Com. v. Daniels, R. ( 2020 )

J-S04021-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RAYMOND DANIELS
Appellant No. 1618 EDA 2019
Appeal from the Judgment of Sentence Entered May 23, 2019
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0000832-2018
BEFORE: BENDER, P.J.E., STABILE, and MURRAY, JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 7, 2020
Appellant, Raymond Daniels, appeals from the May 23, 2019 judgment
of sentence imposing an aggregate 30 to 60 years of incarceration for robbery,
burglary, conspiracy,1 and related offenses.2 We affirm.
On the evening of August 17, 2017, Appellant and several
coconspirators conducted surveillance of the victims’ home in Newtown
____________________________________________
1 18 Pa.C.S.A. §§ 3701, 3502, and 903.
2 These include unlawful possession of a firearm (18 Pa.C.S.A. § 6105),
criminal trespass (18 Pa.C.S.A. § 3503), theft by unlawful taking (18 Pa.C.S.A.
§ 3921), theft by extortion (18 Pa.C.S.A. § 3923), receiving stolen property
(18 Pa.C.S.A. § 3925), false imprisonment of a minor and false imprisonment
(18 Pa.C.S.A. § 2903), criminal coercion 18 Pa.C.S.A. § 2906), terroristic
threats (18 Pa.C.S.A. § 2706), unlawful restraint of a minor (18 Pa.C.S.A.
§ 2902), recklessly endangering another person (18 Pa.C.S.A. § 2705), simple
assault (18 Pa.C.S.A. § 2701), and access device fraud (18 Pa.C.S.A. § 4106).
J-S04021-20
Township, Bucks County.3 During the late hours of August 20, 2017 and the
early morning hours of August 21, 2017, Appellant and his cohorts returned.
They entered the home at 2:00 a.m. on August 21, 2017 carrying firearms
and wearing masks, gloves, and dark clothing. Sisters Elle Nadav, aged 25,
and C.N., aged 12, were in the home, along with their parents, Jonatan and
Emily Nadav, and their maternal grandmother, Manya Guravich. A third,
sister, Jade, was away at college.
Upon gaining entry to the home through a window, two of the gunmen
approached Elle, woke her, and pointed guns at her. The gun barrels touched
her forehead. The gunmen forced Elle to lie on the floor on her stomach and
then bound her hands with shoelaces. They told her they were there for
“Yanni,” Jonatan’s nickname. Elle screamed and asked that they not harm
Manya or C.N. One gunman remained with Elle and located and took her
wallet and cell phone. Another gunman woke up Manya, forced her out of
bed, and retrieved a watch from a drawer in Manya’s room. English is not
Manya’s first language, and she was unable to understand what the gunman
said to her.
A third gunman woke C.N. and forced her out of bed. The gunman led
C.N. to her parents’ room and forced her to wake them up. Thus, Jonatan
and Emily woke to the sight of their 12-year-old daughter being held at
____________________________________________
3 We are summarizing the facts as set forth on pages 1-5 of the trial court’s
September 6, 2019 opinion.
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J-S04021-20
gunpoint. The gunmen knew the family had a safe in their home, and they
ordered Emily and Jonatan to tell them where their safe was, and open it.
They threated to shoot and kill C.N. if Emily and Jonatan refused. Eventually
Jonatan, who owns several clothing stores in the Philadelphia area, opened
the safe at gunpoint. The gunmen removed a large amount of jewelry and
$50,000 in cash from the safe. In all, the gunmen stole more than $300,000
in property and cash from the Nadav home.
Emily, Jonatan, and Manya were forced into a closet and warned that
they would be killed if they called the police. Before departing, the gunmen
told Elle where her sister Jade went to college and described Jade’s car. They
told Elle that Jade would be killed if the family called the police. Emily called
the police after the gunmen left.
