Com. v. Rosario, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAUN D. ROSARIO,
Appellant No. 933 WDA 2014
Appeal from the Judgment of Sentence March 20, 2014
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0001227-2011, CP-63-CR-0001821-
2011
BEFORE: BENDER, P.J.E., SHOGAN, and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 11, 2016
Appellant, Shaun D. Rosario, appeals from the judgment of sentence
entered on March 20, 2014, at Washington County docket numbers CR-
1227-2011 and CR-1821-2011. We affirm.
The factual history of this case was set forth by the trial court as
follows:
On or about May 10, 2011, [Appellant] was arrested and
charged with various offenses stemming from conduct that
occurred May 9, 2011 through May 10, 2011.19
19
(The numerals following the initials TT refer to the
official transcript of the jury trial proceedings
conducted from December 11, 2013, through
December 12, 2013.) TT 146; 150.
During trial, the jury heard evidence that Officer Michael
Parry of the Donora Police Department received a call on the
morning of May 9, 2011, from Mr. Timothy Durka. Mr. Durka,
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supervisor of the Borough of Donora’s street commission,
informed Officer Parry that someone had broken into the
borough’s dump truck and stole his hammer. Mr. Durka testified
that the truck was ransacked. The glove compartment was
broken out of the dashboard and his articles were scattered
around the truck.
Later that morning, Officer Parry received a call that an
unresponsive male was found in the Borough of Donora in an
alley. When Officer Parry arrived at the scene, he observed a
male lying facing down at the edge of a roadway near a gravel
parking lot. Officer Parry identified the unresponsive individual
as [Appellant], Shaun Rosario (hereinafter referred to as
“[Appellant]”).
At the scene, Officer Parry further observed that
[Appellant] was holding a hammer with an orange string
attached to it in his left hand. Mr. Durka arrived at the scene and
identified the hammer in [Appellant’s] possession as the one
stolen from his truck. Mr. Durka testified that his hammer had
an orange string attached to it, which aids him in his line and
leveling work. The same orange string was identified in the cab
of Mr. Durka’s truck.
While the paramedics were treating [Appellant],
Officer Parry observed puncture marks on [Appellant’s] arms.
[Appellant] was transported by paramedics to Mon Valley
Hospital.20
20
TT 26-37; 42-47.
It was determined at Mon Valley Hospital that [Appellant]
was suffering the effects of an overdose of an unidentified
opiate. Stacy Hoffman, a registered nurse at Mon Valley
Hospital, testified that she was assigned to observe [Appellant]
while he was a patient. When she first encountered [Appellant]
he was unconscious. When he regained consciousness,
[Appellant] expressed his desire to be released from the
hospital. The treating physician, Dr. Gene Manzetti, M.D.,
explained to [Appellant] the necessity that [Appellant] remain
under the care of the hospital. [Appellant] became upset at that
news and insisted that he had the right to leave. At this
juncture, Dr. Manzetti informed [Appellant] that there was a
warrant out for his arrest and when he was discharged from
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medical care the police would have to be informed regarding the
warrant.
Testimony demonstrated that upon hearing this
information [Appellant] became irate and began yelling at
Dr. Manzetti. However, [Appellant] ultimately decided to stay at
the hospital overnight. Approximately 1:15 a.m. on May 10,
2011, [Appellant] became agitated and demanded information
about his treatment. Ms. Hoffman provided him with the results
of his toxicology screen. [Appellant] read over the report and
then queried whether there was anyone in the building with
weapons. [Appellant] then began to stand up with the aid of
Ms. Hoffman and nursing assistant Carol May. Nurse Hoffman
testified that [Appellant] then suddenly pushed past them and
slammed the door shut, trapping everyone inside. [Appellant]
expressed that he was not going to go to jail and no one was
leaving the room until he could go home.
Security was called to the area. [Appellant] blockaded the
door with his body and pulled out his IV and catheter. As a
result, blood began pouring out of the IV and [Appellant] began
deliberately spraying it all over the room. Testimony
demonstrated that [Appellant], who had previously been
diagnosed with hepatitis C, spilled blood onto Ms. Hoffman.
