J-S02009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

ADAM COATES

                       Appellant                 No. 2909 EDA 2013


       Appeal from the Judgment of Sentence September 13, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012799-2009


COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

ADAM COATES

                       Appellant                 No. 2910 EDA 2013


       Appeal from the Judgment of Sentence September 13, 2013
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0009004-2010


BEFORE: MUNDY, J., OLSON, J., and WECHT, J.

MEMORANDUM BY MUNDY, J.:                    FILED FEBRUARY 26, 2015

     Appellant, Adam Coates, appeals from the September 13, 2013

aggregate judgment of sentence of seven and one-half to 15 years’

imprisonment imposed following his convictions for two counts of criminal
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trespass and one count of possession of an instrument of crime.1            After

careful review, we affirm.

        The certified record reveals the following factual and procedural history

of this case. On September 21, 2009, Joyanna Brady left her Philadelphia

home at 7:00 a.m.        N.T., 8/27/13, at 33.   When she left, the doors were

locked, the windows were shut, and the lights inside her home were turned

off. Id. 33-34. She returned at 7:00 p.m. that evening with her two young

children and immediately noticed a light was on in her home.          Id. at 33.

When she looked around her home, she discovered a bike that was hanging

in her back room was missing, the lock on her window was broken, and her

backdoor, which was locked with both a deadbolt and a lock on the doorknob

when she left her home that morning, was unlocked. Id. at 35-36. Brady

called the police, and Officer Luis Cordero responded to the call. Id. at 35,

46. Officer Cordero conducted an investigation of the property and observed

that Brady’s window was “broken and pushed in.”             Id. at 47.    Officer

Cordero then began dusting the area around the window and lifting

fingerprints. Id. at 47-48. The fingerprints Officer Cordero lifted were sent

to the Latent Print Unit of the Philadelphia Police Department and

determined to be a match with Appellant’s fingerprints. Id. at 58, 76.



____________________________________________


1
    18 Pa.C.S.A. §§ 3503(a)(1)(ii) and 3921(a), respectively.



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       At     approximately       11:30        p.m.   on   September     21,   2009,

Horace Eggleston was in bed when police officers began knocking on his

door. N.T., 4/30/2013, at 19. The police officers informed Eggleston that a

neighbor had reported seeing someone enter Eggleston’s house. Id. At the

time, Eggleston lived alone. Id. at 16. Police officers discovered Appellant

in a closet in Eggleston’s basement.             Id. at 23-24; 46; 73.   Police then

recovered pliers from Appellant’s pocket. Id. at 46; 75. Prior to entering

the residence, police observed a bike leaning against the chain link fence

surrounding Eggleston’s property and observed that two screens from

Eggleston’s porch were cut. Id. at 42.

       On July 22, 2010, the Commonwealth charged Appellant with burglary,

criminal trespass, theft by unlawful taking, receiving stolen property, and

criminal mischief, at docket number CP-51-CR-0009004-2010, in connection

with the events that occurred at the Brady residence on September 21,

2009.2      Criminal Information, 7/22/10. Appellant proceeded to a four-day

jury trial, commencing on August 27, 2013. At the conclusion of the trial,

the jury found Appellant guilty of criminal trespass.          N.T., 8/30/13, at 8.

The jury was deadlocked on the charges of burglary and theft, and the trial



____________________________________________


2
  18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3921(a), 3925(a), 3304(a)(2),
respectively.




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court granted a mistrial on those charges.                  Id. at 11.    The remaining

charges were nolle prossed.

        On October 15, 2009, the Commonwealth charged Appellant with

burglary, criminal trespass, possession of an instrument of crime, and

criminal mischief, at docket number CP-51-CR-0012799-2009, for the events

that occurred at Eggleston’s residence on September 21, 2009.3                 Criminal

Information, 10/15/09. On April 30, 2013, Appellant proceeded to a three-

day jury trial. At the conclusion of the trial, the jury found Appellant guilty

of criminal trespass and possession of an instrument of crime. N.T., 5/2/13,

at 9.    The jury acquitted Appellant of burglary.            Id. at 8.   The charge of

criminal mischief was nolle prossed.

        On September 13, 2013, the trial court sentenced Appellant at both

docket numbers to an aggregate judgment of sentence of seven and one-

half to 15 years’ imprisonment.                Specifically, the trial court sentenced

Appellant to 30 to 60 months’ imprisonment for his conviction for criminal

trespass on docket number CP-51-CR-0009004-2010. N.T., 9/13/13, at 10.