Later that morning, Appellant and his girlfriend went to five different
locations and used credit cards stolen from the Nadavs. Appellant also wrote
a stolen check, for $5,500.00, to his girlfriend. Also on that morning,
Appellant exchanged text messages with one of his coconspirators. The
message from the coconspirator included emoji depicting moneybags and an
arm making a muscle. The coconspirator wrote, “I’m excited as shit, bro.”
Appellant responded, “Me too, man. That watch worth 34 grand online.”
On November 14, 2017, the Commonwealth charged Appellant and his
coconspirators with numerous offenses. On January 24, 2019, during jury
selection, Appellant pled guilty to robbery, burglary, conspiracy, and the
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J-S04021-20
offenses listed in footnote 2 above. Sentencing followed immediately, and the
trial court imposed an aggregate 40 to 80 years of incarceration. Appellant
filed a timely motion for reconsideration on February 1, 2019. The trial court
granted reconsideration, and on May 23, 2019 sentenced Appellant 30 to 60
years of incarceration. That sentence is comprised of three consecutive
mandatory sentence of 10 to 20 years for robbery, burglary, and conspiracy
to commit robbery. The trial court imposed concurrent sentences for unlawful
possession of a firearm, false imprisonment of a minor, false imprisonment,
simple assault, and access device fraud. The court imposed no further penalty
on the remaining offenses.
Appellant filed this timely appeal on May 29, 2019. In his sole assertion
of error, he claims the trial court abused its sentencing discretion in imposing
30 to 60 years of incarceration. Before we address the merits of a challenge
to the trial court’s sentencing discretion, we must discern whether Appellant
has properly placed that issue before us. To do so, an appellant must (1) file
a timely notice of appeal; (2) preserve the issue in a motion to reconsider or
modify the sentence; (3) include in his brief a concise statement of reasons
relied upon for allowance of appeal (Pa.R.A.P. 2119(f)); and (4) explain in the
concise statement that there is a substantial question as to whether the trial
court’s sentence was appropriate. Commonwealth v. Caldwell, 117 A.3d
763, 768 (Pa. Super. 2015), appeal denied, 126 A.3d 1282 (Pa. 2015).
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J-S04021-20
Instantly, Appellant did not file a post-sentence motion after the trial
court’s May 23, 2019 sentence. Further, he fails to present a substantial
question for our review. To demonstrate a substantial question, the appellant
must show that the trial court’s sentence was inconsistent with the sentencing
code or contrary to the norms underlying the sentencing process.
Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003). A generic
assertion of excessiveness does not raise a substantial question.
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed,
125 A.3d 394 (Pa. 2015). An allegation that the trial court failed to give
adequate weight to mitigating circumstances does not raise a substantial
question. Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013);
Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010).
In his Pa.R.A.P. 2119(f) statement, Appellant states that the trial court
imposed “a manifestly excessive sentence resulting in too severe a
punishment under all the circumstances, particularly when considering that
Appellant pled guilty and presented mitigating evidence at the time of
sentence.” Appellant’s Brief at 8. This is both a bald assertion of
excessiveness and a claim that the trial court gave inadequate weight to
mitigating factors. 4 Appellant has failed to raise a substantial question, and
____________________________________________
4 We discern the existence of a substantial question solely by reference to the
2119(f) statement. Commonwealth v. Goggins, 748 A.2d 721, 726-27 (Pa.
Super. 2000), appeal denied, 759 A.2d 920 (Pa. 2000). In the argument
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we therefore do not reach the merits of his argument. Were we to address
the merits, we would affirm the sentence based on the trial court’s September
6, 2019 opinion. We direct that a copy of that opinion be filed herewith.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2020
____________________________________________
section of his brief, Appellant elaborates on his educational history, work
history, and two dependent children. Nothing in the argument section would
alter our conclusion that Appellant has failed to raise a substantial question.
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Circulated 03/27/2020 02:27 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : No. CP-09-CR-0000832-2018
[1618 EDA 2019]
v.