[Appellant] then demanded Ms. Hoffman remove the catheter.
[Appellant] permitted another nurse to retrieve a needleless
syringe, which was necessary for the removal, and provide it to
Ms. Hoffman. After the catheter was removed, two security
guards, Edward Swick and Robert Ashbaugh, arrived and
attempted to make entry to the room, but [Appellant] continued
to block the door with his body.
[Appellant] picked up the syringe and began waiving it
around and threatening Ms. Hoffman, Ms. May and the security
guards stating he would stab them. [Appellant] then attempted
to grab a chair at which time he took some of his weight off of
the door and security was able to make entry into the room.
[Appellant] then grabbed Ms. May and put her in front of him to
block himself from security. He then lifted Ms. May off of the
ground. While Ms. May was still in his grasp, the security guards
grabbed [Appellant] and put him onto the bed. He continued
threatening that he was going to stab everyone and making
motions to that effect. Testimony demonstrated that he swung
at the upper body and neck areas of the security guards and
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nurses numerous times with the syringe. Ms. May was finally
freed from [Appellant’s] grasp and she and Ms. Hoffman were
able to exit the room. [Appellant] finally was subdued on the
hospital bed, but not before he suddenly lunged up at the
security guards and grabbed their shirts and attempted to take
pens from the front pockets of their shirts.21
21
TT 59-72; 79-80; 88-97; 107-114.
Police and Constable Walter Fronzaglio arrived at the scene
at about 1:35 a.m. Constable Fronzaglio testified that he knew
[Appellant] from a prior incident and spoke briefly to make sure
that he was calm. [Appellant] was discharged, handcuffed,
shackled and taken out of the hospital in a wheelchair by
Constable Fronzaglio. As [Appellant] was being taken out of the
hospital, [Appellant] asked Ms. Hoffman for a pen, but she did
not oblige.22
22
TT 72-75. 115-117; 124-127; 137-138.
Constable Fronzaglio escorted [Appellant] to his van. The
Constable testified that his van was modified for transporting
purposes. Primarily, this modification was due to a prior escape
that occurred in 2009 by [Appellant]. The van’s middle row of
seats had been removed and there was a chain attached to the
seat to secure offenders. However, there was no cage protecting
the Constable from the prisoners being transported. [Appellant]
was placed in the back passenger side of the van and his leg
shackles were secured to the frame of the seat by the chain.
During the transport of [Appellant] to the Washington
County Correctional Facility, the Constable offered to stop and
get [Appellant] a hamburger and coffee which [Appellant]
acknowledged, “I appreciate that Wal.” However, soon after that
conversation, [Appellant] attacked Constable Fronzaglio.
[Appellant] began screaming “I want out of this fucking van. I’m
getting the fuck out of here. I want to be free.” Constable
Fronzaglio testified that [Appellant] then jumped on him while he
was driving and reached for his gun on his right hip. Constable
Fronzaglio was carrying a .40 caliber pistol in a leather snap
holster. In response, Constable Fronzaglio let go of the steering
wheel and grabbed [Appellant’s] hand that was on his gun.
Constable Fronzaglio also grabbed [Appellant’s] head and tried
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to pull him away from his person. During the struggle the van
veered off the road and flipped over.23
23
TT 142-151; 217-220.
The van landed upside down on an embankment.
Constable Fronzaglio testified he could not see anything and was
disoriented. He believed he was lying on the roof of the van and
was still struggling with [Appellant]. [Appellant] then tried to
crawl out of the van. Constable Fronzaglio began punching him
in the head and yelled for [Appellant] to get back into the van.
Constable Fronzaglio was able to free himself and crawl out of an
opening near the passenger side window and exited the van.
[Appellant] was still trapped in the van.24
24
TT 151-152; 220-224.
