J-S05008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
EDWARD LEE SMITH,                        :
                                         :
                  Appellant              : No. 1243 WDA 2014

            Appeal from the Judgment of Sentence June 13, 2014,
                 Court of Common Pleas, Crawford County,
              Criminal Division at No. CP-20-CR-0001090-2013

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                    FILED FEBRUARY 06, 2015

      Edward Lee Smith (“Smith”) appeals from the judgment of sentence of

the Court of Common Pleas, Crawford County, following a plea of nolo

contendere to the charge of burglary, 18 Pa.C.S.A. § 3502(a).      For the

reasons that follow, we affirm.

      A brief summary of the relevant facts and procedural history is as

follows.   On August 29, 2012, Jeffrey Maseman (“Maseman”) entered his

home to find Smith and an unidentified individual standing in the living

room, with the house in disarray.     After Maseman retrieved his shotgun,

Smith and the unidentified individual fled from the home, allegedly with

Maseman’s daughter’s iPod. Police were able to acquire fingerprints from a

window that matched those of Smith.
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      On April 28, 2014, Smith entered a plea of no contest to the charge of

burglary, 18 Pa.C.S.A. § 3502(a).1      On June 13, 2014, the trial court

sentenced Smith to 42-84 months of incarceration. Smith filed a motion for

modification/reduction of sentence on June 23, 2014, which the trial court

denied on June 24, 2014. Smith filed a timely notice of appeal to this Court

on July 22, 2014.

      On August 15, 2014, Smith filed a statement of errors complained of

on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate

Procedure, wherein he raises the following issue for our review:

            1. Whether the [trial c]ourt abused its discretion in
            sentencing [Smith] to a term of forty-two to eighty-
            four months in this case.

Smith’s Brief at 4.

      Our standard of review for challenges to the discretionary aspects of

sentencing 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.



1
   The Commonwealth nolle prossed the charges of criminal trespass,
18 Pa.C.S.A. § 3503(a)(1)(ii), and theft by unlawful taking, 18 Pa.C.S.A.
§ 3921(a).


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Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal

denied, 63 A.3d 774 (2013)).

      This Court has held, “[w]here an appellant challenges the discretionary

aspects of a sentence, there is no automatic right to appeal and an

appellant’s appeal should be considered a petition for allowance of appeal.”

Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009).

           Before we reach the merits of this [issue], we must
           engage in a four part analysis to determine: (1)
           whether the appeal is timely; (2) whether Appellant
           preserved his issue; (3) whether Appellant’s brief
           includes a concise statement of the reasons relied
           upon for allowance of appeal with respect to the
           discretionary aspects of sentence; and (4) whether
           the concise statement raises a substantial question
           that the sentence is appropriate under the
           sentencing code.

Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super. 2013) (citing

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).

      In this case, Smith filed a timely notice of appeal and preserved his

claim on appeal in a post-sentence motion as well as in his Rule 1925(b)

statement. Smith also included a concise statement of reasons relied upon

for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief.      The

question remaining for our determination, therefore, is whether Smith raised

a substantial question.

            The determination of what constitutes a substantial
            question must be evaluated on a case-by-case basis.



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              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 process.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal

citations omitted).

        In his Rule 2119(f) statement, Smith contends that the trial court

imposed a “manifestly excessive and unreasonable sentence.” Smith’s Brief

at 8.     Smith “argues that the sentence imposed for his burglary [charge]

should have been in the [] low end to the middle of the standard range

under the[] facts.” Id. In support of his argument, Smith asserts that the

trial court “focused solely on erroneous facts and characterizations of the

crime and disregarded all other factors[,]” when it imposed the sentence,

and “that the facts present in this case do not warrant the [trial] court’s

imposition of such a severe sentence.” Id. at 9.

        This Court has established that “a generic claim that a sentence is

excessive     does      not   raise   a   substantial   question   for   our    review.”

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citing

Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013)).                         In

addition, it is well settled that “a claim that a court did not weigh the factors

as   an     appellant     wishes      does   not   raise   a   substantial     question.”

Commonwealth v. Zirkle, __ A.3d __, 2014 WL 7212598, *5 (Pa. Super.




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Dec. 18, 2014); see also Christine, 78 A.3d at 10-11 (stating, “an

allegation that the trial court failed to consider particular circumstances or

factors in an appellant’s case go to the weight accorded to various

sentencing factors and do not raise a substantial question.”). Accordingly,

we conclude that Smith has not raised a substantial question.

      Finally, this Court has held that when a “sentencing judge imposed

sentences that were within the standard range of the applicable guidelines,

and that he fully stated his reasons for imposing those sentences, no

substantial question has been presented.” Commonwealth v. Kimbrough,

872 A.2d 1244, 1263 (Pa. Super. 2005). In the instant case, Smith admits

that his sentence is within the standard range of the guidelines, as he

contests only that it should have been in the lower rather than the upper

end of the range.    See Smith’s Brief at 8.    Moreover, the trial court also

placed its considerations on the record at the sentencing hearing. The trial

court stated that it considered the potential that existed for a violent and

deadly encounter considering Maseman grabbed a shotgun upon discovering

Smith, “the chilling-type of offense” at issue, the fact that Smith alleges that

he took sleeping pills that day and has limited recollection of the events that

occurred, and Smith’s prior criminal record. N.T., 6/13/14, at 14-15. The

trial court, however, expressed that the         most critical factor in its

determination was the effect of the burglary on Maseman and his family.

See id. at 15-16.



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              …that’s just one of the most frightening things that a
              person can experience to see a stranger in their
              home – in their home, the place where they have a
              right to expect to be private and safe and free from
              intruders and once an intruder is in your home, it’s –
              it’s incredibly highly charged and you don’t know
              what they are there for. You don’t know if they’re
              going to assault a member of your family, try to
              kidnap you or one of the members of your family.
              And unfortunately, those tend to be the type of cases
              that make the nightly news and cause an amount of
              worry. So – and then he writes my daughter is
              afraid to be left alone in the house.
                     That’s an awful thing when your – when your
              child is telling you, “Gee, dad, don’t – don’t go away.
              I – I don’t want to be here by myself.” Man, this is –
              this just doesn’t call for anything close to a mitigated
              range sentence. If anything, it is an aggravated
              sentence but I’m not going to do that. So the
              sentence order reads as follows.

Id.

      For these reasons, Smith has not presented a substantial question for

our review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015




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