RAYMOND ANTHONY DANIELS
OPINION
The Defendant, Raymond Anthony Daniels, has filed an appeal from the
judgment of
sentence entered on May 23, 2019 following his guilty plea on January 24, 2019.
On appeal, the
Defendant challenges the discretionary aspects of sentence.
On November 14, 2017, the Defendant was charged with multiple offenses in
connection
with a home invasion robbery that occurred at 23 Wellington Road, Newtown
Township, Bucks
County, the residence of Jonatan and Emily Nadav and their family.
Co-defendant Sadeen Jones
(Jones) was charged on November 16, 2017. Co-defendant Brandon Davis
(Davis), was charged
on January 2, 2018. Other individuals involved in this incident remain unidentified.
The facts underlying the Defendant's convictions were summarized at the time of
the guilty
pleas as follows:
On August 15 of 2017 the [D]efendant, along with co-
defendants Brandon Davis and Sadeem [sic] Jones traveled to 23
Wellington Road in Newtown Township, Bucks County, for the
purpose of scoping out, for lack of a better term, the location at 23
Wellington Road, Newtown, Bucks County. That was the home of
the Nadays, who are pictured in Commonwealth's Exhibit C-2 . . . .
That was done at night. . [a]nd would have been proven
. .
at trial through cellular telephone records as well as text messaging
between the defendants.'
[During] the late evening hours of August 20, 2017, into
. . .
the early morning hours of August 21, 2017, the same individuals:
The [D]efendant Raymond Daniels, Brandon Davis and Sadeem
[sic] Jones, as well as others unidentified in this case traveled . . .
together from Philadelphia to the same location, 23 Wellington
Road in Newtown, Bucks County.
***
[O]n that day . . . three of the individuals were masked,
dressed in dark clothing, gloved and armed with guns, and entered
23 Wellington Road, Newtown Township, Bucks County, at
approximately 2:00 o'clock in the morning.
At the time that they entered there were five individuals
. . .
home, five members of that residence. [Twelve] -year -old [C.N.] . .
. [twenty -five] -year -old Elle Nadav
. . . Emily Nadav, who is their
mother . . Jonatan Nadav
. . as well as Manya Guravich, who
. .
is
the grandmother of the two sisters I referred to.
[Jade] . . was not home. She was away at college. She is
.
the third sister in the Nadav family.
The defendants entered. There were two identified possible
points of entry. . . a basement window in the back of the house
.
. . .
[and] ... a front window at the front of the house near the front door
.
where the screen had been broken off
***
The individuals then entered the location and two of the
individuals went downstairs into the basement where Elle Nadav
had been staying . . . [in] a basement apartment . . . .
She would testify
. . . that she was in bed and awoken
by the
sound of loud feet coming down the steps. As she sat up in her bed,
there were two men in all black holding guns. The guns were then
pointed at her head and she said she could actually feel the barrel of
-
the gun against her forehead both guns against her forehead.
She began to scream and was told to, quote, shut the f[---]
up. . She was then removed from her bed, told to get on the ground
. .
on her stomach. [She complied] ... and was [then] tied with a
shoelace at her wrists.
' Cell site data and text messages established that the
conspirators traveled to the victims' residence six days before
the home invasion robbery. Text messages between the conspirators also
established that they planned to go to the
victims' residence on the date the offenses were committed. N.T. 1/24/19, at 125-126.
2
One of the individuals then received a phone call. Elle Nadav
would testify that she then heard that individual indicate, "We are
in. it
That individual left her room while the second gunman
remained with her.
She would testify . that what was told to her was they were
. .
there for Yanni, the nickname of her father, Jonatan Naday. She
would testify that she cried and screamed and asked that nothing
happen to her 12 -year -old sister, [C.N.], or her grandmother.
She would testify that at that point the one individual
. . .
remained with the gun pointed at her, took her wallet and took her
cell phone so she was unable to call for help.
At that point . . . evidence would show that a second
individual -- it is unknown if it was the same person who had
previously been in Elle's room or not -- had gone to Manya
Guravich's room. Manya Guravich is the grandmother of Elle and
[C.N.] . . . .