Upon noticing Constable Fronzaglio waving his arms on the
side of the road, a truck driver, Lawrence Prenni, called 9-1-1
and pulled over to see if he could be of assistance. Constable
Fronzaglio asked Mr. Prenni to assist him in pulling [Appellant]
out of the van. As the Constable was pulling [Appellant] from
the wreckage, [Appellant] stabbed Constable Fronzaglio in the
calf with a knife. Mr. Prenni grabbed the knife from [Appellant]
and threw it. Mr. Prenni subdued [Appellant] until the
Pennsylvania State Police arrived.25
25
TT 152-154; 224-227; 239-246.
The Pennsylvania State Police arrived at the scene and
were able to pull [Appellant] from the van. Constable Fronzaglio
testified that he had articles from other prisoners in his van that
he holds in safe keeping until offenders retrieve them, as such
articles are not permitted to go into the jail. He testified he had
a knife in the van from such an instance. [Appellant] was
searched at the scene by the Pennsylvania State Police and they
discovered [Appellant] had one of the Constable’s spare .40
caliber magazines in his pocket.26
26
TT 154-157; 175; 228; 262-264.
Constable Fronzaglio was taken to the hospital by the
Donora Police. At Mon Valley Hospital he was treated for a stab
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wound to the right calf and bumps and bruises sustained during
the crash. [Appellant] was taken into custody.27
27
TT 158-174; 232.
On May 19, 2011, [Appellant] was transported to
Magistrate Judge Thompson’s office by Pennsylvania State Police
Trooper Ryan Deems and Trooper Douglas Rush.
Trooper Deems stated to [Appellant] that he did not want to
have any problems on the return trip to the Washington County
Correctional Facility. In response, [Appellant] stated, “If I was
locked up like this in the first place, none of this would have
happened,”28 referring to the manner in which he was secured in
the State Police vehicle.
28
TT 282-284; 298-299.
Trial Court Opinion, 1/2/15, at 8-13.
On December 12, 2013, the jury found Appellant guilty of aggravated
assault to an enumerated person (attempt to cause serious bodily injury);
aggravated assault to an enumerated person (causing bodily injury);
aggravated assault with a deadly weapon; assault by prisoner; disarming a
law enforcement officer; criminal attempt (escape); six counts of simple
assault; two counts of terroristic threats; two counts of false imprisonment;
and two counts of unlawful restraint.
Following the preparation and review of a pre-sentence investigation
(“PSI”), the trial court sentenced Appellant as follows:
At No. 1227 -2011:
1. On the charge of Aggravated Assault to Enumerated Person-
Attempt to Cause Serious Bodily Injury to Constable Walter
Fronzaglio, A Felony of the 1st Degree, the Court sentenced
[Appellant] to pay the costs of prosecution; pay restitution
to Walter Fronzaglio in the amount of $5200; be confined to
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an appropriate state correctional institution for no less than
seven and one half (7½) years and no more than fifteen
(15) years. [Appellant] was further ordered to be assessed
for alcohol and other drug addiction, receive a mental health
evaluation and complete a course of anger management.
2. On the charge of Aggravated Assault to Enumerated Person
-Causing Bodily Injury to Walter Fronzaglio, a Felony of the
2nd Degree, the Court imposed no further sentence as the
Court found that charge merged with the charge of
Aggravated Assault-Attempt to Cause Serious Bodily Injury.
3. On the charge of Aggravated Assault-Causing Bodily Injury
with a Deadly Weapon, the Court imposed no further
sentence as that charge merged for sentencing purposes.
4. On the charge of Assault by a Prisoner, a Felony of the 2 nd
Degree, the Court found that count does not merge and
sentenced [Appellant] to an appropriate State Correctional
Facility for no less than two (2) years to no more than four
(4) years to run concurrently to the Aggravated Assault and
under the same terms and conditions.
5. On the charge of Disarming Law Enforcement Officer, with
respect to Walter Fronzaglio, a Felony of the 3rd Degree, the
Court sentenced [Appellant] to an appropriate State
Correctional Institution for no less than one and one half
(1½) years to no more than three (3) years to run
consecutively to the Aggravated Assault and under the same
terms and conditions.
