J-S63038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

SHELTON A. THOMAS

                             Appellant                 No. 2445 EDA 2015


             Appeal from the Judgment of Sentence June 22, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002707-2014

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 30, 2016

        Appellant, Shelton A. Thomas, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas. 1             Appellant

challenges the discretionary aspects of his sentence. We affirm.

        The trial court summarized the facts of this case as follows:


*
    Former Justice specially assigned to the Superior Court.
1
  On September 9, 2015, this Court issued a rule to show cause as to why
this appeal should not be quashed as untimely filed based upon the Court of
Common Pleas of Philadelphia County Docket, which indicated that post-
sentence motions were untimely filed on July 6, 2015, from the judgment of
sentence imposed on June 22, 2015. Appellant filed a pro se motion for
reconsideration of sentence and a motion to proceed in forma pauperis. The
motion to proceed in forma pauperis was dated June 23, 2015, and attached
to the motion for reconsideration of sentence, which was undated. Under
the “prisoner mailbox rule,” a pro se prisoner’s document is deemed filed on
the date he delivers it to prison authorities for mailing. See generally,
Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa. Super. 2006).
Instantly, there is no indication of when Appellant delivered the document to
the prison authorities. In an abundance of caution, we will not find the
motion for reconsideration of sentence untimely. See id.
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              Over a period of several years, beginning June 2011,
           and ending some time in February or March of 2014,
           [Appellant] defrauded the Victim, Raymond Campbell, of
           his life’s savings of at least $95,000. [Appellant] first
           approached the 93 year-old Victim as a stranger with an
           offer to mow the Victim’s lawn. This happened several
           times before one occasion in which [Appellant] insisted on
           disposing of the lawn trimmings in a dumpster across the
           street from the Victim’s home in West Philadelphia, instead
           of allowing the Victim to leave the trimmings on the curb
           on their designated pick-up date. . . .[2]

              [Appellant] also impersonated Seth Williams, the
           Philadelphia District Attorney, over 100 times as a part of
           his scheme to deceive the Victim into paying fabricated
           legal fees stemming from the ostensible dumping. He
           repeatedly called the Victim and identified himself as Mr.
           Williams. At sentencing, Mr. Williams confirmed that he
           had never called the Victim.

Trial Ct. Op., 9/30/15, at 1-2 (citations to the record omitted).

        On February 12, 2015, Appellant entered a non-negotiated guilty plea

to criminal trespass,3 theft by deception,4 theft by extortion,5 identity theft,6




2
  The trial court stated that Appellant “subsequently told the Victim that both
of them were facing criminal charges for improperly disposing of the
trimmings.” Trial Ct. Op., 9/30/15, at 1, citing N.T. Sentencing Hr’g,
6/22/15, at 12-13. A review of the record reveals that Victim testified that
Appellant was charged “with putting stuff in the dumpster.” Id. at 12.
3
    18 Pa.C.S. § 3503(a)(1)(ii).
4
    18 Pa.C.S. § 3922(a)(1).
5
    18 Pa.C.S. § 3923(a)(1).
6
    18 Pa.C.S. § 4120(a).




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and impersonating a public servant.7          Sentencing was deferred for a

presentence investigation mental health report. See Docket at 7.

        Victim testified at the sentencing hearing:

           [The Commonwealth]: And I am going to ask you to tell
           His Honor very briefly the impact that this crime has had
           on you, not just financially, but how it’s affected you in
           every way.

                                   *    *    *

           [Victim]: Well, Your Honor, [Appellant], when he came to
           me and wanted to cut my lawn, that’s how this whole thing
           started. Anyways, he kept coming back to me time and
           time again early, in the morning, saying that he needed
           this money for court fees. It was always at least $600 or
           more. And he always said he had to be in court at an early
           time. So I would have to get up maybe around 5:30 in the
           morning to get in town and get to the ATM and get the
           money.

              But before that, I had to go to my portfolio and sell
           shares to obtain this money.         And after that was
           exhausted, then I had to go to my credit cards and get
           cash and I exhausted that. So, like I said, this money that
           I had in my portfolio, my intention was to leave that to my
           immediate relatives. So that─that’s all gone, now. And I
           can’t leave them anything. So─

           The [c]ourt: How much was the total amount that you
           exhausted?

           [Victim]: It was in access [sic] of $95,000.