She was asleep in her bedroom which is on the second level
of the townhome at 23 Wellington.
She would testify that an individual woke her up and began
not English and she has
trouble hearing. So she would testify she could not understand what
was being screamed at her and kept trying to tell the gunman who
had a gun pointed at her that she couldn't understand.
She would testify that she, too, was forced out of bed, told to
put on a pair of pants. She would testify that the gunman then opened
a drawer next to her bed and removed a watch that she had placed
there.
She would testify that she then began to worry about [C.N.],
whose bedroom was right next to hers. She would testify that she
was then led out of the room at gunpoint towards her daughter, Elle,
and son-in-law, Jonatan's room.
She would testify as she did so, she looked into [C.N.]'s room
to check on her, but [C.N.] was not there.
[E]vidence would also indicate that [C.N.] was asleep in her
room. She was, too, awokened [sic] by a gunman, a third gunman.
Again, I don't know if this was the gunman from the basement, but
it was a third individual in the house with a gun.
[C.N.] was awoken and forced out of her bed. [C.N.] was
marched . . at gunpoint into her parents' bedroom. At this point
.
[C.N.] was told to wake up her parents.
3
You would hear evidence by way of testimony from
. . .
Emily and Jonatan, that they then heard their 12 -year -old daughter
[C.N.] begging them to wake up and crying. As they awoke, they
saw the gunman with a gun pointed at their daughter's head.
They sat up in bed . At this point [C.N.] was put on the
. .
ground on the bed side next to her father. The other two, Emily and
Jonatan, were ordered at that point to tell them where the safe was.
Emily and Jonatan just began to start yelling things about
jewelry that was laying out, wallets that were laying out, directing
their captor at that point to anything that they could see of value for
him to take.
The captor specifically asked for a safe, acknowledging he
knew there was a safe in the house despite Jonatan's initial attempt
to deny that. At that point . Emily was marched into the closet to
. .
open the safe.
Emily would testify that whether it be nerves or eyesight or
the fact that it was dark, she wasn't able to do so.
So then Jonatan was marched into the closet and Jonatan,
too, was forced to open that safe.
Your Honor, I did leave out a critical point, and that is this:
When the two awoke in bed and watched this gimman with a gun to
12 -year-old [C.N.]'s head, the gunman threatened that if they didn't
obey his orders, that 12 -year -old [C.N.] would be shot and killed. At
this point . . the safe was emptied.
.
You would .. hear evidence that Jonatan Nadav at that
.
point had a significant amount of jewelry in that safe as well as cash.
.. close to $50,000 worth of cash.
.
He was, by the way, a store owner. I believe he owns more
than one . store in Philadelphia for clothing. Emily, Jonatan and
. .
Manya were all placed in the closet. They were told not to call the
police or they would be killed. [T]hey remained there in the closet
for several seconds until Emily did, in fact, call the police.
[O]ne of the individuals who had been on the second floor in
the Nadav's bedroom went back downstairs to Elle's bedroom,
retrieved the third gunman who had been there the entire time with
Elle Naday.
And Elle would say that it was approximately 20 minutes
that that encounter took place. He told the third gunman who was
with Elle Nadav that they were done and they could go.
4
They then, however, turned to Elle and told her that if the
police were called, the entire family would be killed. They named
the third sister .. by name. They told Elle they knew
.
where she
went to college, and listed the college that she went to. They told
Elle they knew the type of vehicle that she drove and actually stated
what the type of vehicle she drove was.
[A]11 in all there was . . . over $40,000 worth of cash, a
number of expensive jewelry pieces including, I believe, six carat
diamond engagement ring and wedding ring, purses and luggage, a
number of items, all in all totaling approximately $300,000. . By
. .
way of a property receipt it is $305,976.
***
[The Defendant] returned to Philadelphia in the vehicle with
his co-defendants.
