J-S68041-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
MISTY KING,                              :
                                         :
                 Appellant               :     No. 509 WDA 2016

          Appeal from the Judgment of Sentence March 15, 2016
             in the Court of Common Pleas of Fayette County
           Criminal Division at No(s): CP-26-CR-0001201-2015

BEFORE:    SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED NOVEMBER 18, 2016

     Misty King (Appellant) appeals from the judgment of sentence entered

after she was convicted of receiving stolen property. We affirm.

           The incident giving rise to this case occurred at
     approximately 4:00 a.m. on June 22, 2015 in North Union Twp.,
     Fayette County, Pennsylvania. Pennsylvania State Police were
     dispatched to J.C.’s Pool Hall for a reported robbery. Two men,
     Matthew Marquis and Shane Shipley, were transported by
     [Appellant] to the establishment. Mr. Shipley, while outfitted in
     a Spiderman mask, pretended to brandish a firearm and
     demanded the two cash register drawers and the $1,672 in cash
     and coins therein. After taking possession of the items, the men
     were transported back to [Appellant’s] residence where the
     police eventually caught up with them and found the register
     drawers in an outside dumpster. [Appellant] attempted to flee
     and then concealed herself before being apprehended by the
     police.

          [Appellant] was charged with conspiracy to commit
     robbery and receiving stolen property. On March 8, 2016,
     [Appellant] was convicted by a jury of receiving stolen property,
     and on March 16, 2016, [Appellant] was sentenced to seventeen


*Retired Senior Judge assigned to the Superior Court.
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      (17) months to three (3) years in prison, followed by a two-year
      consecutive term of probation. …

                                    ***

            On March 21, 2016, [Appellant] filed a timely post-
      sentence motion challenging the severity of her sentence. On
      March 28, 2016, the [trial c]ourt denied the motion…. This
      timely appeal followed.

Trial Court Opinion, 6/3/2016, at 2-3 (citations, footnote, and unnecessary

capitalization omitted).   Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

      Appellant presents this Court with two questions: (1) “Did the

sentencing court impose a harsh, severe, and manifestly unreasonable and

excessive sentence in light of the circumstances surrounding the alleged

incident?” and (2) “Did the sentencing court fail to articulate a reasonable

basis for sentencing Appellant in the aggravate[d] range of the Pennsylvania

sentencing guidelines?”    Appellant’s Brief at 7 (unnecessary capitalization

omitted).

      Appellant challenges the discretionary aspects of her sentence.     We

consider her questions mindful of the following.

      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.



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                                     ***

           When imposing sentence, a court is required to consider
     the particular circumstances of the offense and the character of
     the defendant. In considering these factors, the court should
     refer to the defendant’s prior criminal record, age, personal
     characteristics and potential for rehabilitation.

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

(internal citations and quotation marks omitted).

     An appellant is not entitled to the review of challenges to the
     discretionary aspects of a sentence as of right. Rather, an
     appellant challenging the discretionary aspects of his sentence
     must invoke this Court’s jurisdiction. We determine whether the
     appellant has invoked our jurisdiction by considering the
     following four factors:

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

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

     Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence.     Although Appellant’s brief does not

contain a statement pursuant to Pa.R.A.P. 2119(f), that failure does not

preclude   review   because    the   Commonwealth     has   not    objected.

Commonwealth v. Spenny, 128 A.3d 234, 241 (Pa. Super. 2015) (citing



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Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (en banc)

(“If an appellant fails to comply with R.A.P. 2119(f) and appellee fails to

object, this Court may review appellant’s claims with regard to the

discretionary aspects of sentence.”)). We thus consider whether Appellant

has presented a substantial question for our review.

      Appellant’s first claim, that the sentence is excessive for the crime at

issue and is in fact punishment “for crimes of which she was acquitted,”

Appellant’s Brief at 11, raises a substantial question.   Commonwealth v.

Downing, 990 A.2d 788, 792 (Pa. Super. 2010) (holding substantial

question raised by claim that sentence was based upon an improper factor).

Similarly, Appellant’s claim that the trial court failed to state on the record

adequate reasons for imposing an aggravated-range sentence raises a

substantial question. Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa.

Super. 2008).     Accordingly, we shall address the merits of Appellant’s

claims, which together amount to the argument that the trial court did not

state on the record valid reasons for sentencing her as it did.

