J-S16041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DENNIS LEE DIVITTORE,                      :
                                               :
                       Appellant               :      No. 1019 MDA 2018

         Appeal from the Judgment of Sentence Entered May 31, 2018
              in the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0001413-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 10, 2019

        Dennis Lee Divittore (“Divittore”) appeals from the judgment of

sentence imposed following his guilty plea to one count each of burglary,

unlawful restraint, possessing an instrument of crime (“PIC”), and simple

assault.1 We affirm.

        The trial court concisely summarized the relevant facts underlying this

appeal as follows:

        [In the early morning hours of February 23, 2017, Divittore]
        entered the home of Alieski Sanchez [(hereinafter, “the victim”),]
        through a window[,] while wearing a ski mask and carrying a pry
        bar. After entering the home, [Divittore] went to the victim’s
        bedroom and jumped on top of her. A struggle between the victim
        and [Divittore] ensued. During the course of the struggle, the
        victim was struck with the pry bar [Divittore] was carrying, which
        resulted in significant bruising on her face, neck, and knees.
        [Divittore] then left the victim’s home and later returned [that
        same day]. Again, a struggle ensued and the victim was left to
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1   18 Pa.C.S.A. §§ 3502(a)(1)(i), 2902(a)(1), 907(a), 2701(a)(1).
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      grab a knife in order to protect herself. [The police apprehended
      Divittore that same day.]

Trial Court Opinion, 9/24/18, at 3 (citations to record omitted).

      After the Commonwealth charged Divittore with the above-mentioned

charges, on March 29, 2018, he entered an open guilty plea to all counts.

Prior to sentencing, the trial court ordered the preparation of a pre-sentence

investigation report (“PSI”).

      On May 31, 2018, the trial court sentenced Divittore on his respective

convictions as follows: burglary – four to eight years in prison; PIC – one to

two years in prison; unlawful restraint – two years of probation; simple assault

– no further penalty.      The trial court ordered the sentences to run

consecutively. At the sentencing hearing, the trial court observed that the

sentence it had imposed for burglary was “a couple of months higher than the

standard range” of the applicable sentencing guidelines. N.T., 5/31/18, at 13.

However, the court stated that it believed an aggravated-range sentence was

appropriate “based on the victim impact as well as the safety of society[.]”

Id.

      On June 11, 2018, Divittore filed a post-sentence Motion for

reconsideration of his sentence, asserting that it was excessive and unduly

harsh, where the trial court failed to consider his rehabilitative needs and did

not state sufficient reasons for the sentence on the record.        After the trial

court denied this Motion, Divittore timely filed a Notice of appeal, followed by




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a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of

on appeal.

       Divittore now presents the following questions for our review:

       I. Whether the trial court committed an abuse of discretion when
       it sentenced Divittore to an aggregate period of incarceration of
       not less than five (5) years to no more than ten (10) years at a
       state correctional institut[ion,] followed by two years of
       probation?

       II. Whether the trial court illegally sentence[d] Divit[t]ore on
       [unlawful restraint,] as said [conviction] merged with [the
       burglary conviction,] according to the Criminal Information[?]

Brief for Appellant at 4 (issues numbered).

       In his first issue, Divittore argues that the trial court abused its

discretion by imposing a manifestly excessive aggregate sentence, where the

court failed to adequately consider Divittore’s rehabilitative needs, history and

character. See id. at 6-8, 12-16.

       Divittore challenges the discretionary aspects of his sentence, from

which there is no absolute right to appeal.2 See Commonwealth v. Hill, 66

A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has

preserved the sentencing challenge for appellate review, by raising it in a

timely post-sentence motion, he must (1) include in his brief a concise


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2  The open guilty plea Divittore entered permits him to challenge the
discretionary aspects of his sentence. See Commonwealth v. Tirado, 870
A.2d 362, 365 n.5 (Pa. Super. 2005) (explaining that, when the plea
agreement is open, containing no bargain for a specific or stated term of
sentence, the defendant will not be precluded from appealing the discretionary
aspects of his/her sentence).

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statement of the reasons relied upon for allowance of appeal with respect to

the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and

(2) demonstrate that there is a substantial question that the sentence imposed

is not appropriate under the Sentencing Code. Hill, 66 A.3d at 363-64.