6. On the charge of Criminal Attempt-Escape with a Deadly
Weapon, a Felony of the 3rd Degree, the Court sentenced
[Appellant] to an appropriate State Correctional Institution
for no less than two (2) years and no more than four (4)
years to run consecutively to the Aggravated Assault and
under the same terms and conditions.
7. On the charge of Simple Assault, two counts, with respect to
Walter Fronzaglio, the Court imposed no further sentence as
the Court found that charge merged with the Aggravated
Assault. The Court further ordered that [Appellant] have no
contact with Walter Fronzaglio.
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At No. 1821-2011:
8. On the charge of Terroristic Threats with the Intent to
Terrorize Another, with respect to Edward Swick, a
Misdemeanor of the 1st Degree, the Court sentenced
[Appellant] to pay the costs of prosecution; be confined in
an appropriate State Correctional Institution for no less than
one (1) year and no more than two (2) years to run
consecutively to No. 1227-2011 and under the same terms
and conditions.
9. On the charge of Terroristic Threats with the Intent to
Terrorize Another, with respect to Robert Ashbaugh, a
Misdemeanor of the 1st Degree, the Court sentenced
[Appellant] to an appropriate State Correctional Institution
for no less than one (1) year[] and no more than two (2)
years consecutive to Count (1), Terroristic Threats, and
consecutive to No. 1227-2011, and under the same terms
and conditions.
10. On the charge of Simple Assault, with respect to Carole May,
a Misdemeanor of the 2nd Degree, the Court sentenced
[Appellant] to an appropriate State Correctional Institution
for no less than one (1) year to no more than two (2) years
consecutive to the Terroristic Threats counts and
consecutive to No. 1227-2011 and under the same terms
and conditions.
11. On the charge of Simple Assault, with respect to Stacy
Hoffman, Misdemeanor of the 2nd Degree, the Court
sentenced [Appellant] to an appropriate State Correctional
Institution for no less than one (1) year and no more than
two (2) years to run consecutively to the sentences above
and consecutive to No. 1227-2011 and under the same
terms and conditions.
12. On the charge of Simple Assault, with respect to Edward
Swick, a Misdemeanor of the 2nd Degree, the Court
sentenced [Appellant] to an appropriate State Correctional
Institution for no less than one (1) year and no more than
two (2) years to run concurrently to the sentences above
and under the same terms and conditions.
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13. On the charge of Simple Assault, with respect to Robert
Ashbaugh, a Misdemeanor of the 2nd Degree, the Court
sentenced [Appellant] to an appropriate State Correctional
Institution for no less than one (1) year and no more than
two (2) years to run concurrently to the sentences above
and under the same terms and conditions.
14. On the charge of Unlawful Restraint-Exposing Another to
Risk of Serious Bodily Injury, with respect to Carole May, a
Misdemeanor of the 1st Degree, the Court sentenced
[Appellant] to an appropriate State Correctional Institution
for no less than one (1) year and no more than two (2)
years consecutive to the sentences above and under the
same terms and conditions.
15. On the charge of Unlawful Restraint-Exposing Another to
Risk of Serious Bodily Injury, with respect to Stacy Hoffman,
Misdemeanor of the 1st Degree, the Court sentenced
[Appellant] to an appropriate State Correctional Institution
for no less than one (1) year and no more than two (2)
years consecutive to the sentences above and under the
same terms and conditions.
16. On the charge of False Imprisonment, two counts, the Court
imposed no further sentence as the Court found that charge
merged for sentencing purposes.
17. An added condition of [Appellant’s] sentence is that [he]
have no contact with Edward Swick, Robert Ashbaugh,
Carole May, Stacy Hoffman or any of their families and that
he have no contact with Mon Valley Hospital.
[Appellant’s] total aggregate sentence was seventeen (17)
years to no more than thirty-four (34) years in an
appropriate state correctional institution.
