Appellant

concedes that burglary and criminal trespass do not merge for sentencing

purposes, and improperly urges us to reconsider the holding of Quintua.

See Appellant's Brief at 52. This panel lacks the authority to do so.      See

Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013) (one panel

of the Superior Court is not empowered to overrule another panel of the

Superior Court). Accordingly, Appellant’s merger issue fails.



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     Based on the foregoing, we find Appellant’s sentencing and merger

issues to be without merit.   Accordingly, we affirm the January 12, 2015

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2015




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