J-S01039-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            : IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :         PENNSYLVANIA
                                               :
                      Appellee                 :
                                               :
               v.                              :
                                               :
    SHAHID PARHAM,                             :
                                               :
                      Appellant                : No. 66 EDA 2019

        Appeal from the Judgment of Sentence Entered June 18, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0015369-2013

BEFORE: BOWES, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                          FILED APRIL 7, 2020

       Shahid Parham (Appellant) appeals nunc pro tunc from the judgment

of sentence1 of 32 to 64 years of incarceration imposed after he was found

guilty in a non-jury trial of robbery, burglary, conspiracy, possession of an

instrument of crime (PIC), and several firearms offenses. We affirm.

       The charges arose out of the September 10, 2013 armed robbery of

the victim, Dwayne Davis.          During a struggle over Appellant’s gun, Davis

gained control of the weapon and fired at both Appellant and his             co-
____________________________________________


1 We note that Appellant purported to appeal from the October 1, 2015
order, which granted a motion for continuance of a hearing on Appellant’s
motion for reconsideration of sentence.      “In a criminal action, appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410
(Pa. Super. 2001) (citation omitted).     We have corrected the caption
accordingly.



* Retired Senior Judge assigned to the Superior Court.
J-S01039-20


conspirator, Muhammad Munson, wounding Appellant and killing Munson.

The trial court provided the following factual background.

             Davis testified that on the afternoon of September 10,
      2013, he was inside his home on the 2600 block of Carroll Street
      in the city of Philadelphia, with his one[-]year[-]old daughter
      and her babysitter, Rakita Davis [Rakita].10 At approximately
      10:00 that morning, Davis received a phone call from an
      individual who was interested in purchasing one of his watches.
      He told that individual to come to his house, go around back,
      and come in through the kitchen door.
             _____
             10 Rakita Davis and Dwayne Davis are not related.



            At approximately 11:30 a.m.[,] there was a knock at the
      back door and Davis let Appellant and [] Munson, into the
      kitchen. On entering, Appellant walked towards the dining room
      while Munson stayed by the back door. Once inside, Appellant
      pulled out a silver revolver and pointed it at Davis, saying “you
      know what time it is old head?” [N.T. 4/9/2015, at 28, 63.]
      After an exchange of words, Munson punched Davis in the eye,
      knocking him to the ground. As he attempted to stand up,
      Appellant hit him in the head with the gun, saying “don’t move.”
      [Id. at 64.]

            After another exchange of words, Appellant aimed the gun
      at Rakita[,] who was holding the baby. To “defend his family[,]”
      Davis pinned Appellant against the wall as Rakita ran upstairs,
      holding Davis’s baby. [Id.] Appellant, pinned against the wall by
      Davis, fired a shot through the wall. In response, Davis grabbed
      Appellant by the wrist and twisted his arm until the gun fell to
      the ground. Davis testified that he retrieved the gun from the
      ground while Appellant jumped on his back. Davis then fired two
      shots under his left arm. Davis fired an additional two shots
      towards the back door as Appellant and Munson fled out the
      back door. Davis testified that at that time he did not know
      where the shots went or if anyone had been hit.

           After Appellant and Munson left, Davis went upstairs to
      check on Rakita and his daughter[,] who were hiding upstairs in
      a bedroom. Davis, Rakita, and the baby were driven by a friend
      to another friend’s house[,] where they waited for Davis’s wife.
      When his wife arrived, he told her to take their daughter to a

                                    -2-
J-S01039-20


     hotel. Davis stayed at his friend’s house and later met up with
     his wife and daughter at the hotel. At no point did Davis return
     back to his house.

           Davis testified that he did not immediately call the police
     because he had never been put in this type of situation and “was
     just scared.” [Id. at 70.] Davis received a phone call the day
     after the shooting from his friend, Philadelphia Police Officer
     Kaliv Ivy. During their conversation, Davis told Officer Ivy what
     happened at his house the day before and was made aware that
     “Homicide” was looking for him. Davis told Officer Ivy that he
     needed a day or so to calm down but would go to [the police
     station] with him the next day.