      Here, Divittore included a Rule 2119(f) Statement in his brief. See Brief

for Appellant at 6-8. Accordingly, we will examine the Rule 2119(f) Statement

to determine whether a substantial question exists.         See Hill, supra.

Divittore asserts as follows:

      Divit[t]orre’s sentence of five … to [ten] years of state
      incarceration is excessive, unreasonable and constitutes too
      severe a punishment[,] in light of the rehabilitative needs of
      Divit[t]orre[,] where the punitive measures inherent in this
      sentencing scheme could have been accomplished with the
      imposition of a lesser sentence. Specifically, Divi[t]torre asserts
      [that] the sentencing court failed to consider his relevant history
      and characteristics at sentencing when it departed from the
      standard range of the sentencing guidelines.

Brief for Appellant at 7-8.

            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.

Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation

omitted); see also 42 Pa.C.S.A. § 9781(b).

      Here, Divittore’s above-mentioned claims present a substantial question

for our review. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.


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Super. 2015) (en banc) (stating that “an excessive sentence claim—in

conjunction with an assertion that the [trial] court failed to consider mitigating

factors—raises a substantial question.”) (citation omitted); Commonwealth

v. Bonner, 135 A.3d 592, 604 (Pa. Super. 2016) (holding that a claim that

appellant’s standard-range consecutive sentence was excessive, and the trial

court failed to consider appellant’s rehabilitative needs, raises a substantial

question). Accordingly, we will address the merits of Divittore’s claims.

      We review discretionary aspects of sentence claims under the following

standard:   “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.” Commonwealth v. Barnes, 167 A.3d 110,

122 n.9 (Pa. Super. 2017) (en banc) (citation omitted). A sentencing court

has broad discretion in choosing the range of permissible confinement that

best suits a particular defendant and the circumstances surrounding his or her

crime. Commonwealth v. Walls, 846 A.2d 152, 154-55 (Pa. Super. 2004).

The Sentencing Code sets forth the considerations a trial court must take into

account when formulating a sentence, providing 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.C.S.A. § 9721(b).




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      Importantly, the sentencing court in the instant case had the benefit of

a PSI. Where a sentencing court is informed by a PSI, “it is presumed that

the court is aware of all appropriate sentencing factors and considerations,

and that where the court has been so informed, its discretion should not be

disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super.

2009) (citing Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). In

discussing Devers, this Court in Ventura explained as follows:

      In imposing sentence, the trial court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. The trial court should refer to the defendant’s prior
      criminal record, age, personal characteristics, and potential for
      rehabilitation. However, where the sentencing judge had the
      benefit of a [PSI], it will be presumed that he or she was aware of
      the relevant information regarding the defendant’s character and
      weighed those considerations along with mitigating statutory
      factors. Additionally, the sentencing court must state its reasons
      for the sentence on the record. The sentencing judge can satisfy
      the requirement that reasons for imposing sentence be placed on
      the record by indicating that he or she has been informed by the
      [PSI]; thus properly considering and weighing all relevant factors.

Ventura, 975 A.2d at 1135 (citation omitted).

      Because the sentencing court here confirmed that it had reviewed

Divittore’s PSI prior to sentencing him (see N.T., 5/31/18, at 12, and

Sentencing Order, 5/31/18), it is presumed that the court considered all

mitigating factors, including Divittore’s rehabilitative needs, character and

history.   See Ventura, supra.     Moreover, the sentencing court stated as

follows in support of its rejection of Divittore’s excessiveness of sentence

challenge:


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      [T]his [c]ourt explicitly stated that it was sentencing [Divittore] to
      a few months higher than the standard range because of the
      impact on the victim and for the protection of the public. In
      arriving at this decision, this [c]ourt considered all of the evidence
      presented before it by both the Commonwealth and [Divittore].
      This [c]ourt believes that the information presented to it was
      sufficient to warrant the sentence that it [imposed]. Facts
      relevant to this [c]ourt’s aggravated[-]range sentence included:
      (1) [Divittore] entered the home of the victim wearing a ski mask
      and carrying a pry bar[;] (2) [Divittore] entered the victim’s
      bedroom and jumped on top of her[;] (3) the victim suffer[ed]
      significant bruising on her face, neck, and knees as a result of a
      struggle between herself and [Divittore;] (4) [Divittore]
      reenter[ed] the victim’s home after initially leaving, and the victim
      had to defend herself by using a knife[.] In light of this evidence,
      this [c]ourt chose not to ignore the appalling nature of this crime
      and instead chose to impose a sentence it believed to be proper.

