J-S45004-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN WILLIAMS,

                            Appellant                 No. 2388 EDA 2012


             Appeal from the Judgment of Sentence July 11, 2012
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012558-2010


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 28, 2014

       Shawn Williams appeals from the judgment of sentence of fifteen to

thirty years imprisonment that was imposed after he was convicted at a

nonjury trial of rape, unlawful contact with a minor, unlawful restraint, and

endangering the welfare of a child. We affirm.

       The victim, A.H., was thirteen years old on August 17, 2010, the day

of the attack. The evening of August 16, 2010, A.H. was at the Philadelphia

home her sister, Monica, shared with her husband, Appellant and their baby

daughter.     At approximately 11:00 p.m., Appellant and Monica began to

argue, and about one hour later, Appellant evicted Monica from the house.

She was not permitted to take either the baby or her sister with her.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S45004-14



        A.H. was watching television with her niece. Shortly after Monica left,

A.H. put her niece to bed. As A.H. was returning to the first floor to turn off

the television, Appellant came into the hallway.          A.H. described what

                                              bed my right arm and had pulled

me into the [bed]room, and he put both hands on my shoulder[s] and



                              Id

to av



                   Id

vagina, and then placed his mouth on her vagina. A.H. continued to push

and scratch Appellant and tell him to get off her.      Appellant ignored A.H.,



                    Id. at 29.     A.H. reported that the pain fro

penis was a nine on a scale of one to ten. Id. at 46. Appellant also placed

his hands and mouth on her breasts. At that point, Appellant placed a pillow



        When Appellant stopped his assault, A.H. dressed herself and retrieved

her niece, who had been crying and screaming during the crime. She went

downstairs with the child and began to watch television.       Then, Appellant

                                                                        he said

                                      Id. at 30-31. Eventually, A.H. fell asleep




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August 17th.     After Appellant left the house, A.H. immediately told her

mother about the assault, and they went to the police station.           Police

transported the victim to the hospital, where she was physically examined.

                                                               Id. at 35. A.H.

reported that, at the hospital, the pain continued to be a nine. Id. at 47.

      There were various stipulations entered into evidence after A.H.



                                                        Id. at 74. A rape test

kit was administered at the hospital, the hospital gave the kit to the Special




or hair up

taken from the residence but not tested.

      Finally, it was stipulated that two police officers proceeded to



observed the defendant walk up to the front porch of the property, look

                                           Id. at 74. Police followed Appellant

in their car, and Appellant began to run away. He was apprehended after a

brief pursuit.

      Based on this evidence, Appellant was convicted of the above-

described charges.     Appellant was sentenced to ten to twenty years

incarceration for rape and a consecutive term of five to ten years in jail for

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unlawful contact with a minor. Concurrent sentences were imposed on the

other two crimes at issue herein.              Appellant filed a motion to modify his

sentence.     This appeal followed its denial.         Appellant raises the following

issues on appeal:
                                                                         of
       the right to trial by jury was knowing, voluntary, and intelligent?

       B. Was the evidence sufficient to sustain any of the guilty
       verdicts entered by the trial court?

       C. Were the guilty verdicts entered by the trial court, against the
       great weight of the evidence where the trial court did not provide

       based on a foundation of reason and not caprice or partiality?

       D. Did the trial court . . . abuse its discretion in imposing an
       excessive sentence?



       Since Appellant would be entitled to discharge rather than a new trial if

he prevails in his sufficiency challenges, we address his second issue at the

outset.1 See Commonwealth v. Nypaver, 69 A.3d 708 (Pa.Super. 2013).

We review a sufficiency argument pursuant to the following principles:

              The standard we apply when reviewing the sufficiency of
       the evidence is whether viewing all the evidence admitted at trial
       in the light most favorable to the verdict winner, there is
       sufficient evidence to enable the fact-finder to find every
       element of the crime beyond a reasonable doubt. In applying
____________________________________________


1

were waived. Appellant included a challenge to the sufficiency of the
evidence in his Pa.R.A.P. 1925(b) statement, and the trial court addressed
the sufficiency of the evidence supporting the verdict.



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     the above test, we may not weigh the evidence and substitute
     our judgment for the fact-finder. In addition, we note that the
     facts and circumstances established by the Commonwealth need
     not preclude every possibility of innocence.          Any doubts
     regarding a defendant's guilt may be resolved by the fact-finder
     unless the evidence is so weak and inconclusive that as a matter
     of law no probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.          Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     trier of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced is free to believe all, part or
     none of the evidence.         Furthermore, when reviewing a
     sufficiency claim, our Court is required to give the prosecution
     the benefit of all reasonable inferences to be drawn from the
     evidence.

Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation

omitted).

     Appellant was convicted of rape by forcible compulsion.         A person




into her vagina by force. He challenges that conviction by maintaining that



concedes that the elements of unlawful contact with a minor were established




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by the Commonwealth.2                            t 23. To challenge this conviction,




which she was attacked, the number of bedrooms in the house, and whether

or not she called her mother following the attack.



the rape and unlawful contact offenses are actually challenges to the weight

rather than sufficiency of the evidence.         Commonwealth v. W.H.M., Jr.,




                                                                                  d

preliminary hearing testimony relate to the weight of the evidence, which


____________________________________________


2
   The offense of unlawful contact with a minor is outlined in 18 Pa.C.S.
§ 6318(a), which provides in pertinent part:

       (a) Offense defined.--A person commits an offense if he is
       intentionally in contact with a minor, or a law enforcement
       officer acting in the performance of his duties who has assumed
       the identity of a minor, for the purpose of engaging in an activity
       prohibited under any of the following, and either the person
       initiating the contact or the person being contacted is within this
       Commonwealth:

              (1) Any of the offenses enumerated in Chapter 31
              (relating to sexual offenses).

18 Pa.C.S. § 6318(a)(1). Rape is an offense set forth in chapter 31 of the
Crimes Code.



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also is for the factfinder to determine. Commonwealth v. Stays, 70 A.3d

1256 (Pa.Super. 2013).



since i

credibility. Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013)



              Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super.



is free to believe all, part, or none of the evidence, and to assess the

credibility of the witnesses. . . .   It is not for this Court to overturn the

credibility determinations of the fact-




that Appellant is mistaken since the victim had two lacerations on her labia

when she was examined following the incident.       While Appellant makes an

obtuse argument that the Commonwealth did not prove that the lacerations

were caused by an adult male penis, this position is a non sequitur.      The

laceratio

supported her allegations.

      Secondarily, we note that the physical evidence neither supported nor



since the kit was lost, and there was no other DNA testing conducted. The


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that Appellant pulled her pajama bottoms down to her ankles before she was

raped.



testimony of a sexual assault victim, if believed by the trier of fact, is

                                               Commonwealth v. Andrulewicz, 911

A.2d 162, 166 (Pa.Super. 2006) (quoting Commonwealth v. Charlton, 902

A.2d 554, 562 (Pa.Super. 2006)). Thus, the fact that there was no physical



render the evidence insufficient to support the rape and indecent assault

convictions.

       Appellant next challenges his unlawful restraint conviction. 3 A person



circumstances exposing him to risk of serious bo

§ 2902(a)(1), (b)(1).       In connection with this offense, Appellant maintains

that the record failed to establish that A.H. sustained serious bodily injury

after being forcibly raped.          As noted by the Commonwealth, Appellant
____________________________________________


3
  Appellant raises some of the same arguments with respect to the unlawful
restraint and child endangerment convictions as he did regarding the rape
and unlawful contact offenses. Our resolution of those positions as to the
rape and unlawful contact crimes applies with equal force to any identical
position that Appellant raises to the unlawful restraint or child endangerment
charges.



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misconstrues the elements of this crime.     The victim does not have to be

seriously injured to support an unlawful restraint conviction; rather, the

perpetrator must expose the victim to a risk of serious bodily injury.

      In Commonwealth v. Byers, 502 A.2d 1324 (Pa.Super. 1986), we

noted that unlawful restraint is committed when a defendant restrains

another and exposes the victim to a risk of serious bodily injury.        We



injury to the victi     Id. at 1331.      We more specifically delineated in

Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), that a victim

of unlawful intercourse is exposed to a risk of numerous venereal diseases as

                                                          ent that he did not

expose A.H. to a risk of serious bodily injury when he forcibly raped the

victim.

