J-S12026-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

FRANK PICCOLO,

                        Appellant                   No. 1060 EDA 2014


        Appeal from the Judgment of Sentence November 15, 2013
           In the Court of Common Pleas of Philadelphia County
 Criminal Division at No(s): CP-51-CR-0002621-2013, CP-51-CR-0002622-
                       2013, CP-51-CR-0002645-2013


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

MEMORANDUM BY BOWES, J.*:                            FILED JUNE 04, 2015

     Frank Piccolo appeals from the judgment of sentence of one to two

years incarceration to be followed by six and one-half years of probation

after the court found him guilty of two counts of harassment, and one count

each of terroristic threats, criminal trespass, unauthorized use of a motor

vehicle, and contempt. We affirm.

     The victim in this matter is Appellant’s estranged wife.     She and

Appellant have three children together and formerly resided together.   On




* This matter was reassigned to this author on April 21, 2015.

** Former Justice specially assigned to the Superior Court.
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December 14, 2012, the victim and her two daughters were residing in an

apartment with the victim’s sister. On that date, Appellant told the victim

and his daughters that he needed a ride because his vehicle broke down.

One of Appellant’s daughters drove to Appellant’s residence to give him a

ride. However, rather than direct his daughter to where he needed to travel,

he asked her to take him to where she and her mother were staying. When

they arrived, Appellant left with the car. The victim reported the car stolen

that same day and her brother discovered the vehicle parked on the side of

a road. He returned the vehicle to his sister, who then attempted to use a

device to prevent the vehicle from being driven.

       Not dissuaded, Appellant again took the vehicle without permission on

December 20, 2012. The victim’s brother did not retrieve the vehicle until

January 20, 2013. On December 23, 2012, Appellant sent the victim a slew

of text messages, including a message stating, “I’m going to fuck your face

up so bad you will look like you were in a car wreck. You won’t even know

when it will happen. And you will see—all you will see is red stars and wake

up screaming in horror. That’s your future, dude.” N.T., 9/20/13, at 11.

       The victim obtained a protection from abuse (“PFA”) order the next

day.   Police attempted to serve Appellant with the PFA at his residence.

Despite Appellant’s vehicle being present and lights being on in the home,

Appellant did not respond to the door.    Accordingly, the police placed the

order between Appellant’s screen and front doors.    At approximately 5:45

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p.m., Appellant entered the apartment where his wife was staying. At the

time, the victim was showering but could hear her daughters yelling at

Appellant to leave. The victim opened the door to the bathroom and saw

Appellant in the front entrance.   She telephoned police and Appellant left.

When police arrived, they saw that the front door had been damaged in a

manner consistent with forced entry.    Appellant did not have a key to the

apartment.

      Thereafter, on January 7, 2013, police attempted to serve an arrest

warrant on Appellant based on charges of terroristic threats and harassment.

Police found Appellant hiding in a crawl space in his basement and placed

him under arrest. Appellant did not remain incarcerated, and on January 22,

2013, he again took the victim’s car without permission.          Appellant’s

daughters retrieved the car the next day, which had a chain and padlock on

the steering column and brake pedal.      Despite these efforts, the car was

driveable and police were able to remove the padlock after Appellant’s

daughters brought it back to the victim’s apartment.         As police were

removing the padlock, Appellant arrived at the apartment with a key to the

padlock and contended that the car was his. Police again placed him under

arrest.

      Appellant waived his right to a jury trial. Thereafter, the court found

Appellant guilty of the aforementioned crimes.      The court imposed the

aforementioned sentence on November 15, 2013. Appellant sent a letter to

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counsel on November 18, 2013, requesting that he file a post-sentence

motion. Counsel, however, averred that he did not receive that letter until

November 27, 2013.       However, within thirty days of his judgment of

sentence, Appellant requested permission to file a nunc pro tunc post-

sentence motion. The issues he wished to raise in his post-sentence motion

related to the weight of the evidence and discretionary sentencing. Rather

than expressly deny or grant permission to file the post-sentence motion

nunc pro tunc inside the original thirty-day appeal period, the trial court

failed to act.

