J-A26014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




ROBERT CONVERY, JR.

                        Appellant                    No. 245 MDA 2017


          Appeal from the Judgment of Sentence January 4, 2017
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0005271-2015


BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 15, 2018

      Robert Convery, Jr. appeals from his January 4, 2017 judgment of

sentence imposing an aggregate term of thirteen and one-half to thirty years

imprisonment after he was convicted of three counts each of involuntary

deviate sexual intercourse ("IDSI") and sexual assault. We affirm.

      The trial court succinctly summarized the facts and procedural history

as follows:

             Between 2013 and 2015 Appellant and his two victims,
      T.M. and A.J., were students at Albright College. [N.T.], June
      14-15, 2016, at 32, 33, 149, 205. All three individuals were
      "brothers" of the Pi Kappa Phi fraternity. Id. at 33, 149, 206.
      Prior to the events that precipitated this case, all three men were
      friends. Id. at 84, 152, 208. Throughout the events in question,
      Appellant and A.J. shared various residences in the City of
      Reading. Id. at 206.
J-A26014-17



           On the evening of December 6, 2013 and stretching into
     the next day, T.M. was partying at Appellant's residence. Id. at
     40. During the course of the evening, T.M. became intoxicated
     and fell asleep on a couch. Id. at 42. When T.M. awoke, he
     discovered that he was in Appellant's bedroom, his pants were
     off, and Appellant was performing oral sex on him. Id. at 44.
     Shocked by the assault, T.M. fled the residence. Id. at 47. Later,
     Appellant apologized by text message for the assault, however
     this message was not preserved by the victim.      Id. at 48. At
     that time, T.M. did not report the assault out of fear of public
     humiliation and a desire to forget the incident. Id. at 49-51.
     After the assault, T.M. permitted life to return to normal and
     forgave Appellant. Id. at 56.

           During the following year, Appellant and A.J. moved to a
     new residence on 1610 [North] 11th Street in the City of
     Reading. Then, on or around November 22, 2014, an almost
     identical pattern of assault occurred. Id. at 52-53. Similar to the
     precipitating events of the first assault, T.M. became intoxicated
     after a night of clubbing. Id. T.M. returned to Appellant's new
     residence and was hanging out in Appellant's room with several
     other people. Id. at 55. Overcome by either tiredness or
     intoxication, T.M. fell asleep in Appellant's bed. Id. at 56-57.
     When T.M. awoke he found that his pants were partially removed
     and Appellant was performing oral sex on him again. Id. at 57.
     T.M. fled to his own residence after the assault. Id. at 58-59.
     Like after the previous assault, Appellant attempted to apologize
     for his actions using text messages. Id. at 61-64. In these
     messages he also affirmed the existence of a previous assault.
     Id. (Appendix A). Though T.M. did not immediately report the
     assault, he preserved the text messages.

           The final assault occurred on February 8, 2015 to A.J. Id.
     at 153-54. Like the prior two assaults, the victim was intoxicated
     and fell asleep at a party. Id. at 155. Also like in the prior
     assaults, A.J. awoke to Appellant performing oral sex on him.
     Id. at 157-58. A.J. was not conscious at the time of the assault
     and did not give his consent. Id. at 157, 163. After he awoke,
     A.J. left the room and went into a friend's room. Id. at 158.
     Following the assault, Appellant pled by text message for A.J. to
     forgive him. Id. at 159. These messages were deleted by A.J.
     as he wished to "wipe [himself] clean [of] the situation." Id. at
     160.

                                    -2-
J-A26014-17




            After the third assault, on February 23, 2015, T.M.
      reported the assaults made against his person to Albright's
      Public Safety Officer. Id. at 67, 125. A.J., after consulting with
      T.M., also decided to come forward and report the assault
      perpetrated against him. Both parties filed reports with the
      Public Safety Officer. Id. at 125, 162. At T.M.'s request, the
      matter was then referred to local authorities. Id. at 69.

