Com. v. Cohen, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LANCE COHEN,
Appellant No. 1542 MDA 2014
Appeal from the Judgment of Sentence entered April 30, 2014,
in the Court of Common Pleas of Lebanon County,
Criminal Division at No(s): CP-38-CR-0001487-2010 and
CP-38-CR-0000256-2011
BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.
MEMORANDUM BY ALLEN J.: FILED MAY 18, 2015
Lance Cohen (“Appellant”) appeals from the judgment of sentence
imposed after a jury convicted him at Docket No. 1487-2010 of attempted
criminal trespass, aggravated assault, disorderly conduct, and providing
false identification to the police,1 and at Docket No. 256-2011 of receiving
stolen property.2 We affirm.
The trial court summarized the pertinent facts and procedural history
as follows:
During the early morning hours of August 15, 2010, Robert
Ditzler (hereinafter “Ditzler”) was watching a preseason football
game on television in his home located at 322 North Ninth Street
in the city of Lebanon, Pennsylvania. Ditzler heard a noise at his
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1
18 Pa.C.S.A. § 3503(a)(1)(i), 901, 2702(a)(3), and 18 Pa.C.S.A. § 4914.
2
18 Pa.C.SA. § 3925(a).
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front window. Ditzler then went to his front window and saw
[Appellant] trying to rip the screen apart. Ditzler testified that
as soon as [Appellant] saw him, [Appellant] left right away.
Ditzler contacted the police. He indicated that [Appellant]
was alone and he provided a description of [Appellant]. Ditzler
indicated that [Appellant] was a Hispanic male wearing a shirt
with blue and white stripes on it. [Appellant] was also wearing a
hat.
Detective Christopher Cook was dispatched to Ditzler’s
home for an attempted entry through a window. Det. Cook was
provided with the description of the person as given by Ditzler.
Officer David Zinda informed Det. Cook and Officer Eric Sims
that he observed a male matching the description provided by
Ditzler within one city block of Ditzler’s home.
When Det. Cook originally approached [Appellant,] he
smelled a very strong odor of alcohol. [Appellant] had many
things that he pulled from his pocket. Among these items was
an I.D. card. When asked what his name was, [Appellant]
responded “you have my I.D.” The name on the I.D. card was
Josue Hernandez Figueroa. [Appellant] was referred to as Josue
until they arrived at the police station.
In addition to the I.D. card which [Appellant] possessed,
Det. Cook also testified that [Appellant] possessed a large
amount of money consisting of both paper money and coins, two
watches, a flashlight and a white glove.
Later that evening, Officer Lebo of the Lebanon City Police
retrieved [Ditzler] from his home in order to identify [Appellant].
Ditzler was able to positively identify [Appellant] based on his
appearance and his clothing.
When interviewed by Det. Cook, [Appellant] stated that he
had been at Woofer Magoos and that he was travelling to a
Turkey Hill. When questioned about which Turkey Hill
[Appellant] was referencing, he became confused and
increasingly agitated. Based on Ditzler’s identification of
[Appellant], [Appellant] was told that he was being arrested by
Det. Cook and the other officers on the scene, at which time
[Appellant] became more agitated, oppositional, louder and
abrasive.
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When Officer Zinda attempted to place [Appellant] inside
the patrol car, [Appellant] stiffened up, would not bend at the
waist to sit in the car and continued to make verbal threats. At
one point, [Appellant] leaned back into the car, pulled both
knees up in a striking motion and swiftly kicked out at Officer
Zinda. [Appellant] was yelling and using curse words and
obscenities directed at the officers. Although [Appellant] was
repeatedly asked to desist, he continued to scream while inside
the police car all the way back to the station.
Once back at the police station, Det. Cook examined the
I.D. card and ultimately learned that [Appellant] was not Josue
Hernandez Figueroa but was in fact, Lance Cohen.
Trial Court Opinion, 8/14/14, at 2-4 (citations to notes of testimony
omitted).
The police investigation led to the home of Samantha Montgomery of
Lebanon, Pennsylvania, who informed police that Appellant was her friend,
and allowed the police to remove from her home items given to her children
by Appellant, and other items belonging to Appellant. Id. at 8-9 (citing
N.T., 4/10-11/14, at 94-137). The items removed from Ms. Montgomery’s
home were later identified as belonging to various victims, including Gary
Deck, who had reported a burglary of his home in Lebanon County on
August 14, 2014, in which the perpetrator entered through a window and
stole various belongings including a credit card, a PlayStation game console,
video games, memory cards, video game controllers, and credit cards. Trial
Court Opinion, 8/14/14, at 4-5, 8-9 (citing N.T., 4/10-11/14, at 94-137,
155-156); Affidavit of Probable Cause, 9/17/10.