At that point . he did go directly to his girlfriend's home
.
in Philadelphia, and that was an individual by the name of Marlon
Burton. He woke Marlon Burton up, she would say approximately
3:00, 3:30 in the morning. The two then went to five separate
locations and utilized credit cards that had been stolen from the
Nadav household.
To be clear, the [D]efendant indicated they weren't his, but
didn't indicate, at that point, at least, that they had come from a home
invasion that just occurred. After that they returned to Miss Burton's
home where the [D]efendant removed a check from the wallet that
he had stolen as well.
The check he then wrote to Marlon Burton in the amount of
$5,500.
N.T. 1/24/19, at 99-110.
The morning after the offenses were committed, the Defendant and Jones exchanged
text
messages. N.T. 1/24/19, at 128. In text messages exchanged between the Defendant and
Jones,
the Defendant made reference to a Rolex watch which had been taken during the
course of the
robbery. In describing the text message exchange, the prosecuting attorney stated,
Defendant Sadeem [sic] Jones asked this defendant, Raymond
Daniels, "You still up, bro?" There is a emoji or a little symbol of a
money bag and an arm making a muscle following that question.
This defendant responds, "Yeah." Sadeem [sic] Jones then indicates,
"I'm excited as shit, bro." This defendant responds, "Me, too, man.
That watch worth 34 grand online."
5
N.T. 1/24/19, at 135-136.
In another text message exchange, the Defendant discussed the status of the police
investigation with Davis. In that exchange, Davis told the Defendant, "They got ya number. They
just DNT know who you are." The Defendant advised Davis that he had changed his telephone
number using an "app" and instructed Davis how to use the app to change his number. N.T.
1/24/19, at 130-132.
Of the more than $300,000 of stolen property, only one item was recovered. That item, a
piece of luggage, was found in the Defendant's home. N.T. 1/24/19, at 129-130.
On November 7, 2018 and December 19, 2018, the Honorable Raymond F. McHugh, heard
pretrial motions relating to all three defendants. On January 14, 2019, Judge McHugh entered an
order along with finding of fact and conclusions of law wherein he denied the defendants' motions
to suppress evidence and motions to sever the cases. Judge McHugh granted the motions to sever
the charge of Possession of a Firearm Prohibited, 18 Pa.C.S. §6105(a)(1), filed by the Defendant
and Jones.
Thereafter, the Commonwealth filed notice of its intent to invoke the ten-year mandatory
minimum sentences pursuant to 42 Pa.C.S. §9714 for second and subsequent convictions for a
crime of violence upon the Defendant's conviction for Robbery in violation of 18 Pa.C.S.
§3701(a)(1)(ii), Robbery in violation of 18 Pa.C.S. §3701(a)(1)(iii), Burglary in violation of 18
Pa.C.S. §3502(a)(1)(i), and/or Criminal Conspiracy to commit Robbery and/or Burglary in
violation of 18 Pa.C.S. §903.
On January 21, 2019, the day before trial was to commence, the Defendant called
Commonwealth witness Marlon Burton, his former girlfriend and a co-defendant with regard to
the Access Device Fraud charge. During that conversation, the Defendant advised Ms. Burton that
6
he had entered a guilty plea. Ms. Burton asked the Defendant if that meant she did not have to
appear for trial. The Defendant responded, "That's right. That's the only reason I did it." N.T.
1/24/19, at 123-124.
On January 22, 2019, the jury selection began.
On January 24, 2019, the Defendant entered a guilty plea to the following criminal
offenses:
Robbery (threatening another with/intentionally putting Jonatan
Nadav and/or Emily Nadav and/or Elle Nadav and/or C.N.
and/or Manya Gurevich in fear of serious bodily injury), 18
Pa.C.S. §3701(a)(1)(ii), a felony of the first degree;
Robbery (threatening to commit a felony of the first or second
degree), 18 Pa.C.S. §3701(a)(1)(iii), a felony of the first degree;
Robbery (inflicting, threaten with or intentionally put in fear of
immediate serious bodily injury), 18 Pa.C.S. §3701(a)(1)(iv), a
felony of the second degree;
Burglary (overnight accommodation, person present, and commits,
attempts, threatens to commit a bodily injury crime), 18 Pa.C.S.