             At trial, Appellant took the stand in his own defense.
      Appellant represented that all three events were consensual.
      However, the jury determined that most of his testimony was
      mendacious[.] During his testimony, Appellant stated his level
      of inebriation at all three assaultive events. At the time of the
      first event he stated that though he was intoxicated he was
      functioning and understood what was going on. Id. at 211. At
      the time of the second event, Appellant testified that he knew
      what he was doing. Id. at 223. On the instance of the third
      event, Appellant again testified that though he had been drinking
      he was able to function. Id. at 230-31. Appellant never testified
      that inebriation played a role in his decision to assault the
      victims. The record is devoid of any other evidence that
      Appellant was significantly intoxicated[.]

Trial Court Opinion, 4/21/17, at 2-4.

      The jury convicted Appellant of three counts of IDSI and three counts

of sexual assault.    Following its assessment, the Pennsylvania Sexual

Offender Assessment Board ("SOAB") recommended that Appellant be

classified as a sexually violent predator (“SVP”).   However, the trial court

rejected SOAB’s determination and concluded that Appellant did not meet

the criteria of SVP classification.     On January 4, 2017, the trial court

imposed an aggregate sentence of thirteen and one-half to thirty years

imprisonment. Specifically, for each of the three ISDI convictions, the trial

court imposed four and one-half to ten years imprisonment. It found that

                                      -3-
J-A26014-17



the sexual assaults merged for the purpose of sentencing.           This timely

appeal followed the denial of Appellant’s post-sentence motion seeking

reconsideration of his sentence.

      Appellant complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.          The Rule

1925(b) statement raised three issues, which he consolidated on appeal as

follows:

      Is Appellant entitled to a vacating of sentence and a new hearing
      because the trial court (1) sentenced based upon a mistaken
      fact; (2) imposed a sentence beyond that sought by the
      prosecution with no basis under the sentencing code; and (3)
      sentenced appellant to 4.5 times the length of a pre-trial plea
      offer, thereby punishing him for exercising his Constitutional
      right to stand trial?

Appellant’s brief at 5.

      As we observed in Commonwealth v. McLaine, 150 A.3d 70, 76

(Pa.Super. 2016) (cleaned up), “an appellant is not entitled to the review of

challenges to the discretionary aspects of a sentence as of right.” Instead, to

invoke our jurisdiction involving a challenge to the discretionary aspects of a

sentence, an appellant must satisfy the following four-part test:

      (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).

Id.

                                     -4-
J-A26014-17



       Instantly,    Appellant    filed    a   timely     appeal,    and   preserved    his

contentions in a post-sentence motion for reconsideration of sentence.

Additionally, Appellant’s Pa.R.A.P. 2119(f) statement raises three issues: 1)

the trial court made factual errors by failing to consider his intoxication when

focusing on the intentionality of his conduct; 2) the court failed to explain its

reasons      for    imposing     consecutive        sentences       that   exceeded     the

Commonwealth’s         recommendation          of    eleven     to    twenty-two      years

imprisonment; and 3) the imposition of a sentence that dwarfed the

Commonwealth’s pretrial plea offer of three years imprisonment with RRRI

and boot camp eligibility was tantamount to a penalty for exercising his right

to trial.     All three allegations can be deemed to present substantial

questions. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.

2004) (“claim that the trial court relied upon incorrect factual assertions

when        imposing    sentence          asserts     a     ‘substantial     question.’”);

Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.Super. 2003) (trial

court’s failure to articulate sufficient reasons for the sentence imposed may

raises a substantial question); and Commonwealth v. Bethea, 379 A.2d

102, 105 (Pa. 1977) (“it is constitutionally impermissible for a trial court to

impose a more severe sentence because a defendant has chosen to stand

trial rather than plead guilty.”).




                                            -5-
J-A26014-17



     In McLaine, supra, this Court reiterated the relevant legal framework

when addressing the merits of a challenge to the discretionary aspect of

sentencing.

              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.

           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.

McLaine, supra at 75–76.

