J-S04006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JOSEPH MANDER                           :
                                         :
                    Appellant            :   No. 1595 EDA 2019

      Appeal from the Judgment of Sentence Entered January 28, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000055-2018


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 7, 2020

      Appellant, Joseph Mander, appeals from the judgment of sentence of an

aggregate term of 25-50 years’ incarceration, imposed following his nolo

contendere plea to third-degree murder, arson, and possession of an

instrument of crime (“PIC”). Appellant challenges the discretionary aspects

of his sentence, and also argues that the trial court erred when it denied his

motion to withdraw his nolo contendere plea. After careful review, we affirm.

      On November 26, 2018, Appellant entered a nolo contendere (or “no

contest”) plea to third-degree murder, arson, and PIC. At the hearing, the

Commonwealth set forth the factual basis for the plea, which was summarized

by the trial court as follows:

      [Philadelphia Police Officers] Daniel Barr and Christo Fountas
      responded to a radio call for a person screaming at 1308 N. 53 rd
      Street in the city and county of Philadelphia. When they arrived,
      [Appellant] told them that he had done something bad.
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     [Appellant] then gave the officers permission to enter the property
     through the window because he was unable to open the door.

     After officers entered, [Appellant] told them that his aunt was
     upstairs snoring and that something bad had happened to her.
     The officers proceeded to the second floor hallway with
     [Appellant], where they found the decedent, Marguerite Mander,
     unconscious, laying on her back bleeding and burned on her legs,
     back and butt. Officer Barr immediately called for paramedics and
     asked [Appellant] what happened. [Appellant] responded, “I did
     it because she was controlling me and I set her on fire and tried
     to kill her.” Officer Barr placed [Appellant] in handcuffs and took
     him downstairs.

     While walking to the patrol car, [Appellant] motioned to a knife,
     which was later recovered from the dining room table. [Appellant]
     indicated to Officer Barr that he used the knife to stab his aunt.
     The paramedics arrived and transported the decedent to
     Presbyterian Hospital. [Appellant] was transported to Southwest
     Detectives Division, where he was advised of his charges and
     agreed to provide a statement to Detectives Christopher Clair and
     Thomas Dilaerio.

     In his statement, [Appellant] admitted to stabbing the decedent
     in the eye and lighting her on fire. He described that they had an
     argument about his aunt kicking him out of the house and he was
     tired of her controlling him.
     The decedent was pronounced dead the next day, November 11,
     2017[,] at Presbyterian Hospital at 6:08 p.m. The cause of death
     was complications of blunt impact injuries to her head, as well as
     thermal injuries. The manner of death was homicide.

     Two knives were recovered from the scene, as well as a pair of
     sneakers and a box of matches. With respect to the knife
     recovered [from] the dining room table[,] the major component
     of the DNA mixture obtained from the handle of the knife was
     consistent with originating from [Appellant].

     The DNA analyst, Janicia Huttley, who would be qualified as an
     expert, … testif[ied] at trial [regarding] the knife recovered from
     the upstairs bedroom. The swab of the handle of that knife was
     consistent with … a … partial DNA profile [mixture] and that
     mixture originated from Marguerite Mander and [Appellant].



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        Testing of [Appellant]’s sneakers revealed a DNA mixture that
        under the scenario that it originated from Marguerite Mander and
        [him] was 191.6 sextillion times … more likely to occur, tha[n if]
        it originated from Marguerite Mander and one random unrelated
        person in the African American population.

        The fire marshal, Lieutenant Andrew Robinson, was called to the
        scene, prepared a report and determined that the cause of the fire
        was incendiary.

        Investigators further recovered two videos from a Youtube
        account that depicted [Appellant] and the victim arguing about
        various topics, including the money [Appellant] thought he was
        entitled to. [T]hose videos were posted to the Youtube account
        on November 4th of 2017 entitled[,] “My aunt is the most evil
        woman on earth” and “Her and my confession.”

        The Commonwealth would have also presented evidence at trial
        that [Appellant] had physically assaulted the victim on a prior
        occasion. That evidence would have gone to prove malice, as well
        as intent, absence of mistake and to explain the nature of the
        relationship between the parties. That incident occurred on June
        22nd of 2016.

Trial Court Opinion (“TCO”), 7/29/19, at 2-4 (cleaned up) (quoting from N.T.,

11/26/18, at 1-25).

