J. A20014/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :      IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                     v.                        :
                                               :
ANGELO JOSEPH McCABE JR.,                      :         No. 2104 MDA 2018
                                               :
                            Appellant          :


        Appeal from the Judgment of Sentence Entered August 16, 2018,
                 in the Court of Common Pleas of Berks County
                Criminal Division at No. CP-06-CR-0005432-2017


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: FEBRUARY 4, 2020

        Angelo Joseph McCabe, Jr., appeals from the August 16, 2018 judgment

of sentence entered in the Court of Common Pleas of Berks County after

appellant    pleaded      guilty   to   one   count   each   of   burglary   (overnight

accommodation with person present) and arson endangering persons.1 The

sentencing court sentenced appellant to an aggregate six to fifteen years’

incarceration.2 We affirm.

        The trial court set forth the factual and procedural history as follows:

              On October 27, 2017, Muhlenberg Township police
              received a call about a possible burglary in progress

1   18 Pa.C.S.A. §§ 3502(a)(1)(i) and 3301(a)(1)(i), respectively.

2 We note that appellant was also ordered to pay restitution to the victim and
the victim’s insurance company in the amount of $27,371.21, as well as costs
of prosecution. (See restitution order, 8/16/18; see also sentencing hearing
transcript, 8/16/18 at 26.)
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            shortly after 5:30 a.m. A female resident, who was
            inside her home when the person entered, had placed
            the call to the police. Police surrounded the house and
            located the person, later identified as [appellant],
            inside on the first floor. The female resident was
            rescued via a second-floor balcony.          [Appellant]
            refused to surrender and barricaded himself inside the
            home. The Berks County Emergency Response Team
            was called to the home after officers observed
            [appellant] with a rifle and crossbow that belonged to
            the homeowners. Approximately ninety minutes into
            the standoff [appellant] started a fire in the home,
            igniting gasoline in the garage. [Appellant] had also
            placed gunpowder and gasoline in the first floor of the
            home. At that point, the emergency response team
            entered the home, detained [appellant], and
            extinguished the fire. [Appellant] had a lighter and
            gasoline on his person when he was detained.

            On August 16, 2018, [appellant] pleaded guilty to one
            count of arson (18 Pa.C.S.[A.] § 3301(a)(1)(i)) and
            one     count     of     burglary     (18  Pa.C.S.[A.]
            § 3502(a)(1)(i)). Both counts are felonies of the first
            degree.       At sentencing, the Commonwealth
            recommended sentences in the top of the standard
            range – four to ten years for arson to be followed by
            three to ten years for burglary, for an aggregate
            sentence of seven to 20 years. [Appellant] asked for
            concurrent sentences at the bottom of the standard
            range for both counts.           Following a hearing,
            [appellant] was sentenced to confinement in the
            middle of the standard range for both counts –
            42 months to 7.5 years (with 294 days’ credit) for
            arson followed by a consecutive sentence of
            30 months to 7.5 years for burglary. The aggregate
            sentence is six to fifteen years.

            On August 21, 2018, [appellant] filed a post-sentence
            motion, which was denied on November 29, 2018,
            following a hearing. [Appellant] filed a Notice of
            Appeal on December 21, 2018.

Trial court opinion, 3/25/19 at 1-2 (citations to record omitted).



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      The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          Appellant timely

complied. The trial court subsequently filed its Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Whether the sentencing court abused its discretion in
            sentencing [a]ppellant to an aggregate term of six (6)
            to fifteen (15) years in a state correctional institution
            where the sentence is excessive and the sentencing
            court only considered the impact of the offense on the
            victim and the community[?]

Appellant’s brief at 7.

            It is well-settled that “[t]he right to appeal a
            discretionary aspect of sentence is not absolute.”
            Commonwealth v. Dunphy, 20 A.3d 1215, 1220
            (Pa.Super. 2011).       Rather, where an appellant
            challenges the discretionary aspects of a sentence, we
            should regard his appeal as a petition for allowance of
            appeal. Commonwealth v. W.H.M., 932 A.2d 155,
            162 (Pa.Super. 2007).           As we stated in
            Commonwealth v. Moury, 992 A.2d 162 (Pa.Super.
            2010):

                   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


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                   is not appropriate under the Sentencing
                   Code, 42 Pa.C.S.A. § 9781(b).

             Id. at 170.

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa.Super. 2019) (brackets in

original text).

      Here, the record reflects that appellant filed a timely notice of appeal,

preserved his challenge to the discretionary aspect of his sentence by filing a

post-sentence motion, and included a Rule 2119(f) statement in his brief.

(Appellant’s brief at 14-16.)      Accordingly, we must determine whether

appellant has raised a substantial question.

      We evaluate on a case-by-case basis whether a particular issue

constitutes a substantial question about the appropriateness of sentence.

Hill, 210 A.3d at 1116 (citation omitted). A substantial question exists when

appellant has presented a colorful argument that the sentence imposed is

either (1) inconsistent with a specific provision of the Sentencing Code; or

(2) is “contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super.

