J-S72043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :    IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :         PENNSYLVANIA
                                         :
                                         :
                v.                       :
                                         :
                                         :
 DANIR MALLOY                            :
                                         :    No. 3569 EDA 2016
                     Appellant

          Appeal from the Judgment of Sentence October 20, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0012074-2015


BEFORE:       BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                  FILED NOVEMBER 14, 2017

      Appellant Danir Malloy appeals from the Judgment of Sentence entered

in the Court of Common Pleas of Philadelphia County on October 20, 2016, at

which time he was sentenced to an aggregate term of eleven (11) years to

twenty-two (22) years in prison. We affirm.

      The trial court set forth the relevant facts and procedural history herein

as follows:

              PROCEDURAL BACKGROUND

             On August 11, 2016, following trial, a jury found Appellant
      guilty of robbery (18 Pa. C.S. § 3701(a)(1)(ii)), theft by unlawful
      taking (18 Pa. C.S. § 3921(a)), possessing an instrument of a
      crime (PIC) (18 Pa. C.S. § 907(a)), and terroristic threats (18
      Pa. C.S. § 2706(a)(1)). On October 14, 2016, this [c]ourt
      sentenced Appellant to an aggregate term of eleven (11) to
      twenty-two (22) years' incarceration, which included a
      mandatory minimum of ten (10) years' incarceration under 42
      Pa. C.S. § 9714 for his robbery conviction.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72043-17


            On October 19, 2016, Appellant filed a motion for
     reconsideration of sentence, claiming this [c]ourt had
     erroneously applied 42 Pa. C.S. § 9714. On October 20, 2016,
     following a hearing on Appellant's motion, this [c]ourt again
     sentenced Appellant to 11 to 22 years' incarceration. Although
     this [c]ourt did not sentence Appellant pursuant to § 9714, this
     [c]ourt imposed consecutive sentences of (10) to twenty (20)
     years' incarceration on the robbery conviction and one (1) to two
     (2) years' incarceration on the PIC conviction. This [c]ourt
     imposed no sentence on the terroristic threats conviction, and
     the theft charge, for purposes of sentencing, merged with the
     robbery charge.
            On November 9, 2016, Appellant filed another motion for
     reconsideration of sentence, which this [c]ourt denied on
     November 14, 2016. On November 18, 2016, Appellant filed a
     notice of appeal to the Superior Court, and on February 14, 2016,
     Appellant filed a "Statement of Errors Complained of on Appeal"
     pursuant to Pa. R.A.P. 1925(b).

           FACTUAL BACKGROUND

           At trial, the Commonwealth presented the testimony of
     Louis Lanni ("Mr. Lanni"), Philadelphia Police Officer George
     Dilworth ("Officer Dilworth"), Philadelphia Police Officer Walter
     Henik ("Officer Henik"), and Tiara Bethea ("Ms. Bethea").
           Mr. Lanni testified that on November 11, 2015, around
     1:00 a.m., he left a bar and was walking home along the 1100
     block of Spruce Street in the city and county of Philadelphia,
     Pennsylvania, when he felt a "violent shove on [his] rear and
     right side causing [him] to stumble forward."1 Mr. Lanni turned
     around and encountered Appellant "standing directly behind
     [him] holding a silver automatic handgun ... point[ed] at [Mr.
     Lanni's] chest." Appellant demanded money and threatened:
     "Give it up or you're going to get hurt." Mr. Lanni, however,
     grabbed Appellant's handgun and the two men "struggled … for
     control of the gun." (N.T., 8/10/16, pgs. 130-132, 145).
           At some point Mr. Lanni lost his footing and fell to the
     sidewalk, landing hard on his right hip where he recently
     underwent a hip replacement surgery. Appellant landed on top
     of Mr. Lanni but he quickly rose to his feet. With Appellant now
     standing over him, pointing a gun, Mr. Lanni said "You win" and
     advised that his money was in his left pocket. Appellant reached
     into Mr. Lanni's pocket and confiscated fifteen dollars ($15),
     which was all the money Mr. Lanni possessed. As Appellant