Additionally, the trial court sentenced Appellant to consecutive terms of 30

to 60 months’ imprisonment for criminal trespass and 30 to 60 months’

imprisonment for possession of an instrument of crime for his convictions on

docket number CP-51-CR-0012799-2009.                  Id.    The sentence imposed on
____________________________________________


3
   18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 907(a), and 3304(a)(4),
respectively.



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docket number CP-51-CR-0009004-2010 is consecutive to the sentence

imposed on docket number CP-51-CR-0012799-2009. Id.

        On September 23, 2013, Appellant filed a motion for reconsideration of

the sentences imposed on both docket numbers. Motion for Extraordinary

Relief and/or Reconsideration of Sentence, 9/23/13, at 1-3. The trial court

denied Appellant’s motion on September 30, 2013.            Trial Court Order,

9/30/2013. On October 17, 2013, Appellant filed separate, timely notices of

appeal from the sentences imposed on docket numbers CP-51-CR-0012799-

2009 and CP-51-CR-0009004-2010. On November 1, 2013, Appellant filed

an application to consolidate the two appeals, which this Court granted on

November 25, 2013.          Appellant’s Application to Consolidate Appeals,

11/1/13; Per Curiam Order, 11/1/13.        The trial court ordered Appellant to

file a concise statement of errors complained of on appeal, within 21 days,

for both cases pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)

on March 13, 2014. Trial Court Order, 3/13/14. On April 8, 2014, Appellant

filed a petition to file a statement of matters complained of on appeal nunc

pro tunc in each case. Appellant’s Petition to File Statement of Errors Nunc

Pro Tunc, 4/8/14, at 1-2. The trial court granted Appellant’s petition, and

Appellant filed his identical 1925(b) statements for each case on April 8,

2014.      Trial Court Order, 4/8/14; Rule 1925(b) Statement, 4/8/14.

Thereafter, on May 28, 2014, the trial court filed its identical Rule 1925(a)




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opinions addressing the errors complained of on appeal filed by Appellant in

each case. Rule 1925(a) Opinion, 5/28/14, 1-14.

      On appeal, Appellant raises the following issues for our review.

            1.     Did not the sentencing court violate the
            requirements of 42 Pa.C.S.[A.] § 9721(b) of the
            Sentencing Code which states 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, as the lower
            court seemed to exclusively focus on [A]ppellant’s
            criminal conduct rather than his rehabilitative needs,
            mitigating circumstances or mental health status?

            2. Was not the lower court’s sentence violative of
            the precepts of the Pennsylvania Sentencing Code,
            and contrary to the fundamental norms underlying
            the sentencing process, and therefore was it not
            manifestly unreasonable, excessive, and an abuse of
            discretion?

Appellant’s Brief at 4.

       Both of Appellant’s claims challenge the discretionary aspects of his

sentence. We adhere to the following standard of review over such claims.

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.




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Commonwealth v. Gonzalez, --- A.3d ---, 2015 WL 252446, at *14 (Pa.

Super. 2015), quoting Commonwealth v. Hoch, 936 A.2d 515, 517-518

(Pa. Super. 2007). However, an appellant is not entitled to review of issues

challenging discretionary aspects of a sentence as a matter of right.

Commonwealth v. Tejada, --- A.3d ---, 2015 WL 62931, at *8 (Pa. Super.

2015).   In order to invoke this Court’s jurisdiction, we need to assess

whether Appellant has satisfied the following requirements.

            (1) [T]he appellant preserved the issue either by
            raising it at the time of sentencing or in a post[-
            ]sentence motion; (2) the appellant filed a timely
            notice of appeal; (3) the appellant set forth a concise
            statement of reasons relied upon for the allowance of
            his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
            appellant raises a substantial question for our
            review.

Id. (citation omitted).

      Instantly, Appellant has preserved his issue by filing a post-sentence

motion, a timely appeal, and including a concise statement for reasons

relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief.

Therefore, we next determine whether Appellant has raised a substantial

question for our review.

            The determination of whether a particular issue
            raises a substantial question is to be evaluated on a
            case-by-case basis.      In order to establish a
            substantial question, the appellant must show
            actions by the trial court inconsistent with the
            Sentencing Code or contrary to the fundamental
            norms underlying the sentencing process.