      The parties agreed that Appellant had a prior record score of four, and

was convicted of a first degree misdemeanor with an offense gravity score of

three.1   N.T., 3/15/2016, at 3.      Accordingly, the sentencing guidelines

provided for a standard range sentence with a minimum of three to 14



1
  The statutory maximum sentence is five years of imprisonment.             18
Pa.C.S. § 1104(1).

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months of incarceration and an aggravated range sentence with a minimum

of 14 to 17 months of incarceration. Id.

      After review of the presentence investigation report, the trial court

opted for a sentence of 17 to 36 months of incarceration followed by two

years of probation. On the record at Appellant’s sentencing hearing, the trial

court offered the following reasons for its decision.

      We have reviewed the letter from Stella Caccia, [Appellant’s]
      aunt. We can only say that it is a familiar refrain that I hear that
      this person is a great person as long as they are not on drugs,
      basically is what I take from the letter, and unfortunately too
      many people are taking that first step into drugs and can’t come
      back. It is like, evidently for a lot of people, like going over a
      cliff. And unfortunately, in addition to this offense, she has got a
      recent conviction for felony burglary. …

                                     ***

      We are certainly disturbed by the fact that [Appellant] was
      convicted as recently as 2012 of burglary. It may be that she
      was revoked on, she was revoked on March 2, 2015. I am not
      sure why she was revoked. As there clearly was more to the
      sentence than we have got summarized because with a six
      month sentence on October 15, of [20]12, there wouldn’t have
      been any legal way to revoke her on March 2 of 2015, and that’s
      what we have. But it indicates that she was in jail for at least
      ten days and released with a drug and alcohol evaluation in
      March, and this offense occurs in June, only three months later.
      So we are certainly concerned about that. I might also note that
      having presided over the trial, the credible testimony was that,
      although she was not convicted of conspiracy, she did in fact go
      into J.C.’s, according to the testimony, ordered food, [left]
      without picking up the order, and was the driver of the car that
      brought Shipley and I believe it is Matthews, to J.C.’s for a
      robbery, to all of their benefit[. W]hile Mr. Shipley pretended
      that he had a handgun, there is no evidence that he actually had
      a handgun. No handgun was recovered and everyone has been
      fully consistent in saying that he was holding his finger or


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      another object under a sweatshirt. So this was a bluff. That
      said, it still could have been dangerous to somebody had the
      proprietor been armed, they might have shot Mr. Matthews or
      Mr. Shipley. It was a [r]obbery. She was not convicted of it.
      But certainly a preponderance of the evidence shows that her
      involvement is more than having received the stolen property.
      For all those reasons, we intend to sentence in the aggravated
      range….

Id. at 5-9.

      We note that the trial court reviewed the presentence investigation

report, and, thus, “we presume that the court properly considered and

weighed   all   relevant   factors   in   fashioning   [Appellant’s]   sentence.”

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013). Further,

the record reveals that the trial court was cognizant of the aggravated

nature of the sentence it was imposing, and offered reasons for it: (1) past

leniency had failed to dissuade Appellant from engaging in criminal conduct

shortly after being released from imprisonment, and (2) Appellant certainly

did not merely sit back and receive the property that the conspirators stole;

rather, she was present at the scene and thereby helped create a potentially

dangerous condition.

      Appellant contends that the latter reason constitutes consideration of

charges of which she was acquitted, which “would ‘erode the integrity of our

criminal justice system.’” Appellant’s Brief at 12 (quoting Commonwealth

v. Smart, 564 A.2d 512, 515 (Pa. Super. 1989)). We disagree.




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       In Smart, the defendant was acquitted of robbery, rape, and

involuntary deviate sexual intercourse, but was convicted of burglary. The

sentencing guidelines provided for a standard range of 12 to 29 months of

imprisonment, with 29 to 36 months being the aggravated range.              The

presentence investigation report contained a recommendation of 30 to 60

months.     The trial court imposed a sentence of 96 to 240 months of

imprisonment “thus representing a minimum sentence of two and a half

times the outside of the guideline sentence in the aggravated range.” Id. at

513.   The trial court’s reasons for the sentence were that the burglarized

building was a home for abused women and that Smart as a teenager had

knocked a five-year-old off of a bike and stolen it.