Trial Court Opinion, 1/2/15, at 2-6 (internal quotation marks omitted).
Appellant filed a timely post-sentence motion for reconsideration or
modification of his sentence, which the trial court denied on May 8, 2014.
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This timely appeal followed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
On appeal, Appellant presents the following issues for this Court’s
consideration:
1. Appellant was denied effective assistance of counsel
guaranteed by the Fifth and Sixth Amendments to the United
States Constitutions. Multiple counsel over the pendency of the
proceedings created a systemic failure resulting in ineffective
assistance of counsel in contradiction of the Constitution and
Pennsylvania Rules of Professional Conduct.
2. The Pennsylvania Sentencing Guidelines are unconstitutional
because specific and detailed findings of fact are not required to
be made on the record considering, among other factors,
sentencing factors, mitigation criteria, protection of the public,
gravity of the offense, and rehabilitative needs of Appellant and
the ambiguous and unconstitutional sentences should be
reversed.
3. The sentences imposed violated the Pennsylvania Sentencing
Code and the fundamental norm underlying the sentencing
process because the consecutive sentences were manifestly
excessive to the crimes, application of the guidelines were
clearly unreasonable in light of mitigating factors, and an
individualized sentence was not imposed and, as a result, the
sentences should be reversed.
4. A sentence imposed with credit of 444 days for time served
failed to include all time during which Appellant was detained
after arrest and therefore violated Appellant’s constitutional right
to liberty and freedom and, as such, the sentence should be
reversed.
Appellant’s Brief at 2-3.
In his first issue, Appellant avers that he was denied the effective
assistance of counsel; however, this issue is not properly before our Court.
In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme
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Court reiterated the holding from Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002), and stated that generally, “claims of ineffective assistance of
counsel are to be deferred to PCRA[1] review; trial courts should not
entertain claims of ineffectiveness upon post-verdict motions; and such
claims should not be reviewed upon direct appeal.” Holmes, 79 A.3d at
576. The Holmes Court, however, recognized two exceptions to the general
rule whereby claims of ineffective assistance of counsel could be raised on
direct appeal: (1) where the trial court determines that a claim of
ineffectiveness is both meritorious and apparent from the record so that
immediate consideration and relief is warranted; or (2) where the trial court
finds good cause for unitary review, and the defendant makes a knowing
and express waiver of his entitlement to seek PCRA review from his
conviction and sentence, including an express recognition that the waiver
subjects further collateral review to the time and serial petition restrictions
of the PCRA. Id. at 564, 577 (footnote omitted).
Here, Appellant did not satisfy either of the aforementioned
exceptions. The trial court did not conclude that Appellant’s claim of
ineffectiveness is meritorious and apparent from the record necessitating
immediate consideration, and Appellant has not expressly waived his right to
pursue PCRA review. Trial Court Opinion, 1/2/15, at 14. Accordingly, we
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1
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.
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dismiss this claim without prejudice to Appellant’s right to seek collateral
review under the PCRA.
In Appellant’s second issue, he avers that the Pennsylvania Sentencing
Guidelines are unconstitutional because they do not require findings of fact
concerning mitigating factors, protection of the public, gravity of the offense,
and rehabilitative needs to be made on the record. Appellant’s Brief at 10-
11. After review of Appellant’s brief on appeal, we conclude that this
challenge to the constitutionality of the Pennsylvania Sentencing Guidelines
is woefully undeveloped. Appellant presents a bald challenge to the
Pennsylvania Sentencing Guidelines and quotes a portion of 18 U.S.C.
§ 3553 concerning federal sentences. Appellant’s Brief at 11. However,
Appellant never develops or supports any argument on this claim of alleged
constitutional dimension, and he fails to state which constitutional provision
was breached. See Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa.
1991) (stating the minimum factors to be presented and briefed by a party
challenging the constitutionality of a statute). Accordingly, we deem the
issue waived. See Commonwealth v. Gonzalez, 112 A.3d 1232, 1240
(Pa. Super. 2015) (reiterating that where an appellant’s brief fails to provide
any discussion of a claim with citation to relevant authority or fails to
develop it in any meaningful fashion, that issue is waived).