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J-S72043-17


     walked away, Mr. Lanni called 911 with his cellular phone and
     informed the dispatcher of Appellant's description. (N.T.,
     8/10/16, pgs. 132-134, 145-148).
            Police officers arrived "rather quickly" and requested Mr.
     Lanni to enter their patrol car so they could search for Appellant.
     Minutes later, another officer advised over police radio that he
     stopped someone a few blocks away who matched Appellant's
     description. Mr. Lanni was transported to the location, and he
     promptly identified Appellant as the person that robbed him. Mr.
     Lanni also identified the "handgun" that Appellant used in the
     robbery. Although the gun turned out to be a toy, Mr. Lanni
     testified that he believed at the time of the robbery - i.e., when
     Appellant pointed the object at Mr. Lanni's chest and demanded
     his money - that the gun was genuine. (N.T., 8/10/16, pgs. 134-
     136, 160-162).
            Officer Dilworth testified that on November 11, 2015, he
     and his partner were on patrol when they received a radio call
     around 1:00 a.m. regarding "a robbery in progress" near the
     1100 block of Spruce Street. The officers responded and were
     "flagged down by [Mr. Lanni] who stated that he had just been
     robbed by point of handgun." A few minutes later the officers
     received a radio call from another officer, who patrolling only a
     few blocks away, stopped someone matching Appellant's
     description. The officers transported Mr. Lanni to the location,
     and upon viewing Appellant, Mr. Lanni "said one hundred
     percent, that's the guy that robbed me." Police officers
     subsequently arrested Appellant. (N.T., 8/10/16, pgs. 40-49).2
            Officer Dilworth further testified that Tiara Bethea (Ms.
     Bethea) was present with Appellant at the arrest location and
     was holding "a canvas bag under her shoulder, holding it tight to
     herself." Officer Dilworth noticed the bag because Ms. Bethea
     "reach[ed] in it a few times[.]" While viewing the bag's exterior
     surface, Officer Dilworth observed the "outline" of an object that
     resembled a weapon. Officer Dilworth requested permission to
     search the bag but Ms. Bethea said "no" and "tried to walk away
     and leave the scene." Because Mr. Lanni reported a gunpoint
     robbery and Ms. Bethea "kept reaching in [a] bag" that contained
     an object shaped like a gun, Officer Dilworth confiscated the bag
     "for everybody's safety on the scene." Officer Dilworth thereafter
     discovered a "silver handgun" inside the bag, which Mr. Lanni
     identified as the gun used in the robbery. (N.T., 8/10/16, pgs.
     53-54).3
            Ms. Bethea testified that she and Appellant lived in New
     Jersey and came to Philadelphia by train to patronize some bars

                                    -3-
J-S72043-17


     located on South Street. After having a few drinks on South
     Street, Ms. Bethea and Appellant decided to return to New Jersey
     by the "Speedline" train. As they walked to the train station,
     Appellant left Ms. Bethea to purportedly go to the bathroom. Ms.
     Bethea, meanwhile, continued walking to the train station. About
     eight (8) minutes later, Appellant caught up with Ms. Bethea and
     asked to see her bag/purse so he could retrieve a cigarette. Upon
     returning the bag, Appellant continued walking with Ms. Bethea
     until they were stopped by police. Ms. Bethea testified that her
     bag contained no gun when she left home that evening to come
     to Philadelphia, or when she gave it to Appellant when he
     requested a cigarette. (N.T., 8/10/16, pgs. 186-195, 223).
            At the conclusion of trial, the jury found Appellant guilty of
     robbery, theft by unlawful taking, PIC, and terroristic threats. On
     October 14, 2016, this [c]ourt sentenced Appellant on the
     robbery conviction to ten (10) to twenty (20) years' incarceration
     under 42 Pa. C.S. § 9714(a)(1), which requires a mandatory
     term of ten (10) years' incarceration for a second conviction of a
     "crime of violence."4 This Court ruled that Appellant's prior
     conviction of arson in the State of New Jersey constituted a first
     conviction of a "crime of violence" under 42 Pa. C.S. § 9714(g),5
     On the PIC conviction, this [c]ourt sentenced Appellant to a
     consecutive term of one (1) to two (2) years' incarceration. This
     [c]ourt imposed no sentence on the terroristic threats conviction,
     and the theft charge, for purposes of sentencing, merged with
     the robbery charge. Overall, Appellant's aggregate sentence was
     11 to 22 years' incarceration. (N.T., 10/14/16).
            On or around October 19, 2016, Appellant filed a motion
     for reconsideration of sentence, claiming this [c]ourt had
     erroneously imposed a mandatory sentence under § 9714(a)(1)
     for his robbery conviction. On October 20, 2016, following a
     hearing on Appellant's motion, this [c]ourt ruled that Appellant's
     prior arson conviction was not a "first strike" under § 9714, and
     that his robbery conviction did not constitute a "second strike"
     requiring a mandatory minimum sentence. (N.T. 10/20/16, pgs.
     1-14). Nonetheless, without applying § 9714, this [c]ourt still
     determined that 11 to 22 years' incarceration was an appropriate
     sentence, and therefore imposed consecutive terms of 10 to 20
     years' incarceration for Appellant'[s] robbery conviction and 1 to
     2 years’ incarceration for his PIC conviction. (Id., pgs. 26-27).