        On January 28, 2019, the trial court sentenced Appellant to 20-40 years’

incarceration for third-degree murder, a consecutive term of 5-10 years’

incarceration for arson, and no further penalty for PIC.      Appellant did not

initially file post-sentence motions or an appeal. However, on February 14,

2019, he mailed a letter to the trial court, alleging that he had been tricked

and/or threatened into pleading nolo contendere. Id. at 1. The trial court

treated the letter as a Post Conviction Relief Act1 (“PCRA”) petition, and

____________________________________________


1   42 Pa.C.S. § 9541 et seq.

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appointed counsel to represent Appellant. On April 22, 2019, Appellant filed

an amended and counseled PCRA petition seeking reinstatement of his direct

appeal and post-sentence motion rights nunc pro tunc. The Commonwealth

consented and, on the same day, the court granted the petition.

     On May 2, 2019, Appellant filed an omnibus post-sentence motion

seeking to withdraw his nolo contendere plea and, alternatively, challenging

the discretionary aspects of his sentence. The trial court denied the omnibus

post-sentence motion without a hearing on May 13, 2019. Appellant filed a

timely appeal on May 29, 2019, and he subsequently filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a)

opinion on July 29, 2019.

     Appellant now presents the following issues for our review:

        1. The [trial c]ourt erred in that its sentence was unreasonable
           in that [it] was nearly twice the standard guidelines without
           [the court’s] articulating adequate reasons for the
           departure. The trial court abused its discretion when it
           imposed a sentence exceeding the aggravated guidelines
           without explaining compelling reasons why the particular
           offense was more severe than the normal crime of that type.

        2. The [trial c]ourt erred in that its sentence was beyond the
           top end of the aggravated range without consideration of
           Appellant’s individual characteristics.

        3. The [trial c]ourt erred in that its sentence took into
           consideration factors already included in the sentencing
           guidelines to fashion an aggravated sentence above the
           aggravated range which double counted Appellant’s prior
           record score and/or offense gravity score.

        4. The [trial c]ourt erred when it denied Appellant’s motion to
           withdraw his [nolo contendere] plea and request to allow
           him to proceed to trial. Appellant’s plea was not knowing

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            and intelligent and was the product of duress from the [t]rial
            [c]ourt, the Assistant District Attorney[,] and [t]rial
            [c]ounsel. Appellant was suffering from a mental defect
            that further rendered his plea null.

Appellant’s Brief at 5.

                Motion to Withdraw Nolo Contendere Plea

      For ease of disposition, we first address Appellant’s claim that the trial

court erred when it denied his post-sentence motion to withdraw his nolo

contendere plea.     “[I]n terms of its effect upon a case, a plea of nolo

contendere is treated the same as a guilty plea.” Commonwealth v. Miller,

748 A.2d 733, 735 (Pa. Super. 2000). “A guilty plea which is not the personal

and voluntary decision of the accused, but rather is ‘induced by promises or

threats which deprive it of the character of a voluntary act, is void.’”

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (quoting

Machibroda v. United States, 368 U.S. 487, 493 (1962)). However, a

      defendant wishing to challenge the voluntariness of a guilty plea
      on direct appeal must either object during the plea colloquy or file
      a motion to withdraw the plea within ten days of sentencing.
      Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
      measure results in waiver. Commonwealth v. Tareila, 895 A.2d
      1266, 1270 n.3 (Pa. Super. 2006). Historically, Pennsylvania
      courts adhere to this waiver principle because “[i]t is for the court
      which accepted the plea to consider and correct, in the first
      instance, any error which may have been committed.”
      Commonwealth v. Roberts, … 352 A.2d 140, 141 ([Pa. Super.]
      1975)….

Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013).

      Further, a defendant who attempts to withdraw a guilty plea after
      sentencing must demonstrate prejudice on the order of manifest
      injustice before withdrawal is justified.  Commonwealth v.
      Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002). “A plea rises


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      to the level of manifest injustice when it was entered into
      involuntarily, unknowingly, or unintelligently.” Id.

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008).

      Appellant satisfied the procedural requirements for withdrawing his plea

by raising the matter in a post-sentence motion. Thus, we turn to consider

the merits of his claim.

