J-S65023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SANFORD WILLIAMS                           :
                                               :
                       Appellant               :   No. 284 EDA 2017

          Appeal from the Judgment of Sentence November 29, 2016
              In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001556-2016


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

MEMORANDUM BY OTT, J.:                                 FILED JANUARY 11, 2018

        Sanford Williams appeals from the judgment of sentence imposed on

November 29, 2016, in the Court of Common Pleas of Monroe County, after

he pled guilty to a single count of conspiracy to commit burglary. 1,2 Williams

received a sentence of two to four years’ incarceration. In this timely appeal,

Williams challenges the discretionary aspect of his sentence, arguing the trial

court placed too great an emphasis on his criminal history, not enough

emphasis on his age and other mitigating factors, and based his sentence

upon erroneous information. After a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm on the basis of

the trial court opinion.
____________________________________________


1   18 Pa.C.S. §§ 903/3502(a)(4).

2This was an open plea; no sentence was agreed to as part of the plea
agreement.
J-S65023-17



      The facts of the crime, as related at the guilty plea are as follows:

      On that date [July 4, 2016] in Tannersville [Williams] agreed with
      another individual that they would break into the cigar and
      tobacco shop on 611. He didn’t actually enter into the building,
      but they broke into the building and took the cash drawer from
      the facility.

N.T. Guilty Plea, 9/28/2016, at 9.

      For context purposes only, we also relate the underlying information

regarding the crimes as contained in the affidavit of probable cause filed by

Detective James Wagner, of the Pocono Township Police Department, on July

4, 2016.

      On July 4th, 2016 at 0342 hours, Pocono Township Police Officer
      Austin Anglemyer discovered a suspicious vehicle parked on the
      side of Billy’s Pocono Diner near the front door entrance area. He
      knew the business was closed at that time so he decided to
      investigate. The car was a burgundy 4 door Lexus with New
      Jersey Tags. There was nobody inside the car and both front
      windows were open. Officer Anglemyer heard a suspicious noise
      coming from the front of the business which is a concealed area
      of thick landscaping. As Officer Anglemyer approached for a closer
      look, a black male suspect wearing dark clothing and a hoodie
      leaped from the bushes and fled on foot. Officer Anglemyer briefly
      pursued but doubled back toward the car when the suspect ran
      behind the diner. Officer Anglemyer confronted the suspect on
      the other side before he could get to the car. This caused the
      suspect to run across the stream behind the diner and get away
      for a few hours.

      Officer Anglemyer and other Officers including the Pennsylvania
      State Police (PSP) continued to search the area for the suspect. A
      short time later, just south of the diner, Officer Anglemyer located
      what he believed was another black male because he appeared
      larger, older and slower than the original male suspect. This male
      fled when Officer Anglemyer approached and he fell completely in
      the stream but eluded the police on the other side.



                                     -2-
J-S65023-17


     Officer Aaron Anglemyer arrived to assist and while searching the
     landscape area of Billy’s Pocono Diner he found an empty duffle
     bag, a black knit hat, a black baseball hat and black stocking
     material which is typically used by thieves as a mask to cover their
     face. This evidence supports the fact that the suspect(s) were
     about to break into the closed business.

     The car was identified as a 1997 burgundy colored 4 door Lexus
     ES 300 bearing New Jersey registration: A81-FAV to a James
     Williams from Orange New Jersey. Rubber gloves are observed in
     plain view in the car.

     On July 4th, 2016 at about 0550 hours the two suspects were
     located by PSP Troopers on the I-80 interstate at mile marker
     299.9 trying to hitchhike to New Jersey. One male was completely
     soaked with water and the other was only wet from the knees
     down.
                                      …