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Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)

(citation omitted).       “At a minimum, the Rule 2119(f) statement must

articulate what particular provision of the code is violated, what fundamental

norm the sentence violates, and the manner in which it violates that norm.”

Commonwealth v. Zirkle, --- A.3d ---, 2014 WL 7212598, at *4 (Pa.

Super. 2014) (citation omitted).

       In his Rule 2119(f) statement, Appellant claims the sentence imposed

“violates many norms of the Sentencing Code, is unreasonable and

excessive.” Appellant’s Brief at 10. Appellant asserts the trial court did not

provide “adequate and appropriate reasons for imposing a sentence greatly

in excess of the guidelines …[.]”4 Id. at 11. Appellant further avers the trial

court did not individualize Appellant’s sentence or fashion a sentence

“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.”          Id. at 12.   We conclude Appellant

has failed to raise a substantial question.



____________________________________________


4
  Appellant provides no analysis or argument in support of his contention
that his sentence exceeded the guidelines. See generally Appellant’s Brief
at 1-24. The trial court’s sentences were within the standard guideline
range, and the trial court discussed each sentence at the sentencing hearing
and their imposition in the trial court opinion. N.T., 9/13/13, at 5; Trial
Court Opinion, 5/28/14, at 6-12.




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       The essence of Appellant’s arguments is that the trial court failed to

weigh Appellant’s rehabilitative needs in favor of a shorter term of

imprisonment, and the trial court’s sentence was excessive because it

imposed consecutive, rather than concurrent, sentences. See id. at 12, 15,

20. Specifically, Appellant claims the trial court “seems to exclusively focus

on the seriousness of the underlying crimes rather than taking into

consideration [A]ppellant’s history of substance abuse and mental health

problems.” Id. at 18. However, this Court has held “a claim that a court did

not weigh the factors as an appellant wishes does not raise a substantial

question.”    Zirkle, supra at *5 (citation omitted). Further, “an allegation

that the sentencing court ‘failed to consider’ or ‘did not adequately consider’

various factors does not raise a substantial question that the sentence was

inappropriate.”      Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.

Super. 2013) (citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).5

____________________________________________


5
  Alternatively, we note Appellant would not be entitled to relief on his claim
the trial court did not properly consider his rehabilitative needs. We observe
that the trial court ordered a presentence report on Appellant in this case.
Our Supreme Court has stated, “[w]here pre-sentence reports exist, we shall
continue to presume that the sentencing judge was aware of relevant
information regarding [appellant’s] character and weighed those
considerations along with mitigating statutory factors.” Gonzalez, supra at
*15 (Pa. Super. 2015), citing Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988). Additionally, the trial court explained its rationale at the time of
sentencing Appellant and in its trial court opinion. N.T., 9/13/13, at 8-12;
Trial Court Opinion, 5/28/14, at 6-12. We also note that the fact that the
crimes occurred the same evening does not afford Appellant leniency in
sentencing. See Zirkle, supra (observing that the fact that appellant
(Footnote Continued Next Page)


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      Moreover, it is within the trial court’s discretion to impose a

consecutive rather than a concurrent sentence.         Zirkle, supra (citations

omitted).    Significantly, “[a] challenge to the imposition of consecutive

rather than concurrent sentences does not present a substantial question

regarding the discretionary aspects of sentence.”       Id.   Nevertheless, “we

have recognized that a sentence can be so manifestly excessive in extreme

circumstances that it may create a substantial question.”           Id. (citation

omitted).    The focus in such determinations is “whether the decision to

sentence consecutively raises the aggregate sentence to, what appears upon

its face to be, an excessive level in light of the criminal conduct in this case.”

Id. (citation omitted).

      In the instant case, the criminal conduct included two counts of

criminal trespass into the homes of strangers and one count of possession of

an instrument of crime. Notably, one of the instances of criminal trespass

occurred late in the evening while the homeowner was in bed. Under the

circumstances surrounding the criminal conduct in this case, we cannot

conclude the imposition of consecutive sentences is so manifestly excessive,

on its face, as to raise a substantial question. See id.


                       _______________________
(Footnote Continued)

committed the crimes subjecting him to the challenged sentence in one
spree did not entitle him to a “volume discount” at sentencing). Therefore,
we would conclude the trial court did not abuse its discretion in fashioning
Appellant’s sentence. See Gonzalez, supra.



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     Accordingly, we conclude Appellant has not raised a substantial

question as to the discretionary aspects of his sentence, and we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/26/2015




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