In his third issue on appeal, Appellant avers that the sentences
imposed by the trial court violated the Pennsylvania Sentencing Code and
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the fundamental norms underlying the sentencing process because the
consecutive sentences were manifestly excessive and clearly unreasonable.
This assertion of error presents a challenge to the discretionary aspects of
his sentence.
It is well settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014). Before this Court may review the merits of a challenge
to the discretionary aspects of a sentence, we must engage in the following
four-pronged analysis:
[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. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
We note that Appellant has met the first three parts of the four-prong
test: Appellant timely filed an appeal; Appellant preserved the issues in a
post-sentence motion; and Appellant included a statement pursuant to
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Pa.R.A.P. 2119(f) in his brief.2 Thus, we next assess whether Appellant has
raised a substantial question with respect to the issues he raised.
A determination as to whether a substantial question exists is made on
a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.
2000). This Court will grant the appeal “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.” Id. at
912–913.
In his brief, Appellant argues that the consecutive sentences imposed
on his convictions resulted in a manifestly excessive and unreasonable
sentence. Appellant’s Brief at 11. We conclude that Appellant has
presented a substantial question. See Dodge, 77 A.3d at 1269 (stating that
claims of a manifestly excessive sentence due to the imposition of
consecutive sentences raises substantial question).
However, Appellant also complains that the trial court failed to
consider mitigating factors. Appellant’s Brief at 12. “[T]his Court has held
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2
While Appellant included a Pa.R.A.P. 2119(f) statement, Appellant’s Brief
at 6, it is deficient because it fails to articulate how his sentence violates a
particular provision of the Sentencing Code or is contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Dodge, 77
A.3d 1263, 1271 (Pa. Super. 2013). However, because the Commonwealth
has not objected to this deficiency, and because appellate review is not
hampered, we decline to find waiver. Id.
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on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review.”
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting
Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)
(citation omitted)). Accordingly, we conclude Appellant’s argument that the
trial court failed to give adequate weight to mitigating factors does not
present a substantial question appropriate for our review.3
Our standard of review in appeals of sentencing is well settled:
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.
Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).
In determining whether a sentence is manifestly excessive,
the appellate court must give great weight to the sentencing
court’s discretion, as he or she is in the best position to measure
factors such as the nature of the crime, the defendant’s
character, and the defendant’s display of remorse, defiance, or
indifference.
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003).
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3
Were we to reach this issue, we would conclude it to be meritless. As
noted above, the trial court had the benefit of a PSI. It is well settled that
where the sentencing court had the benefit of a PSI, this Court can assume
the sentencing court “was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.” Moury, 992 A.2d at 171 (citations omitted).
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“Generally, Pennsylvania law ‘affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. Any challenge
to the exercise of this discretion ordinarily does not raise a substantial
question.’” Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011)
(quoting Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa. Super.
2006)); 42 Pa.C.S. § 9721; see also Commonwealth v. Hoag, 665 A.2d
1212, 1214 (Pa. Super. 1995) (stating appellant is not entitled to “volume
discount” for his crimes by having all sentences run concurrently).
The trial court sentenced Appellant in the standard range of the
Sentencing Guidelines on each of his eighteen separate criminal convictions.
While the trial court ordered some of Appellant’s sentences to be served
consecutively to one another, the trial court also ordered several of the
sentences to be served concurrently. The trial court addressed Appellant’s
challenge as follows:
As set forth on the record, the Sentencing Court
articulated several aggravating circumstances which it felt
warranted sentencing [Appellant] to consecutive sentences with
respect to the charges, including the fact that multiple crimes
and multiple victims were involved.[4] The Trial Court found it
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4
In the sentencing transcript, the trial court discussed the PSI and
mitigating factors such as Appellant’s drug use and depression. N.T.,
3/20/14, at 58. However, the trial court also noted aggravating factors such
as the existence of five victims, Appellant was on parole when committed
the instant crimes, Appellant blamed others for his actions, and he lacked
remorse. Id. at 58-59.
