J-S69011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                    v.

CHAD MARCUS SCHWARTZ

                          Appellant                      No. 30 WDA 2017


          Appeal from the Judgment of Sentence November 14, 2016
             In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                          CP-02-CR-0000124-2016
                          CP-02-CR-0000125-2016
                          CP-02-CR-0014918-2015
                          CP-02-CR-0015981-2015


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                             FILED JANUARY 16, 2018

      Chad Marcus Schwartz appeals from his November 14, 2016 judgment

of sentence of forty to eighty months imprisonment followed by five years

probation, which was imposed after he pled guilty in four cases to burglary,

receiving stolen property, possession of a controlled substance (second

offense), disorderly conduct, and two counts of possession of drug

paraphernalia. He challenges discretionary aspects of his sentence.           We

affirm.

      We    glean   the     facts     underlying   the   convictions   from   the

Commonwealth’s summary of the evidence at the guilty plea hearing. On or


* Former Justice specially assigned to the Superior Court.
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about September 30, 2015, Baldwin Borough police responded to a call at

the CVS Pharmacy regarding a shoplifter.               Witnesses told police that

Appellant took a package of peanuts and started to consume them as he

walked through the store. As he proceeded, he also knocked cosmetics off

the shelves and onto the floor.          Police officers took him into custody.   A

search incident to arrest yielded two capped needles and a prescription

bottle containing white pills that Appellant identified as Xanax.         Although

Appellant claimed to have a prescription for the medication, that claim was

refuted    following    further    investigation.   Appellant   was   charged   with

possession of a controlled substance, possession of drug paraphernalia, and

disorderly conduct at CC 201514918.1

       Regarding the case filed at CC 201515981, the Commonwealth made

the following proffer. On December 10, 2015, Pittsburgh Police were

dispatched to a burglary in progress. The intruder was described as a white

male wearing a camouflage hat and baggy jeans. When the officers located

the intruder, he fled, but was apprehended and identified as Appellant.           A

search of his person revealed a loaded needle containing a clear liquid

substance commonly used for the injection of heroin. He was charged with

possession of drug paraphernalia, possession of a controlled substance,

____________________________________________


1The charges of possession of drug paraphernalia and disorderly conduct
were withdrawn at sentencing.



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escape, and flight to avoid prosecution.     The latter three charges were

subsequently withdrawn.

     The Commonwealth represented that it would offer the following

evidence with regard to the burglary case filed at CC 201600124.        On or

about November 20, 2015, upon returning home, Serena Williams noticed

that her kitchen window was open and that an arm was extended within

trying to gain entry.   She screamed and the perpetrator fled.    Pittsburgh

Police officers obtained Appellant’s latent print from the exterior window.

Appellant was arrested and charged with burglary of a structure suitable for

overnight accommodation with a person present, a first-degree felony.

     On October 13, 2015, Stephanie Vendemia reported to Pittsburgh

Police that she had been burglarized. A day later, one of the items stolen, a

laptop, was traced to a phone store. The owner of the store told police that

he had purchased the laptop from Appellant, and later identified Appellant

from a photographic array.      The victim later identified the laptop as

belonging to her and confirmed that Appellant did not have permission to

take or sell it.    He was charged with receiving stolen property, a

misdemeanor of the first degree, at CC 201600125.

     On August 15, 2016, after a thorough oral colloquy during which the

court advised Appellant that he was subject to an additional sentence since

he was on probation when he committed three of the four offenses,

Appellant pled guilty to the aforementioned crimes and the court accepted

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the plea. The court ordered a presentence investigation and scheduled the

sentencing for November 14, 2016.          On that date, the court sentenced

Appellant to time served on the probation violations, and forty to eighty

months imprisonment followed by five years of probation on the four cases.

      Appellant filed a timely post-sentence motion, which was denied. On

appeal, he presents one issue for our review:

      I.    Did the trial court err in imposing a sentence that was
            manifestly excessive, unreasonable, and an abuse of
            discretion when the trial court overlooked and/or failed to
            carefully consider relevant factors when sentencing
            [Appellant], including the unique facts and circumstances
            of the crimes, and his background and rehabilitative
            needs; and the court relied on an impermissible duplicative
            factor; and failed to impose an individualized sentence?

Appellant’s brief at 8 (unnecessary capitalization omitted).