     ______
     1Mr. Lanni testified that he consumed two drinks of alcohol at the

     bar. (N.T., 8/10/16, pg. 137).

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J-S72043-17


      2Officer Walter Henik was the officer that stopped Appellant. He
      testified that he likewise was patrolling the area and received a
      radio call describing "a black male in his early 20s with a black
      waist length jacket, gray pants, black and white baseball cap and
      a beard that committed the robbery." A few blocks from the
      robbery location, Officer Henik observed Appellant, who matched
      the "exact description" of the suspect. Officer Henik therefore
      pulled over and told Appellant to put his hands on the patrol car.
      After frisking Appellant and radioing that he stopped someone
      matching the suspect's description, Officer Henik waited with
      Appellant until Officer Dilworth and Mr. Lanni arrived about one
      minute later. Once Mr. Lanni identified Appellant, Officer Henik
      searched him and recovered $20, consisting of a $10 bill, a $5
      bill, and five $1 bills. No firearm was recovered from Appellant.
      (N.T., 8/10/16, pgs. 85-96).
      3 Although the gun was not real, Officer Dilworth testified that

      the object resembled "a semiautomatic handgun.' (N.T.,
      8/10/16, pgs. 58, 77, 80).
      4§ 9714(a)(1) provides, in relevant part:



             (a) Mandatory sentence. ... (1) Any person who is
             convicted in any court of this Commonwealth of a crime
             of violence shall, if at the time of the commission of the
             current offense the person had previously been
             convicted of a crime of violence, be sentenced to a
             minimum sentence of at least ten years of total
             confinement, notwithstanding any other provision of this
             title or other statute to the contrary.... See 42 Pa. C.S.
             § 9714(a)(1).

      5   § 9714(g) provides, in relevant part:

             (g) Definition. - As used in this section, the term 'crime
             of violence' means ... arson engendering [sic] persons
             or aggravated arson as defined in 18 Pa, C.S. § 3301(a)
             or (a.1) ... or an equivalent crime under the laws of this
             Commonwealth in effect at the time of the commission
             of that offense or an equivalent crime in another
             jurisdiction. See 42 Pa. C.S. § 9714(g).


Trial Court Opinion, filed 3/15/17, at 1-6.




                                       -5-
J-S72043-17



       On November 9, 2016, Appellant filed his “Reconsideration of Sentence

Nunc Pro Tunc.” In its Order entered on November 15, 2016, the trial court

ordered that Appellant’s petition to reconsider his sentence was accepted as

timely filed and further denied the petition. Appellant filed a timely notice of

appeal on November 18, 2016.

       On January 17, 2017, the trial court ordered Appellant to file a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On February 14, 2017, Appellant filed his “Nunc Pro Tunc Statement of Errors

Complained of on Appeal,” and the next day the trial court entered an Order

indicating that the Statement was accepted as timely filed. Therein, Appellant

stated he wished to raise the following, sole issue on appeal:


             This [c]ourt erred as a matter of law and abused its
       discretion in imposing an excessive sentence, inasmuch as the
       [c]ourt failed to adequately examine and investigate [Appellant’s]
       background, character and rehabilitative needs pursuant to 42
       Pa.C.S. § 9721. The [c]ourt also erred in double counting factors
       to justify the excessive sentence, that have already been taken
       into consideration in the sentencing guidelines.

See Nunc Pro Tunc Statement of Errors Complained of on Appeal, filed

2/14/17, at ¶ 4(A).1

____________________________________________


1 We remind Appellant the proper manner in which to obtain an extension of
time to file a concise statement is by filing a written application with the trial
court seeking such relief for good cause shown, not the filing of the document
with a “nunc pro tunc” designation as was done herein. Pa.R.A.P. 1925(b)(2).
It is well-settled that the failure to file a timely Rule 1925(b) statement
automatically results in waiver of all issues on appeal, regardless of the length



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J-S72043-17


       In his brief, Appellant presents the following Statement of the Question

Involved:

             Did not the lower court err and abuse its discretion by
       sentencing [Appellant] to an unreasonable sentence that was
       higher than the standard range of the Sentencing Guidelines,
       without giving adequate reasons, on the basis of considerations,
       including the nature of the offense and his prior criminal history,
       that were already factored into the Sentencing Guidelines and did
       not the lower court further err in failing to give proper
       consideration to [Appellant’s] personal circumstances and
       mitigating factors?