      Appellant asserts three reasons for the withdrawal of his nolo

contendere plea. He alleges 1) duress caused by the trial court, the Assistant

District Attorney, and his trial counsel; 2) a mental defect; and/or 3) actual

innocence.    Appellant’s Brief at 5.    In the argument section of his brief,

however, there is no analysis pertaining to the first two allegations, effectively

denying any opportunity for this Court to meaningful review those aspects of

Appellant’s claim. Accordingly, Appellant has waived those arguments. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (“The

failure to develop an adequate argument in an appellate brief may result in

waiver of the claim under Pa.R.A.P. 2119.”) (cleaned up).

      Appellant does provide a cursory discussion of the third portion of this

claim, wherein he asserts that it was manifestly unjust for the trial court to

deny his motion to withdraw his nolo contendere plea because he is

purportedly innocent. Appellant argues:

      An innocent person ple[]d no contest to a crime he did not commit.
      Appellant has always contended that there were two women in his
      aunt’s house at the time of the murder. Specifically, on the day
      of the no contest plea, Appellant told the court:

         I told you I was threatened, I was threatened by a female.
         I don’t know the two girls.

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         They were prostitutes. I should have never let them in the
         house. I should have never let them upstairs with my aunt,
         but I did, and when I went back upstairs, she was stabbed.

      N.T.[,] 11/26/18[,] at 41-42.

      At his sentencing, Appellant again stated:

         I didn’t stab my aunt. But without my aunt on this earth, it
         does not even matter. My life is going to be hell regardless.
         I didn’t stab my aunt. I didn’t burn my aunt. I was scared
         what would happen if I told, because I thought I would end
         up being shot.

      N.T.[,] 11/28/18[,] at 39.

      The trial court erred and abused its discretion when it did not allow
      Appellant to withdraw his no contest plea. Appellant did not enter
      a knowing, intelligent, voluntary, and understanding plea, and
      Appellant is in fact innocent.

Appellant’s Brief at 19-20.

      We are unconvinced by Appellant’s argument in light of the record.      As

discussed by the trial court:

      In the case at bar, [Appellant] failed to demonstrate prejudice on
      the order of manifest injustice. His post-sentence claim of
      innocence is not a demonstration of manifest injustice because the
      record reflects that [he] entered into a knowing, intelligent, and
      voluntary plea. This [c]ourt discussed the possibility of pleading
      guilty or nolo contendere with [Appellant] on multiple occasions
      and ensured that he understood the difference between both
      options, as well as other options, such as proceeding to trial.
      N.T.[,] 11/15/2018[,] at 20-25; N.T.[,] 11/26/2018[,] at 5-6.
      After considering all of the options before him, [Appellant] chose
      to enter into a nolo contendere plea.

      At the guilty plea hearing, [Appellant] reviewed and signed a
      written nolo contendere colloquy form and indicated to this [c]ourt
      that he understood the nature of the charges he pled nolo
      contendere to, the factual basis for his plea, his right to a jury
      trial, the presumption of innocence, and the permissible range of
      sentences. N.T.[,] 11/26/2018[,] at 6-7; see also Written Nolo
      Contendere Plea Colloquy (attached as “Exhibit A”). By signing

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     the colloquy form, [Appellant] indicated that he wished to enter
     his plea on his own volition and willingly gave up defenses to the
     charges, and the majority of his appellate rights.

     This [c]ourt supplemented [Appellant]’s written colloquy form
     with an extensive oral colloquy, during which this [c]ourt
     confirmed that [Appellant] had attended college, and could read,
     write, and understand the English language.                  N.T.[,]
     11/26/2018[,] at 7.        This [c]ourt further verified that [he]
     understood that he was giving up all of his rights to trial. Id. at
     8-9, 12-13. This [c]ourt reviewed the elements and maximum
     penalties of each crime with [Appellant] and reminded him that
     he was presumed to be innocent until proven guilty. Id. at 9-11,
     19. This [c]ourt also explained the secondary effects of his no
     contest plea, including a possible violation of probation for a
     previous offense. Id. at 14-15. Knowing this information,
     [Appellant] decided to enter into a no contest plea. After this
     [c]ourt heard a summary of the facts and determined that the
     Commonwealth had sufficient evidence to prove [Appellant]
     guilty, it accepted his plea. Id. at 35-36. This [c]ourt did not err
     in denying [Appellant]’s motion to withdraw his guilty plea.