                                   *    *    *

           The [c]ourt: So he cut your grass and then he’d say, “I
           need $600 to go to court.”


7
    18 Pa.C.S. § 4912.



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        [Victim]: No, no.

           That’s not how this all started. He─one time he cut the
        grass and I told him, “Leave the bag and I’ll put it at the
        curb on my pickup date.” He said, “No, don’t worry. I’ll
        take care of it.” He takes this bag of leaves and grass and
        goes across the street and puts it in a dumpster and he
        was─so he told me he was caught on camera putting this
        bag in the dumpster and he was picked up and taken to─I
        think the dumpster was from Montgomery County, some
        firm there. And they charged him with putting stuff in the
        dumpster. That’s how this all started.

                                  *    *    *

        [The Commonwealth]: [T]his occurred over approximately
        how long a period of time?

        A: Well, it first started in June of 2011.

        Q: And when did it stop?

        A: I think it was around maybe February or March of 2014.

N.T. Sentencing Hr’g at 8-9, 11-12, 14.         Victim testified that he received

calls from someone purporting to be District Attorney Seth Williams. Id. at

16.

      The Commonwealth asked Seth Williams to give his “impact in this

case involving [Appellant] as it relates to you, specifically, the charge of

impersonating a public servant.” Id. at 19. Mr. Williams testified:

        The Witness: Your Honor, I grew up in Cobbs Creek. I
        grew up on Cobbs Creek Parkway just a few blocks down
        from [Victim] and my father worked at the Cobbs Creek
        Recreation Center from 1972 until he retired in 1985. I
        knew [Appellant] almost that entire time.       And his
        brother─

        The Court: You knew [Appellant]?


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           The Witness: Yes.

           [ ]:8 So we used to play ping-pong, basketball. I used to
           see him all of the time. My father showed movies on
           Monday nights. My father was very kind to [Appellant]
           and his brother and his whole family. And so at some
           point I received a telephone call from the Major Crimes
           Unit of the Philly Police Department, Detective Moreno Nix
           and she asked me if I knew [Victim].

           The Witness: And I said, no, Your Honor; I did not know
           him. And she let me know that it was a person that I
           knew when I played basketball for the Cobbs Creek
           Commons and where my father ran the Recreation Center,
           had been impersonating me, calling [Victim] over 100
           times claiming to be me, and that as a result of work that
           [Appellant] had done for him, he owed fines. And he kept
           calling him to get money and that [Victim]─and it broke
           my heart because, what, he was a World War II veteran.
           He served in the European Theatre and the South Pacific,
           he was in his 90’s and had given over $95,000 to
           [Appellant].

           The Court: He’s a World War II veteran?

           The Witness: Yes, sir.

              And he worked for the government. He’s not a rich
           man. He just saved his money. . . . I never made a
           telephone call to this gentleman and so [the detective]
           then set up a surveillance and it was during one of those
           that [Appellant] came and they arrested him at the home
           of [Victim].

Id. at 19-21.

        The court stated that Appellant “wrecked [Victim’s] life. You know, it’s

okay if you want to wreck your own life, but don’t go around wrecking the


8
    We note that the transcript misidentifies the court as the speaker.



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lives of other people.” Id. at 40. The court opined: “[i]n the society that we

have, we must look out for our seniors.” Id. The court noted that this was

not Appellant’s “first experience with the law.        Your background indicates

that you have had previous experience and run-ins with the law.” Id. at 41.

The Court explained that it “will be going outside of the guidelines because

of the crime that was committed, because of the victim of the crime, . . . to

protect the public, to punish, and to rehabilitate.” Id. at 48.

      Appellant was sentenced to consecutive terms of five to ten years’

imprisonment for criminal trespass, three-and-a-half to seven years’

imprisonment for theft by deception, three-and-a-half to seven years’

imprisonment for theft by extortion, three-and-a-half to seven years’

imprisonment for identity theft, and one to two years’ imprisonment for

impersonating a public servant. Following a hearing, Appellant’s motion for

reconsideration of sentence was denied.         This timely appeal followed.

Appellant filed a court-ordered Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, and the trial court filed a responsive opinion.