     While conducting the interviews [with the suspects], Pocono
     Township Police learned that two other commercial burglaries
     occurred in Tannersville overnight. Forced entry and theft (smash
     and grab style) at NiBors Coffee Café and the Cigar and Tobacco
     Outlet. NiBors has no video surveillance so the time of the crime
     in unknown however the Cigar and Tobacco Outlet has good
     quality video and captured the crime in progress starting at about
     0230 hours. This business is located just south of Billy’s Pocono
     Diner which is where the defendants were caught. The video
     captured both Defendants who were wearing the same clothing
     they were captured in. At 02:29:30 both Defendants are observed
     casing the business and hiding at times when traffic passes by.
     They disappear off camera for a while but return wearing gloves.
     Defendant Andre L. Paden is carrying a rock while Defendant
     Sanford Williams Jr. follows him to a side window where Paden
     can be seen smashing out the window with the rock. Williams Jr.
     helps boost Paden through the broken window. Cameras inside
     capture Paden removing cash from one register drawer and him
     physically ripping out another register drawer and he handed it to
     Williams Jr. outside. They both flee the scene on foot but they are
     ultimately captured casing the next business up the street.

Affidavit of Probable Cause, 7/4/2016, at 1-2.




                                    -3-
J-S65023-17



        As noted above, Williams pled guilty to a single count of conspiracy to

commit burglary. At the sentencing hearing, held November 29, 2016, the

trial judge commented: “But that’s what you do, and that’s what you’ve done

your whole life is commit burglaries. Now you’re requesting leniency.” N.T

Sentencing, 11/29/2016 at 18. In addition to Williams’ claims that the trial

court failed to,

        give sufficient weight to the rehabilitative needs of [Williams] and
        his minimal threat to the community given his age (75), physical
        and mental condition, years spent living as a law abiding citizen,
        and his minimal involvement in the crimes charged, despite
        having a repeat felon prior record score.[3]

Williams also claims the trial court improperly based his sentence on an

incorrect “fact”, namely that Williams had committed burglaries his whole life.

See 2119(f) Statement, at 7.

        Our standard of review is as follows:

        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.

        The right to appellate review of the discretionary aspects of a
        sentence is not absolute, and must be considered a petition for
        permission to appeal. An appellant must satisfy a four-part test to
        invoke this Court's jurisdiction when challenging the discretionary
        aspects of a sentence.

____________________________________________


3   Appellant’s Brief, Question Presented, at 5.

                                           -4-
J-S65023-17


       [W]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal; (2) whether the issue
       was properly preserved at sentencing or in a motion to reconsider
       and modify sentence; (3) whether appellant's brief has a fatal
       defect; and (4) whether there is a substantial question that the
       sentence appealed from is not appropriate under the Sentencing
       Code.

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

omitted).

       Further,

       A substantial question will be found where an appellant advances
       a colorable argument that the sentence imposed is either
       inconsistent with a specific provision of the Sentencing Code or is
       contrary to the fundamental norms which underlie the sentencing
       process. At a minimum, the Rule 2119(f) statement must
       articulate what particular provision of the code is violated, what
       fundamental norms the sentence violates, and the manner in
       which it violates that norm.

Commonwealth v. Mastromarino, 2 A.3d 581, 585-86 (Pa. Super. 2010)

(citation omitted).

       We note, without further comment, that the first three prongs of the

analysis have been met. Regarding whether Williams has raised a substantial

question, he has claimed the trial court failed to consider his rehabilitative

needs and also relied upon impermissible factors, specifically the “false”

statement that Williams has committed crimes all his life. These claims both

raise a substantial factor,4 therefore, we will address Williams’ claims.

____________________________________________


4 See Commonwealth v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010)
(failure to consider rehabilitative needs of the defendant raises a substantial



                                           -5-
J-S65023-17


       As stated above, the trial court has thoroughly addressed Williams’

assertions and we rely upon its opinion in affirming the judgment of sentence.

We write briefly to address Williams’ claim that the trial court incorrectly stated

Williams’ lifetime affinity for burglary.

       We agree with Williams that, technically, he has not committed crimes

for his entire life. However, the trial court’s alleged comment must be viewed

in context to be understood.            Immediately prior to the complained of

statement, the trial court aptly noted:

       [Williams] really has an extraordinary record. He’s a repeat felony
       offender under the sentencing guidelines. The presentence report
       reflects 34 arrests, 22 convictions. He’s been granted probation
       on at least two occasions. He’s been granted parole on at least
       16 occasions. He is 75 years old. And I can say, we certainly
       don’t see many defendants your age, Mr. Williams, most certainly
       as you described it, they’re retired from this type of activity.