     In Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007), our Supreme

Court noted that this Court’s ability to review a sentence is constrained by

42 Pa.C.S. § 9781(c). That statute provides that we can vacate a sentence

and remand for re-sentencing only if we find: 1) that the court intended to

sentence within the guidelines but “applied the guidelines erroneously;” 2) a

sentence was imposed within the guidelines “but the case involves

circumstances where the application of the guidelines would be clearly

unreasonable;” or 3) “the sentencing court sentenced outside the sentencing

guidelines and the sentence is unreasonable.” 42 Pa.C.S. § 9781(c). “In all




                                    -6-
J-A26014-17



other cases the appellate court shall affirm the sentence imposed by the

sentencing court.” Id.

      As the trial court imposed three consecutive standard range sentences

for IDSI, we can reverse only if the trial court’s application of the guidelines

was clearly unreasonable.      The Walls Court described unreasonable as

follows: “‘unreasonable’ commonly connotes a decision that is ‘irrational’ or

not guided by sound judgment.” Id. at 963.

      After a thorough review of the certified record, the parties’ briefs and

the pertinent law, we affirm the judgment of sentence on the basis of the

cogent and well-reasoned opinion entered on April 21, 2017, by the

distinguished President Judge Paul M. Yatron. Specifically, President Judge

Yatron observed that the record does not support Appellant’s claim that

inebriation played a role in his decision to assault the victims on three

separate occasions, particularly in light of Appellant’s testimony that he was

functional and understood his behavior.          As to the Commonwealth’s

sentencing recommendation, President Judge Yatron highlighted that he was

not obligated to follow the Commonwealth’s suggestion and that his decision

to impose consecutive standard range sentences was reasonable in light of

the fact that the three individual crimes occurred separately over a fourteen-

month period and warranted three distinct terms of incarceration.       Finally,

the esteemed jurist emphasized that, since he was not aware that Appellant

had rejected the Commonwealth’s generous pretrial offer when he fashioned

                                     -7-
J-A26014-17



Appellant’s aggregate sentence, the record belies Appellant’s argument that

he was penalized for exercising his right to trial. As to all of the foregoing

points, we adopt President Judge Yatron’s reasoning as our own.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/15/2018




                                    -8-
                                                                                 Circulated 01/31/2018 04:55 PM




 COMMONWEALTH OF                                      lN THE COURT OF COMMON PLEAS
 PENNSYL V ANfA                                       OF BERKS COUNTY, PENNSYLVANIA
                                                      CRIMINAL DIVISION

          v.
 ROBERT CONVERY, JR.,
 APPELLANT                                            PAUL M. Y ATRON, PRESIDENT JUDGE


 1925(a) Opinion                                                                         April 21, 2017

                                    PROCEDURAL HISTORY
        On June 15, 2016, Robert Convery, Jr. C'Appel!ant") was convicted of three counts of
involuntary deviate sexual intercourse ("IDSI") and three counts of sexual assault. As pursuant to
the Commonwealth's procedure with sexual offenses, sentencing was deferred until the
Pennsylvania Sexual Offender Assessment Board ("the Board") could evaluate Appellant. The
Board recommended that Appellant be classified as a sexually violent predator. However, on
January 4, 2017, we determined that Appellant did not meet the criteria to be classified as a
sexually violent predator. TRANSCRIPT OF PROCEEDINGS, January 4, 2017, at 13 [hereinafter T.
P.] (see footnote l on page 6, infra).
        Immediately following this determination we proceeded to sentencing. The
Commonwealth recommended that we impose two periods of incarceration, each lasting 5 Yi to
11 years, followed by 20 years of special probation. T. P. at 14-15 .. Ultimately, we SA1tenced
Appellant to three consecutive periods of incarceration, each term lasting   iih to 1 oiars for a
total term of 13 Yi to 30 years.                                             ]           ;
                                                                             N           .. r1
        After· sentencing, Appellant filed a timely post sentence motion on January l-l;i 2017,
                                                                             -           C)
which we denied. Appellant then filed an appeal on January 14, 2017. Sub,;quentl�ppellant
filed a concise statement of errors pursuant to Rule l 925(b) of the Pennsyl�nia Ruiei of
Appellate Procedure.
        Appellant raises the following matters for review:

