J-S16004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RONALD GREGORY

                            Appellant                  No. 1571 EDA 2014


               Appeal from the Judgment of Sentence May 2, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011340-2012


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED FEBRUARY 09, 2016

       Appellant Ronald Gregory appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his nolo

contendere plea to rape, involuntary deviate sexual intercourse (“IDSI”),

robbery, and burglary.1 We affirm.

       The trial court set forth the relevant facts of this appeal as follows:

          [O]n July 26, 2012, at approximately 11:00 p.m.,
          Appellant entered the home of [“Victim”], located at 5306
          Wayne Avenue in Philadelphia. He did not know [Victim]
          nor did he have her permission to be there. [Victim], who
          was 78 years old at the time, was sleeping when Appellant
          entered her bedroom. He penetrated the senior
          complainant vaginally, anally and orally, before ejaculating
          on her face. Appellant then took her fanny pack containing
          U.S. currency and personal items, including photographs,
____________________________________________


1
  18 Pa.C.S. §§ 3121(a)(1), 3123 (a)(1), 3701 (a)(1)(ii), and 3502(a)(1),
respectively.
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           and also took her television. (See N.T., 12/02/13, pp. 9-
           10).

           In addition to forensic analysis which matched Appellant to
           the semen from [Victim’s] face, as well as positive rape kit
           analysis -- an eyewitness observed Appellant leaving
           [Victim’s] residence carrying a television. (See N.T.,
           12/02/13, pp. 10-11).

           After comprehensively colloquying Appellant, this [c]ourt
           accepted his nolo contendere plea as knowingly and
           voluntarily entered.

Trial Court Opinion, filed May 13, 2015 at 2.

        On May 2, 2014, the court sentenced Appellant to an aggregate term

of eighteen (18) to forty-seven (47) years’ incarceration.2 Appellant filed a

motion for reconsideration of sentence, which the court denied on May 13,

2014.     On May 20, 2014, Appellant timely filed a notice of appeal.     Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

        Appellant raises the following issue for our review:

           DID THE COURT COMMIT AN ABUSE OF DISCRETION BY
           SENTENCING APPELLANT TO A TERM OF INCARCERATION
           OF 18 TO 47 YEARS IN PRISON WHEN THE SENTENCING
           GUIDELINES CALLED FOR 60 TO 78 MONTHS[’]
           INCARCERATION?

Appellant’s Brief at 9.


____________________________________________


2
  The court imposed consecutive sentences of ten (10) to twenty (20) years’
incarceration for rape, five (5) to twenty (20) years’ incarceration for IDSI,
two (2) to five (5) years’ incarceration for robbery, and one (1) to two (2)
years’ incarceration for burglary.




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       In his sole issue on appeal, Appellant challenges the discretionary

aspects of his sentence.            Challenges to the discretionary aspects of

sentencing do not entitle a petitioner to review as of right. Commonwealth

v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).              Before this Court can

address such a discretionary challenge, an appellant must invoke this Court’s

jurisdiction by satisfying 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.

       Instantly, Appellant preserved his issue in a post-sentence motion,3

filed a timely notice of appeal and included in his brief a concise statement

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

discretionary aspects of his sentence pursuant to Pa.R.A.P. 2119(f).        See

Appellant’s Brief at 12.       Thus, we must determine whether Appellant has


____________________________________________


3
  Appellant’s motion for reconsideration of sentence is not included in the
certified record, however, the trial court issued the following order: “AND
NOW, this 13th day of May, 2014, upon consideration of the within motion
for reconsideration of sentence, said motion is hereby DENIED.” Trial Court
Order, filed May 13, 2014. Although the “within” motion for reconsideration
is not attached to the trial court order, the court ruled on it. Under the
circumstances of this case, we find Appellant preserved his issue for our
review.



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raised a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”        Commonwealth v. Prisk, 13 A.3d

526, 533 (Pa.Super.2011). Further:

         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.

Id. (internal citations omitted).

