J-S76030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    GERALD D. CROWLEY

                             Appellant               No. 1984 EDA 2017


       Appeal from the Judgment of Sentence imposed January 24, 2017
            In the Court of Common Pleas of Northampton County
               Criminal Division at No: CP-48-CR-0002903-2013


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 12, 2018

        Appellant, Gerald D. Crowley, appeals from the judgment of sentence

imposed on January 24, 2017 by the Court of Common Pleas of Northampton

County.1 Appellant challenges the discretionary aspects of his sentence. Upon

review, we affirm.

        We previously addressed the factual background of this case in

connection with Appellant’s first direct appeal.     See Commonwealth v.

Crowley, No. 2937 EDA 2015, unpublished memorandum at *1 (Pa. Super.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Appellant purports to appeal from the order denying the “omnibus” post-
sentence motion. It is well established that in a criminal action an appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions. See, e.g., Commonwealth v. Shamberger, 788 A.2d
408, 410 n.2 (Pa. Super. 2001). We have corrected the caption accordingly.
J-S76030-17



filed May 6, 2016). Procedurally, in connection with Appellant’s first direct

appeal, counsel filed a petition to withdraw pursuant to Turner/Finley.2 We

denied counsel’s application noting that it was a direct appeal, not an appeal

from a denial of PCRA relief. We also disagreed with counsel’s conclusion that

the appeal was frivolous. Id. at *3. Indeed, we found that Appellant had a

meritorious discretionary aspects claim. Accordingly, we remanded to the trial

court, directing counsel to file a concise statement of errors complained of on

appeal. Id.

       After counsel and the trial court complied with our order, the matter

returned to us. On that occasion, Appellant raised several claims challenging

the   legality   and    the   discretionary      aspects   of   his    sentence.3    See

Commonwealth           v.     Crowley,     No.     2937    EDA        2015,   unpublished

memorandum at *4 (Pa. Super. filed October 19, 2016).                     Ultimately, we

agreed with Appellant4 that the trial court erred in calculating Appellant’s

sentencing guidelines range in connection with the possession with intent to
____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

3The trial court sentenced Appellant to 60 to 120 months’ incarceration on a
possession of firearms conviction, and a concurrent term of imprisonment of
24 to 120 months for possession with intent to deliver.

4 While we agreed with Appellant that the trial court miscalculated the
sentencing guidelines, we noted that Appellant erroneously framed the issue
as a legality issue, as opposed to a challenge to the discretionary aspects of
the sentence. See id. at *4-*5, n.14.




                                           -2-
J-S76030-17



deliver a controlled drug conviction.5 Id. at *7. Accordingly, we vacated the

judgment of sentence and remanded for resentencing on both the possession

of a firearm by a prohibited person and PWID convictions. Id. at *9.

       Following resentencing, Appellant filed the instant appeal.      Appellant

argues the trial court abused its sentencing discretion by imposing the same

aggregate sentence originally imposed. To this end, Appellant claims the trial

court abused its discretion by the imposition of consecutive sentences as

opposed to concurrent sentences, as in the original sentencing scheme.

Appellant also argues that the trial court abused its discretion in not weighing

in his favor the mitigating factors addressed at the time of resentencing.

Finally, Appellant argues that the trial court failed to provide on the record the

reasons for the sentence.6
____________________________________________


5The trial court used an offense gravity score of seven for his PWID conviction,
whereas, based on the amount of drugs involved, it should have used an
offense gravity score of five. As Appellant’s prior record score was five, this
miscalculation changed Appellant’s sentencing guidelines range from 12 to 18
months to 24 to 30 months.

6 Appellant also mentions judicial vindictiveness in his 2119(f) statement and
in the argument section. Appellant suggests that “the sentence appears to be
a product of inferred vindictiveness.” Appellant’s Brief at 15 (emphasis added)
(citing Commonwealth v Tapp, 997 A.2d 1201 (Pa. Super. 2010)).
Appellant provided no further explanation. The claim, to the extent he raised
it, is waived because he raised it for the first time on appeal, see Pa.R.A.P.
302(b), for failure to include it in the questions for our review, see Pa.R.A.P.
2116(b), and for failure to articulate an argument in support of this bare
allegation, see Pa. R.A.P. 2119(a). Even if we were to find it not waived, the
claim would be, nonetheless, meritless because Appellant failed to “adduce
any evidence on that issue.” Tapp, 997 A.2d at 1205. Based on the
foregoing, we are therefore satisfied that the sentence imposed upon



                                           -3-
J-S76030-17



       Our standard of review for challenges to the discretionary aspects of a

sentence is well settled.          We apply an abuse of discretion standard.

Additionally, because challenges to the discretionary aspects do not entitle an

appellant to appellate review as of right, an appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test to determine: 1) whether the 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 the

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. See Commonwealth v. Moury, 992 A.2d 162, 169-70

(Pa. Super. 2010).

       For purposes of our review, we accept that Appellant has met the first

three requirements of the above test. Therefore, we must determine whether

Appellant raised a substantial question. Whether a particular issue constitutes

a substantial question regarding the appropriateness of sentence is a question

to be evaluated on a case-by-case basis.         See, e.g., Commonwealth v.

Kenner, 784 A.2d 808, 811 (Pa. Super. 2001), appeal denied, 796 A.2d 979

(Pa. 2002).
____________________________________________


resentencing did not rise to vindictiveness because the trial court sought to
preserve the original sentencing scheme by imposing the same aggregate
sentence, see Trial Court Opinion, 7/14/17, at 7. See Commonwealth v.
Barnes, 167 A.3d 110, 125 (Pa. Super. 2017) (en banc) (appellant not
entitled to relief by increase in sentence on remand where aggregate term is
not increased).