      Appellant did not appeal within thirty days of the judgment of

sentence. The trial court purported to explicitly grant the request to file the

motion nunc pro tunc and denied it on its merits. By that time, however, it

had lost jurisdiction. In its order considering the post-sentence motion as

timely filed, but denying the motion on the merits, it expressly informed

Appellant that he had the right to appeal within thirty days of its order.

Thus, the court incorrectly informed Appellant of his appellate rights.

Indeed, the trial court failed to correctly instruct Appellant that, because it

had not granted the nunc pro tunc request within thirty days, Appellant

could no longer timely appeal and that he needed to file a PCRA petition

seeking restoration of his direct appeal rights. Had the trial court correctly

recognized that it lacked jurisdiction to grant Appellant’s request to consider

his post-sentence motion as timely when it finally took action, Appellant

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could have filed a timely PCRA petition and sought reinstatement of his

appellate rights nunc pro tunc. A decision to quash would preclude such a

procedure as outlined in the body of this memorandum.

      Appellant filed the instant appeal within thirty days of the trial court’s

order granting his request to consider his motion nunc pro tunc and denying

the motion on the merits. We directed Appellant to show cause for why his

appeal should not be quashed as untimely.           Appellant complied, and we

address our jurisdiction and the timeliness of this appeal infra.     Appellant

raises the following three issues for our review.

      1. Was the evidence insufficient as a matter of law such that no
         reasonable factfinder could have found Mr. Piccolo guilty of
         Terroristic Threats beyond a reasonable doubt where there
         was no evidence of record that Frank Piccolo sent the text
         message at issue but rather that the text message was sent
         by a third party.

      2. Was the verdict of guilty for Terroristic Threats against the
         weight of the evidence because there was no evidence of
         record that Frank Piccolo sent the text message at issue, the
         only evidence offered indicated that the text message was
         sent by a third party, and in any event, a subsequent text
         message sent four minutes later explained that the first text
         message was sent in error.

      3. Whether the trial court abused its discretion by ordering an
         excessive sentence for the crime of Terroristic Threats and/or
         basing its above-the-guideline sentence on improper factors,
         i.e., a subsequent, unrelated arrest in another county.

Appellant’s brief at 10.

      Preliminarily, we consider whether we have jurisdiction in this matter.

A timely appeal vests this Court with jurisdiction.        Commonwealth v.

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Green, 862 A.2d 613, 615 (Pa.Super. 2004) (en banc). The time for filing

an appeal is thirty days from the judgment of sentence, unless a defendant

files a timely post-sentence motion.             See Green, supra at 618.          In the

latter event, the period for filing an appeal is tolled and a defendant may

appeal within thirty days of the denial of the post-sentence motion.

Pa.R.Crim.P. 720.      Ordinarily, a post-sentence motion must be filed within

ten days of imposition of the defendant’s sentence.                   Id.    However, a

defendant may request nunc pro tunc consideration of a post-sentence

motion within thirty days of the judgment of sentence. Commonwealth v.

Dreves, 839 A.2d 1122 (Pa.Super. 2003) (en banc). The trial court must

expressly grant that motion to retain jurisdiction. Id.

        Here, the trial court purported to expressly grant Appellant’s request

to consider his post-sentence motion nunc pro tunc.                 Further, it explicitly

instructed him that he had thirty days to appeal from its denial of his motion

on the merits. Undeniably, the trial court’s actions occurred after the appeal

period from the judgment of sentence had already expired.                        Cautious

counsel should have filed an appeal within thirty days.

        Nevertheless, under the unusual circumstances of this case, we hold

that     this   case   presents     a      breakdown    in    the     judicial   system.