            Officer Ivy testified that he found out about the shooting
     the day after [it occurred] when he arrived at work.            He
     recognized the house where the shooting occurred as Davis’s
     [residence]. He called Davis to inform him that “Homicide”
     wanted to speak with him about what had happened since the
     body of Munson had been found in his backyard. Officer Ivy
     testified that Davis told him he was “shook up” and needed a
     day or so to calm down. [Id. at 71.] The following day[,] Officer
     Ivy accompanied Davis to [the police station] where he gave a
     statement about what happened at his home two days earlier.
     While giving his statement[,] Davis learned for the first time that
     a dead body had been found in his back yard.

           Philadelphia Police Officer David Cartagena testified that on
     the afternoon of the robbery, he responded to a radio call of a
     shooting in the 2600 block of Massey Street in the city of
     Philadelphia.11 On arriving at the corner of Massey Street and
     Dicks Avenue[,] he observed Appellant lying on the sidewalk, on
     his right side,12 suffering a gunshot wound. On approaching
     Appellant, Officer Cartagena spoke with Appellant but found
     Appellant to be [] uncooperative.          Appellant told Officer
     Cartagena he was shot in the back but would not tell him where
     it happened, who he was with, or anything about what had
     happened. At no time during this interaction[] did Appellant
     indicate to Officer Cartagena that there had been an altercation
     at Davis’s home or that someone else had been shot.

           _____
           11 Massey Street is located parallel to Carroll Street where

           Davis’s residence is located.

                                    -3-
J-S01039-20



              12  This corner is approximately a block from Davis’s
              residence.

Trial Court Opinion, 4/16/2019, at 3-5 (some quotation marks and citations

to record omitted; some name designations and capitalization altered).

       Based on the foregoing, Appellant was arrested and charged with

twelve offenses: one count each of aggravated assault, robbery, burglary,

conspiracy, attempted theft, PIC, simple assault, recklessly endangering

another person (REAP), and four firearms offenses.       A non-jury trial took

place on April 9, 2015, where Davis, Rakita, and Officers Ivy and Cartagena

testified as indicated supra. The trial court found Appellant guilty of robbery,

burglary, conspiracy, PIC, firearms not to be carried without a license,

prohibited possession of a firearm, and possession of firearm by a minor.2

       A sentencing hearing was held on June 18, 2015. After the court heard

testimony from a Philadelphia police officer, as well as Appellant’s mother

and father, acknowledged receipt of the pre-sentence investigation (PSI)

report, and heard argument from the parties’ counsel, it sentenced Appellant

to an aggregate term of incarceration of not less than 32 nor more than 64

years.3

____________________________________________


2 The trial court found Appellant not guilty of aggravated assault.         The
Commonwealth nolle prossed the remaining charges.

3 The trial court sentenced Appellant to the following consecutive terms of
incarceration: 8 to 16 years for robbery; 8 to 16 years for burglary; 8 to 16
(Footnote Continued Next Page)


                                           -4-
J-S01039-20


      On June 23, 2015, Appellant filed a timely post-sentence motion for

reconsideration of his sentence, raising claims that the trial court never

convicted him of burglary, that his sentence “far exceeded the recommended

guideline range,” and that the court improperly considered, over his

counsel’s objection, the “irrelevant and unfairly prejudicial testimony” of a

police officer who suggested Appellant was part of a “dangerous street

gang.”    Motion for Reconsideration of Sentence, 6/23/2015, at ¶¶ 1-4.

Following a hearing on October 22, 2015, the motion was denied.4          On

November 10, 2015, Appellant filed a motion for extraordinary relief,

seeking reconsideration of the denial of his post-sentence motion. The trial

court took no action on this motion.

(Footnote Continued) _______________________

years for conspiracy to commit robbery; 2 to 4 years for PIC, 2 to 4 years
for firearms not be carried without a license; 2 to 4 years for prohibited
possession of a firearm; and 2 to 4 years for possession of firearm by a
minor. On March 13, 2019, and March 21, 2019, the trial court filed
corrected sentencing orders to correct linkage of the sentence.         All
conditions and the effective date of sentence remained the same. Order
3/13/2019, at 1 (unnumbered); Order, 3/21/2019, at 2 (unnumbered).

4 The notes of testimony from the hearing are not contained in the certified
record. The record does not contain an order denying Appellant’s post-
sentence motion, but the docket contains an entry on the same date as the
hearing, which provides as follows: “Order Denying Motion for Extraordinary
Relief. The defense post-trial motion for extraordinary relief is heard and
denied.” Docket, 10/22/2015. As discussed infra, Appellant later filed a
motion for extraordinary relief on November 10, 2015, but no such motion
had been filed as of October 22, 2015. Thus, it appears from the record that
the October 22, 2015 docket entry mistakenly stated it denied the motion
for extraordinary relief, instead of the motion for reconsideration of
sentence.