       This Court rejected the trial court’s reasons, stating that “burglary is,

at least considering its common law roots, a crime against a dwelling, not a

crime against an individual, and it would seem rather immaterial who

occupies the dwelling,” and that although the bike incident “is not to be

condoned and is most definitely anti-social, … imprisonment for such

behavior could lead to the incarceration of many a neighborhood bully.” Id.

at 514.    This Court also took issue with the fact that “the trial court

apparently gave little credit to [Smart] for withdrawing from the criminal

venture and the evidence that he was intoxicated at the time of the

incident.” Id. This Court went on to state:




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      We are further concerned because the facts of the present case
      create a strong suggestion that appellant is being punished for
      crimes of which he was acquitted. We note the trial court’s
      insistence that he was sentenced only for the burglary charge.
      Yet it is entirely possible that the charges appellant was
      acquitted of, along with those charges pending disposition, were
      working subconsciously to make the trial court take a particularly
      hardened stance on sentencing. When these factors are put
      completely out of mind, the sentence imposed makes little sense
      and seems very harsh when considered relative to the
      guidelines. However, were one to consider, in a hypothetical
      sense, that appellant had been convicted for all of the crimes
      charged, the sentence might be considered appropriate. Thus,
      regardless of the actual influence the acquittal had upon the trial
      court, the situation has, at the minimum, an appearance of a
      make-up type of sentence. Similar to the area of law regarding
      judicial bias, which compels against even the appearance of
      partiality, bias or interest, we believe sentences imposed under
      the present circumstances must be closely scrutinized to prevent
      not only the appearance that an individual is being sentenced, in
      reality, for crimes the jury rendered an acquittal verdict, but also
      to protect against a possible subconsciously influenced sentence.
      To allow even an appearance of such a practice would erode the
      integrity of our criminal justice system.

Id. at 514–15.    Under these circumstances, this Court held that the trial

court’s sentence was an abuse of discretion.2



2
  The dissent in Smart would have affirmed on the basis that “there is
testimony of record that supports the judge’s determination regarding the
nature of the crime and the character of appellant in the instant case. Thus,
there is an explanation for the harshness of the sentence other than the
judge’s attempt to override the jury verdicts.” Smart, 564 A.2d at 518
(Beck, J., dissenting). Our Supreme Court granted allowance of appeal of
this Court’s split decision, 578 A.2d 928 (Pa. 1990), but subsequently
dismissed it as improvidently granted, 592 A.2d 683 (Pa. 1991). Justice
Larsen, joined by Justice McDermott, dissented to the dismissal, stating that
the “Superior Court exceeded its scope of appellate review by substituting its
view that the appellee should receive a sentence much more lenient than the
lawful one imposed by the trial court.        This was clearly an abusive
usurpation of the sentencing power of the sentencing judge and should not

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      The instant case is clearly distinguishable from Smart.       First, the

reasons offered by the trial court for its sentence are valid, unlike the

tenuous reasons cited by the Smart majority.         Second, we discern no

appearance of the subconscious influence of the acquittal verdict on the

sentence herein.      The trial court in this case noted that, although her

involvement may not have risen to the level of a member of the robbery

conspiracy, Appellant did act beyond just having stolen property appear at

her residence. For that reason and the others stated, it sentenced her in the

aggravated range for the charge of which she was convicted; it did not, as

the court in Smart did, hand down a sentence more than twice that of one

in the aggravated range, resulting in a sentence appropriate for someone

who had been convicted on all pending charges rather than just the actual

single conviction.3

      For the foregoing reasons, we conclude that Appellant has failed to

demonstrate that “the sentencing court ignored or misapplied the law,



be allowed.” Id. at 686. We have not uncovered any subsequent appellate
decision that has relied upon this Court’s holding in Smart.
3
  The presentence investigation report is not part of the record before us.
From review of the sentencing guidelines, it appears that, if convicted on the
F1 conspiracy-to-commit-robbery count (which has an offense gravity score
of 8) with her prior record score of 4, the standard range sentence would
have been 21 to 27 months and the aggravated range 27 to 36 months. In
other words, if Appellant was convicted on both counts, the trial court could
have sentenced her to an aggregate sentence more than twice as long as
the 17-to-36-month sentence that was imposed and still have been within
the standard range.

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exercised its judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.”           Commonwealth v.

Johnson, 125 A.3d 822, 826 (Pa. Super. 2015) (quoting Commonwealth

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

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2016




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