       The court abused its discretion and sentenced based upon an erroneous determination of
       fact when the Court explained the severity of the sentence and the imposition of
       consecutive sentences by focusing on what it described as the intentional nature of the
       conduct, particularly in light of its reoccurrence with one of the two complainants. The
       evidence at trial, in the light of the most favorable to the Commonwealth, made clear that
         all three incidents occurred at times when the parties were severely inebriated. The
         intentionality of conduct here was not reflective of a premeditated plan or a predatory
         character but was an intentional act brought on by a high level of intoxication, and thus
         not deserving of as severe a sanction as that due to one who, with full control of his
         facilities, persevered in conduct such as this in a premeditated maimer.

         In the imposition of three (3) consecutive terms of imprisorunent the trial court abused
         [its] discretion in a case where even the prosecution sought only two (2) terms of
         imprisonment (totaling I l years as a minimum) followed by a probationary sentence. No
        factor found by the Court warranted a sentence in excess of that sort by the prosecutor.
        The imposition of 3 consecutive terms of imprisonment, especially in light of the
        prosecution recommendation and the factors to be considered at sentencing - that "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," 42 Pa. Cons. Stat. Ann.§ 9721 - was an abuse of
        discretion.

        The sentence as imposed constitutes an abuse of discretion in a case in which the plea
        offer was for a minimum of three (3) years imptisorunent with RRRI and boot camp
        eligibility. Imposing a sentence in which the minimum term was 4.5 times greater than
        the plea offer, in a case in which there was no evidence adduced at trial that was not
        known at the time of the plea offer, is an abuse of discretion as it clearly adds nothing to
        the public safety and the retributive goals of sentencing and becomes instead a
        punishment for exercising the right to trial.

CONCISE STATEMENT,      March 27, 2017.

                                   FACTUAL BACKGROUND

        Between 2013 and 2015 Appellant and his two victims, T. M. and A. J., were students at

Albright College. JURY TRIAL, June 14-15, 2016, at 32, 33, 149, 205. All three individuals were
"brothers» of the Pi Kappa Phi fraternity. Id. at 33, 149, 206. Prior to the events that precipitated
this case, all three men were friends. Id. at 84, 152, 208. Throughout the events in question,

Appellant and A. J. shared various residences in the City of Reading. Id. at 206.
       On the evening of December 6, 2013 and stretching into the next day, T. M. was partying
at Appellant's residence. Id. at 40. During the course of the evening, T. M. became intoxicated
and fell asleep on a couch. Id. at 42. When T. M. awoke, he discovered that he was in

Appellant's bedroom, his pants were off, and Appellant was performing oral sex on him, Id. at
44. Shocked by the assault, T. M. fled the residence. Id. at 47. Later, Appellant apologized by
text message for the assault, however this message was not preserved by the victim. Id. at 48. At


                                                  2
  that time, T. M. did not report the assault out of fear of public humiliation and a desire to forget
  the incident. Id. at 49-51. After the assault, T. M. permitted life to return to normal and forgave
 Appellant. Id. at 56.
          During the following year, Appellant and A. J. moved to a new residence on J 610 M. 11 th
 Street in the City of Reading. Then, on or around November 22, 2014, an almost identical pattern
 of assault occurred. Id. at 52-53. Similar to the precipitating events of the first assault, T. M.
 became intoxicated after a night of clubbing. Id. T. M. returned to Appellant's new residence and
 was hanging out in Appellant's room with several other people. Id. at 55. Overcome by either
 tiredness or intoxication, T. M. fell asleep in Appellant's bed. Id. at 56-57. When T. M. awoke he
 found that his pants were partially removed and Appellant was performing oral sex on him again.
 Id. at 57. T. M. fled to his own residence after the assault. Id. at 58�59. Like after the previous
assault, Appellant attempted to apologize for his actions using text messages. Id. at 61-64. In
these messages he also affirmed the existence of a previous assault. Id. (Appendix A). Though T.
M. did not immediately report the assault, he preserved the text messages.
        The final assault occurred on February 8, 2015 to A. J.. Id. at 153-54. Like the prior two
assaults, the victim was intoxicated and fell asleep at a party. Id. at 155. Also like in the prior
assaults, A. J. awoke to Appellant performing oral sex on him. Id. at 157-58. A. J .. was not
conscious at the time of the assault and did not give his consent. Id. at 157, 163. After he awoke,
A. J. left the room and went into a friend's room. Id. at 158. Following the assault, Appellant
pied by text message for A. J. to forgive him. Id. at 159. These messages were deleted by A. J. as
he wished to "wipe (himself] clean [of] the situation." Id. at 160.
        After the third assault, on February 23, 2015, T. M. reported the assaults made against his
person to Albright's Public Safety Officer. Id. at 67, 125. A. J., after consulting with T. M., also
decided to come forward and report the assault perpetrated against him. Both parties filed reports
with the Public Safety Officer. Id. at 125, 162. At T. M. 's request, the matter was then referred to
local authorities. Id. at 69.
        At trial, Appellant took the stand in his own defense. Appellant represented that all three
events were consensual. However, the jury determined that most of his testimony was
mendacious; we must do the same. During his testimony, Appellant stated his level of inebriation
at all three assaultive events. At the time of the first event he stated that though he was
intoxicated he was functioning and understood what was going on. Id. at 211. At the time of the