              In addressing [Divittore’s] assertion that this [c]ourt failed
      to consider his history and characteristics at his sentencing, we
      believe that [Divittore’s] history and characteristics were
      adequately considered. At [Divittore’s] sentencing[,] this [c]ourt
      allowed [Divittore] to speak and provide a letter he wrote on his
      behalf. Additionally, this [c]ourt allowed [Divittore’s] former
      girlfriend to speak on his behalf[,] and allowed [Divittore’s]
      counsel to speak on behalf of [Divittore’s] brother. This [c]ourt
      was aware of and considered the fact that [Divittore] was a
      caretaker to his [elderly] mother. While this [c]ourt considered
      all of these factors in sentencing [Divittore], they were simply not
      enough to detract from the heinous nature of [Divittore’s] crime.

Trial Court Opinion, 9/24/18, at 4-5 (citations to record omitted).

      The sentencing court’s foregoing analysis is supported by the record,

and we discern no abuse of the court’s discretion, nor do we find its sentence

unreasonable or excessive, particularly in light of the seriousness of Divittore’s




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actions.3 Accordingly, Divittore’s challenge to the discretionary aspects of his

sentence entitles him to no relief.

       In his second issue, Divittore contends that his burglary and unlawful

restraint convictions should have merged for sentencing purposes, and

therefore, his sentence is illegal and must be vacated. See Brief for Appellant

at 10-12. We disagree.

       The Crimes Code provides that

       [a] person commits the offense of burglary if, with the intent to
       commit a crime therein, the person … enters a building or occupied
       structure … that is adapted for overnight accommodations in
       which[,] at the time of the offense[,] any person is present and
       the person commits … a bodily injury crime therein[.]

18 Pa.C.S.A. § 3502(a)(1)(i) (emphasis added); see also id. § 3502(e)(1)

(defining “bodily injury crime,” in relevant part, as “[a]n act, attempt or threat

to commit an act which would constitute a misdemeanor or felony under …

Chapter 27 (relating to assault)[,]” or “Chapter 29 (relating to kidnapping).”).

Notably to Divittore’s claim, subsection 3502(d) (hereinafter, the “multiple

convictions provision”) provides that “[a] person may not be sentenced both

for burglary and for the offense which it was his intent to commit after the

burglarious entry[,] or for an attempt to commit that offense, unless the



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3 We note that at sentencing, the victim testified to the impact that Divittore’s
crimes had upon her emotionally, stating that even though one year had
elapsed, Divittore’s actions “mar[red] [her] entire life forever[,]” and she “still
can’t be around people so much because [she] is so scared.” N.T., 5/31/18,
at 3.

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additional offense constitutes a felony of the first or second degree.”     Id.

§ 3502(d) (emphasis added); see also Commonwealth v. Diaz, 867 A.2d

1285, 1288 (Pa. Super. 2005) (holding that theft that occurred during course

of burglary merges with corresponding burglary).

       Here, Divittore argues that

       simple assault is a misdemeanor under Chapter 27, and unlawful
       restraint is a misdemeanor[4] under Chapter 29; therefore, both
       would constitute a “bodily injury crime.”    Both crimes are
       misdemeanors of the second degree; therefore, in accord with
       [the multiple convictions provision], Divittore may not be
       sentenced for both burglary and for either simple assault or
       unlawful restraint.

Brief for Appellant at 12 (footnote added, some capitalization omitted).

       “[A] claim that crimes should have merged for purposes of sentencing

challenges the legality of a sentence and, thus, cannot be waived.”

Commonwealth v. Parham, 969 A.2d 629, 631 (Pa. Super. 2009).

Therefore, “our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Quinta, 56 A.3d 399, 400 (Pa. Super. 2012).

       The merger doctrine mandates that

       [n]o crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the other
       offense. Where crimes merge for sentencing purposes, the court
       may sentence the defendant only on the higher graded offense.