      Appellant claims that his sentence was manifestly excessive and

unreasonable. Such a claim implicates the discretionary aspect of a

sentence.   See Commonwealth v. Hornaman, 920 A.2d 1282, 1283-84

(Pa.Super. 2007). As Appellant correctly notes, “there is no absolute right

to appeal when challenging the discretionary aspect of a sentence.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en

banc). To adequately preserve a discretionary sentencing claim, a defendant

must present the issue in either a post-sentence motion or raise the claim

during the sentencing proceedings.      Id.   Further, he must file a timely

appeal and "preserve the issue in a court-ordered Pa.R.A.P. 1925(b) concise



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statement and a Pa.R.A.P. 2119(f) statement" in his appellate brief.            Id.

Finally, we will permit such an appeal only if the appellant presents a

substantial question, i.e., a colorable claim that his sentence, while within

the guideline range, was unreasonable and inappropriate under the

sentencing code.       Commonwealth v. Dodge, 77 A.3d 1263, 1270

(Pa.Super. 2013).

      Appellant filed a timely appeal and preserved his claim that his

sentence was excessive in his post-sentence motion and Rule 1925(b)

statement. In addition, Appellant includes a Rule 2119(f) statement in his

appellate brief in which he alleges that his sentence was manifestly

excessive as it was not individualized and tailored to him. Furthermore, he

contends the sentencing court overlooked or failed to carefully consider all of

the relevant sentencing factors as required in Section 9721(b).                  In

particular, he maintains that the court did not consider the non-violent

nature   of   the   crimes,   Appellant’s   rehabilitative   needs   due   to   his

polysubstance abuse, and the fact that his crimes were motivated by his

need to support his addiction. Rather, he alleges that the court focused on

his prior record, which was already factored into the applicable sentencing

guidelines.

      We held in Commonwealth v. Simmons, 56 A.3d 1280, 1286

(Pa.Super. 2012), that a claim that a sentence was manifestly excessive

because the trial court failed to issue an individualized sentence presented a

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substantial question. Moreover, plausible claims that the sentence violates

fundamental norms of the sentencing process present a substantial question.

Commonwealth v. Parlante, 823 A.2d 927 (Pa.Super. 2003).               Thus, we

will review the merits of Appellant's sentencing claim.

      The following principles inform our 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.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006). An abuse

of discretion in this context is more than an error in judgment. Id. The

appellant must demonstrate 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.” Id. The sentencing

judge has broad discretion in determining the proper sentence and we

accord that decision great deference, recognizing that the sentencing court

is in the best position to view the defendant's character and show of

remorse.   See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

Our review of a guideline sentence focuses on whether the sentence is

"clearly unreasonable." 42 Pa.C.S. § 9781(c)(2).

      In imposing sentence, the trial court is obliged to consider "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. § 9721(b). In considering the circumstances of

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the offense and the character of the defendant, the court should refer to the

defendant's prior criminal record, his personal characteristics, and his

potential for rehabilitation.

      Appellant contends that the trial court abused its discretion by failing

to consider Appellant’s background, rehabilitative needs, and the non-violent

nature of his offenses, when it sentenced him to a lengthy period of

incarceration.   He maintains that the court ignored the testimony of a

representative of the Allegheny County Bureau of Drug and Alcohol

regarding an outpatient treatment program.        According to Appellant, a

sentence of probation with conditions or a state intermediate punishment

program would have better addressed both his rehabilitative needs and the

community’s safety. In short, although the court sentenced him within the

guidelines, Appellant contends this is a case where application of the

guidelines was unreasonable and the court failed to consider factors

individual to him and better sentencing alternatives.

      The record reveals the following.     At sentencing, defense counsel

acknowledged that Appellant had committed crimes involving theft of

property as a result of his addiction, but pointed out that he had not

physically hurt anyone.         Counsel maintained that Appellant changed

significantly while he was in prison, which he attributed to his realization

that addiction was a dead-end road and his embrace of the Catholic faith.

Counsel advised the court that while Appellant was in prison, he worked with

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the Hope pre-release program, completed the twelve step fellowship

program, and took a parenting course at Chatham University.

       Appellant offered a representative of the Allegheny County Bureau of

Drug and Alcohol, who testified regarding a new outpatient treatment

available to inmates addicted to drugs upon release from jail. The witness

explained that they meet with inmates, perform an assessment, and link

them with the providers of Methadone and Suboxone so that when they

leave jail, there is no waiting period to get into outpatient treatment. She

stated that the vivitrol maintenance program, together with drug and alcohol

counseling, would be a good fit for Appellant upon his release. The defense

submitted letters from Appellant’s boss to the effect that he was an excellent

worker.        Appellant’s fiancée testified regarding his prior attempts at

rehabilitation, and spoke hopefully of the new program recommended by

Drug and Alcohol.           She described changes in Appellant’s attitude and

outlook since he had been in prison and explained why she was standing by

him.   Finally, Appellant acknowledged his long record and asked for the

court’s mercy and forgiveness.