                                          -5-
J-S01039-20


       On March 4, 2016, Appellant filed a notice of appeal with this Court,

which we quashed on February 13, 2018, as untimely filed.                      Id.

(unpublished memorandum at 7).                 On June 25, 2018, Appellant filed a

petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546, seeking reinstatement of his right to a direct appeal. After a

hearing on December 12, 2018, the PCRA court granted Appellant’s petition.

This timely-filed direct appeal followed.5 Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       On appeal, Appellant has set forth two issues for our review. We begin

with Appellant’s sufficiency-of-the-evidence challenge. See Appellant’s Brief

at 14-16.      According to Appellant, the Commonwealth failed to present

sufficient evidence of “his contemporaneous intent of committing a crime

once he was freely admitted into the home” of Davis to support his burglary

conviction. Id. at 14.

We review this issue mindful of the following.

              When reviewing a challenge to the sufficiency of the
       evidence, we must determine whether the evidence admitted at
       trial, and all reasonable inferences drawn therefrom, when
       viewed in a light most favorable to the Commonwealth as verdict
       winner, support the conviction beyond a reasonable doubt.
       Where there is sufficient evidence to enable the trier of fact to
       find every element of the crime has been established beyond a
____________________________________________


5 On June 20, 2019, this Court dismissed the instant appeal due to the
failure of Appellant’s counsel to file a brief. By order filed July 12, 2019, we
reinstated the appeal.




                                           -6-
J-S01039-20


      reasonable doubt, the sufficiency of the evidence claim must fail.
      This standard applies equally where the Commonwealth’s
      evidence is circumstantial.

            In conducting this analysis, we do not weigh the evidence
      and substitute our judgment for that of the fact-finder.
      Additionally, the Commonwealth’s evidence need not preclude
      every possibility of innocence in order to prove guilt beyond a
      reasonable doubt. The fact-finder is free to believe all, part, or
      none of the evidence.

Commonwealth v. Knox, 219 A.3d 186, 195 (Pa. Super. 2019) (internal

citations and quotation marks omitted).

      Appellant was charged with burglary under subsection 3502(a)(1) of

the Crimes Code, which provides as follows.

      (a) Offense defined.--A person commits the offense of
      burglary if, with the intent to commit a crime therein, the
      person:

            (1)(i) enters a building or occupied structure, or
            separately secured or occupied portion thereof, that
            is adapted for overnight accommodations in which at
            the time of the offense any person is present and the
            person commits, attempts or threatens to commit a
            bodily injury crime therein;

            (ii) enters a building or occupied structure, or
            separately secured or occupied portion thereof that
            is adapted for overnight accommodations in which at
            the time of the offense any person is present;

18 Pa.C.S. § 3502(a).

      A defense to the prosecution for burglary is that “[t]he actor is

licensed or privileged to enter.”   18 Pa.C.S. § 3502(b)(3).   However, “the

license or privilege to enter exception recognized by the burglary statute can

be negated [if it is acquired] by deception[.]”         Commonwealth v.

                                     -7-
J-S01039-20


Edwards, 903 A.2d 1139, 1148 (Pa. 2006), citing Commonwealth v.

Thomas, 561 A.2d 699, 705 (Pa. 1989); see also Commonwealth v.

Hayes, 460 A.2d 791, 796-77 (Pa. Super. 1983) (holding defendant’s deceit

in gaining entrance to house vitiated any consent to enter, and thus

defendant was not licensed or privileged to enter under burglary statute).

“Thus, to prevail on a burglary charge, the Commonwealth is required to

prove beyond a reasonable doubt that the offender entered the premises,

with the contemporaneous intent of committing a crime, at a time when he

was not licensed or privileged to enter.” Commonwealth v. Cooper, 941

A.2d 655, 666 (Pa. 2007). “The specific intent to commit a crime necessary

to establish the intent element of burglary may be found in a defendant’s

words or conduct, or from the attendant circumstances together with all

reasonable inferences therefrom.” Commonwealth v. Eck, 654 A.2d 1104,

1108-09 (Pa. Super. 1995) (citations omitted).

