J-A10030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY ARMSTRONG                          :
                                               :
                       Appellant               :   No. 216 EDA 2017

         Appeal from the Judgment of Sentence Entered August 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006396-2009,
                            CP-51-CR-0009692-2009


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 12, 2018

        Anthony Armstrong appeals from the judgment of sentence entered on

August 23, 2016, for two counts of attempted burglary and one count of

possession of an instrument of crime (“PIC”).1 For each count of attempted

burglary, the trial court imposed the mandatory minimum sentence for second

or subsequent convictions for crimes of violence. See 42 Pa.C.S.A. § 9714.

Additionally, it imposed an aggravated sentence for PIC, for a total sentence

of 22½ to 45 years’ imprisonment. Armstrong argues that his aggregate

sentence was manifestly excessive and unreasonable. We affirm.

        The trial court summarized the procedural history of this case as follows:


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*    Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 901(a), 3502(a)(ii), and 907(a), respectively.
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              Anthony Armstrong was tried by a jury before the court,
       commencing on November 28, 2011. On December 1, 2011, the
       jury convicted [Armstrong] on two counts of attempted burglary
       and one count of possessing an instrument of crime. On January
       27, 2012, this court imposed minimum sentences of [25] to [50]
       years on each of his attempted burglary convictions in accordance
       with a finding that the instant convictions constituted a third
       strike. 42 Pa.C.S.A. § 9714(a)(12).

             On July 31, 2013, the Superior Court remanded for
       resentencing holding that [Armstrong] was, in fact, a second
       strike offender. Commonwealth v. Armstrong, 74 A.3d 228
       (Pa.Super. 2013).

Trial Court Opinion, filed 7/17/17, at 1.2

       The trial court held a resentencing hearing on August 23, 2016.

Armstrong’s counsel conceded that the minimum sentence for each attempted

burglary conviction was ten to 20 years’ incarceration. N.T., Resentencing,

8/23/16, at 22. However, his counsel urged the court to impose concurrent

sentences. Id. at 16. The trial court heard from Armstrong’s brother, Pastor

Tracey Rodriguez, as well as from Armstrong. Id. at 24, 33-35. Armstrong

explained to the court that he had been diagnosed with bipolar disorder and

schizophrenia in 2013. Id. at 9. Additionally, he expressed his remorse for the

crimes and noted that the passing of his mother had helped him to change his

thinking. Id. at 33-34. He also explained to the court that he was in full

compliance with his mental health recommendations. Id. at 35.



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2Our Supreme Court affirmed the remand order on December 30, 2014.
Commonwealth v. Armstrong, 107 A.3d 735 (Pa. 2014) (per curiam).



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       The trial court sentenced Armstrong to consecutive terms of ten to 20

years’ incarceration for each attempted burglary conviction, followed by a

consecutive sentence of two and one half to five years’ incarceration for the

PIC conviction.3 His total sentence for his convictions was 22½ to 45 years in

prison. Id. at 40-41. Armstrong filed a Post Sentence Motion, which the trial

court denied. This appeal followed.

       On appeal, Armstrong raises one issue:

       Was not the total aggregate sentence of 22½ to 45 years[’]
       incarceration manifestly excessive and unreasonable, insofar as
       the sentence was disproportionate to Anthony Armstrong’s
       conduct, and the [trial] court did not properly consider
       Armstrong’s significant mitigation and capacity for rehabilitation,
       which resulted in a near lifetime sentence for a 47[-]year[-]old
       man?

Armstrong’s Br. at 3.

       Armstrong challenges the trial court’s discretion in imposing sentence.

As such, we must conduct a four-part analysis before reaching the merits of

his claim. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013).

We must determine that: (1) the appeal is timely, (2) the instant issue was

properly preserved, (3) the appellant’s brief contains a statement pursuant to




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3 This is in the aggravated range based on Armstrong’s prior record score as
a repeat felony offender. See N.T., Sentencing, 1/27/12, at 5.



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Pa.R.A.P. 2119(f)4, and (4) there is a substantial question that the sentence

is not appropriate under the Sentencing Code. Id.

