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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                    v.                    :
                                          :
JOHN E. LONGENDORFER,                     :            No. 558 WDA 2018
                                          :
                         Appellant        :


          Appeal from the Judgment of Sentence, November 27, 2017,
               in the Court of Common Pleas of Venango County
              Criminal Division at Nos. CP-61-CR-0000391-2017,
                           CP-61-CR-0000581-2017


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBEER 1, 2018

        John E. Longendorfer appeals from the November 27, 2017 judgment

of sentence imposed after he pled guilty to one count each of harassment

and retail theft.1 After careful review, we affirm.2

        The relevant facts and procedural history of this case are as follows.

On April 22, 2017, appellant was arrested in connection with his theft of

$508.31 worth of merchandise from Wal-Mart in Cranberry Township,

Venango County, Pennsylvania.        Thereafter, between July and mid-August

2017, appellant mailed four different items to an individual who has an


1   18 Pa.C.S.A. §§ 2709(a)(3) and 3929(a)(1), respectively.

2 The Commonwealth has indicated that it will not be filing a brief in this
matter and is relying on the reasoning set forth in the trial court’s May 22,
2018 opinion.
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active Protection From Abuse order against him. On September 28, 2017,

appellant   pled    guilty   at   CP-61-CR-0000581-2017      to   one     count   of

harassment.3       Thereafter, on October 23, 2017, appellant pled guilty at

CP-61-CR-0000391-2017 to one count of retail theft. Following a hearing,

the trial court sentenced appellant to an aggregate term of 17 to 36 months’

imprisonment on November 27, 2017. On December 7, 2017, appellant filed

a post-sentence motion for, inter alia, modification of his sentence.             On

March 22, 2018, the trial court filed an opinion and order denying appellant’s

post-sentence motion.        This timely appeal followed on April 19, 2018. On

April 20, 2018, the trial court directed appellant to file a Pa.R.A.P. 1925(b)

statement within      21     days.   Appellant complied   and     filed   a timely

Rule 1925(b) statement on May 10, 2018. Thereafter, on May 22, 2018, the

trial court filed a comprehensive Rule 1925(a) opinion.

      Appellant raises the following issue for our review:

            Whether the [trial] court abused its discretion by
            imposing a sentence without giving consideration to
            all  the     relevant    sentencing   factors     under
            42 Pa. C.S.A.      Section      9721(b),      including
            [appellant’s] rehabilitative needs and the gravity of
            the offense and the sentence is contrary to the
            fundamental norms which underlie the sentencing
            process and guidelines[?]

Appellant’s brief at 4.




3 The Commonwealth nolle prossed the remaining charge of stalking,
18 Pa.C.S.A. § 2709.1(a)(1).


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        Our standard of review in assessing whether a trial court has erred in

fashioning a sentence is well settled.

             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,
             [a]ppellant must establish, by reference to the
             record, that the sentencing court ignored or
             misapplied the law, exercised its judgment for
             reasons of partiality, prejudice, bias or ill will, or
             arrived at a manifestly unreasonable decision.

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

omitted), appeal denied, 117 A.3d 297 (Pa. 2015).

        Where an appellant challenges the discretionary aspects of his

sentence, as is the case here, the right to appellate review is not absolute.

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

Rather, an appellant challenging the discretionary aspects of his sentence

must invoke this court’s jurisdiction by satisfying the following four-part

test:

             (1) whether the appeal is timely; (2) whether
             appellant preserved his issue; (3) whether
             appellant’s brief includes a concise statement of the
             reasons relied upon for allowance of appeal with
             respect to the discretionary aspects of sentence; and
             (4) whether the concise statement raises a
             substantial question that the sentence is appropriate
             under the sentencing code.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)

(citations omitted).



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      Here, the record reveals that appellant filed a timely notice of appeal

and challenged the discretionary aspects of his sentence in his December 7,

2017 post-sentence motion. Appellant also included a statement in his brief

that comports with the requirements of Pa.R.A.P. 2119(f). (See appellant’s

brief at 7-8.) Accordingly, we must determine whether appellant has raised

a substantial question.

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”      Commonwealth v. Griffin, 65 A.3d

932, 935 (Pa.Super. 2013) (citation omitted), appeal denied, 76 A.3d 538

(Pa. 2013). “A substantial question exists only when appellant advances a

colorable argument that the sentencing judge’s actions were either:

(1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.”   Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012)

(citation omitted), appeal denied, 63 A.3d 774 (Pa. 2013).

      In his Rule 2119(f) statement and brief, appellant argues that the trial

court failed to “adequately consider all of the relevant sentencing factors”

set forth in Section 9721(b), including his rehabilitative need for physical

therapy and the gravity of his offenses. (Appellant’s brief at 8, 10-11.) We

have recognized that a claim that the sentencing court failed to consider

individualized   circumstances   in   fashioning   a   sentence,   including    an

appellant’s rehabilitative   needs, raises a substantial      question.        See



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Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (stating,

“appellant’s claim that the sentencing court disregarded rehabilitation and

the nature and circumstances of the offense in handing down its sentence

presents a substantial question for our review.”), appeal denied, 91 A.3d

161 (Pa. 2014).      Accordingly, we proceed to consider the merits of

appellant’s discretionary sentencing claim.

      Contrary to appellant’s contention, our review of the record in this

matter reveals that the trial court considered and weighed numerous factors

in fashioning appellant’s sentence, including appellant’s rehabilitative need

for physical therapy and the gravity of his offenses. In its March 22, 2018

opinion in support the order denying appellant’s post-sentence motion for

modification of sentence, the trial court set forth ample reasons as to why

appellant’s discretionary sentencing claim is meritless.     (See trial court

opinion, 3/22/18 at 22-27; certified record at # 14.) At the November 27,

2017 sentencing hearing, the trial court stated that it considered all the

relevant sentencing factors in fashioning appellant’s 17 to 36-month term of

imprisonment:

            [T]he Court has considered [appellant’s] age, his
            education, the condition of his health, family
            history, employment history and all of the other
            information     contained    in   the     presentence
            investigation report including [appellant’s] extensive
            prior criminal record.    The Court has considered
            [appellant’s] statement made to the Court at
            sentencing as well as the report from the Venango
            County Prison.      The Court has considered the
            statements of defense counsel at sentencing. The


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              Court has considered the recommendations made by
              the Commonwealth. The Court has considered the
              victim impact statement.       The Court has
              considered the circumstances surrounding
              these offenses.     The Court has considered the
              sentencing guidelines and all other relevant
              factor[s].

Notes of testimony, 11/27/17 at 18-19 (emphasis added).

      Although the record reflects that the trial court did not specifically

mention appellant’s rehabilitation during the sentencing hearing, the trial

court was clearly aware of appellant’s rehabilitative needs. Both appellant

and his trial counsel indicated that appellant attends rehabilitation sessions

twice a week at West Park Rehab for problems with his walking and that he

is making progress on his balance.      (Id. at 16-17.)    Additionally, the trial

court was in possession of a PSI report and, as noted, the court considered

it. (See id. at 18.) Where the trial court has the benefit of a PSI report,

“we shall . . . presume that the sentencing judge was aware of relevant

information    regarding   the   defendant’s   character   and   weighed    those

considerations along with mitigating statutory factors.” Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa.Super. 2014) (citation omitted), appeal

denied, 95 A.3d 275 (Pa. 2014).

      Accordingly, for all the foregoing reasons, we find that appellant’s

challenge to the discretionary aspects of his sentence must fail. Therefore,

we affirm the November 27, 2017 judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/1/2018




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