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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                             :
MIGUEL RUSSI,                                :          No. 3587 EDA 2015
                                             :
                           Appellant         :


           Appeal from the Judgment of Sentence, October 29, 2013,
               in the Court of Common Pleas of Chester County
              Criminal Division at Nos. CP-15-CR-0003479-2012,
                           CP-15-CR-0003768-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED SEPTEMBER 20, 2016

        Miguel Russi appeals from the judgment of sentence entered in the

Court of Common Pleas of Chester County on October 29, 2013, after

appellant entered a hybrid guilty plea to two counts of robbery and

two counts of criminal conspiracy.1 The court sentenced appellant to 25 to

50 years of incarceration. After careful review, we affirm.

        The   record      reflects   that   appellant   and   his   co-defendant,

Carolyn Delgado, engaged in a robbery spree in the late summer of 2012

that spanned 43 days and involved four victims.          During this crime spree,

appellant and his co-defendant lured vulnerable individuals into their vehicle

and took them to remote locations at which time they either threatened


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 903(c), respectively.
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them with, or put them in fear of, immediate bodily injury. All of the victims

preyed upon by appellant and his co-defendant were of Hispanic descent and

spoke very little English.

      The first victim was 61 years old. Once appellant and his cohort lured

this victim to a farm, they showed the victim a knife, punched the victim in

the face, and demanded money.          The victim was pepper sprayed, and

appellant stole $100 from the victim, as well as his wristwatch. Appellant

then pushed the victim out of the vehicle and onto the road and sped away.

      The second victim was 77 years old and visually and hearing impaired.

Appellant and his co-defendant lured the victim into their truck and drove to

an isolated area where they robbed the victim of $95.            Appellant and

co-defendant did not need to use much force to overcome the physically

disabled victim.

      The third victim was 56 years old when appellant and co-defendant

lured him into their truck. The duo transported the victim to a local baseball

field where they put a knife to the victim’s neck and punched the victim in

the face. Appellant then took a lighter, lit it, and held the flame right next to

the victim’s head.    Appellant went on to tie the victim’s hands and stole

$300 from his pockets before pushing the victim out of the vehicle and onto

the baseball field.

      Appellant and his co-defendant lured the fourth and final victim into

appellant’s truck by asking for directions to a nearby farm. After driving the



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27-year-old victim to a secluded cornfield, appellant and co-defendant

announced the robbery.     Appellant held a screwdriver to the victim’s back

while his co-defendant held a sharp object to the victim’s neck. Appellant

and his cohort stole $200 from the victim, along with 2 SD cards and

cigarettes. Appellant’s co-defendant cut the victim’s neck with a knife. The

duo left the victim in the cornfield and warned him not to go to the police.

      The trial court summarized the complex procedural history as follows:

                    Before the Court is [appellant’s] direct appeal
            from the Judgment of Sentence imposed on
            October 29, 2013 following his entry of a hybrid
            guilty plea that day. Originally, after [appellant] had
            been sentenced, [appellant] did not take a timely
            appeal. Instead, on April 17, 2014, [appellant] filed
            a PCRA Petition, claiming in part that his plea
            counsel had improperly failed to take a requested
            direct appeal, advising [appellant] by letter that his
            direct appeal period had expired, when in fact it was
            still extant. Although we initially denied [appellant]’s
            PCRA Petition, upon further review in preparation for
            the appeal [appellant] took from that decision, we
            discovered plea counsel’s letter and our error in
            denying [appellant]’s first PCRA Petition became
            apparent.     We advised this Honorable reviewing
            Court that [appellant’s] PCRA appeal had merit
            accordingly.     On July 28, 2015, this Honorable
            reviewing Court vacated our Order dismissing
            [appellant]’s first PCRA Petition and remanded for
            further proceedings.

                  By Order dated August 6, 2015 we appointed
            new PCRA Counsel, Stuart R. Crichton, Esquire, for
            [appellant] and directed Attorney Crichton to file an
            Amended PCRA Petition raising, at the very least, the
            issue concerning plea counsel’s failure to perfect a
            requested direct appeal on behalf of [appellant].




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                 On September 18, 2015 Attorney Crichton filed
            an Amended PCRA Petition on [appellant’s] behalf
            complying with the directive in our August 6, 2015
            Order.    Specifically, Attorney Crichton challenged
            plea counsel’s stewardship for failing to file the
            requested direct appeal and for allegedly advising
            [appellant] to accept the plea because, if he pled, he
            would not receive a minimum sentence of
            twenty-five (25) years.