     In the instant case, the trial court concluded that the Commonwealth

proved beyond a reasonable doubt that Appellant committed the offense of

burglary.   Trial Court Opinion, 4/16/2019, at 5-7.   According to the trial

court, Appellant deceived Davis to gain entry into his home, and Appellant’s

words and conduct made it clear that he entered the home with the intent to

commit a crime. Id. at 6-7.

     On appeal, Appellant argues that he lacked specific intent to commit a

crime because he had come to Davis’s home “by mutual agreement to


                                   -8-
J-S01039-20


purchase a watch” and Davis “welcomed the two boys [Appellant and

Munson] into his home.”            Appellant’s Brief at 15.   Further, Appellant

contends that before “the interaction quickly went awry,” there was no

evidence to suggest “that anything more was planned that evening[6] than

commerce” at an “appointed time.” Id. According to Appellant, the totality

of these circumstances “give[s] rise to the idea that, on the night in

question, a horrible series of events unfolded but there was no initial intent

to commit a burglary.” Id. at 16.

        It is undisputed that Davis invited Appellant into his home. Therefore,

we first examine whether Davis’s permitting Appellant to enter his home was

vitiated by the nature of how he gained entry. We find Edwards instructive

in that regard. In Edwards, Edwards went to the victim’s home, claiming to

have money to settle a drug debt, but his actual purpose was to gain entry

into the residence to kill the victim. Edwards argued on appeal that he could

not be convicted of burglary because the victim allowed him into the home.

Our Supreme Court rejected his claim, explaining that the deceptive nature

of the entry negated any license or privilege to enter. 903 A.2d at 1148.

        Similarly here, the evidence showed that Appellant went to Davis’s

home claiming he wanted to buy a watch, but his actual purpose was to gain

entry into the home to steal from Davis.         N.T., 4/9/2015, at 59-60 (trial

____________________________________________


6   The incident occurred midday. N.T., 4/9/2015, at 59, 140-41.



                                           -9-
J-S01039-20


testimony of Davis); see also Trial Court Opinion, 4/16/2019, at 6 (trial

court, as factfinder, stating “Davis testified at trial that he allowed both

[Appellant and Munson] into his home to sell them a watch and not for any

other purpose. Although [] Davis voluntarily admitted both [Appellant and

Munson] into his home, he did so under the impression they were buying a

watch”).     Thus, there was sufficient evidence to lead to the reasonable

inference that Davis granted Appellant access to his home for a “seemingly

legitimate reason,” when in fact Appellant entered so that he could commit a

crime. See Cooper, 941 A.2d at 667. Accordingly, we discern no error in

the trial court, sitting as trier of fact, finding beyond a reasonable doubt that

Appellant gained entry into Davis’s home by deception, thereby negating

Davis’s permission to enter.

      Next, we examine the intent element of burglary. The trial court found

that Appellant’s words and conduct established his intent to commit a crime.

Once Appellant was inside Davis’s home, he pointed a gun at Davis’s torso,

placed his hand on Davis’s chest, and said, “You know what time it is, old

head.”     N.T., 4/9/2015, at 28, 63.   This evidence, along with Appellant’s

deceptive entry into the home, supports the conclusion that Appellant

possessed the specific intent to commit a crime at the time he entered

Davis’s home. See Eck, 654 A.2d at 1109.




                                     - 10 -
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       Based on the foregoing, we discern no error and agree with the trial

court that the Commonwealth proved the elements of burglary beyond a

reasonable doubt. Thus, Appellant is not entitled to relief on this claim.

       Appellant next challenges the discretionary aspects of his sentence.

See Appellant’s Brief at 16-19.        We consider this issue mindful of the

following.

       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.

                                       ***

             When imposing [a] sentence, a court is required to
       consider the particular circumstances of the offense and the
       character of the defendant. In considering these factors, the
       court should refer to the defendant’s prior criminal record, age,
       personal characteristics and potential for rehabilitation.

Commonwealth v. DiClaudio, 210 A.3d 1070, 1074-75 (Pa. Super. 2019)

(quoting Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super.

2014)).      “A sentencing court may consider any legal factor in determining

that   a     sentence   in   the   aggravated   range   should   be   imposed.”

Commonwealth v. Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009)

(citations omitted).     “In addition, the sentencing judge’s statement of

reasons on the record must reflect this consideration, and the sentencing




                                      - 11 -
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judge’s decision regarding the aggravation of a sentence will not be

disturbed absent a manifest abuse of discretion.” Id.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

            (1) whether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the
            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.[] § 9781(b).