       After    receiving   the   aforementioned   information,   the   court   first

addressed Appellant’s violation of his two-year probation at No. 201412527,

which was imposed for convictions of first-degree misdemeanor theft and

possession of an instrument of crime. On the probation violation, the court




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sentenced Appellant to time served, which was eleven months, and closed

interest on that case.

      For the first-degree felony burglary conviction at CC 201600124, the

court imposed a sentence of forty to eighty months imprisonment followed

by five years of probation, a sentence which fell in the mitigated range.   At

CC 20150014918, the court sentenced Appellant to six to twelve months

imprisonment for possession of a controlled substance, with the sentence to

run concurrently. Appellant received a sentence of three to six months

imprisonment for the possession of drug paraphernalia at CC 20150015981,

and a sentence of six to twelve months imprisonment on the theft charge at

CC 201600125, with both sentences to run concurrent to the sentences

imposed at the prior two cases. The court also determined that Appellant

was RRRI eligible.

      Appellant argues that his sentence was excessive for two reasons. He

alleges first that the sentencing court failed to consider his rehabilitative

needs, and secondly, that it placed undue weight on his prior criminal

record. We find no merit in either contention.

      Preliminarily, we observe the following. Appellant had a prior record

score of five. The sentence imposed on the burglary charge, which carried

an offense gravity score of nine, fell within the mitigated range of the

sentencing guidelines. The remaining sentences fell within the standard

range and were run concurrent to the sentence on the burglary. Appellant’s

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aggregate sentence appears to be quite lenient given the length of

incarceration he could have received and the fact that he was on probation

when he committed several of the offenses.

         Furthermore, the record establishes that the court read and relied

upon the presentence report.       Thus, it is presumed that it considered

Appellant’s   individual   circumstances   including   any   mitigating    factors.

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa.Super. 2013).                     In

addition, the sentencing proceeding focused on Appellant’s rehabilitative

needs.     Counsel characterized Appellant’s extensive criminal history as

“addiction driven behavior.”    N.T. Sentencing, 11/14/16, at 13.         He asked

the court to forego imprisonment in favor of the outpatient vivitrol treatment

program. Defense counsel described Appellant’s efforts at rehabilitation

while he was incarcerated. Appellant acknowledged his extensive criminal

record but apprised the court that he had changed and that he wished to

address his addiction.     Appellant’s fiancée concurred that Appellant had

changed and expressed her belief that Appellant could now successfully treat

his addiction.

      In addition to the foregoing testimony, the trial court noted that

Appellant’s criminal history dated back to 1991, that he was on probation

when he was arrested for the offenses herein, and that he had been

previously either been offered treatment or received treatment in four

programs. Thus, the record clearly indicates that the court was fully aware

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of Appellant’s current rehabilitative needs, as well as his prior opportunities

for rehabilitation, when it imposed a sentence of imprisonment.      We find no

abuse of discretion on the record before us.

        Appellant’s claim that his sentence was too harsh and excessive

because the court placed undue and duplicative weight on his prior record

fares no better.    In support of his contention, Appellant points to the court’s

comment at sentencing that Appellant’s criminal behavior commenced in

1991.      Appellant contends that his prior criminal record was already

considered in determining the applicable sentencing guidelines, and that in

considering it again, the court impermissibly weighed this factor twice.

        The trial court explained that it referenced Appellant’s twenty-five-year

history of similar offenses in connection with its assessment of Appellant’s

amenability to rehabilitation, a separate sentencing factor under 42 Pa.C.S.

§ 9721(b). We find the court’s consideration of the duration and pattern of

Appellant’s criminal activity to be both proper and probative for the cited

purpose. The court concluded that Appellant’s “pattern of criminal activity

clearly demonstrates a lack of ability to address anti-social behavior.” Trial

Court Opinion, 6/27/17, at 7. We find no abuse of discretion.

        In sum, we find nothing “clearly unreasonable” about the sentences

imposed that warrants relief. It is quite apparent from the record that the

sentencing court was apprised of all relevant sentencing factors, including

mitigating circumstances, and that it exercised reasoned judgment in

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fashioning an individualized sentence for Appellant. It is not the role of this

Court to reweigh the sentencing factors and substitute our judgment for that

of the sentencing court. No relief is due.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2018




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