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appropriate that [Appellant] receive separate and distinct
sentences for each criminal activity. Nevertheless, [Appellant]
was sentenced within the statutory limits. Under the
circumstances, the Court does not find [Appellant’s] sentence to
be excessive.
* * *
A review of the sentencing transcript reveals that all
relevant factors, including [Appellant’s] work, criminal, and
family history, were considered in arriving upon [Appellant’s]
sentence. Additionally, the Trial Court considered the sentencing
guidelines when determining the appropriateness of the
sentence.
The Trial Court’s sentence was reasonable and not the
result of any prejudice, bias or ill-will. Accordingly, the Trial
Court did not abuse its discretion and [Appellant’s] sentence is
appropriate.
Trial Court Opinion, 1/2/15, at 23-24.
We agree with the trial court, and we discern no abuse of discretion in
the sentences imposed individually or in the aggregate. Moreover, aside
from Appellant’s sweeping claim of excessiveness, he has failed to explain
how the sentences imposed were an abuse of discretion, and we conclude
that Appellant is not entitled to any further “volume discount” for his
multiple offenses. Hoag, 665 A.2d at 1214. Based upon the foregoing,
Appellant’s sentence is not excessive or unreasonable in light of the crimes
committed and the sentencing court’s consideration of the individual
circumstances of this case. Prisk, 13 A.3d at 533; Commonwealth v.
McWilliams, 887 A.2d 784, 787 (Pa. Super. 2005) (holding that standard-
range sentences were not excessive even though they ran consecutively).
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While Appellant raised a substantial question concerning the sentences
imposed, after review, we conclude that there is no merit to his claim and no
relief is due. The sentences were not manifestly excessive, and the trial
court did not abuse its discretion.
Lastly, Appellant argues that the trial court erred in failing to provide
proper credit for time served. Appellant’s argument on this issue consists of
only one sentence: “A sentence imposed with credit of 444 days for time
served failed to include all time during which Appellant was detained after
arrest and therefore violated Appellant’s constitutional right to liberty and
freedom and, as such, the sentence should be reversed.” Appellant’s Brief
at 14.
Although Appellant provided no argument on this issue, we shall
address this issue because a challenge to the trial court’s failure to award
time-credit implicates the legality of the sentence and cannot be waived.
Commonwealth v. Tout-Puissant, 823 A.2d 186, 188 (Pa. Super. 2003).
Furthermore, issues relating to the legality of a sentence are questions of
law; our standard of review over such questions is de novo, and our scope of
review is plenary. Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.
Super. 2014) (citations and quotation marks omitted).
Appellant was arrested and incarcerated on May 10, 2011, in the
instant case. The 601 days between May 10, 2011, and December 31,
2012, were credited to a sentence Appellant was serving for crimes
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committed in Westmoreland County. N.T., 3/20/14, at 40. The 444 days
between January 1, 2013, and March 20, 2014, the day upon which
Appellant was sentenced in the instant case, were credited toward the
sentence in the case at bar. Id. at 40, 67. This Court has held that a
criminal defendant is not entitled to “receive credit against more than one
sentence for the same time served.” Commonwealth v. Ellsworth, 97
A.3d 1255, 1257 (Pa. Super. 2014) (quoting Commonwealth v. Merigris,
681 A.2d 194, 195 (Pa. Super. 1996)); and see 42 Pa.C.S. § 9760(4).5
Accordingly, we cannot conclude that the trial court failed to award Appellant
proper credit for time served, and we discern no error.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentenced affirmed.
____________________________________________
5
Section 9760(4) provides as follows:
If the defendant is arrested on one charge and later prosecuted
on another charge growing out of an act or acts that occurred
prior to his arrest, credit against the maximum term and any
minimum term of any sentence resulting from such prosecution
shall be given for all time spent in custody under the former
charge that has not been credited against another sentence.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2016
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