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Appellant was charged at Docket No. 1487-2010 with one count of
attempted criminal trespass for his attempted entry into the home of Mr.
Ditzler, one count of aggravated assault of Officer Zinda, one count of
disorderly conduct, one count of loitering and prowling at nighttime, and one
count of providing false identification to law enforcement authorities.
Appellant was charged at Docket No. 256-2011 with one count of
burglary of Mr. Deck’s home, one count of receiving stolen property, one
count of access device fraud pertaining to the unlawful use of Mr. Deck’s
stolen credit cards, and one count of criminal attempt to commit a theft by
unlawful taking with regard to charges made on Mr. Deck’s credit cards.
A consolidated jury trial at both dockets commenced on April 10,
2014, and on April 11, 2014, the jury returned the following verdicts:
Docket No. 1487-2010: guilty of attempted criminal trespass,
aggravated assault, disorderly conduct, and providing false
identification, and not guilty of loitering and prowling at
nighttime.
Docket No 256-2011: guilty of receiving stolen property and not
guilty of burglary, access device fraud, and attempted theft.
Following a hearing on April 30, 2014, the trial court sentenced
Appellant at Docket No 1487-2010 to a period of incarceration of fourteen
months to three years for attempted criminal trespass, a consecutive twelve
months to three years for aggravated assault, three months to two years for
disorderly conduct concurrent to the sentence for criminal trespass, and
three months to two years for presenting false identification, consecutive to
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the sentence imposed for aggravated assault, for an aggregate sentence of
29 months to 8 years of imprisonment.
At Docket No. 256-2011, the trial court sentenced Appellant to a term
of imprisonment of 1 to 4 years for receiving stolen property.
The sentence at Docket No. 1487-2010 was imposed consecutive to
the sentence at Docket No. 256-2010, for a combined aggregate sentence of
3 years and 5 months to 12 years of imprisonment.
Appellant filed post-sentence motions on May 12, 2014, which the trial
court denied by order and opinion dated August 14, 2014. This appeal
followed. On September 29, 2014, Appellant complied with the trial court
orders at both docket numbers instructing him to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On
September 23, 2014, the trial court entered an order stating that its August
14, 2014 opinion adequately addressed Appellant’s alleged errors.
Appellant presents two issues for our review:
I. Did the Commonwealth fail to present sufficient evidence
at trial to prove beyond a reasonable doubt that Appellant
was guilty of the charges at Docket Number CP-38-CR-
1487-2010?
II. Did the Sentencing Court commit a manifest abuse of
discretion by sentencing running [sic] Appellant’s charge at
Docket Number CP-38-CR-1487-2010 consecutively, and
by running his sentence at Docket Number CP-38-CR-
1487-2010 consecutive to Appellant’s sentence at Docket
Number CP-38-CR-256-2011?
Appellant’s Brief at 4.
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In his first issue, Appellant raises a challenge to the sufficiency of the
evidence.
Our standard when reviewing the sufficiency of the evidence is
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable to
the Commonwealth as verdict-winner, are sufficient to establish
all elements of the offense beyond a reasonable doubt. We may
not weigh the evidence or substitute our judgment for that of the
fact-finder. Additionally, the evidence at trial need not preclude
every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. When evaluating the credibility and weight of
the evidence, the fact-finder is free to believe all, part or none of
the evidence. For purposes of our review under these principles,
we must review the entire record and consider all of the
evidence introduced.
Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).
Appellant challenges the sufficiency of the evidence with respect to his
convictions for attempted criminal trespass, aggravated assault, and
providing false identification to the police at Docket No. 1487-2010.
Appellant’s Brief at 15-18.3
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3
While Appellant argues that the evidence was insufficient to support
his conviction for disorderly conduct at Docket No. 1487-2010, his brief
contains no discussion or development of this claim and accordingly he has
abandoned it for purposes of this appeal. See Commonwealth v. Bullock,
948 A.2d 818, 823 (Pa. Super. 2008) (stating an issue identified on appeal
but not developed in an appellant's brief is abandoned and, therefore,
waived).
(Footnote Continued Next Page)
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With regard to Appellant’s conviction for attempted criminal trespass,
18 Pa.C.S.A. § 901(a)(1) provides that “[a] person commits an attempt
when, with intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of that crime,” while
18 Pa.C.S.A. § 3503(a)(1)(i) explains that “[a] person commits an offense if,
knowing that he is not licensed or privileged to do so, he ... enters, gains
entry by subterfuge or surreptitiously remains in any building or occupied
structure or separately secured or occupied portion thereof.”