DiClaudio, 210 A.3d at 1075 (quoting Commonwealth v. Samuel, 102

A.3d 1001, 1006-07 (Pa. Super. 2014)).

      Appellant has satisfied the first three requirements: he timely filed a

notice of appeal nunc pro tunc, preserved his issues in a post-sentence

motion, and included a Pa.R.A.P. 2119(f) statement in his brief.         See

Appellant’s Brief at 12. Therefore, we now consider whether Appellant has

raised a substantial question for our review.

            The determination of what constitutes a substantial
      question must be evaluated on a case-by-case basis.          A
      substantial question exists only when the 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.

DiClaudio, 210 A.3d at 1075 (citations and quotation marks omitted).

                                    - 12 -
J-S01039-20


      In his Pa.R.A.P. 2119(f) statement, Appellant contends the “trial court

erred in double-counting [Appellant’s] prior record score and offense gravity

score.” Appellant’s Brief at 12. An assertion that the trial court “relied on

factors already taken into account in determining [an appellant’s] prior

record score and offense gravity score” raises a substantial question.

Commonwealth v. Goggins, 748 A.2d 721, 731 (Pa. Super. 2000)

(citations omitted). Thus, we review the merits of Appellant’s claim.

      Specifically, Appellant argues that his prior record does not provide a

basis for imposing an aggravated-range sentence because his prior record

has already been taken into account by the sentencing guidelines.

Appellant’s Brief at 17. He argues that he is being “punished twice, first for

his acts as a child and again [] for his actions in the present matter.” Id. at

18. According to Appellant, the trial court’s statement that Appellant is “a

violent person whose violence is deeply ingrained” was an impermissible

factor, since the sentencing guidelines already account for this. Id. at 18-

19. He also argues that his sentence does not take into account his “relative

youth.” Id.

      At sentencing, the court heard testimony from Philadelphia Police

Officer Matthew York, who was assigned to the South Philadelphia Gang Task

Force. The task force is a program “implemented to run focused deterrence”

and “combat … intercity gangs and violence.”        N.T., 6/18/2015, at 47.

Officer York’s work included identifying and classifying gang members. Id.


                                    - 13 -
J-S01039-20


at 48. He testified about Appellant’s affiliation with one of the largest and

most violent gangs in Philadelphia.       Id. at 51-67.   The court also heard

testimony of Appellant’s mother and father, argument from the parties’

counsel, and Appellant’s allocution.

      The court offered sufficient, valid reasons for imposing the sentences it

did. At sentencing, defense counsel argued that the court should impose an

aggregate sentence of 5½ to 11 years, followed by probation, which he

argued was reflective of the most serious conviction, robbery.         The trial

court responded as follows.

      THE COURT:        What about all of the other offenses? I mean,
      does he get a discount for committing seven crimes at once? I
      mean, it’s not just robbery, it’s a burglary. It’s the worst kind of
      robbery.

                                       ***

      … [W]hen people can’t feel safe in their own homes -- I mean,
      you go out on the street, you go for a walk, you expect to be
      safe, but depending on the neighborhood, you’re taking a
      chance, the time of day. But in your own home, I can’t think of a
      more serious type of robbery.

                                       ***

      So we have to sentence him on the robbery. We also have to
      sentence him on the burglary. He did this with another man. He
      might not have done it by himself. If it was just him versus the
      complainant, he might not have taken the chance, but this was a
      conspiracy, it’s an additional crime.      And then there’s the
      weapon, and he violated the gun laws every way he could. We
      have without a license, prohibited person who’s still a minor. So
      I’m just letting you know I’d be very unlikely to sentence him to
      the guidelines for one offense and forget about everything else.




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N.T., 6/18/2015, at 70-71. The court further stated that Appellant “doesn’t

do very well on supervision. He doesn’t do all that great in custody either,

apparently…. He should be kept in prison until he’s mature enough to make

better decisions.” Id. at 71.

      After hearing testimony from Appellant’s mother and father, Appellant

gave the following allocution.

      [APPELLANT]: I apologize to my family.         I apologize to the
      Court. That’s all.

            To the complainant, I apologize.

      [DEFENSE COUNSEL]: Thank you, Your Honor.