      Additionally:

         In determining whether a substantial question exists, this
         Court does not examine the merits of whether the
         sentence is actually excessive. Rather, we look to whether
         the appellant has forwarded a plausible argument that the
         sentence, when it is within the guideline ranges, is clearly
         unreasonable.    Concomitantly, the substantial question
         determination does not require the court to decide the
         merits of whether the sentence is clearly unreasonable.

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

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(internal citations omitted).

      Here, Appellant argues the court abused its discretion by imposing his

sentences consecutively, resulting in a manifestly excessive aggregate

sentence of 18 to 47 years’ incarceration. He further claims the sentencing

court failed to consider his rehabilitative needs in fashioning the sentence.




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     A court’s exercise of discretion in imposing a sentence concurrently or

consecutively     does     not   ordinarily   raise      a    substantial   question.

Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa.Super.2010),

appeal denied, 14 A.3d 825 (Pa.2011).                 Rather, the imposition of

consecutive rather than concurrent sentences will present a substantial

question in only “the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

        To make it clear, a defendant may raise a substantial
        question where he receives consecutive sentences within
        the guideline ranges if the case involves circumstances
        where the application of the guidelines would be clearly
        unreasonable, resulting in an excessive sentence;
        however, a bald claim of excessiveness due to the
        consecutive nature of a sentence will not raise a
        substantial question.

Dodge, 77 A.3d at 1270 (emphasis in original).

     In Dodge, this Court determined an appellant’s claim that the

sentencing      court    “disregarded   rehabilitation       and   the   nature   and

circumstances of the offense in handing down its sentence” presented a

substantial question. Dodge, 77 A.3d at 1273.

     This Court has also held that “an excessive sentence claim—in

conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d




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1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736 (Pa.2014)

(quoting Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super.2005)).

      Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as

unduly excessive, together with his claim that the court failed to consider his

rehabilitative needs upon fashioning its sentence, presents a substantial

question. Thus, we grant his petition for allowance of appeal and address

the merits of his claim.

      We review Appellant’s sentencing claim 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. 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. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super.2014) (en

banc), appeal denied, 104 A.3d 1 (Pa.2014).

      Upon sentencing Appellant, the court stated:

         The offense here is one of the most egregious that I have
         ever heard. For a 78 year-old woman to endure the type
         of humiliation, the type of violent assault, the type of
         disgraceful behavior, just takes your breath away.

         I’m sure, [Appellant], your family is as shocked as all of us
         about the nature of the assault on this victim. A few
         things can be as horrifying as this. This woman, at the
         latter stage of her life, has to endure the memory of this
         assault every single day.

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          There are a number of considerations that a judge weighs
          in sentencing. Certainly rehabilitation is one of them, prior
          record, the predicting future criminal activity, the positive
          aspects of the defendant’s life, as well as the punishment
          that is appropriate for the crime involved. As I said
          earlier, starting out the day, I was more towards the
          direction    of    the    assistant     district   attorney’s
          recommendation because of the nature of the criminal
          behavior here.

          Because I am taking into account what I’ve been told by
          the family, as well as [Appellant’s] taking of responsibility
          here, that is not the sentence that he is going to receive
          today. I do not, however, believe, [Appellant], that a
          guideline sentence is appropriate either, not in this case.

          I do appreciate, again, that there has been the sparing of
          the trial for the victim. She did not have to come in to
          testify and go through that humiliation in front of a group
          of strangers, and my sentence will reflect mitigation for
          that as well.

N.T., May 2, 2014, at 32-33.

     The court did not sentence Appellant to 40 to 80 years’ incarceration

as the Commonwealth suggested, but imposed an aggregate sentence of 18

to 47 years’ incarceration for his crimes, so that he could be released from

prison when his is 43 years old.       The court’s imposition of consecutive

sentences did not result in an unduly harsh sentence, considering Appellant’s

crimes.   Further, the court reviewed the presentence investigation report,

listened to testimony of several family members and counsel regarding his

rehabilitative needs, and ordered Appellant to complete his GED and

undergo anger management. We see no abuse of discretion in the sentence.

     Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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