       But your record dates all the way back to 1963, which interestingly
       it involved a burglary down in Middlesex County, New Jersey. And
       the record is just replete with theft-related offenses. Burglaries,
       larcenies, all over the counties in New Jersey, Pelham Village, New
       York. Back in either the ‘60s or ‘70s, the ‘80s. Monmouth County,
       New Jersey, Essex County, New Jersey, Hudson County, New
       Jersey, Somerset County, New Jersey, Middlesex County, New
       Jersey, all throughout New Jersey and New York. It’s just – when
       you are not incarcerated, you’re committing crimes.

N.T. Sentencing, 11/29/2106, at 17.

       The trial court’s description provided a virtual dictionary definition of a

career criminal. In context, this is clearly what the trial court was referring to


____________________________________________


question); Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super.
2003) (Reliance on impermissible factors raises a substantial question).

                                           -6-
J-S65023-17


in commenting on Williams’ life of crime. If the trial court ventured into

exaggeration by stating Williams committed crimes his entire life, such

exaggeration, in light of the facts of record, is understandable and gives no

cause for relief.

      Judgment of sentence affirmed. Parties are directed to attach a copy of

the trial court opinion in the event of further action.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/18




                                      -7-
                                                                                                                            I           II   I
                                                                                                                            '
                                                                                   Circulated 12/19/201 ?i 11 :58 AM




    fl lE;.ClN
SUPEI· OA coum
                               COURT OF COMMON PLEAS OF MONROE COUNTY
 JUL � 4 ?.0'1                       FORTY-THIRD JUDICIAL DISTRICT
                                   COMMONWEAL TH OF PENNSYLVANIA
EA.ST :AN ctSTRlCT
                           l

          COMMONWEAL TH OF PENNSYLVANIA                               1556 CR 2016
                                                                                                              I       !
                                                                                                              j
                                                                                                                       ..
                               vs.                                                                                     i            '

                                                                                                              'l
          SANFORD WILLIAMS,                                          Notice of Appeal                         I       I



                               Defendant
                                                                                                              I .

                                     STATEMENT PURSUANT TO Pa.R.A.P. 1925(a)

                                                                                                              I;
                               The matter concerns Defendant Sanford Williams' appeal to t le
                                                                                                                   I
                                                                                                                   I


          Pennsylvania Superior Court of various issues related to this Court's sentencing                         ;>fi
          Defendant on November 29, 2016 and our denial of Defendant's Motion to Reconsit
                                                                                         : i
                                                                                                                   i:r
                                                                                        ! :
          Sentence on December 12, 2016.

                                                                                                                   ! .
                               By way of background, on September 28, 2016, Defendant was convicll jd::
                                                                                                .                 I
          of Conspiracy to Commit Burglary', a felony of the second degree, following! a gul ;:y:
                                                                                                .         !       i '
          plea to the charge. On November 29, 2016, Defendant was sentenced to twenty-four tj jJ)
                                                                                                          I , .:
                                                                                                          I I




                                                                                                    J �;
                                                                                                            11e_
          months to forty-eight months (48) months in a State Correctional Institution with a tii

          credit from July 4, 2016, to pay restitution of$800.00 to Rashan Panthi, and pay the

         of the proceedings.           On December 9, 2016, Defendant filed a Motion to ReconJ ;!r·
                                                                                                          11                    '
                                                                                                          ' I
          Sentence which we denied on December 12, 2016. On January 11, 2017, Defendant ft ld
                                                                                                                                1



                                                                                 puh.,anl
          a Notice of Appeal to the Pennsylvania Superior Court. We issued an order                               lo

          Pa.R.A.P. l 925(b) requesting a Concise Statement of Errors Complained of on Api:� al

          I
              LS Pa.C.S.A. §§ 903; 3502(aX4).