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4 The Criminal Information in this case incorrectly stated that the count of
unlawful restraint, under 18 Pa.C.S.A. § 2902(a)(1), was graded as a second-
degree felony. In actuality, subsection (a)(1) grades the offense as a first-
degree misdemeanor.

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42 Pa.C.S.A. § 9765. Thus, merger is prohibited “unless two distinct facts are

present:   1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833

(Pa. 2009).

      In its Opinion, the trial court cogently addressed Divittore’s claim as

follows:

      Here, the charges of burglary and unlawful restraint did not arise
      from a single criminal act. [Divittore] entered the victim’s home
      on the evening in question, wearing a ski mask and carrying a pry
      bar; two facts that demonstrate he was entering the home for the
      purpose of burglarizing it. Additionally, it was [Divittore’s] counsel
      who made it clear at sentencing that [Divittore] had lost his job
      [prior to the incident] and was drinking on the night of the
      incident; seemingly attempting to assert that [Divittore had]
      entered the home with the intent to find valuables and not attack
      the victim. It was not until [Divittore] entered the victim’s
      bedroom and jumped on top of her, that she was unlawfully
      restrained. Her attempts to resist his restraint was a wholly
      different crime from the initial burglary. Put more simply, the
      burglary was the initial crime and it was not until after that, when
      the victim attempted to get away from [Divittore,] that she was
      unlawfully restrained. Therefore, it is this [c]ourt’s belief that the
      crimes of burglary and unlawful restraint did not arise from one
      single criminal act[,] but instead[,] from two separate ones.

            In addressing the second requirement under [42 Pa.C.S.A.
      § 9765, supra], the statutory elements of burglary and unlawful
      restraint are not the same, as evidenced by the definitions below.
      Even if the … crimes of burglary and unlawful restraint did arise
      out of the same criminal act, there is no denying that neither the
      crime of burglary nor unlawful restraint possess the same
      statutory elements.

         Under 18 Pa.[C.S.A.] § 3502[(a)(1)(i),] a burglary occurs
      when:


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           with the intent to commit a crime therein, the person …
           enters a building or occupied structure … that is adapted
           for overnight accommodations in which[,] at the time of
           the offense[,] any person is present and the person
           commits … a bodily injury crime therein[.]

          Under 18 Pa.[C.S.A.] § 2902[(a)(1),] unlawful restraint occurs
       when:

           a person … knowingly restrains another unlawfully in
           circumstances exposing him to risk of serious bodily
           injury[.]

Trial Court Opinion, 9/24/18, at 5 (emphasis added).

       We agree with the trial court’s foregoing rationale, which is amply

supported by record and the law, and therefore affirm on this basis in rejecting

Divittore’s legality challenge, see id., with the following addendum.

       Contrary to Divittore’s argument, the multiple convictions provision is

unavailing to his claim of merger. That provision states, in relevant part, that

“[a] person may not be sentenced both for burglary and for the offense which

it was his intent to commit after the burglarious entry ….”        18 Pa.C.S.A.

§ 3502(d) (emphasis added).5 On this matter, the trial court found as follows:

“[Divittore] entered the [victim’s] home with the intent to find valuables and

not attack the victim. … [The victim’s] attempts to resist his restraint was a



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5  In the instant case, the Information did not specify what particular crime
Divittore intended to commit after his illegal entry into the victim’s residence.
See Commonwealth v. Alston, 651 A.2d 1092, 1095 (Pa. 1994) (stating
that, “to secure a conviction for burglary,” the Commonwealth need not even
“allege or prove what particular crime [a]ppellant intended to commit after his
[illegal] entry into [a] private residence.”).

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wholly different crime from the initial burglary.” Trial Court Opinion, 9/24/18,

at 5 (emphasis added); cf. Commonwealth v. Benchoff, 700 A.2d 1289,

1294 (Pa. Super. 1997) (holding that it is not permissible for trial court to

sentence defendant for both burglary and simple assault, where simple assault

is the offense which defendant intended to commit upon gaining entry into the

victim’s house). Therefore, the multiple convictions provision is inapplicable

to the count of unlawful restraint against Divittore, and his second issue thus

fails.

         Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/10/2019




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