2010), appeal denied, 14 A.3d 825 (Pa. 2011).                  Sentencing Code

Section 9721(b) provides, in pertinent part, as follows:

             the court shall follow the general principle that the
             sentence imposed should call for confinement that is
             consistent with the protection of the public, the
             gravity of the offense as it relates to the impact on the
             life of the victim and on the community, and the
             rehabilitative needs of the defendant.



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42 Pa.C.S.A. § 9721(b).     A “challenge to the imposition of [] consecutive

sentences as unduly excessive, together with [a] claim that the court failed to

consider his rehabilitative needs upon fashioning its sentence, presents a

substantial question.”   Commonwealth v. Caldwell, 117 A.3d 763, 770

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

      Here, appellant’s argument in his Rule 2119(f) statement that his

consecutive sentences are excessive and the sentencing court failed to

consider his rehabilitative needs raises a substantial question.          (See

appellant’s brief at 15; see also Caldwell, 117 A.3d at 770.) Therefore, we

proceed to consider the merits of appellant’s discretionary sentencing claim.

            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.

Caldwell, 117 A.3d at 770 (citation omitted).

            With respect to the imposition of consecutive versus
            concurrent sentences, “long standing precedent of
            this   [c]ourt   recognizes   that   42   Pa.C.S.[A.
            S]ection 9721 affords the sentencing court discretion
            to impose its sentence concurrently or consecutively
            to other sentences being imposed at the same time or
            to sentences already imposed.”




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Commonwealth v. Johnson-Daniels, 167 A.3d 17, 28 (Pa.Super. 2017)

(citation and original brackets omitted), appeal denied, 174 A.3d 1029 (Pa.

2017).

      Here, the record reflects that the sentencing court sentenced appellant

to consecutive terms of incarceration because the sentencing court viewed the

crimes as two separate and distinct events.          (See sentencing hearing

transcript, 8/16/18 at 22.) The sentencing court explained,

            In any event, I do really see that based on what I was
            told and the facts that you have admitted to that were
            placed on the record, these are almost two separate
            incidents. . . . You committed the most serious
            burglary you can commit under our offense gravity
            scores, under our sentencing scheme, or under our
            Sentencing Guidelines because you broke into a
            residence that was occupied at the time . . . . [I]f you
            would have stopped at the burglary, this would have
            been a whole different situation. The fact that you
            then barricaded yourself in, the county had to go to
            the expense of bringing out the S.W.A.T. team -- and
            I’m not actually sure what the arson was about or
            what it was you were trying to accomplish by that. . . .
            [T]his would have been an entirely different situation
            had you just stopped at a burglary and, when the
            police arrived, you would have surrendered.

Id. at 20-21.

      The record also reveals that appellant’s counsel spoke about appellant’s

history of controlled substance abuse and that appellant was never before

treated for his drug addiction and, in fact, was in denial of the addiction. (Id.

at 16.) Counsel stated that appellant has been taking classes in prison and

was looking forward to being rehabilitated and getting his drug addiction under



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control. (Id.) Appellant, also taking the opportunity to speak, first apologized

to the victims then stated that he was looking forward to being rehabilitated,

having learned his lesson, and continuing to build on his sobriety and return

to his children and girlfriend. (Id. at 17.) Before sentencing appellant, the

sentencing court commented,

             I’m taking into consideration everything I’ve heard,
             the fact that you had a prior record score but, on the
             flip side, the fact that you’ve also admitted the fact
             that you’re guilty.         You’re not putting the
             Commonwealth through the rigors of having to go
             through a trial for probably what -- based on what I’m
             seeing, this would have taken at least a couple of days
             based on the number of witnesses the Commonwealth
             would have had to call. So what I’m going to do is
             impose a minimum -- or, I’m sorry. I’m going to start
             at the middle of the standard range. But because I
             believe these are two separate incidents, I’m going to
             run them consecutive. You really leave me no choice.

Id. at 22.     The record demonstrates that some of the factors that the

sentencing court heard and considered included the fact that appellant had

been using controlled substances since he was 15 years old; that appellant

was taking classes in prison, getting rehabilitated, and getting his drug

addiction under control; and the state correctional facility offered appellant

the opportunity to obtain his GED, which the sentencing court advised

appellant to take advantage of doing. (Id. at 16, 19.) The sentencing court

also considered appellant’s pre-sentence investigation report. (Id. at 7.) The

sentencing court then sentenced appellant within the guidelines.          (See

guideline sentence form, 8/30/18 at 1-2.)



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      Based upon the record before us, we discern no abuse of discretion on

the part of the sentencing court in imposing consecutive sentences on

appellant after considering the mitigating factors, including appellant’s

rehabilitative needs.

      Judgment of sentence affirmed.



      McLaughlin, J. joins this Memorandum.

      Gantman, P.J.E. concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/04/2020




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