Here, the trial court explained:
The evidence is more than sufficient to support the jury’s
decisions. Ditzler stated that he was at his home during the
early morning hours of August 15, 2010. He stated that
[Appellant] attempted to rip a screen in his window in order to
enter his premises. Ditzler described the man who was doing
this as a Hispanic male wearing a blue shirt with white stripes
and wearing a hat. Ditzler immediately called police and
provided the description of the culprit. City police officers
located a man matching the description given by Ditzler only a
few blocks away from Ditzler’s residence. Ditzler then identified
[Appellant] as the person who had attempted to gain entry into
his residence through the window.
Trial Court Opinion, 8/14/14, at 15-16.
We agree with the trial court that the foregoing evidence presented by
the Commonwealth was sufficient to support Appellant’s conviction of
attempted criminal trespass. Appellant argues, however, that because Mr.
_______________________
(Footnote Continued)
Appellant does not challenge the sufficiency of the evidence with
regard to his conviction for receiving stolen property at Docket No. 256-
2011.
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Ditzler testified that he did not see the face of the individual at his window,
but could only identify his clothing, and was only able to identify Appellant
as the suspect based on what he was wearing, Mr. Ditzler’s identification of
Appellant as the perpetrator was insufficient to support his conviction.
Appellant’s Brief at 16. Additionally, Appellant asserts that Mr. Ditzler’s
identification of him was tainted because his identification of Appellant
occurred after Mr. Ditzler was driven by police to where Appellant had been
apprehended, the police officers told Mr. Ditzler that Appellant was a
suspect, and Mr. Ditzler’s identification of Appellant as the perpetrator
occurred while Appellant was in custody and surrounded by police officers.
Id. at 16-17. Appellant thus argues that the evidence, in particular Mr.
Ditzler’s identification of Appellant, was insufficient to sustain his conviction
for attempted criminal trespass.
This Court has explained:
[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be used as other circumstances
to establish the identity of a perpetrator. Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh.
Given additional evidentiary circumstances, any indefiniteness
and uncertainty in the identification testimony goes to its weight.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)
(citations and internal quotations omitted).
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At trial, Mr. Ditzler testified that on the night of the incident, he saw a
person at his window attempting to rip open the screen, and while he was
unable to see the person’s face, he observed that it was a male and was able
to describe the man’s clothing to police. N.T., 4/10/14, at 9-10. Detective
Christopher Cook responded to the report describing an individual as having
a light complexion and wearing a blue and white horizontally striped shirt
and light colored hat. Id. at 19. Approximately one block away from Mr.
Ditzler’s residence, the detective encountered Appellant, who was wearing
clothing identical to that described by Mr. Ditlzer. Id. at 19-20. A short
time thereafter, Mr. Ditzler was transported to the scene where Appellant
had been apprehended, and immediately identified Appellant by his clothing
as the person he had seen at his window. Moreover, Appellant provided the
officers with false identification information. Based on the foregoing, we
agree with the trial court that this circumstantial evidence here was
sufficient to sustain Appellant’s conviction for attempted trespass. See Orr,
38 A.3d at 868 (evidence was sufficient to identify the appellant where the
victim of a robbery described his assailant as a tall man with a red beard and
light complexion, wearing a camouflage jacket and grey pants, and shortly
thereafter, the appellant was apprehended and the victim unequivocally
identified him as the robber).
To the extent Appellant argues that Mr. Ditzler’s identification was
unreliable or incredible, such a claim constitutes a challenge to the weight of
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the evidence which is waived, here, because Appellant did not specifically
raise a weight of the evidence challenge in either his post-sentence motion
or in his Pa.R.A.P. 1925(b) statement. See Pa.R.Crim.P. 607; Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Priest, 18 A.3d 1235 (Pa. Super.
2011) (finding weight of the evidence claim waived for failure to present the
claim before the trial court either orally or in writing before sentencing or in
a post-sentence motion, and failure to present argument in court-ordered
concise statement).4
Finally, Appellant argues that the circumstances surrounding Mr.