      Appellant also assails his child endangerment conviction. The elements



or other person supervising the welfare of a child under 18 years of age, or a

person that employs or supervises such a person, commits an offense if he

knowingly endangers the welfare of the child by violating a duty of care,

                              n, Appellant suggests that the evidence did not




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      We disagree.    The victim was thirteen years old, and the offense

occurred while she was staying

evidence was that Appellant evicted the only other adult in the home, Monica,

and refused to allow Monica to take her sister.      Hence, the evidence was

sufficient to establish that Appellant was the adult in charge and was

supervising A.H. when he raped her. See Commonwealth v. Trippett, 932

A.2d 188, 195 (Pa.Super. 2007).



properly waive his right to a jury trial. Pa.R.Crim.P. 620 provides:

      In all cases, the defendant and the attorney for the
      Commonwealth may waive a jury trial with approval by a judge
      of the court in which the case is pending, and elect to have the
      judge try the case without a jury. The judge shall ascertain from
      the defendant whether this is a knowing and intelligent waiver,
      and such colloquy shall appear on the record. The waiver shall
      be in writing, made a part of the record, and signed by the
      defendant, the attorney for the Commonwealth, the judge, and
      the defendant's attorney as a witness.



chosen from members of the community thereby producing a jury of his

peers; (b) any verdict rendered by a jury must be unanimous, that is, all

twelve jurors must agree before they can return a verdict of guilty; and (c)



Commonwealth v. Mallory, 941 A.2d 686, 690 (Pa. 2008).

      The colloquy conducted by the trial court under Pa.R.Crim.P. 620 does

not have to include an on-the-record colloquy concerning the fundamentals


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of a trial by jury.    Mallory, supra.     A written colloquy will suffice.   Id.

Herein, Appellant signed an extensive written document providing a detailed

explanation of all the rights that he was waiving by proceeding to a non-jury

trial.     That document encompassed the three concepts in question.

Additionally, Appellant specifically signed yes to the following paragraph:

         Do you understand that if you are tried by a jury you cannot be
         convicted unless all twelve jurors are convinced beyond a
         reasonable doubt that you are guilty? This is because a jury
         verdict is required by law to be unanimous which means that all
         twelve jurors must agree on the verdict, thus if all twelve vote



Written Jury Trial Waiver Colloquy, 5/24/11, at ¶ 35.

         The written waiver was supplemented by an oral colloquy conducted

by defense counsel in front of the trial judge that actually delineated two of

the three fundamental rights involved in a jury trial.

              THE COURT: I have in front of me a written colloquy
         waiver form that has been completed, signed by your client.
         Would you do a brief oral colloquy referencing this form that you
         went over with him attached.

               MR. GAY [defense counsel]: Mr. Williams, you signed a
         form indicating to the Court that you're aware of your right to a
         jury trial, that you're choosing today to proceed by way of
         nonjury trial and have the Judge decide this case. Do you
         understand that?

              THE DEFENDANT: Yes.

               MR. GAY: Did you and I discuss that prior to you appearing
         here today?

              THE DEFENDANT: Yes.



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           MR. GAY: Well, in order for someone to give up their right
     to a jury trial, of course, they need to be informed exactly what
     is involved in a jury trial, and so I'm going to go over some of
     the things on that form and ask, first of all, did you and I go
     over that form?

          THE DEFENDANT: Yes.

            MR. GAY: And did you place your initials on each page of
     this form and sign on the fourth page?

     THE DEFENDANT: Yes.

           MR. GAY: Now, if I were to ask each one of those
     questions that were on that form to you again, would your
     answers be the same?

          THE DEFENDANT: Yes.

           MR. GAY: Now, you understand that you do have a
     constitutionally guaranteed right to a jury trial?

     THE DEFENDANT: Yes.

          MR. GAY: That's guaranteed by [the] federal Constitution
     as well as [the] Pennsylvania Constitution; you understand that?

          THE DEFENDANT: Yes.

           MR. GAY: If we were to proceed by way of jury trial, we
     would bring approximately 40 people selected at random into
     this courtroom, and you and I and the District Attorney would go
     through those people to pick 12 people plus two alternates to be
     on the jury; you understand that?

          THE DEFENDANT: Yes.

           MR. GAY: You understand that the reason that you would
     have the two alternates is just in case one of the original 12
     jurors was unable to sit for the duration of the trial, then we
     would have one of those alternates fill in for them, understand?

          THE DEFENDANT: Yes.


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            MR. GAY: During the jury selection process, do you
     understand that you would have an unlimited number of strikes
     for what we call cause, if you could prove someone could not be
     fair in this particular case?

           THE DEFENDANT: Yes.

           MR. GAY: You also understand that you also have seven
     peremptory [strikes] that you can remove prospective jurors
     from the jury panel if you're not comfortable with them as a
     juror, but the Court has decided that they could be fair; you
     understand?