TCO at 5-6.

     We agree with the trial court. Little in the record supports Appellant’s

claim that his nolo contendere plea was not knowing, intelligent, and

voluntary, beyond his intermittent claims of innocence. Those bald assertions

of innocence are not enough to overcome the validity of his plea.

     Once a defendant has entered a plea of guilty, it is presumed that
     he was aware of what he was doing, and the burden of proving
     involuntariness is upon him. Therefore, where the record clearly
     demonstrates that a guilty plea colloquy was conducted, during
     which it became evident that the defendant understood the nature
     of the charges against him, the voluntariness of the plea is
     established. A defendant is bound by the statements he makes
     during his plea colloquy, and may not assert grounds for
     withdrawing the plea that contradict statements made when he
     pled.




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Commonwealth v. Stork, 737 A.2d 789, 790–91 (Pa. Super. 1999).

Moreover,

      a defendant’s innocence claim must be at least plausible to
      demonstrate, in and of itself, a fair and just reason for …
      withdrawal of a plea. More broadly, the proper inquiry on
      consideration of such a withdrawal motion is whether the accused
      has   made     some     colorable  demonstration,    under   the
      circumstances, such that permitting withdrawal of the plea would
      promote fairness and justice.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015) (citation

omitted).

      Presently, Appellant has not made a colorable demonstration that the

withdraw of his plea would have promoted fairness and justice. Appellant was

present at the scene of the crime when police arrived, soon after screaming

was heard from the residence, and he immediately made several admissions

of guilt to the arriving officers, admissions he repeated in statements to police

when taken into custody. DNA evidence linked him to the knife used in the

murder, which Appellant had also identified to police at the scene of the crime.

Nothing in the record supports his claim that anyone else was present at the

scene when the murder occurred.          His assertions of innocence appear

implausible under the circumstances, absence some modicum of corroborating

evidence. As such, we detect no manifest injustice in the trial court’s decision

to deny his post-sentence motion to withdraw his nolo contendere plea.

Accordingly, we conclude this claim is without merit.

              Discretionary Aspects of Appellant’s Sentence



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     Appellant’s next three claims all concern the discretionary aspects of his

sentence.

     “Issues challenging the discretionary aspects of a sentence must
     be raised in a post-sentence motion or by presenting the claim to
     the    trial  court   during    the   sentencing    proceedings.”
     Commonwealth v. Shugars, 895 A.2d 1270, 1273–74 (Pa.
     Super. 2006).       “Absent such efforts, an objection to a
     discretionary aspect of a sentence is waived.” Id. at 1274.

Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa. Super. 2010).

     Additionally,

     “[a] challenge to the discretionary aspects of a sentence must be
     considered a petition for permission to appeal, as the right to
     pursue such a claim is not absolute.”         Commonwealth v.
     McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)….                When
     challenging the discretionary aspects of the sentence imposed, an
     appellant must present a substantial question as to the
     appropriateness of the sentence.        See Commonwealth v.
     Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements
     must be met before we will review this challenge on its merits.”
     McAfee, 849 A.2d at 274. “First, an appellant must set forth in
     his brief a concise statement of the reasons relied upon for
     allowance of appeal with respect to the discretionary aspects of a
     sentence.” Id. “Second, the appellant must show that there is a
     substantial question that the sentence imposed is not appropriate
     under the Sentencing Code.” Id. That is, “the sentence violates
     either a specific provision of the sentencing scheme set forth in
     the Sentencing Code or a particular fundamental norm underlying
     the sentencing process.” Tirado, 870 A.2d at 365. We examine
     an appellant’s [Pa.R.A.P.] 2119(f) statement to determine
     whether a substantial question exists. See id. “Our inquiry must
     focus on the reasons for which the appeal is sought, in contrast to
     the facts underlying the appeal, which are necessary only to
     decide the appeal on the merits.” Id.

Rhoades, 8 A.3d at 916 (footnote omitted).

     Appellant preserved his challenges to the discretionary aspects of his

sentence in a post-sentence motion, and he provided a concise statement

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pursuant to Rule 2119(f) of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of his sentence. Furthermore, his

three sentencing claims present substantial questions for our review. See

Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009)

(recognizing “an averment that the [trial] court sentenced based solely on the

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

substantial question”); Commonwealth v. Simpson, 829 A.2d 334, 338 (Pa.