Ditzler’s identification were unduly suggestive, that Mr. Ditzler’s testimony
was therefore suspect, and the jury could not have relied upon Mr. Ditzler’s
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4
We recognize that in his post-sentence motion and memorandum in
support thereof, within his claim that the evidence was insufficient to
support the verdict, Appellant asserted that the circumstances surrounding
Mr. Ditzler’s identification of Appellant rendered Mr. Ditzler’s testimony
incredible. Such an assertion in essence constitutes a challenge to the
weight of the evidence, although Appellant couched this argument as a
sufficiency claim. See Commonwealth v. Widmer, 560 Pa. 308, 319-20,
744 A.2d 745, 751-52 (Pa. 2000) (delineating the distinctions between a
claim challenging the sufficiency of the evidence and a claim that challenges
the weight of the evidence). However, even if Appellant properly preserved
a weight of the evidence claim in his post-sentence motion, such claim is
meritless. As the trial court noted, the jury “obviously believed Mr. Ditzler”
and his description of Appellant as the person he observed attempting to
tear open his window screen. Trial Court Opinion, 8/14/14, at 16. The
weight of the evidence is exclusively for the finder of fact, who is free to
believe all, part, or none of the evidence, and determine the credibility of the
witnesses, and it is not within our province to disturb such credibility
determinations on appeal. Commonwealth v. McCloskey, 835 A.2d 801(Pa. Super. 2003).
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identification of Appellant as the perpetrator to support its guilty verdict.
Although Appellant also couches this argument as a sufficiency claim, he is
challenging Mr. Ditzler’s credibility, which was for the jury to resolve. See
McCloskey, 835 A.2d at 809 (the jury is free to believe all, part, or none of
the evidence and to determine the credibility of the witnesses).
Moreover, Appellant could have sought pre-trial suppression of Mr.
Ditzler’s identification testimony on the basis that the circumstances
surrounding it were unduly suggestive, but opted not do so, waiving
appellate review of any claim that the identification testimony was
improperly admitted and relied upon by the jury. See Commonwealth v.
Douglass, 701 A.2d 1376, 1378 (Pa. Super. 1997) (appellant waived his
claim that identification evidence should be suppressed because the
procedure was impermissibly suggestive where appellant failed to move to
suppress the identification and therefore the Commonwealth had no burden
to establish the constitutionality of that identification and there was no
record on that issue for us to review; the failure to raise a suppression issue
prior to trial precludes its litigation for the first time at trial, in post-trial
motions or on appeal).
Once the identification testimony of Mr. Ditzler was properly admitted
at trial without objection, it was for the jury to assess the credibility of that
testimony and to determine the weight to ascribe it, and within its province
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as fact finder, the jury found Mr. Ditzler’s testimony credible. We will not
reweigh such credibility determinations on appeal.5
Appellant next challenges the sufficiency of the evidence with regard
to his conviction for aggravated assault. To support a conviction for
aggravated assault, the Commonwealth was required to demonstrate that
Appellant “attempt[ed] to cause or intentionally or knowingly cause[d] bodily
injury to any [police officer] in the performance of duty.” 18 Pa.C.S.A. §
2702(a)(3), (c)(1).
The trial court, finding the evidence sufficient to support the
conviction, explained:
Officer Zinda testified to the events that occurred when police
confronted [Appellant]. Specifically, [Appellant] screamed and
refused to stop. He would not identify himself. When Officer
Zinda attempted to place [Appellant] into the rear seat of the
patrol car, [Appellant] stiffened up and would not bend at the
waist or sit in the car. Eventually, [Appellant] leaned back into
the car, pulled both of his knees up and attempted to swiftly kick
at Officer Zinda.
Trial Court Opinion, 8/14/14, at 16.
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5
We cannot determine from the record before us whether Appellant
requested that the trial court issue a Kloiber instruction to the jury. See
Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954) (holding that “where
the witness is not in a position to clearly observe the assailant, or he is not
positive as to identity, or his positive statements as to identity are weakened
by qualification or by failure to identify defendant on one or more prior
occasions, the accuracy of the identification is so doubtful that the Court
should warn the jury that the testimony as to identity must be received with
caution”). The jury instructions are not including with the notes of
testimony transmitted to this Court.
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Our review of the record confirms Officer Zinda testified that during
the course of his encounter with Appellant, Appellant was “very agitated”
and “yelling”, and that Appellant “jerked away” when Officer Zinda
attempted to seat him in the police vehicle. N.T., 4/10-11/14, at 51-52.
When the officer finally succeeded in placing Appellant in the police vehicle
and instructed Appellant to place both his legs inside the car, Officer Zinda
testified that Appellant “rocked back, pulled up his right knee and then tried
to kick me [with a] fast motion.” Id. at 54. This testimony was
corroborated by Officer Cook, who testified that Appellant “leaned back into
the car, pulled both knees up in a striking motion, and kicked out at Officer
Zinda.” Id. at 29. Viewing the record in the light most favorable to the
Commonwealth as verdict winner, we agree with the trial court that the
evidence was sufficient to support Appellant’s aggravated assault conviction.