       In the instant case, Armstrong filed a timely Notice of Appeal, and

properly preserved his claims challenging the discretionary aspects of

sentencing in his Post-Sentence Motion. Armstrong also included a Pa.R.A.P.

2119(f) Statement in his brief. Armstrong’s Br. at 11-14. Finally, Armstrong

has presented a substantial question for our review. Armstrong contends that

the trial court imposed consecutive sentences resulting in an excessive and

unreasonable      sentence,      which     raises   a   substantial   question.   See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013).

       Sentencing is within the discretion of the trial court and thus will not be

disturbed absent an abuse of discretion. Commonwealth v. Jones, 640 A.2d

914, 916 (Pa.Super. 1994). An abuse of discretion exists “where the judgment

is manifestly unreasonable or where the law is not applied or where the record

shows that the action is a result of partiality, prejudice, bias or ill will.”

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). When imposing

a sentence, the court must consider “the protection of the public, the gravity

of the offense as it relates to the impact on the victim and the community, the


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4 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary aspects
of sentence.” Pa.R.A.P. 2119(f).

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defendant’s   rehabilitative   needs,   and   the   [S]entencing    [G]uidelines.”

Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa.Super. 2008).

      Armstrong contends that while the court appropriately sentenced him

as a second strike offender, his sentence is unreasonable due to the trial court

imposing consecutive sentences on each count, which he characterizes as a

life sentence. Armstrong’s Br. at 14, 18. Armstrong argues that this Court’s

decisions in Commonwealth v. Whitman, 880 A.2d 1250 (Pa.Super. 2005),

rev’d on other grounds, 918 A.2d 111 (Pa. 2007), and Commonwealth v.

Coulverson, 34 A.3d 135 (Pa.Super. 2011), require us to vacate his

sentence. We do not agree.

      In both Whitman and Coulverson, this Court concluded that the trial

court failed to take into account the rehabilitative needs of the defendant. In

Whitman, the Court concluded that the sentencing court “offered no

meaningful consideration of the sentencing factors.” 880 A.2d at 1254.

Specifically, the sentencing court failed to acknowledge that “[t]he crimes

involved no violence against persons, and [the a]ppellant displayed both

remorse and a willingness to acknowledge guilt without a lengthy trial.” Id.

Similarly, in Coulverson, this Court concluded that the sentencing court

imposed aggregate consecutive sentences with “scant consideration of

anything other than victim impact and the court’s impulse for retribution on

the victim’s behalf.” 34 A.3d at 148. Here, that is not the case.




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       Here, the court weighed and considered all relevant sentencing factors

and assigned the weight it found appropriate to the evidence of record before

imposing the consecutive sentences. The trial court heard Armstrong express

his remorse and heard from Armstrong’s brother who told the court that he

believed    that   Armstrong      had    changed   since   his   incarceration.   N.T.,

Resentencing, 8/23/16, at 25. The court also knew that at the time of

resentencing Armstrong was 47 years old and had recently been diagnosed

with bipolar disorder and schizophrenia. Id. at 9, 21. The court stated that it

had considered the Pre-Sentence Investigation report and had weighed

Armstrong’s mitigating evidence against society’s need for protection, before

imposing sentence. Id. at 36.5

       On this record, we cannot say that the imposition of the consecutive

sentences was an abuse of discretion. See Commonwealth v. Baker, 72

A.3d 652, 663-64 (Pa.Super. 2013) (affirming judgment of sentence where

trial court imposed mandatory minimum sentences consecutively after




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5 We conclude that Armstrong’s claim that the court erroneously relied on the
original PSI report is waived because he raised this issue for the first time on
appeal. See Armstrong’s Br. at 13; Pa.R.A.P. 302(a). In any event, the claim
is meritless because the sentencing court was aware of any new information
that would have been included in an updated PSI report. See
Commonwealth v. Andrews, 720 A.2d 764, 767 (Pa.Super. 1998)
(concluding updated PSI report not required for resentencing where trial court
was made aware of additional information which would have been contained
in updated PSI report).

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considering 70 year-old defendant’s age, personal characteristics, Pre-

Sentence Investigation report, and seriousness of offenses committed).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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