Super. 2003) (stating that a claim that a trial court double-counted “factors

already included in the sentencing guidelines … raises a substantial question

requiring our review”); Commonwealth v. Johnson, 666 A.2d 690, 692 (Pa.

Super. 1995) (holding claims that “the sentencing judge sentenced outside

the guidelines without reflecting a consideration of the guidelines, and that

the sentencing judge failed to state adequate reasons on the record for

sentencing outside the guidelines[,]” presents substantial questions for our

review). Thus, we must review the merits of Appellant’s sentencing claims.

      First, Appellant asserts that the trial court abused its discretion by

imposing a sentence that was “nearly twice the standard guidelines”

recommendation, without the court’s articulating adequate reasons for the

upward departure. Appellant’s Brief at 15-16. Essentially, Appellant argues

that the trial court’s reasons for the upward departure from the guidelines

were excessively focused on the gravity of the offense, which Appellant

believes was already reflected in the sentencing guidelines’ recommendations,




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and that the court failed to distinguish Appellant’s crime from that of the

typical third-degree murder. For the following reasons, this claim is meritless.

       First, the trial court did not depart from the standard guidelines. As the

court explained:

       At the time of this offense, [Appellant] had a prior record score of
       3.3 For Third-Degree Murder, the offense gravity score (“OGS”)
       is 14, and a standard range guideline sentence is 138-SL[2] +/- 12
       [months’ incarceration]. For Arson, the OGS is 10, and a standard
       range guideline sentence is 60-72 +/- 12 [months’ incarceration].
       For PIC, the OGS is 3, and a standard range guideline sentence is
       restorative sanctions ("RS") to 12 +/- 3 [months’ incarceration].
       This [c]ourt imposed a sentence of 20-40 years[’] imprisonment
       for Third-Degree Murder, 5-10 years[’] imprisonment for Arson,
       and no further penalty for PIC, for a total sentence of 25-50
       years[’] imprisonment. The sentences imposed by this [c]ourt fall
       squarely within the standard range guidelines.
          3 At the time of this offense, [Appellant] had seven prior
          [m]isdemeanor convictions, including two convictions for
          Simple Assault, one conviction for Terroristic Threats, two
          convictions for drug[-]related offenses, and two convictions
          for theft[-]related offenses. [His] remaining convictions
          were for [s]ummary offenses and did not factor into his
          [p]rior [r]ecord [s]core.

TCO at 8.

       In his brief, Appellant does not dispute the trial court’s calculations or

offer an alternative analysis.         Additionally, upon our own review of the

guidelines, we ascertain no error by the trial court. See Commonwealth v.

Haynes, 125 A.3d 800, 808 (Pa. Super. 2015) (holding that that the

defendant’s statutory maximum “sentence of twenty to forty years of
____________________________________________


2 “SL” refers to the statutory limit on the minimum term of the imposed
sentence. It is precisely half of the statutory maximum term of incarceration
for the same offense.

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incarceration for third-degree murder was a standard-range sentence”).

Thus, Appellant’s claim is meritless; the trial court did not impose a sentence

outside of the standard range recommendations and, thus, it had no obligation

to justify a departure therefrom.

      Second, we acknowledge that the trial court imposed the harshest

possible penalty for third-degree murder. However, the circumstances of this

case do not suggest that the sentence is disproportionate to the gravity of the

offense, independent of other relevant sentencing factors.       The trial court

described Appellant’s murder of his aunt as “one of the most heinous crimes”

it had ever seen. N.T., 11/28/18, at 40. Indeed, Appellant stabbed his own

aunt in the eye and then set her on fire. Consequently, we detect no abuse

of discretion in the court’s decision to afford the gravity of this offense

significant weight.

      Next, Appellant asserts that the trial court abused its discretion by

sentencing Appellant “beyond the top end of the aggravated range without

consideration of Appellant’s individual characteristics.” Appellant’s Brief at 16

(italics omitted).    For the reasons set forth above, this issue is meritless as

Appellant received standard range sentences.

      Moreover, the trial court ordered and reviewed a pre-sentence report

and a mental health evaluation of Appellant prior to imposing the sentence.