Brief for Appellant at 3.

       Although Appellant presents a single question for this Court’s review in

his appellate brief, that question is multifaceted. Initially, Appellant asserts

the trial court erred in failing to provide adequate reasons for its sentence.

However, Appellant did not present this specific challenge in his concise

statement of matters complained of on appeal.

       It is well-settled that a claim not raised in the lower court is waived and

cannot be raised for the first time on appeal. Pa.R.A.P. 302(a); see also

____________________________________________


of the delay in filing. See Commonwealth v. Hill, 16 A.3d 484, 494
(Pa.2011). However, this Court has concluded that a late 1925(b) statement
by a criminal defendant represented by counsel constitutes per se
ineffectiveness, and the proper remedy is to remand for the filing of such a
statement nunc pro tunc. Commonwealth v. Grohowski, 980 A.2d 113, 114
(Pa.Super. 2009), citing Commonwealth v. Burton, 972 A.2d 428, 433
(Pa.Super.2009) (en banc ); see also Commonwealth v. Myers, 86 A.3d
286, 289 (Pa.Super. 2014) (observing that if an appellant's Rule 1925(b)
statement were late, “we would be obligated as a matter of our rules of
procedure to deem appellate counsel ineffective and to remand for the filing
of a Statement nunc pro tunc.”), citing Pa.R.A.P.1925(c)(3).


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J-S72043-17


Commonwealth v. Lopata, 754 A.2d 685, 689 (Pa.Super. 2000).                     In

addition, “[a] theory of error different from that presented to the trial jurist is

waived on appeal, even if both theories support the same basic allegation of

error which gives rise to the claim for relief.” Commonwealth v. Ryan, 909

A.2d 839, 845 (Pa.Super. 2006). Because only claims properly presented

before the trial court are preserved for appeal, Appellant’s contention the trial

court did not state adequate reasons on the record to support its sentence is

waived.

      Appellant further maintains the trial court failed to consider his personal

circumstances and mitigating factors prior to imposing his sentence which falls

outside of the Sentencing Guidelines’ standard range and in “double counting”

factors accounted for in the Guidelines.      These properly preserved claims

present challenges to the discretionary aspects of Appellant’s sentence. When

reviewing a discretionary aspects of sentencing claim, this Court is guided by

the following principles:

      [T]he proper standard of review when considering whether to
      affirm the sentencing court's determination is an abuse of
      discretion.... [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment exercised
      was manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.... An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.... The rationale behind such broad
      discretion and the concomitantly deferential standard of appellate
      review is that the sentencing court is in the best position to
      determine the proper penalty for a particular offense based upon

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J-S72043-17


      an evaluation of the individual circumstances before it.
      Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
      (2007) (internal citations omitted).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011).

      However, it is well-settled that challenges to the discretionary aspects

of one’s sentence are not reviewable as a matter of right. Id. Before this

Court can address such a discretionary challenge, 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.

Id. (citation omitted).

      What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.Super.

2007). 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. Swope, 123 A.3d 333, 338 (Pa.Super. 2015) (citation

omitted). Therefore, an appellant's Rule 2119(f) statement must sufficiently

articulate the manner in which the sentence violates either a specific provision

of the sentencing scheme set forth in the Sentencing Code or a particular

                                      -9-
J-S72043-17


fundamental norm underlying the sentencing process. Commonwealth v.

Mouzon, 571 Pa. 419, 426, 812 A.2d 617, 622 (2002).

      Herein, Appellant has satisfied the first three requirements of the four-

part test. He timely filed his notice of appeal and preserved his claim in a

post-sentence motion. He also includes in his appellate brief his “Statement

of Reasons for Allowance of Appeal from Discretionary Aspects of Sentence”

in accordance with Pa.R.A.P. 2119(f). Thus, we must next determine whether

Appellant has raised a substantial question requiring us to review the

discretionary aspects of the trial court's sentence. Commonwealth v.

Haynes, 125 A.3d 800, 807 (Pa.Super. 2015).