                                                                                                      i
                                                                                                      ;


                                                                                                      I '.
                                                                                                                  ; '
                                                                                                      J           I .;
                                                                                                          !l               I '
                                                                                                                           i



                                                                                                          Ii
                                                                                                          I;
and Defendant filed his concise statement within the twenty-one (21) day peri?d. \1 ;e :

will now address the issues that Defendant has included in his Concise Statement                                       ir·
Errors Complained of on Appeal.                                                                           I!
               Defendant argues that the court abused its discretion at the 'time
                                                                                                      I                ff


                                                                                                          .            I

sentencing in that the court did not give sufficient weight to the rehabilitative needs of'] \e
                                                                                                                       i
defendant and minimal threat to the community given Mr. Williams' age (75), physii il

and mental condition, years spent living as a law abiding citizen despite a repeat fel !n
                                                                                                      '            I
                                                                                                                   I

prior record score, and his minimal involvement in the crimes alleged. Furthermo :�. '
                                                                                         :        11 .
while acknowledging that the sentence imposed was within the standard range, Defend, !1t

asserts that we should have imposed a lesser minimum sentence followed       by� lenJI ly
                                                                                migwn{ f s:
period of supervision not to exceed 3 years.    We find no merit in Defendant's                                                    ;

as they lack any support in the record. In fact, Defendant's lengthy criminal history •1 '.td.
                                                                                       . I


his own statements made in a presentence interview with the Monroe County Probaf m·.
                                                                                                                   1




                                                                                                  I�
                                                                                                  I
                                                                                                   t':
                                                                                                                   t
Department and compiled in a Presentence Sentence Investigation (PSI) Rei�
                                                                                                  I,
contradict his arguments.
                                                                                              I:
                                                                                              : i
                First, Defendant claims that we did not give sufficient weight to II :tis
                                                                                              I                '


rehabilitative needs given his advanced age (75) and physical and mental condition. ·                          (ii
                                                                                                               I

disagree.   In his PSI interview with our probation department, Defendant specific] I1.Iv
                                                                                     '       j                                 ·   '

                                                                        with: �is
denied having a problem with substance abuse or any problems associated

physical or mental health. During his sentencing hearing, Defendant did allude to            I!
                                                                                             i'                !
                                                                                                               .
                                                                                             I :




                                               2
                                                                                                                   11           u   •


                                                                                                                   !:
                                                                                                                   I:
                                                                                                                            I

suffering from hypertension and arthritis without providing any evidence of such,                         at �

                                                                                         (
seemingly in a plea for leniency prior to being sentenced. [Sentencing Hearing transcril
                                                                                                               j !
November 29, 2016, 9;00 a.m. at p. 13-14 (hereinafter referred to as "N.T.")J.                        Despi ·�
                                                                                                                   I!
                                                                                                          a:t ]:t
the contradiction in Defendant's statement in his PSI interview and at sentencing,
                                                                                               considerf
lack of evidence of Defendant having any physical or mental problems, we                                                :l.
Defendant's age and his effort to cooperate with the Commonwealth through a proffer ;c                                  ;n
                                                                        Conspiracyj
another investigation. [N.T. p. 18-19]. Our sentencing guidelines for                                                   !:l
                                                                                                               I        !
Commit Burglary, charged as a felony of the second degree, with a prior record scorej \L

RFEL2, provides for a standard range sentence of 24 to 36 months.                                The      f:, !I
                                                                                                               i        j
recommended a high-end standard range sentence of 36 to 72 months in, a Stf
                                                                                                               I
                                                                                                                        t·
                                                                                                                        ;
                                                                                                                        1�,

Correctional Institution.         However, giving consideration to the Defendant's a,                          I        I
                                                                                                                        I


condition and cooperation with the Commonwealth, we sentenced him at the low-end !,f

the standard range and imposed a 24 to 48 month sentence. For these reasons, we                           ti. :a
                                                                                                           ii
                                                                                                               I        '


that we gave sufficient weight to Defendant's age and rehabilitative needs.
                                                                                                               I.
                                                                                                           I,
                 Second, Defendant asserts that he has spent years living as a law-abidi ig
                                                                                                           Ii
citizen and is a minimal threat to society given his age, physical and mental conditi�                              k
                                                                                                           Ii
Again, we disagree with this assertion by Defendant as his criminal record clea 1.y
                                                                                                  .        II                   .

indicates 35 criminal arrests and 22 adult convictions, including 5 arrests and                                     IJ
    . .
convictions  .
            smce                                                     . .
                 t h e age o f 70 . H'is most recent arrest an d conviction · h e tnstant
                                                                            mt    ·
                                                                                          c1, ;e
                                                                                                           li
                                                                                                           , I
                                                                                                                    J
occurred after turning 75 years old. Furthermore, his classification as a "RFEL" is the