      [PROSECUTOR]: No questions.

      THE COURT: All right. The record should indicate that [Appellant]
      apparently forgot [to apologize to] the complainant until his
      lawyer leaned over and whispered in his ear, which is fine, I
      mean, you’re sitting there so that you can give him counsel. But
      apologies to the complainant, to the Court, to me, I mean, they
      don’t carry a whole lot of weight. I guess it’s nice to hear.

      [DEFENSE COUNSEL]: Just for the record, we did discuss that,
      and he did apologize in the room, but obviously, when you get
      up here, you’re nervous, you forget. He’s young.

      THE COURT: That’s what I said, he forgot about the complainant.

Id. at 87-88.

      The trial court then offered the following explanation for the imposition

of sentence.

      THE COURT: [Appellant], as I look at your record and      I look at
      the seriousness of this offense, and there are some        offenses
      where it’s almost impossible to simply say, okay, we’ll   give you
      another chance. The reason is, you’re too violent. We     give you

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J-S01039-20


     another chance, you hurt somebody, you rob somebody, you
     shoot somebody. That’s the risk we’re taking if we give you
     another chance.

           Can you think of any reason why I should send you home
     in a few years as opposed to keeping you in close custody for
     twenty, thirty years until you are a mature man who maybe,
     maybe will stop shooting people, stop robbing people? Any
     reason you can think of why I should do that?

     [APPELLANT]: I made a mistake.

     THE COURT: [Defense counsel], any way you want to elaborate
     upon that?

     [DEFENSE COUNSEL]: Sure. Because, Your Honor, the reason
     you should do that is this, giving him a sentence that I propose,
     five and a half to eleven years --

     THE COURT: Your proposal is absurd. We give people five and a
     half when they plead guilty to much less serious crimes than
     this. So you can forget about the five and a half to something.

           What I’m thinking is that he’s twenty or thirty years away
     from being mature enough to stay out of trouble. Even if he gets
     out of jail at 50, he’ll say to himself, you know, I don’t have that
     much time left, maybe I should stay out of trouble. But I don’t
     think if he gets out of jail at 25 he’s going to have that thought.

                                     ***

           [Appellant], I’ve considered the presentence report…[,] …
     the arguments of counsel, the testimony presented. I think that
     you are a violent person whose violence is deeply ingrained. It
     may or may not be your fault. That was the way you were
     brought up. It was the people you were surrounded by. But I’m
     firmly convinced that when you go back on the street, you will
     repeat. The only question is whether you go back on the street
     sooner or later. For the protection of the community, to deter
     other people who think that being a gangster at 24th and Tasker
     [Streets] is a good thing, I’m sentencing you [as stated supra].

Id. at 88-90.


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      Additionally, the trial court emphasized in its opinion that “it felt

[Appellant] was at serious risk for recidivism. In reviewing [Appellant’s]

criminal history, the court noted a pattern of criminal activity and gang

affiliation.” Trial Court Opinion, 4/16/2019, at 8. Further, the court found

Appellant “showed no acceptance of responsibility or remorse for his acts,

[which was] further illustrated by counsel having to remind him to apologize

to the complainant.” Id. See Commonwealth v. Begley, 780 A.2d 605,

644 (Pa. 2001) (noting lack of remorse, as a sign of the defendant’s

character, is an appropriate consideration for sentencing outside of the

guidelines).      The court “determined that by running the sentences

consecutively,    [Appellant]     would      have   more    time     for    reflection   and

rehabilitation.” Id.

      In   sum,    the   trial     court’s     determination       was     not   manifestly

unreasonable, or the product of partiality, prejudice, bias, or ill-will.                The

trial court reviewed Appellant’s PSI report, and thus was aware of all

relevant sentencing factors. Commonwealth v. Baker, 72 A.3d 652, 663

(Pa. Super. 2013). Moreover, the trial court considered Appellant’s age, lack

of   maturity,    extensive      violent     criminal   history,    which     includes   an

adjudication for attempted murder at the age of 11, and lack of remorse in

evaluating Appellant’s propensity for violence, high risk for recidivism, and

lack of amenity to rehabilitation. N.T., 6/18/2015, at 70-71, 87-90. These

considerations are permissible and differentiate from factors enumerated in


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the sentencing guidelines. Accordingly, we do not agree that the trial court

double-counted any factors or abused its discretion in fashioning Appellant’s

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2020




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