      In his Pa.R.A.P. 2119(f) statement, Appellant contends that “[i]n

imposing this unreasonable and excessive sentence, the trial court relied

almost entirely upon the nature of the offense and [A]ppellant’s prior record-

factors   already   given   consideration   by   the   Guidelines-   and   ignored

[A]ppellant’s needs for rehabilitation in violation of 42 Pa.C.S.A. § 9721.”

Appellant further asserts his aggregate sentence “violates many norms of the

Sentencing Code and is unreasonable and excessive.” Brief for Appellant at

10. These assertions raise substantial questions. See Commonwealth v.

Caldwell, 117 A.3d 763, 770 (Pa.Super. 2015) (en banc), appeal denied, 633

Pa. 774, 126 A.3d 1282 (2015) (stating claim a sentence imposed

consecutively was unduly excessive coupled with claim the trial court failed to

consider rehabilitative needs raises a substantial question); Commonwealth


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v. Scassera, 965 A.2d 247, 250 (Pa.Super. 2009), appeal denied, 603 Pa.

709, 985 A.2d 219 (2009) (recognizing claim the sentencing court failed to

consider applicable sentencing guidelines, prior to exceeding them, presents

a substantial question); Commonwealth v. Ahmad, 961 A.2d 884, 887

(Pa.Super. 2008) (concluding claim sentencing court failed to consider

defendant's individualized circumstances when imposing sentence raises a

substantial question); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.

Super. 2003) (stating claim sentencing court “relied on impermissible factors,

by considering factors already included in the sentencing guidelines” raises a

substantial question).

      Thus, we turn to the substantive merits of Appellant's question

presented and in doing so employ a well-settled standard of review:

      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.


Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa.Super. 2014) (citation

omitted), appeal denied, 632 Pa. 671, 117 A.3d 297 (2015). In addition, it is

axiomatic that the trial court “need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s



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consideration of the facts of the crime and the character of the offender.”

Commonwealth v. Colon, 102 A.3d 1033, 1044 (Pa.Super. 2014) (citation

omitted); 42 Pa.C.S.A. § 9721(b).     As we shall discuss infra, we find the trial

court complied with this directive herein.

      As the trial court in this case had the benefit of a PSI report and a mental

health report, See N.T. Sentence Hearing, 10/14/16, at 17; N.T. Sentence

Hearing, 10/20/16, at 23, this Court presumes that it considered all relevant

sentencing    factors   and   fashioned   an   individualized   sentence.    See

Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa.Super. 2005) (stating

where the sentencing court had and considered a PSI report, this fact alone

adequately supported the sentence, and in light of the court's explicit reliance

upon that report, this Court was required to presume it properly weighed the

mitigating factors).

      Notwithstanding, the trial court detailed its reasons for imposing

Appellant’s sentence at the sentencing hearings.        At the hearing held on

October 14, 2016, the trial court recounted Appellant’s difficult childhood

wrought with physical neglect and abuse which caused him to be placed in

foster care at the age of ten and again at thirteen.       The court also noted

Appellant had significant substance abuse problems and was HIV positive. The

court further discussed Appellant’s extensive juvenile adjudications and adult

convictions, although he was only twenty-five years of age at the time he

committed the serious, instant crimes. N.T. Sentencing, 10/14/16, at 17-20.


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      At the Amended Sentencing Hearing held on October 20, 2016, the trial

court referenced its remarks from the prior hearing and stated the reasons for

its sentence on the record as follows:

             THE COURT: I did go through, at the original sentencing
      hearing, all of the information that I have regarding [Appellant]
      from his presentence investigation including his family
      background, his health background, his work experience, his
      substance abuse, which was significant, as well as his mental
      health status and prior treatment.
             Certainly, we also heard from Mr. Lanni -- and thank you
      again, Mr. Lanni, for being here today.
             In review of [Appellant’s] significant and lengthy history --
      again, as a juvenile, six arrests, six adjudications, four
      commitments all in New Jersey starting at the age of 17 -- simple
      assault, possession with intent to deliver, aggravated assault on
      law enforcement, another simple assault. And then as an adult,
      six arrests, four convictions, three commitments, two violation
      hearings, two revocations, again all in New Jersey. Possession
      with intent to deliver, aggravated assault, and this arson case
      leading up to after [Appellant] was released from a three-year
      sentence on that arson case.
             He comes to Philadelphia and commits the point of gun
      robbery on Mr. Lanni.
             [Appellant] at 25 years old has a criminal history that
      reflects very little time where [Appellant] is not engaged somehow
      in the activity of violent crime, selling drugs, and being high on
      PCP.
             The [S]entencing [G]uidelines create a parameter that we
      all use in fashioning appropriate sentences along with
      consideration of all of the other factors including [Appellant’s]
      criminal history, the amount of time that has elapsed between
      criminal convictions. And it is not an inflexible standard.
             Defense counsel has reiterated several times that
      [Appellant] should have been afforded a greater opportunity to
      enter into an open guilty plea and take advantage of a much lower,
      much more advantageous sentence.
             He, in fact, was offered in the smart room initially a seven-
      to 14-year sentence and he rejected that. He was again offered
      the opportunity to accept responsibility for a much more favorable
      sentence – second strike notwithstanding. He rejected that.