                                                                                                           I ;
2
 According to the Pennsylvania Basic Sentencing Matrix, a "RFEL" is defined as a Repeat Felony I ant :
Felony 2 Offender. Defendant in this case has 35 adult arrests and 22 convictions in his criminal history :

                                                     3
                                                                                                           I .
                                                                                                           '        '
                                                                                                           ! :      I




                                                                                                                    I.
                                                                                                                        11                  r1




                                                                                                                    I                   I
clear definition of someone who has repeated difficulties in following the law. To arg\ �
                                                                                                                    I I
                                                                                                                    I                   i
that he has been a law abiding citizen and is a minimal threat to society because of h s
                                                                                        ;                       I,
age and physical condition is just not a plausible argument to make given Defendant Is -
                                                                                        I                       I !
lengthy and recent criminal history.                                                                            I!

               Third, Defendant also asserts that we failed to consider his ..mininl1                                               :LI
                                                                                    -                       I                       I
                                                                                                            I '
involvement in the crimes alleged" when we imposed sentence. Defendant plead guil                                               ¥
                                                                                                            : !
                                                                                                            I                   I

to the charge of Conspiracy to Commit Burglary, which is defined in Section 903 oq le
                                                                                                                                le
Crimes Code as an agreement one makes with another person "that they or one or                me
                                                                                                            I!
of them will engage in conduct which constitutes such crime or an attempt or solicitati :n

to commit such crime; or agrees to aid such person or persons in the plariningj lr
                                                                               1

                                                                                                                                I -
commission of such crime ... " 18 Pa.C.S.A. §903{a). The factual basis to support� fe.

conviction, stated by Defendant and his counsel at the time of sentencing, was              thati k.·
                                                                                                       , 1 :.y
                                                                                                       1



waited outside while his co-defendant went inside the building to see if there was
                                                                                                       ii                   (e-
cash in the cash register, and then assisted his co-defendant after he got out of
                                                                                                       l : '
                                                                                                       ;                    I
building. Defendant's actions were the nature of the conspiracy. He did not iplead1 (o
                                                                                         rl
burglary, which would have required actually entering the building, but to the e>iact 1J

of his involvement which was conspiracy. For this crime, we imposed a sentence in :1e'
                                                                                                                        I



low-end of the standard range sentence for Conspiracy to Commit Burglary. To                 art 114;.:
                                                                                                       i! .
that Defendant had minimal involvement in the crime contradicts his own plea.                          ii
                                                                                                       I:
                                                                                   en,�'.
               Having adopted the Presentence Investigation Report in its

including the recommendation contained therein, and for the reasons stated on the rec
                                                                                                   I
                                                                                                                hi
                                                                                                                !
                                                                                                   I
at the time of sentencing, we believe that we have adequately, properly, and f� jly
                                                                                                   I            I

addressed the issues raised by Defendant on appeal. Therefore, with respect to the iss ;e:;;
                                                                                               '            :
                                             4
                                                                                               I            :
                                                                                               I :
                                                                                               ;


                                                                                               !'
                                                                                                II        I




raised in Defendant's Motion to Reconsider Sentence, we stand by our decision a1 lli

respectfully request the Superior Court to affirm. our judgment of sentence dJ
                                                                                1
                                                                                        !j \.,   1:
                                                                                        I
                                                                                        l            .

November 29, 2016.                                                                      l        'i




                                           BY THE COURT:




      .£,f.   'L2- , -z.D i.,T
DATE


                                                                         3:
                                                                         O     j..,.,
cc:      James P. Gregor, Esq. (PD)                                      z
         Catherine Pirolli, Esq. (ADA)                                   ::u
                                                                         C)
                                                                               !�
                                                                         rr, ,I(...)
                                                                                rv
         Sanford Williams, Jr., Pro Se, SCI Graterford, Inmate #MV0942   0
         Clerk of Courts
                                                                         -I
                                                                         .-<


                                                                   �




                                                                                            . '
                                            5
                                                                                                     II
                                                                                                     II
                                                                                                      i
                                                                                            '         I