                                           -4-
J-S76030-17



      Regarding the imposition of consecutive sentences, it is well established

that “the imposition of consecutive, rather than concurrent, sentences may

raise 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) (en banc), appeal denied, 75 A.3d 1281 (Pa.

2013) (emphasis added).

      A review of Appellant’s argument and the record does not reveal

anything that could suggest that the aggregate sentence imposed is unduly

harsh, considering the nature of the crimes and length of imprisonment.

Indeed, the trial court sentenced Appellant to a standard range sentence on

both convictions, and Appellant failed to provide any evidence or even a

cogent argument supporting a claim for undue harshness.             Therefore,

Appellant has failed to raise a substantial question for our review.      See

Lamonda, supra.

      Similarly, Appellant failed to raise a substantial question regarding the

alleged failure to consider mitigating circumstances (i.e., no misconducts and

attending vocational training classes while serving sentence).

      The mitigating circumstances mentioned above were brought to the trial

court’s attention at the time of resentencing. N.T., Resentencing, 1/20/17 at

3-4. Thus, the record shows that the sentencing court was fully aware of the

above circumstances, but decided not to weigh them as Appellant desired. In

other words, Appellant is merely dissatisfied with the way the sentencing court

                                     -5-
J-S76030-17



handled the mitigating circumstances. It is well established, however, that

mere dissatisfaction with a sentence is not enough to trigger our jurisdiction.

Moury, 992 A.2d at 175 (“court[’s] refus[al] to weigh the proposed mitigating

factors as [a]ppellant wished, absent more, does not raise a substantial

question.”).

      Even if we were to find otherwise, Appellant, in essence, is merely

asking us to reweigh the mitigating circumstances and substitute our

judgment for that of the sentencing court. We cannot do that. See, e.g.,

Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999), appeal

denied, 790 A.2d 1013 (Pa. 2001) (“[W]hen reviewing sentencing matters, we

must accord the sentencing court great weight as it is in the best position to

view the defendant’s character, displays of remorse, defiance or indifference,

and the overall effect and nature of the crime.”) (citation omitted).

      Finally, Appellant argues the record is devoid of any statement as to the

reasons for the new sentence. Assuming the claim qualifies as a substantial

question for our review, the claim is meritless.

      The trial court did not issue a full explanation of the sentence, or reject

specifically Appellant’s position on the mitigating circumstances. However, at

the time of resentencing, the trial court noted:

      My review of the guilty plea transcript indicates that [Appellant]
      admitted to possession with intent to deliver less than two grams
      of cocaine and also to possessing a firearm. However, there was
      no factual indication that the firearm was loaded. So the guideline
      that I’m using for the firearm charge is an offense gravity of nine,
      prior record score of five, making the standard range 48 to 60.


                                      -6-
J-S76030-17


      On the possession with intent to deliver, the offense gravity score
      is a five and the standard range is 12-18.

N.T. Resentencing, 1/20/17, at 2.

      At the hearing, the following exchange also took place:

      [Court]: I understand that there is no mandatory minimum
      sentence in this case. Is that correct?

      [Commonwealth]: That’s correct, your honor.

      [Court]: So it’s a guideline sentence?

      [Commonwealth]: Yes, your honor.

      [Defense counsel]: Yes, judge.

      [Court]: Does the      Commonwealth      have   any evidence     on
      sentencing?

      [Commonwealth]: Nothing further.

      [Court]: Does the defense have anything further on sentencing?

      [Defense counsel]: We do, judge. [Appellant] related to me in his
      three years in the state correctional facility that . . . he now has
      no misconducts. As I understand it, he is on his way to receiving
      some certifications that may result in a vocational job placement
      after he gets out.

Id. at 3-4.

      After Appellant explained the nature of training he was pursuing while

in prison, the trial court asked:

      Is there anything else you want to tell me before I impose the
      sentence?

      [Appellant]: I just ask you just, please, you know, if you can
      sentence me to the lower end of the guidelines. I got a lot to look
      forward to. I got kids. Family is growing always, as well as
      myself. I just want to get back to life. I just want to be there.

                                     -7-
J-S76030-17



Id. at 4-5.

      The record, therefore, shows that the trial court was aware of the

underlying facts, applicable guidelines, the non-applicability of the mandatory

minimums, statutory maximums, and it relied on the original pre-sentence

report, as orally amended at the time of resentencing. Id. 2-6. In light of

the foregoing, we conclude Appellant’s claim that the trial court failed to state

the reasons for the sentence imposed is meritless. See Commonwealth v.

Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006) (“a lengthy discourse on

the trial court’s sentencing philosophy is not required. Rather, the record as

a whole must reflect the court’s reasons and its meaningful consideration of

the facts of the crime and the character of the offender”).

      In the same vein, Appellant avers the trial court failed to incorporate

the original pre-sentence investigation report in the current proceedings. It

is correct that trial court did not use any magic words to that end. However,

as the above-quoted exchange shows, it is clear that the court, the prosecutor,

and counsel for appellant all relied on that report, as orally amended at the

resentencing. See N.T. Resentencing, 1/20/17, at 2-6.

      Appellant finally avers that the information provided in that report was

not up to date. It is worth noting that, at the time of resentencing, Appellant

did not object to or otherwise complain about the staleness, incompleteness,

or inadequacy of the original report. Indeed, to the extent the original report




                                      -8-
J-S76030-17


was not up to date, counsel made the necessary amendments at the time of

resentencing. Id. at 3-6.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




                                 -9-