                                                  3
r-     second event, Appellant testified that he knew what he was doing. Id. at 223. On the instance of
       the third event, Appellant again testified that though he had been drinking he was able to
      function. Id. at 230-31. Appellant never testified that inebriation played a role in his decision to
      assault the victims. The record is devoid of any other evidence that Appellant was significantly
      intoxicated, and we reject this contention.


                                                  DfSCUSSION

      I.      General Standa!'d for error and abuse of disc1-etion.
              In all Appellant's claims, he alleges that the Court abused its discretion. When reviewing
     an abuse of discretion claim, the Appellate Court must consider that "[s)entencing 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." Commonwealth v. Booze, 953 A.2d 1263, 1278
     (Pa. Super. 2008). Abuse of discretion is more than an error in judgment; rather, the appellant
     must establish that the sentencing court either "ignored or misapplied the law[;] exercised its
     judgment for reasons of partiality, prejudice, bias or ill will[;) or arrived at a manifestly
     unreasonable decision." Id. A sentence should not be disturbed when it is evident that the
     sentencing court was aware of the sentencing considerations and weighed the considerations in a
     meaningful fashion. Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988).
     II.     The Court did not consider an impermissible factor.
             Appellant alleges that the Court considered an erroneous factor in sentencing. He argues
     that we misconstrued the intentional and predatory aspects of Appellant's assaultive behavior.
     Essentially claiming that the Court sentenced Appellant believing that his behavior was
     premediated and predatory, this, according to Appellant, is not substantiated by the record.
             Courts are only permitted to consider information found within the record during
     sentencing, as the Karasb court explained:
            A sentence is invalid if the record discloses that the sentencing court may have relied in
            whole or in part upon an impermissible consideration. This is so because the court
            violates the defendant's right of due process if, in deciding upon the sentence, it considers
            unreliable information or information affecting the court's impartiality, or information
            that it is otherwise unfair to hold against the defendant.

     Commonwealth v. Karash, 452 A.2d 528, 528 (Pa. Super. 1982).



                                                       4
           The trial judge in Karash revealed at sentencing that he was relying on other crimes
 allegedly committed by the defendant:

           I've also taken into consideration the crimes [escape) you have committed in
          Pennsylvania since the time that you returned here .... The Court feels, while I'm not
          sentencing you for those crimes, they have been part of the Court's consideration in
          imposing this sentence ....

 Id. at 529.

          At a subsequent hearing on a motion to modify sentence, the Karasb trial judge
elaborated:

          Okay. So the record reflects, I don't know whether it's in there or not, but the matter of
          Mr. Karash's [escape) incident was on all of the local television channels and in all the
          local newspapers. [t was the only source of the Court's information, and actually showed
          pictures of Mr. Kar ash being apprehended in handcuffs at the scene, and the Court was
          aware that he was supposed to be in jail awaiting sentence and not to be out.