Appellant argues that the trial court gave short shrift to the mitigating

evidence contained in those reports, but does not otherwise dispute their

contents. “When, as here, the trial court ha[d] the benefit of a pre-sentence

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report, we presume that the court was aware of relevant information regarding

the defendant’s character and weighed those considerations along with any

mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.

Super. 2014). Appellant’s bare assertions do not overcome that presumption.

Accordingly, we ascertain no abuse of discretion with regard to the trial court’s

consideration of his individual, mitigating characteristics at sentencing.

       Finally, Appellant contends that the trial court “took into consideration

factors already included in the sentencing guidelines to fashion an aggravated

sentence above the aggravated range which double counted Appellant’s prior

record score and/or offense gravity score.”        Appellant’s Brief at 17 (italics

omitted). Again, as noted above, the trial court did not sentence Appellant in

the aggravated range of the sentencing guidelines for any of his offenses, nor

was he sentenced outside the guidelines.

       Appellant provides no analysis or reference to relevant legal authorities

in the argument portion of his brief suggesting that the offense gravity scores

for his offenses were miscalculated.3 Moreover, the entirety of Appellant’s

argument regarding the calculation of his prior record scored is his assertion

that his prior record

       was, in effect, impermissibly used against [him] twice. Once by
       the guidelines themselves in the calculation of his prior record
       score and once by the court when it deviated from the guidelines.


____________________________________________


3Indeed, Appellant does not discuss this matter at all. Thus, it is waived.
See Beshore, supra.

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      The trial court denied that it double counted Appellant’s prior
      record score. [TCO at 7]. However, the court noted early in the
      sentencing that: “Mr. Mander, your prior record score is a three,
      and this is how the [c]ourt arrived at that score. You had no
      arrests as a juvenile. As an adult, you have 16 arrests, 10
      convictions, two of which were for summary offenses, six
      commitments.” N.T.[,] 1/28/19[,] at 7. In its opinion, in support
      of its sentence, the trial court stated that Appellant’s prior record
      score of 3 did not accurately reflect the extent of Appellant’s past
      criminal conduct. Id. at 8. Stated another way, the trial court
      used a [p]rior [r]ecord [s]core of 3 to calculate a guideline
      sentence, but sentenced him as if his score were higher.

Appellant’s Brief at 17-18.

      Yet again, Appellant’s argument hinges on his contention that the court

deviated from the guidelines. It did not, and so his claim is meritless. We

further ascertain no abuse of discretion with regard to the court’s

characterization of Appellant’s prior record score as not fully encapsulating his

prior criminal conduct. Appellant fails to cite any authority suggesting that

such comments were improper. Additionally, it

      is well established that the [s]entencing [g]uidelines are purely
      advisory in nature. As th[e] Court explained in Commonwealth
      v. Sessoms, … 532 A.2d 775, 780–81 ([Pa.] 1987), the
      [g]uidelines do not alter the legal rights or duties of the defendant,
      the prosecutor or the sentencing court. The guidelines are merely
      one factor among many that the court must consider in imposing
      a sentence.

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).

      One of the statutory duties of the sentencing court is to “follow the

general principle that the sentence imposed should call for total 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



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the rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Appellant’s

prior interactions with the criminal justice system inform consideration of both

the protection of the public and his rehabilitative needs, and those

deliberations are not limited to the mechanical calculation of a prior record

score. See Commonwealth v. Darden, 531 A.2d 1144, 1149 (Pa. Super.

1987) (holding that the “record of criminal conduct” that is not incorporated

in the guidelines “constitutes a significant aggravating factor” in considering

whether to depart from a standard guideline sentence). As was the case in

Darden, the trial court here was free to consider Appellant’s extensive prior

interactions with the criminal justice system beyond their prior record score

value under the sentencing guidelines. See id. (recognizing that Darden’s

“prior record score of three did not begin to account for [his] staggering record

of criminal activity[,]” which included “prior adult misdemeanors, juvenile

felony adjudications, parole and probation violations, [and] unexpunged

arrests” not “incorporated in the computation of the prior record score”).

Thus, Appellant’s apparent premise—that the trial court was limited by

Appellant’s prior record score in its consideration of his prior criminal record

for the purpose of constructing an appropriate, individualized sentence—is

flawed.   Consequently, we ascertain no abuse of discretion by the trial court

in its evaluation of Appellant’s prior record above and beyond what was

represented by his prior record score.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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