      Appellant raises the following issue for our review: “Whether the trial

court abused its discretion when it sentenced Appellant to an aggregate

sentence of 161/2 to 33 years[’] incarceration?”   9
                                                        Appellant’s Brief at 4. In

his Pa.R.A.P. 2119(f) statement, Appellant claims


9
  “Where a defendant pleads guilty without any agreement as to sentence,
the defendant retains the right to petition this Court for allowance of appeal



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           1. The trial court abused its discretion when it sentenced
           Appellant to an aggregate sentence of 161/2 to 33 years[’]
           incarceration, which did not follow the dictates of 42
           Pa.C.S. § 9721(b) that requires the court to at least
           consider the particular circumstances of the offense and
           the character of the defendant.

                                   *    *     *

           In imposing such a harsh sentence, the court based it [sic]
           sentence on the age of the victim, the length of the
           deception, which squarely focuses on the serious nature of
           the crime without taking into account the other section
           9721(b) factors.

                                    *    *    *

           [T]his sentencing court failed to take adequate
           consideration of [Appellant’s10] background, non-violent
           nature,     remorse, and     whether     [he11]  could   be
           rehabilitated.     While [Appellant’s] crime cannot be
           trivialized, the sentence imposed in [sic] unreasonable and
           excessively, [sic] and should be vacated.

Id. at 6-7.

        This Court has stated,

           discretionary aspects of [an appellant’s] sentence [ ] are
           not appealable as of right.            Rather, an appellant
           challenging the sentencing court’s discretion must invoke
           this Court’s jurisdiction by satisfying a four-part test.

              We conduct a four-part analysis to determine: (1)
              whether appellant has filed a timely notice of appeal,

with respect to the discretionary aspects of sentencing.” Commonwealth
v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation omitted).
10
   We note that Appellant mistakenly refers to himself as “Mr. Cobb”
Appellant’s Brief at 6.
11
     Again, Appellant refers to himself as “Mr. Cobb.” Id. at 7.



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              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, 42
              Pa.C.S.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some

citations omitted).

      Instantly, Appellant timely filed his appeal, preserved the issue of an

excessive sentence in his post-sentence motion for reconsideration of

sentence, and included a statement in his brief that conforms with Pa.R.A.P.

2119(f).    See Appellant’s Brief at 6-7.   Accordingly, we ascertain whether

Appellant has raised a substantial question.       See Leatherby, 116 A.3d at

83.

      “We conduct a case-by-case analysis to determine what allegations

constitute a substantial question.” Commonwealth v. Malovich, 903 A.2d

1247, 1252 (Pa. Super. 2006) (citation omitted); see also 42 Pa.C.S. §

9781(b).     “[A]n averment that the court sentenced based solely on the

seriousness of the offense and failed to consider all relevant factors raises a

substantial question.” Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.

Super. 2012) (citation omitted).

      We find that Appellant’s Rule 2119(f) statement presents a substantial

question. See id.

           Our standard of review is as follows:


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          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. An abuse of discretion is more than just
          an error in judgment and, on appeal, the trial court
          will not be found to 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.

       More specifically, 42 Pa.C.S.A. § 9721(b) offers the
       following guidance to the trial court’s sentencing
       determination:

          [T]he 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).

       Furthermore,

          Section 9781(c) specifically defines three instances
          in which the appellate courts should vacate a
          sentence and remand: (1) the sentencing court
          applied the guidelines erroneously; (2) the sentence
          falls within the guidelines, but is “clearly
          unreasonable” based on the circumstances of the
          case; and (3) the sentence falls outside of the
          guidelines and is “unreasonable.”      42 Pa.C.S. §
          9781(c). Under 42 Pa.C.S. § 9781(d), the appellate
          courts must review the record and consider the
          nature and circumstances of the offense, the
          sentencing court’s observations of the defendant, the
          findings that formed the basis of the sentence, and
          the sentencing guidelines. The weighing of factors
          under 42 Pa.C.S. § 9721(b) is exclusively for the
          sentencing court, and an appellate court could not
          substitute its own weighing of those factors. The
          primary consideration, therefore, is whether the
          court imposed an individualized sentence, and
          whether the sentence was nonetheless unreasonable


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           for sentences falling outside the guidelines, or clearly
           unreasonable for sentences falling within the
           guidelines, pursuant to 42 Pa.C.S. § 9781(c).

Bricker, 41 A.3d at 875-76 (some citations omitted).