Id.
          The trial court had relied upon impermissible information when it considered the
defendant's escape incident and the television reports. This sentence was therefore vacated. Id.
However, the instant sentencing hearing is not like that in Karash. We exclusively relied upon
the record when deciding Appellant's sentence.
        Instantly, Appellant concedes that his actions were intentional, but not that his actions
were premeditated. CONCISE STATEMENT, March 27, 2017.Though such contrasts could possibly
be drawn in a definitional sense, in this Commonwealth premeditation bears only a tangential
relationship to intentionality. To understand this concept, the Court must initially scrutinize the
only area of the law where intentionality and premeditation ate both relevant; first degree
murder.




                                                  5
            Under Pennsylvania law, first degree murder is defined as "[a] criminal homicide, , ,
 when it is committed by an intentional killing." 18 Pa.C.S. § 2502. The statutory language lacks
 any mention of premeditation.1 However, jurisprudentially,
            to sustain a conviction for first-degree murder, the Commonwealth must prove that the
            defendant acted with the specific intent to kill, that a human being was unlawfully killed,
            that the accused did the killing and that the killing was done with deliberation. It is the
            specific intent to kill which distinguishes murder in the first degree from lesser grades of
            murder.

 Commonwealth v. Simpson, 754 A.2d 1264, 1269 (Pa. 2000) (internal citations omitted); see
 Commonwealth v, Fletcher, 861 A.2d 898, 907 (Pa. 2004).

            One defense to first degree murder is voluntary intoxication. 18 Pa.C.S. § 308. To make
 this defense the defendant "must show that [he) was unable to form the specific intent to kill
because he was so overwhelmed or overpowered by drugs to the point oflosing his faculties at
the time the crime was committed." Fletcher, 861 A.2d 898, 908 (Pa. 2004) ( citing
Marshall, 633 A.2d 1100, 1104-05 (Pa. 1993)). Relevant here is the fact that intoxication
negates specific intent, not premeditation.
        Contrary to the normal voluntary intoxication defense, Appellant argues that
"intentionality of conduct here was not reflective of a premeditated plan ... but was an
intentional act brought on by a high level of intoxication(.)"CoNCISE STATEMENT, March 27,
20 t 7. In summation, he argues that intoxication negates premeditation. However, we reiterate,
intoxication is not a defense to premeditation. Jurisprudentially, intoxication serves as a defense
to negate the general mens rae requirement of first degree murder, intentionality. Commonwealth
v. Miller, 897 A.2d 1281, 1285 (Pa. Super. 2006) (finding sufficient intoxication downgrades the
homicide to third degree murder, but does not exonerate the defendant). As intoxication cannot
negate premeditation, intoxication bears no relationship to a premeditative plan. Therefore, the
Court was free to consider that Appellant was both intoxicated and that his acts were
premcdiatcd.

        I
          Several states include premeditation in their statutory language for first degree murder.
For example, Maryland defines first degree murder as "a deliberate, premeditated, and willful
killing ... " Md. Code Ann. Homicide, § 2-201. Virginia similarly defines first degree murder as
" ... any willful, deliberate, and premeditated killing ... ." Va. Code Ann. § 18.2·32. Though in
other states, such as New York, premeditation is not an element of the statute. N .Y. Penal Law §
125.27.
                                                    6
               Even if intoxication could negate premeditation, Appellant's admissions defeat his ability
f
     to use this defense. Instantly, Appellant argues that he was intoxicated, but he concedes that his
     acts were intentional. By conceding that the acts were intentional, he has also conceded that he
     was not "so overwhelmed or overpowered by [alcohol] to the point of losing his faculties at the
     time the crime was committed." Fletcher, 861 A.2d 898, 908. It follows, that since Appellant
     was not so overwhelmed or overpowered by alcohol to be incapable of acting intentionally, he
     was also not so overwhelmed or overpowered by alcohol to have a premeditated plan. A finding
     contrary to this point would be illogical. As such, the Court must conclude that Appellant was
     sufficiently sober to capable of premeditating his assaults. Given the evidentiary standard,
     therefore, Appellant premeditated his acts and a consideration of premeditation was permissible.
               Moreover, the Court was free to conclude that Appellant was not intoxicated. Despite the
    averrnents made by counsel, Appellant testified to his state of mind and his lack of severe
    inebriation. While Appellant alleged some level inebriation, he repeatedly stated that his level of
    inebriation was not so much that he did not know what he was doing. If Appellant's testimony is
    discounted because of obvious. credibility issues, the record does not otherwise reflect that
    Appellant was intoxicated. In light of the evidence most favorable to the Commonwealth,
    Appellant was not significantly inebriated during any of the assaults. Additionally, the fact that
    the same victim was assaulted on two temporally distinct occasions is certainly probative in
    demonstrating premeditated actions, as they establish a course of conduct. As such, the Court
    would have been permitted to find that Appellant's actions were premediated.
            Additionally, Appellant argues that we impermissibly considered that his acts were
    predatory. The record supports such a finding and therefore this consideration was permissible.
    The record indicates that Appellant targeted two intoxicated individuals on three temporally
    distinct occasions over a period of several months. Clearly, the evidence demonstrates that