           THE DEFENDANT: Yes.

           MR. GAY: And you understand that you could use those
     peremptory challenges as long as you're not discriminating
     against someone on the basis of race, religion, national [origin.]

            MR. GAY: Have you ever been diagnosed with a mental
     illness of any sort?

           THE DEFENDANT: No.

           MR. GAY: Are you taking any medication today?

           THE DEFENDANT: No.

           MR. GAY: I know this is a silly question, but are you under
     the influence of any alcohol or drugs as we're here in court
     today?

           THE DEFENDANT: No.

           MR. GAY: So do you understand everything that I have
     explained to you so far?

           THE DEFENDANT: Yes.

           MR. GAY: Any questions for either me, the District
     Attorney or Judge Trent?

           THE DEFENDANT: No.


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           THE COURT: All right. I'm satisfied that the waiver is
      knowing, intentional and voluntary.

N.T. Trial, 5/24/11, at 6-11.

      Thus, the only fundamental right not encompassed by the oral colloquy

                                                                             his

jury-trial waiver was defective in that trial counsel, during the oral colloquy,

forgot to inform Appellant that a jury verdict must be unanimous. However,

that omission was vitiated by the fact that Appellant was told about that

concept in the written colloquy. Commonwealth v. Smith, 450 A.2d 973,



explanation of the unanimity and defendant-participation requirements [for a

jury trial], the written form signed by respondent, his counsel, and the court

states that respondent was indeed fully aware of these requirements. This

                                                 Hence, no relief is due.

      Appellant also raises a challenge to the weight of the evidence.      We



preserved since, after he was convicted and prior to sentencing, Appellant

filed a motion for extraordinary relief raising the weight issue. Pa.R.Crim.P.



be raised with the trial judge in a motion for a new trial: (1) orally, on the

record, at any time before sentencing; (2) by written motion at any time

before sentencing; or (3) in a post-




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      Our standard of review in this context is extremely limited and well-

ensconced:

         A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. [Commonwealth v.] Widmer, 744 A.2d
      [745,] 751 52 [Pa. 2000]; Commonwealth v. Brown, 538 Pa.
      410, 648 A.2d 1177, 1189 (1994). A new trial should not be
      granted because of a mere conflict in the testimony or because
      the judge on the same facts would have arrived at a different
      conclusion. Widmer,

      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny
                 Id. at 320, 744 A.2d at 752. It has often been stated

      contrary to the evidence as to shock one's sense of justice and
      the award of a new trial is imperative so that right may be given
                                       Brown, 648 A.2d at 1189.

      An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

                   Appellate review of a weight claim is a review of
               the exercise of discretion, not of the underlying
               question of whether the verdict is against the weight
               of the evidence.      Brown, 648 A.2d at 1189.
               Because the trial judge has had the opportunity to
               hear and see the evidence presented, an appellate
               court will give the gravest consideration to the
               findings and reasons advanced by the trial judge
               when reviewing a trial court's determination that the
               verdict is against the weight of the evidence.
               Commonwealth v. Farquharson, 467 Pa. 50, 354
               A.2d 545 (1976). One of the least assailable reasons
               for granting or denying a new trial is the lower
               court's conviction that the verdict was or was not
               against the weight of the evidence.

      Widmer, 744 A.2d at 753.

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Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa.Super. 2014)

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1054 55 (Pa. 2013)).



          The Trial Court in rendering its verdict of guilt at the time of
      trial, did not issue any findings of fact, or conclusions of law that
      would permit a reviewing court to adequately determine whether
      the verdict was based on a foundation of reason or whether it
      was based on prejudice, personal motivations, caprice or
      arbitrary actions.



      The fundamental flaw in this position is that there is no legal

requirement that a trial court, acting as factfinder in a criminal proceeding,

issue findings of fact and conclusions of law.     Identical to a jury, the trial

judge in a criminal proceeding merely issues a general verdict of guilt as to

each offense charged against the defendant.



                                        Trial Court Opinion, 11/13/13, at 6.



                                        Id. As outlined above, the trial judge,

                                                                   l as that of

Appellant. Page, supra

                                              Blackham, supra at 320 (The

weight of the evidence is exclusively for the finder of fact, which is free to

believe all, part, or none of the evidence, and to assess the credibility of the

witnesses. . . .     It is not for this Court to overturn the credibility

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determinations of the fact-



weight claim.