Commonwealth v. Braykovich, 664 A.2d 133, 136 (Pa.Super. 1995) (“It

is well-established that the extension of the filing period or the allowance of

an     appeal   nunc   pro   tunc   will    be    permitted   only     in   extraordinary

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circumstances, namely, fraud or some breakdown in the processes of the

court.”); see also Commonwealth v. Patterson, 940 A.2d 493, 498-

499 (Pa.Super. 2007);1 Commonwealth v. Perry, 820 A.2d 734, 735

(Pa.Super. 2003); Commonwealth v. Coolbaugh, 770 A.2d 788, 791

(Pa.Super. 2001); Commonwealth v. Bogden, 528 A.2d 168, 170

(Pa.Super. 1987); Commonwealth v. Hurst, 532 A.2d 865, 867 (Pa.Super.

1987); Commonwealth v. Katz, 464 A.2d 1343, 1345–1346 (Pa.Super.

1983).

       For example, in Coolbaugh, the defendant had thirty days to appeal a

revocation of probation sentence.              The filing of a timely post-sentence

motion in revocation sentencing cases does not toll the appeal period. The

defendant was incorrectly advised that, if he filed a post-sentence motion,

his appeal period would be extended. The defendant was sentenced on April

11, 2000. He did not file a motion until April 24, 2000.2 The court denied

the motion on April 26, 2000, and the defendant appealed on May 26, 2000.

____________________________________________


1
   I am aware that I authored a dissenting opinion in Commonwealth v.
Patterson, 940 A.2d 493 (Pa.Super. 2007).              Therein, however, the
defendant did not file a motion within thirty days of sentencing requesting
nunc pro tunc consideration of his post-sentence motion. In addition, the
trial court did not purport to grant that request and direct the defendant that
he could appeal within thirty days of its order denying the merits of the post-
sentence motion.
2
  April 21, 2000 was a Friday; hence, the motion was not filed within ten
days of sentencing based on a grace period due to a holiday or weekend.



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We did not quash.       Indeed, despite the motion itself being untimely, we

proceeded to address the merits of the issues that had been raised therein.

        Instantly, the court failed to enter an order within the thirty-day time

frame addressing Appellant’s request to file a nunc pro tunc motion. It then

legally erroneously informed Appellant that it had granted that motion, and

incorrectly instructed him that he had thirty days to appeal from its order

denying     his   post-sentence   motion.    In   this   respect   we   add   that

Commonwealth v. Capaldi, 2015 PA Super 51 and Dreves, supra, are

readily distinguishable.

        As highlighted by Appellant, in Dreves, the defendant did not file a

motion requesting permission to file a nunc pro tunc post-sentence motion.

Dreves, supra at 1128.       In Dreves, unlike here, the trial court “did not

even acknowledge that the post-sentence motion was untimely[.]”           Id. at

1129.     Specifically, in Dreves, the defendant and his counsel signed a

document on the date of sentencing that correctly advised him of his post-

sentence motion and appellate filing rights. However, Dreves failed to file a

post-sentence motion within ten days of being sentenced. Instead, twenty

days after sentencing, on May 30, 2001, Dreves filed a motion to modify his

sentence or withdraw his guilty plea nunc pro tunc. The trial court did not

decide that motion within thirty days of imposition of sentence. Instead, it

scheduled and then conducted a hearing on August 3, 2001, well after the

period for filing an appeal expired.    Since Dreves did not request that the

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court consider his motion as timely filed, the court could not grant a request

to consider the motion nunc pro tunc.      The court purported to deny the

motion on August 6, 2001, and Dreves appealed on September 4, 2001.

      The Dreves Court opined that, “if no appeal had been taken, within 30

days after the imposition of sentence, the trial court has the discretion to

grant a request to file a post-sentence motion nunc pro tunc.”       Dreves,

supra at 1128. However, “[i]f the trial court chooses to permit a defendant

to file a post-sentence motion nunc pro tunc, the court must do so

expressly.” Id.