    Appellant had a modus operandi to target intoxicated individuals with a diminished ability to
    resist. Such actions are by their very nature predatory.' Additionally, Appellant's expert
    acknowledges that Appellant's acts were predatory because he "promoted, established, or


           1
              Despite the Court finding that Appellant's acts were predatory, he did not meet the
    criteria to be classified as a sexually violent predator. Our decision relied solely upon the
    determination that the Commonwealth failed to prove that Appellant has a mental abnormality,
    T. P. at 12.

                                                      7
     facilitated [the sexual conduct] in whole or in part." T. P. at 6, 9. Therefore, it was clearly
/
     permissible for the Court to consider Appellant's acts as predatory.
             As such, none of the Court's considerations were impermissible and our sentencing
     should stand.
     III.   The Court adequately considered the sentencing guidelines, even though we did not
            follow the prosecutor's recommendations.

            Appellate alleges that the Court abused its discretion when we failed to follow the
    sentencing guidelines by imposing consecutive guidelines in excess of that sought by the
    prosecutor. In fact, this statement contains two separate issues. First, whether the Court abused
    its discretion by not acquiescing to the will of the prosecutor during sentencing. Second, whether
    the Court abused its discretion when sentencing Appellant to consecutive terms.
            First, we find that there is no requirement that we follow the will of prosecutor. A court
    has broad discretion in sentencing, but is restrained in that it must consider the sentencing
    guidelines. See Commonwealth v. Yuhasz, 923 A.2d 111 I, 1117 (Pa. 2007). The sentencing
    guidelines provide that a court shall consider:
            ... [T]he 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.
            The court shall also consider any guidelines for sentencing and resentencing adopted by
            the Pennsylvania Commission on Sentencing and taking effect under section 2155
            (relating to publication of guidelines for sentencing, resentencing and parole and
            recommitment ranges following revocation).

    42 Pa.C .S. § 9721. "The only line that a sentence may not cross is the statutory maximum
    sentence." See Yuhasz, 923 A.2d at l l 19.
            Instantly, the Court considered the prosecutor's recommendation during sentencing. After
    consideration, we rejected this recommendation. Instead, we considered all the factors relevant to
    sentencing and decided a period of longer incarceration was necessary. Primarily, as is our
    practice, we stated the following rationale for the sentence imposed:
            [We've have taken into] account the provisions of the sentencing guidelines. [We] have
            taken into account the fact the defendant has no prior record. And while that is, to some
            extent, built into the guidelines anyway by virtue of the component known as the prior
            record score, I believe that counsel agreed that the standard range of the guidelines here is
            48 to 66 months .... T. P. at 59 .

            . . . (we] have taken into account the recommendations made by the Commonwealth.
            We've taken into account the recommendation made by the defense. [We've] taken into

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r,




.:            account the defendant's allocution and expression of remorse, brief as it was. And
              [we've] taken into account also the testimony of the witnesses that appeared here on the
              defense's behalf, all of which l believe had submitted letters in the package that I had
              pr�vious]y reviewed, and their testimony was certainly consistent with what they had
              written. T. P. at 59-60.