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            There are many, many reasons why lenient sentences are
     offered prior to trial. Unfortunately, after trial, those reasons no
     longer hold. And a person's decision about whether or not they're
     going to accept responsibility has to include more than a numbers
     calculation.
            It certainly has to take into account acceptance of
     responsibility for one's actions. And [Appellant] has never done
     that. Not to this day.
            In arriving at [Appellant’s] sentence on October 14, 2016,
     quite frankly, the second strike issue was not a major component
     of this [c]ourt's sentence.
            The sentence of 11 to 22 years was the sentence that this
     Court believed, and still believes, is the appropriate sentence
     under these circumstances, notwithstanding the ruling on the
     second strike issue, and remains so, notwithstanding the change
     in the prior record score.
            The reasons for this Court's sentence were, and still are, in
     25 years, totally the juvenile and the adult record of 12 arrests
     and ten adjudications/convictions for violent crime with very little
     space and time in between those convictions, very little
     consideration toward rehabilitation, toward acceptance of
     responsibility as a law-abiding member of society.
            So, [Appellant], your sentence on the robbery is ten to 20
     years. The theft merges. The sentence on the possession of an
     instrument of crime is one to two years consecutive. And the
     sentence on the terroristic threats is no further penalty. The total
     sentence is 11 to 22 years.
            [Appellant] is not RRRI eligible. He does get credit for time
     served. I did recommend a dual diagnosis facility for [Appellant]
     to be housed to address his mental health and substance abuse
     issues as well as GED enrollment and vocational counseling.

N.T. Sentencing, 10/20/16, at 23-27.

     In addition, in its Opinion filed pursuant to Rule 1925(a), the trial court

acknowledged the Sentencing Guidelines recommended a term of sixty (60)

months to seventy-two (72) months in prison (+/- twelve (12) months). After

reiterating the aforementioned reasons it had placed on the record at the




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October 20, 2016, Amended Sentencing Hearing, the court explained the

analysis which preceded its sentence as follows:

            The record plainly reflects that when contemplating
      Appellant’s sentence, this [c]ourt considered the nature and
      gravity of Appellant’s offenses and the impact of his crimes on Mr.
      Lanni.    This [c]ourt also considered Appellant’s presentence
      investigation report, which reveals a vast and violent criminal
      history. At age 25, Appellant already amassed a staggering
      criminal record that includes multiple violent assaults, drug
      offenses, arson, and a wholesale defiance of probation/parole.
      Not only is Appellant a repeat offender, he is a violent repeat
      offender, whose criminal history demonstrates his danger to the
      community and alarming disregard of its citizens.            Given
      Appellant’s abhorrent and continuous criminal behavior, and
      persistent refusal to rehabilitate into a law abiding citizen, this
      [c]ourt’s sentence of 11 to 22 years’ incarceration is thoroughly
      deserving and justified.

Trial Court Opinion, filed 3/15/17, at 10 (emphasis in original).

       Contrary to Appellant’s averments, as reflected by the record, the trial

court properly considered the factors listed in 42 Pa.C.S.A. § 9721(b) and in

doing so did not “double count” the seriousness of the offense when

resentencing him.     The trial court emphasized not only the gravity of

Appellant’s crimes, but also their impact upon the victim, the danger Appellant

posed to the public and the lack of evidence of remorse and rehabilitation

Appellant had displayed. In addition, the court took into account Appellant’s

troubled childhood and medical issues as is evident upon a review of the

October 14, 2016, hearing transcript. The trial court also considered

Appellant’s personal and rehabilitative needs in fashioning a sentence

recommending that Appellant be housed in a dual diagnosis facility to address


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his mental health and substance abuse issues and that he be enrolled in a

GED program and receive vocational counseling. N.T. Sentencing, 10/20/16,

at 27.

         Accordingly, we conclude the trial court did not abuse its discretion

when it imposed its sentence on October 20, 2016.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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