      Here, the trial court did purport to expressly permit Appellant to file

his post-sentence motion nunc pro tunc; it simply did so after it lost

jurisdiction.   Pointedly, counsel, following the advice of Dreves, expressly

filed a request to have his post-sentence motion considered nunc pro tunc,

but the court took no action for three months before incorrectly informing

Appellant that it could and did grant his request to consider that motion as

timely filed.    Thus, contrary to Dreves, the trial court here incorrectly

advised Appellant that it granted his request to consider his post-sentence

motion as timely and that he had thirty days to appeal after denying the

motion.

      In Capaldi, the court sentenced the defendant on May 19, 2014.

Capaldi filed a motion entitled, “Post-Sentence Motion for Nunc Pro Tunc

Relief” on June 5, 2014. The court scheduled a hearing on the motion for

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June 26, 2014, beyond the thirty-day period in which Capaldi had to appeal.

The court then denied the motion on the merits. Unlike here, the trial court

did not purport to expressly grant the defendant’s request to file a nunc pro

tunc motion. Further, the defendant in Capaldi could still seek relief via a

PCRA petition requesting the reinstatement of his direct appeal rights since

the period for filing a timely PCRA petition would not have elapsed until June

19, 2015. Accordingly, neither Dreves nor Capaldi are factually similar to

what occurred herein. Frankly, in neither case did a trial court inform the

defendant that it had granted his motion to consider the post-sentence

motion nunc pro tunc as timely filed and that the defendant could appeal

from the denial of the merits of that motion.

      Finally, and critically important, because it implicates Appellant’s

Pennsylvania constitutional rights, see Pa. Const. Art. V, § 9 (“There shall be

a right of appeal in all cases to . . . an appellate court”), any decision to

quash in this matter would preclude Appellant from seeking reinstatement of

his direct appeal rights nunc pro tunc. In Commonwealth v. Brown, 943

A.2d 264 (Pa. 2008), the Pennsylvania Supreme Court ruled that the

untimely filing of a direct appeal did not toll the period for seeking PCRA

review.   There, the defendant did not file a written post-sentence motion,

but made an oral motion. The trial court purported to deny the oral motion

eleven months after sentencing.     This Court quashed the direct appeal as

untimely over a year later. The defendant then sought reinstatement of his

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appellate rights via the PCRA. The PCRA court reinstated those rights, but

this Court quashed the appeal as untimely based on the underlying PCRA

petition being filed outside the one-year time-bar.       The Supreme Court

agreed, finding that the petitioner’s judgment of sentence was final thirty

days after the entry of his sentence and that he had one year from that date

to file his PCRA petition.

       Thus, under Brown, Appellant had one year from thirty days after the

entry of his judgment of sentence to file a timely PCRA petition. Appellant’s

judgment of sentence was entered on November 15, 2013. Accordingly, he

had until December 16, 2014 to file a timely petition. 3 Therefore, a decision

to quash in this matter would have the effect of precluding any merits

review of any issues from Appellant’s case. Since it is the actions of the trial

court and trial counsel that have deprived Appellant of his Pennsylvania

constitutional right to a direct appeal, we find it would be highly problematic

to quash this appeal.         Accordingly, we agree that Appellant’s appeal is

properly before us due to a breakdown in the judicial system created by the

trial court’s actions in informing Appellant that it granted his request to

consider his post-sentence motion nunc pro tunc and that he had thirty days

to appeal.

____________________________________________


3
  December 15, 2013 was a Sunday; accordingly, the thirtieth day for filing a
direct appeal was December 16, 2013.



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       Therefore,   we   proceed   to   address   the   merits   of   Appellant’s

contentions. Appellant’s initial issue is a challenge to the sufficiency of the

evidence. In performing such a review, we consider all of the evidence

admitted, even improperly admitted evidence. Commonwealth v. Watley,

81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a

light most favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.   Id.    In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

       Appellant argues that although the victim received a text message

containing a threat to the victim, from a number the victim attributed to

Appellant, it could have been sent by another person. He continues, relying

on his own evidence, that he did not send the message. Appellant adds that




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a second text message was also sent indicating that the threatening

message in question was sent in error.