              [We've] taken into account the provisions of the judicial code with respect to sentencing
              and the factors that I must take into account. I have reviewed a presentence investigation,
              which was prepared in this matter. T. P. at 60.

              The Court also considered several findings specific to the case. We took into account that
      Appellant was found not to be a Sexually Violent Predator. T. P. at 60. We also considered a
      positive letter from pretrial services, Appellant's life achievements, the many letters and
      testimony in support of Defendant, and, more generally, Appellant's positive qualities. T. P. at
     57-58. Furthermore, we considered the suffering of Appellant's victims and his mendacity at
     trial. T. P. at 57, 58. Most critically, in concluding our analysis, we considered the seriousness of
     the offenses. To this effect we stated:

             [We've] also taken into account the seriousness of these offenses in the eyes of the
             public, as well, given the fact that they are characterized or classified as felonies of the
             first degree. T. P. at 60.

             After reviewing all these factors, we sentenced Appellant. The sentence imposed was not
     made in haste or without significant consideration of the sentencing guidelines. As such, the
     sentence imposed was not an abuse of discretion, even though it exceeded the prosecutor's
     recommendations.
             Second, considering Appellant's challenge to being consecutively sentenced on three
     counts, consecutive sentences are subject to a review for abuse of discretion only when a
     substantial question is raised; that is, when on its face, the "sentence [is) excessive level in light
     of the criminal conduct at issue in the case].]" Commonwealth v, Mastromarino, 2 A.3d 581,
     587 (Pa. Super. 2010). The Superior Court has considered sentencing to merit review when the
     court disregards the relevant sentencing criteria, the circumstances of the offense, and the
     rehabilitative needs of the defendant. Commonwealth v, Dodge, 77 A.3d 1263, 1273 (Pa. Super.
     2013) ( citations omitted). However, generally the imposition of consecutive sentences, opposed
     to concurrent sentences, does not alone raise a substantial question. Commonwealth v. Gonzalez-
     Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).


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         Instantly, the fact that there were three separate assaults was the basis for three different
 terms of incarceration. T. P. at 58-59. Also, each assault occurred after significant period of time.
 After considering all relevant factors, elaborated supra, we found that it would diminish the
seriousness of his acts if Appellant did not receive a period of incarceration for each of his
assaults. T. P. at 60. As such, Appellant was sentenced appropriately and we did not abuse our
discretion.
IV.     The Court did not consider the terms of a 1>lca negotiation, as it was not party to this
        discussion. Any argument asserted under such a premise is without merit.

        Appellant asserts that the Court abused its discretion by imposing a sentence significantly
in excess of the generous plea deal offered by the Assistant District Attorney prior to trial.
        First, the Court was unaware of the generous terms of the Commonwealth's offer. We
observe, as we did at sentencing; however, that the usual practice of the Berks County District
Attorney's Office is to make what may be considered to be lenient offers in an attempt to spare
victims the ordeal of trial. T. P. at 56. The Court may bind itself to these offers only when a plea
is tendered, and, accepted by the Court. Such was not the case here. Once Appellant went to trial,
sparing his victims further suffering was no longer a possible mitigating circumstance.
        Second, through his argument, Appellant heavily implies that he was punished for going
to trial. However, "no one.is penalized for exercising that right in [our) Courtroom." T. P. at 50.
They may however be penalized if they testify mendaciously at trial. T. P. at 57. Instantly, we
found that Appellant's testimony was clearly false, as evinced by the jury's verdict. T. P. at 57.
Therefore, the fact he lied at trial was taken into consideration during sentencing.
        Moreover, for the reasons stated above, we adequately considered the relevant guidelines
and provisions of the sentencing code. There is no precedent that we are aware of that reduces
the Court's sentencing discretion to a specific multiple of the offered plea deal. Therefore, this
argument is without merit.
                                           CONCLUSION
        For all of the foregoing reasons, this Court respectfully requests that the instant appeal be

DENIED.




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