     Appellant also maintains that the convictions are in contradiction to

the physical evidence.   We have analyzed and rejected this position in

connection with the sufficiency positions.    Not only was there physical



lacerations, there was no physical proof to controvert it.      The physical

evidence neither proved nor disproved the allegations herein.



sentence imposed. We have articulated on numerous occasions that:


           Before this Court may reach the merits of a challenge to
     the discretionary aspects of a sentence, 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 see Pa.R.A.P. 2119(f); and (4)
     whether the concise statement raises a substantial question that
     the sentence is appropriate under the sentencing code. If the
     appeal satisfies each of these four requirements, we will then
     proceed to decide the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation

omitted).

     The appeal is timely.     Appellant maintained in his post-sentence




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Motion for Reconsideration and/or Modification of Sentence, 7/20/14, at ¶¶



court sentenced [Appellant] to a sentencing range above the aggregate[d]

range with no consideration for the mitigation [evidence] presented by




11.




statement, however, recites incorrect facts. He alleges that his prior record




                                                                y either the




prior record score of one, (1) was based in part on two prior convictions for




finding of forcible compulsion under the statutes mandated imposition of a

                                                                Id.




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       We are aware of no mandatory minimum sentence for rape by forcible

compulsion, and § 3121 contains none.       The outlined sentence of ten to

twenty years imprisonment is not a mandatory minimum sentence; rather, it

is the maximum sentence that can be imposed for rape by forcible

compulsion. See 18 Pa.C.S. § 3121(a)(1) (rape by forcible compulsion is a

first-degree felony); 18 Pa.C.S. § 1103(1) (maximum sentence for a first-



shall impose a minimum sentence of confinement which shall not exceed

one-

                                                         ntence for rape by

forcible compulsion resulted from imposition of a sentence that was above

the guidelines and his consecutive sentence of five to ten years for unlawful

contact was within the standard range.      The sentences on the unlawful

restraint and child endangerments offenses were imposed concurrently. The

sentencing court had the benefit of a pre-sentence report and mental health



of the guidelines called for a minimum sentence of seven years.          The




11. The sentence imposed on the unlawful contact conviction was within the




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standard range since the unlawful contact charge was also graded as a first-

degree felony. 18 Pa.C.S. § 6318(b)(1).

      The trial court addressed the allegation raised in the Pa.R.A.P. 1925(b)

statement, which was that the sentence on rape exceeded the guidelines

ranges, was excessive, and was imposed without consideration of mitigating

evidence.   The court reported that the claim that it did not consider

                                   false. The court certainly appreciated the

evidence presented by the defense, including the testimony of numerous

                                                      -12.   It noted that it

                                                                        Id. at

12.

      On appeal, Appellant does not aver that the court failed to justify its

decision to deviate from the guidelines.     Rather, it is clear that his sole

challenge on appeal is to the fact that the sentence for unlawful contact was

imposed consecu                                                          -31.

He suggests that the fifteen to thirty year sentence was manifestly excessive

since the ten to twenty year term for rape was sufficient for the crimes in

                                       ile Appellant did preserve a challenge

to the consecutive nature of the sentence in his post-sentence motion, it is

not contained in the Pa.R.A.P. 1925(b) statement.        Even if the present

sentencing issue had been contained in that statement, it would not present

a substantial question permitting appellate review. We have observed that


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                               Commonwealth v. Harvard, 64 A.3d 690,

703                                   ly speaking, the court's exercise of

discretion in imposing consecutive as opposed to concurrent sentences is not

viewed as raising a substantial question that would allow the granting of

                            Commonwealth v. Gonzalez-Dejusus, 994 A.2d

595, 598 (Pa.Super. 2010).




Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (citations

omitted). Herein, Appellant forcibly raped a thirteen-year old child while she

was under his care and then threatened to kill her and her family if she

reported the crime.       In light of the criminal conduct at issue herein, we

cannot conclude that the aggregate sentence of fifteen to thirty years is

excessive, on its face, and we find that Appellant failed to raise a substantial

question   as   to    the     appropriateness      of     the    sentence   imposed.

Commonwealth         v.   Mastromarino,        2   A.3d    581    (Pa.Super.   2010);

Gonzalez-Dejusus, supra; cf. Dodge, supra (substantial question was

raised where aggregate sentence of forty years, seven months to eighty-one

years and two months incarceration resulted from imposition of consecutive

sentences on victimless property crimes).


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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