      The Commonwealth responds that it demonstrated that Appellant sent

the victim text messages that threatened her with crimes of violence.           It

points out that Appellant admitted sending text messages to the victim

throughout the day in question, and had composed the message in question.

That threat, according to the Commonwealth, was consistent with other

messages sent the same day.

      “A person commits the crime of terroristic threats if the person

communicates, either directly or indirectly, a threat to . . . . commit a crime

of violence to terrorize another.” 18 Pa.C.S. § 2706(a)(1). We find that the

Commonwealth’s evidence was sufficient. First, a person need not send a

message personally; rather, they may commit the crime of terroristic threats

by indirectly communicating a threat. Thus, Appellant’s argument that it is

speculation that he sent the message not only disregards our standard of

review but is a red herring. Here, the victim testified that she received the

threatening message quoted previously from a number associated with

Appellant, her estranged husband. Viewed in a light most favorable to the

Commonwealth,      this   evidence   establishes   the   requisite   elements   of

terroristic threats. Appellant’s sufficiency claim is meritless.

      Appellant’s second issue relates to the weight of the evidence.           A

weight claim must be preserved in a timely post-sentence motion.

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Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).

“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.”   Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)

(emphases removed). Accordingly, “[o]ne 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 and that a new

trial should be granted in the interest of justice.” Id.

      A trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”   Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, 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

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one's sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence issue concedes that sufficient evidence

was introduced.      Commonwealth v. Charlton, 902 A.2d 554, 561

(Pa.Super. 2006).

      Here, Appellant raised his weight claim in his post-sentence motion

filed contemporaneously with his request for that motion to be considered

nunc pro tunc. We have previously determined that the trial court’s actions

herein resulted in a breakdown in the judicial system for purposes of

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jurisdiction. Therefore, we decline to find waiver. Nonetheless, Appellant’s

position is meritless.

      Appellant relies solely on In re J.B., 69 A.3d 268 (Pa.Super. 2013),

vacated by 106 A.3d 76 (Pa. 2014). Therein, this Court determined that a

juvenile’s weight of the evidence claim in a murder adjudication was against

the weight of the evidence. However, our Supreme Court granted allowance

of appeal to decide whether the weight claim was waived due to the failure

to preserve the issue in a post-dispositional motion.    Ultimately, the High

Court held the issue was not waived, but remanded the matter to the

juvenile court to consider the weight issue anew. Accordingly, this Court’s

decision in In re J.B., is of questionable precedential value as to the merits

of the weight issue.

      Setting aside the continued precedential value of the decision relied on

by Appellant, this case is not analogous to In re J.B. Appellant’s position is

essentially identical to his sufficiency argument.    He contends that the

Commonwealth did not show that Appellant sent the message and only

demonstrated the message was sent “from a number associated with Mr.

Piccolo.” Appellant’s brief at 22. Appellant highlights that his own evidence




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suggested that another person sent the message.4               The Commonwealth

counters that Appellant sent a direct threat to the victim regarding messing

up her face so that it looked like she was in a car wreck along with a “dozen

other lewd and harassing text messages.” Commonwealth’s brief at 16.

       Instantly, the trial court did not abuse its discretion in deciding that its

conscience was not shocked by its own verdict.              The court was free to

determine Appellant’s evidence lacked credulity. Further, it is a reasonable

inference that a message sent from a number belonging to Appellant was

sent by him.      This is especially so when considered in the context of the

remaining messages, which were clearly sent by him. This is simply not a

case where certain facts delineated by Appellant are so clearly of greater

weight than the Commonwealth’s evidence that disregarding Appellant’s

facts would deny justice.