     Our Supreme Court has stated:

            We emphatically reject, therefore, interpretations of our
        law in this area which call for separate, written opinions
        embodying exegetical thought.              Where pre-sentence
        reports exist, we shall continue to presume that the
        sentencing judge was aware of relevant information
        regarding the defendant’s character and weighed those
        considerations along with mitigating statutory factors. A
        pre-sentence report constitutes the record and speaks for
        itself. In order to dispel any lingering doubt as to our
        intention of engaging in an effort of legal purification, we
        state clearly that sentencers are under no compulsion to
        employ checklists or any extended or systematic
        definitions of their punishment procedure. Having been
        fully informed by the pre-sentence report, the
        sentencing court’s discretion should not be
        disturbed. This is particularly true, we repeat, in those
        circumstances where it can be demonstrated that the
        judge had any degree of awareness of the sentencing
        considerations, and there we will presume also that the
        weighing process took place in a meaningful fashion. It
        would be foolish, indeed, to take the position that if a court
        is in possession of the facts, it will fail to apply them to the
        case at hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).

     The instant trial court opined:

        Criminal Trespass is a felony of the second degree and is
        punishable by up to ten (10) years[’] imprisonment. Theft
        by deception is a felony of the third degree and is
        punishable by up to seven (7) years[’] imprisonment.
        Theft by Extortion is a felony of the third degree and is
        punishable by up to seven (7) years[’] imprisonment.
        Identity theft is a felony of the third degree and is
        punishable by up to seven (7) years[’] imprisonment.


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       Impersonating a Public Servant is misdemeanor of the
       second degree and is punishable by up to two (2) years
       imprisonment. None of the sentences imposed by this
       court exceed the statutory maximum sentences.

                               *     *      *

       This [c]ourt did, in fact, consider the guidelines in
       sentencing [Appellant], but deviated from them based on
       the “(nature of) the crime committed, because of the
       victim of the crime, to protect the public, and to punish
       and to rehabilitate [Appellant]” N.T. [sentencing Hr’g at]
       48. This [c]ourt specifically stated that “the guidelines are
       not written to cover such incidences as those [in the
       instant case].” Id. at 47-48.

          More specifically, the Standard Sentencing guidelines
       for the relevant section of Criminal Trespass, in light of
       [Appellant’s] Prior Record Score of three (3) and the
       Offense Gravity Score (OGS) of seven (7), call for fifteen
       to twenty-one (15-21) months[’] imprisonment. Id. at 26.
       However, this [c]ourt chose to deviate from the guidelines
       and impose a sentence of five to ten (5-10) years on this
       charge because of . . . Victim’s age, as well as the scale
       and prolonged nature of the crime. Id. at 48. The
       charges of theft by Deception and Theft by Extortion both
       carry an OGS of seven (7), which would ordinarily place
       the Sentencing Guidelines between fifteen and twenty-one
       (15-21) months for each offense. This [c]ourt chose to
       deviate from the guidelines and impose a sentence of
       three and a half to seven (3.5-7) years on each charge
       because of the added need to protect senior citizens from
       this type of predation, as well as the scale and prolonged
       nature of the thefts. Id. at 48. Identity Theft under this
       subsection carries an OGS of five (5), resulting in a
       guideline sentence of six to sixteen (6-16) months[’]
       imprisonment. This [c]ourt chose to deviate from the
       guidelines and impose a sentence of three and one half to
       seven (3.5-7) years because the identity stolen belonged
       to the District Attorney of Philadelphia and the guise was
       used over a hundred times to manipulate a lifelong
       government employee and veteran. Id. at 20-21, 48.
       Impersonating a Public Servant carries a OGS of 2, which
       would typically recommend a sentence of probation to nine


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         (9) months[’] imprisonment under the Guidelines.
         However, this [c]ourt chose to deviate from the guidelines
         and impose a sentence of one to two (1-2) years[’]
         imprisonment because of the hundred-plus incidents and
         the elderly victim of the deception. Id. at 20, 48.

Trial Ct. Op. at 4-6 (some citations omitted).

      The record belies Appellant’s argument that the trial court focused

solely on the serious nature of the crime without taking into consideration

other factors.     The court considered the Section 9721(b) factors.         See

Bricker, 41 A.3d at 875-76.            Furthermore, the court considered the

presentence      investigation   report.   See   Devers,   546   A.2d   at   18.

Accordingly, after examining the record as a whole, we discern no abuse of

discretion. See Bricker, 41 A.3d at 875-76.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2016




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