                  On September 23, 2015 we scheduled an
            evidentiary hearing on [appellant’s] PCRA Petition.
            Prior to the hearing, the parties reached an
            agreement concerning the claims raised in
            [appellant’s] PCRA Petition.         By Order dated
            October 29, 2015, upon the agreement of the
            parties, this Court granted [appellant’s] request for
            the reinstatement of [appellant’s] direct appeal
            rights nunc pro tunc.          We directed new PCRA
            Counsel to file a Notice of Appeal to the Superior
            Court of Pennsylvania within thirty (30) days of the
            date of that Order. Again, by agreement of the
            parties, all other claims in [appellant’s] PCRA Petition
            were dismissed without prejudice. Attorney Crichton
            timely complied with our directive, filing [appellant]’s
            Notice of Appeal on November 24, 2015. Thus,
            [appellant’s] direct appeal is timely.

Trial court opinion, 1/19/16 at 1-2.

      Appellant raises the following issue for our review:

            I.    Whether there was an abuse of discretion
                  when the sentencing court imposed an
                  aggregate sentence of 25 years to 50 years?

      Our standard of review on this issue is well settled:

            [T]he proper standard of review when considering
            whether    to    affirm   the    sentencing    court’s
            determination is an abuse of discretion . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that


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            the     judgment       exercised      was     manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will. In more expansive terms, our Court
            recently offered: An abuse of discretion may not be
            found merely because an appellate court might have
            reached a different conclusion, but requires a result
            of   manifest      unreasonableness,      or   partiality,
            prejudice, bias, or ill-will, or such lack of support so
            as to be clearly erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate
            review is that the sentencing court is in the best
            position to determine the proper penalty for a
            particular offense based upon an evaluation of the
            individual circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citations omitted).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].       An appellant challenging the
            discretionary aspects of his sentence must invoke
            this Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (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.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted).


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      Here, the record reveals that the trial court reinstated appellant’s

direct appeal rights nunc pro tunc and appellant then filed a timely notice

of appeal. The record further reflects that appellant properly preserved his

issue in a timely motion to modify sentence. Additionally, appellant included

a Pa.R.A.P. 2119(f) statement in his brief.        Therefore, we must now

determine whether appellant raises a substantial question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.     Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted).     “A substantial question exists only

when an 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.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether
            the sentence is actually excessive. Rather, we look
            to whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline   ranges,     is   clearly  unreasonable.
            Concomitantly,      the     substantial     question
            determination does not require the court to decide
            the merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).

            A court’s exercise of discretion in imposing a
            sentence concurrently or consecutively does not
            ordinarily raise a substantial question. Rather, the
            imposition of consecutive rather than concurrent
            sentences will present a substantial question in only


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            the most extreme circumstances, such as where the
            aggregate sentence is unduly harsh, considering the
            nature of the crimes and the length of imprisonment.

            To make it clear, a defendant may raise a
            substantial question where he receives consecutive
            sentences within the guideline ranges if the case
            involves circumstances where the application of the
            guidelines would be clearly unreasonable, resulting
            in an excessive sentence; however, a bald claim of
            excessiveness due to the consecutive nature of a
            sentence will not raise a substantial question.

Id. at 338 (citation omitted; internal citations and quotation marks omitted;

emphasis in original).

      “In our view, the key to resolving the preliminary substantial question

inquiry is whether the decision to sentence consecutively raises the

aggregate sentence to, what appears upon its face to be, an excessive level

in light of the criminal conduct at issue in the case.”   Commonwealth v.

Prisk, 13 A.3d 526, 533 (Pa.Super. 2011), quoting Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010).

      Here, the trial court imposed consecutive, standard range sentences

for all the charges to which appellant pled guilty. Appellant complains that

the sentence was unreasonable and excessive because “he is presently

54 years old and won’t be eligible for parole until he is well into his 70’s.”

(Appellant’s brief at 10.) Appellant goes on to complain that although he “is

not trying to minimize the facts of this case, as they are very serious,

however, the fact is that [a]ppellant will likely be incarcerated on this




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sentence for the rest of his remaining life.”       (Id.)   Appellant’s direct

sentencing complaint focuses on his age, and not his criminal conduct.

      Initially, we note that the trial court sentenced appellant consecutively

because the victims were vulnerable and suffered psychological trauma;

appellant’s crimes were violent, predatory, and repetitive; and appellant’s

likelihood for rehabilitation is poor.     (Notes of testimony, 10/29/13 at

74-76.)   We find no abuse of discretion.      Additionally, the gravamen of

appellant’s complaint is that the sentence was excessive because of

appellant’s age when it was imposed.         Just as we have noted that an

appellant is not entitled to a “volume discount” 2 when a court imposes

consecutive sentences for multiple crimes, we note that appellant is not

entitled to a “seasonal discount” when he commits his crimes in the autumn

of his life. Thus, we conclude that the trial court’s imposition of consecutive

sentences does not present a substantial question for our review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/20/2016


2
  See Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super. 1995)
(noting that a defendant is not entitled to a “volume discount” for multiple
crimes by having all sentences run concurrently).


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