       The final issue Appellant levels on appeal pertains to the discretionary

aspects of his sentence. To adequately preserve a discretionary sentencing

claim, the defendant must present the issue in either a post-sentence

motion,     or   raise    the    claim     during   the   sentencing   proceedings.

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). Further, the defendant must “preserve the issue in a court-ordered
____________________________________________


4
  Appellant also sent a message after the threatening message stating, “Oh
crap. LOL. I was sending that to someone else, honey. My bad.” N.T.,
9/20/13, at 25.



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Pa.R.A.P. 1925(b) concise statement and a Pa.R.A.P. 2119(f) statement.”

Id.    Importantly, “[t]here is no absolute right to appeal when challenging

the discretionary aspect of a sentence.” Id. “[A]n appeal is permitted only

after this Court determines that there is a substantial question that the

sentence was not appropriate under the sentencing code.” Id.

       When considering the merits of a discretionary aspect of sentencing

claim, we analyze the sentencing court’s decision under an abuse of

discretion standard.      Commonwealth v. Dodge, 77 A.3d 1263, 1274

(Pa.Super. 2013). In conducting this review, we are guided by the statutory

requirements of 42 Pa.C.S. § 9781(c) and (d). Id. Section 9781(c) provides

that   this   Court   shall   vacate   a     sentence   and   remand   under   three

circumstances.    Relevant hereto is if the sentence is outside the standard

sentencing guidelines and the sentence is unreasonable. 42 Pa.C.S. §

9781(c)(3). In addition, we consider:

       (1) The nature and circumstances of the offense and the history
       and characteristics of the defendant.

       (2) The opportunity of the sentencing court to observe the
       defendant, including any presentence investigation.

       (3) The findings upon which the sentence was based.

       (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

       As with Appellant’s weight issue, Appellant raised a discretionary

sentencing claim in his post-sentence motion. That motion was not timely;


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however, Appellant did request nunc pro tunc consideration of that motion.

Since the trial court’s attempt to grant Appellant’s nunc pro tunc relief

constituted a breakdown in the judicial system, we do not find waiver on this

ground.    Moreover, Appellant raised the claim in his Pa.R.A.P. 1925(b)

statement, and although he has failed to provide a Pa.R.A.P. 2119(f)

statement in his brief, the Commonwealth did not object. Commonwealth

v. Stewart, 867 A.2d 589 (Pa.Super. 2005) (discretionary sentencing claim

not waived where Commonwealth did not object to absence of 2119(f)

statement). Thus, we consider Appellant’s position.

     Initially,   we   disagree   with     the    Commonwealth’s   assertion   that

Appellant has not raised a substantial question.         Appellant argues that a

substantial question exists because the court sentenced him above the

sentencing guideline ranges using an impermissible sentencing factor;

specifically, a post-conviction arrest for kidnapping the same victim herein.

Whether a court considered an impermissible sentencing factor in imposing a

sentence does present a substantial question. Commonwealth v. Macias,

968 A.2d 773, 776 (Pa.Super. 2009). We do not look to the merits of the

underlying argument to determine if such a question exists. Dodge, supra

at 1270.

     However, we hold that Appellant is not entitled to relief.          The trial

court considered a presentence report, a mental health evaluation, the

victim’s impact statement, defendant’s allocution, and argument by counsel.

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It placed on the record that Appellant was dangerous to society and a poor

candidate for rehabilitation.    The court noted that Appellant was mentally

unstable and, while acknowledging Appellant’s arrest, it did not use that

consideration as the sole factor in imposing its sentence. Indeed, the court

in its Rule 1925(a) opinion opined that it did not consider his arrest in

crafting Appellant’s sentence.    The court in imposing its sentence did not

refer to Appellant’s subsequent criminal conduct, which also involved his

estranged wife. Thus, the record does not sustain Appellant’s position.

      Judgment of sentence affirmed.

      Justice Fitzgerald Joins the Memorandum

      Judge Shogan files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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