Appellant additionally challenges the sufficiency of the evidence with
regard to his conviction for providing false identification to law enforcement
authorities in violation of 18 Pa.C.S.A. § 4914, which provides:
A person commits an offense if he furnishes law enforcement
authorities with false information about his identity after being
informed by a law enforcement officer who is in uniform or who
has identified himself as a law enforcement officer that the
person is the subject of an official investigation of a violation of
law.
18 Pa.C.S.A. § 4914.
The trial court explained:
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When [the police officers] asked [Appellant] to give him his
name, he told them to look at his identification card. The
identification card showed the name of Josue Hernandez
Figueroa. Up until the time that [Appellant] was arrested and
taken to Central Booking, police referred to him as “Josue
Hernandez Figueroa.” Because it is Central Booking’s policy to
run fingerprint identification when someone is processed that
does not cooperate, police were able to determine that
[Appellant] was not in fact “Josue Hernandez Figueroa” but was
instead “Lance Cohen.”
In addition, when police asked [Appellant] where he lived,
he provide[d] them with an address that was nonexistent. He
also told them that he was employed at ASK Foods. However,
when police followed up with ASK Foods, they were informed
that [Appellant] had never worked at ASK either on a part-time
or full-time basis.
It is clear that [Appellant] attempted to conceal his identity
from police and provided false information in an effort to do so.
Thus, the Commonwealth established sufficient evidence to
support the crime of False Identification to Law Enforcement
Officers.
Trial Court Opinion, 8/14/14, at 17-18.
Again, viewing the record evidence in the light most favorable to the
Commonwealth as verdict winner, we agree with the trial court that the
Commonwealth presented sufficient evidence to support Appellant’s
conviction for providing false identification information to the police.
Although Appellant argues that he never voiced to the police that his name
was Josue Hernandez Figueroa, the jury found credible the officers’
testimony that when asked to provide his name, Appellant directed the
officers to the identification card that bore the name “Josue Hernandez
Figueroa.” Thereafter, when the officers arrested Appellant and transported
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him to the police station, they repeatedly addressed him as “Josue,” with
Appellant making no effort to correct the officers. We agree with the trial
court that this evidence was sufficient for the jury to find Appellant guilty of
providing false identification to law enforcement authorities.
In his second issue, Appellant raises a challenge to the discretionary
aspects of his sentence, asserting that the trial court abused its discretion
when it mandated that Appellant’s sentence at Docket No. 1487-2010 be
served consecutive to his sentence at Docket No. 256-2011. This Court has
explained that “[a] challenge to the discretionary aspects of a sentence must
be considered a petition for permission to appeal, as the right to pursue such
a claim is not absolute.” Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014) (citations omitted).
To reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 903;
(2) whether the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, Pa.R.Crim.P. [708];
(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).
Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).
Appellant has preserved his claim by filing a post-sentence motion and
timely notice of appeal. Appellant has additionally included in his brief a
concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at
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14. Therefore, we proceed to determine whether Appellant has raised a
substantial question for our review.
Appellant argues that the trial court erred by ordering that the
sentences at Docket No. 1487-2010 be served consecutively to each other
and that the aggregate sentence at Docket No. 1487-2010 be served
consecutive to the sentence at Docket No. 256-2011. Appellant’s Brief at
19-20. Specifically, Appellant claims that the incidents at each docket
number occurred over the same time period, and were part of the same
criminal episode, and therefore concurrent sentences should have been
imposed. Id.In Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013),
this Court explained that bald claims of excessiveness due to the consecutive
nature of sentences imposed will not raise a substantial question. However,
a defendant may establish a substantial question where the consecutive
nature of the sentences results in an aggregate sentence that is clearly
unreasonable. Id. “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.
Treadway, 104 A.3d 597, 599 (Pa. Super. 2014) (citations omitted).
Here, at Docket No. 1487-2010, Appellant was found guilty of
attempting to enter Mr. Ditzler’s home on August 15, 2010, aggravated
assault relative to attempting to kick Officer Zinda, and providing false
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information to the police. At Docket No 256-2011, Appellant was found
guilty of receiving stolen property belonging to Mr. Deck, following the
burglary of Mr. Deck’s home that occurred on August 14, 2010. Appellant
received an aggregate sentence of 3 years and 5 months to 12 years of
imprisonment. This sentence does not appear on its face to be so manifestly
excessive as to raise a substantial question. Treadway, supra. Because
we conclude that Appellant has failed to raise a substantial question, we will
not proceed to reach the merits of his discretionary challenge.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2015
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