Com. v. Tilden, Jr., S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT WILBUR TILDEN, JR.
Appellant No. 1494 MDA 2016
Appeal from the Judgment of Sentence August 11, 2016
In the Court of Common Pleas of Perry County
Criminal Division at No(s): CP-50-CR-0000475-2015
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 04, 2017
Scott W. Tilden. Jr., appeals from the judgment of sentence imposed,
following his conviction in the Court of Common Pleas of Perry County, of
two counts of robbery.' Tilden argues the court abused its discretion by
directing his sentence in this matter, to run consecutively to a sentence
imposed following his conviction in Adams County of a third count of
robbery. After review, we affirm.
On January 4, 2016, Tilden pleaded guilty in Adams County to one (1)
count of robbery, graded as a felony of the second degree. The court
sentenced Tilden to three (3) to six (6) years' imprisonment. On August 11,
' 18 Pa.C.S.A. § 3701(a)(1)(vi).
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2016, Tilden pleaded guilty to two additional counts of robbery in Perry
County, each graded as a felony of the second degree.
At the sentencing hearing, the trial court in Perry County examined
Tilden's personal history and the details of the three robberies. N.T.
Sentencing Hearing, 8/11/16, at 5. The first two robberies occurred at the
First National Bank of Mifflintown in Perry County on September 16, 2015,
and September 22, 2015. A different teller -employee was present at each of
the two robberies, resulting in two different victims. The third robbery
occurred at a different banking institution one week later, in Adams County,
on September 29, 2015.
On August 11, 2016, following review of Tilden's Presentence
Investigation Report ("PSI"), Tilden received a sentence, on each count, of
twenty-four (24) to sixty (60) months' imprisonment, each sentence to run
consecutively. The trial court directed this sentence to run consecutively to
the sentence imposed for robbery in Adams County.
Tilden filed a timely appeal. On October 4, 2016, he filed a Pa.R.A.P.
1925(b) concise statement of matters complained of on appeal. On appeal,
Tilden raises the following issue:
Did the trial court err in not running [Tilden's] sentence
concurrently to that of Adam's County in that [Tilden] was
alleging a crime spree being the result of his drug addiction?
Appellant's Brief at 8.
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The Commonwealth argues the sentencing court acted within its
discretion in imposing Tilden's sentences consecutively. It further argues
that Tilden's Rule 2119(f) statement2 is technically deficient, and thus he has
failed to raise a substantial question that justifies review of the discretionary
aspect of his sentence. We agree.
A challenge to the discretionary aspects of a sentence does not entitle
an appellant to review as a matter of right. Rather, before this Court can
address such a discretionary challenge, an appellant must comply with the
following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke the Superior Court's jurisdiction on appeal
by satisfying a four-part test: (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. 2119(f); (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.
Commonwealth v. Swop, 123 A.3d 333, 337 (Pa. Super. 2015), quoting
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011).
2
An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary
aspects of the sentence. See Pa.R.A.P. 2119.
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Presently, Tilden filed a timely notice of appeal, but did not preserve
his issue in a post -sentence motion challenging the discretionary aspects of
his sentence. However, during Tilden's sentencing proceeding, he presented
to the court the specific issue later raised in his Rule 1925(b) statement.
N.T. Sentencing Hearing, 8/11/16, at 6-9; Appellant's Brief, at 8. Thus,
Tilden effectively preserved his issue for appeal.3
A substantial question as to the inappropriateness of a sentence exists
where the appellant "sets forth a plausible argument that the sentence
violated a provision of the sentencing code or is contrary to the fundamental
norms of the sentencing process." Commonwealth v. Naranjo, 53 A.3d
66, 72 (Pa. Super. 2012) (citations and quotations omitted). On appeal, a
defendant must provide, in writing, a statement specifying the following: (1)
where their sentence falls in the sentencing guidelines, (2) what provision of
the sentencing code has been violated, (3) what fundamental norm the
sentence violated, and (4) the manner in which it violated the norm. Id.Within this framework, "[a] defendant may raise a substantial question
that a sentence is not appropriate . . . where he receives consecutive
3 "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. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived." Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) quoting Commonwealth v.
Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006).
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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." Commonwealth v. Dodge, 77 A.3d
1263, 1270 (Pa. Super. 2013). An excessive sentencing claim made in
conjunction with an assertion that the court did not consider mitigating
factors may also raise a substantial question. See Commonwealth v.
Perry, 883 A.2d 599, 602 (Pa. Super. 2005).
Here, Tilden's Rule 2119(f) statement outlines six reasons he believes
present a substantial question for appeal. Appellant's Brief, at 10. Taken in
aggregate, reasons (1), (2), (3), (5) and (6) address Tilden's contention that
the trial court did not address or consider his drug addiction either as a
mitigating factor or as the nexus of what he avers was a three -robbery crime
spree constituting a single criminal episode. Reason (4) addresses Tilden's
compromised ability to make the victims of his robberies whole.
Noticeably absent from Tilden's Rule 2119(f) Statement is an
identification of where within the sentencing guidelines his sentence falls or
any assertion that his sentence was imposed in violation of the sentencing
guidelines. These elements are required. See Naranjo, 53 A.3d at 72.
Additionally, Tilden proffers no reason nor cites to authority suggesting that
imposition of his sentence "violates a particular provision of the Sentencing
Code or is contrary to the fundamental norms underlying the sentencing
process." Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa. Super.
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2005). Also noticeably absent from Tilden's Rule 2119(f) Statement is a
claim that imposition of consecutive sentences has resulted in an excessive
sentence. Dodge, supra; Perry, supra.4
We agree with the Commonwealth that Tilden's Rule 2119(f)
statement is technically deficient. Commonwealth's Brief at 4. Tilden's
sentence falls within the lower end of the standard range of the sentencing
guidelines, and he offers no legitimate argument suggesting the imposition
of consecutive sentences is unreasonable or results in an excessive
punishment.
Tilden's Rule 2119(f) statement fails to raise a substantial question to
justify review of the discretionary aspect of his sentence. We, therefore,
may not review the merits of his claim.
Judgment of sentence affirmed.
Judge Musmanno joins the Memorandum, Judge Bowes concurs in the
result.
4
We note that the court considered Tilden's PSI report. Where the
sentencing judge had the benefit of a PSI report, it will be presumed that he
or she was aware of the relevant information regarding the defendant's
character and weighed those considerations along with mitigating statutory
factors. Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004).
Moreover, each robbery perpetrated by Tilden involved different individual
victims, occurred approximately one week apart from one another and took
place in two different jurisdictions. The crimes are not related factually or
temporally, and thus do not constitute a single criminal episode. See 18
Pa.C.S. §110(1)(ii). Further, at Tilden's sentencing hearing, he
acknowledged the Commonwealth agreed to the lower end of the standard
sentencing range. N.T. Sentencing Hearing, 8/11/16, at 6.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
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