§3502(a)(1)(i), a felony of the first degree;
Criminal Conspiracy to commit Robbery, Burglary and related
offenses, 18 Pa.C.S. §903;
Possession of a Firearm Prohibited, 18 Pa.C.S. §6105(a)(1), a felony
of the first degree; 2
Criminal Trespass (breaking into occupied structure), 18 Pa.C.S.
§3503(a)(1)(ii), a felony of the second degree;
Theft by Unlawful Taking (firearm, jewelry, credit cards, currency
and other property), 18 Pa.C.S. §3921(a), a felony of the second
degree;
2The Defendant has a prior conviction for Robbery in violation of 18 Pa.C.S. §3701(a)(1)(ii) (inflicting or threatening
another with or intentionally putting another in fear of immediate serious bodily injury), an enumerated offense under
18 Pa.C.S. §6105(b) (Persons Not to Possess Firearms). Exhibit C-1; N.T. 1/24/19, at 98-99.
7
Theft by Extortion (threatening to inflict harm), 18 Pa.C.S.
§3923(a)(7), a felony of the second degree;
Receiving Stolen Property (firearm, jewelry, credit cards, currency
and other property), 18 Pa.C.S. §3925(a), a felony of the second
degree;
False Imprisonment of a Minor (by a person not a parent), 18 Pa.C.S.
§ 2903(b), a felony of the second degree;
False Imprisonment, 18 Pa.C.S. §2903(a), a misdemeanor of the
second degree;
Criminal Coercion (threat to commit a felony/act with felonious
intent), 18 Pa.C.S. §2906(a)(1), a misdemeanor of the first
degree;
Terroristic Threats (threat to commit crime of violence), 18 Pa.C.S.
§2706(a)(1), a misdemeanor of the first degree;
Unlawful Restraint of Minor (by a person not a parent/risk of serious
bodily injury), 18 Pa.C.S. §2902(b)(1), a felony of the second
degree;
Recklessly Endangering Another Person (Jonatan Nadav and/or
Emily Nadav and/or Elle Nadav and/or C.N. (a minor) and/or
Manya Gurevich), 18 Pa.C.S. §2705, a misdemeanor of the
second degree;
Simple Assault by Physical Menace (Jonatan Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (Emily Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (Elle Nadav), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Simple Assault by Physical Menace (C.N.), 18 Pa.C.S. §2701(a)(3),
a misdemeanor of the second degree;
Simple Assault by Physical Menace (Manya Gurevich), 18 Pa.C.S.
§2701(a)(3), a misdemeanor of the second degree;
Access Device Fraud, 18 Pa.C.S. §4106(a)(1)(i), a felony of the
third degree.
8
Prior to sentence being imposed, this Court was advised that the Defendant was adjudicated
delinquent in 2009 for Possessing Instruments of Crime and for Firearms not to be carried without
a License. In 2012, he was adjudicated delinquent for Retail Theft. On July 6,
2011, he entered a
negotiated guilty plea pursuant to which the Commonwealth agreed not to invoke the applicable
five-year mandatory minimum. N.T. 1/24/19, at 121-122. The Defendant plead guilty to Robbery
- threatens/intentionally puts another in fear of immediate serious bodily injury, a felony of the
first degree, in violation of 18 Pa.C.S. §3701(a)(1)(ii), Criminal Conspiracy to
commit Robbery -
inflicting serious bodily injury, a felony of the first degree in violation of 18 Pa.C.S.
§903(a)(1),
and Possessing Instruments of Crime, a misdemeanor of the first degree, in violation
of 18 Pa.C.S.
§907(a) and was sentenced to two and a -half to six years on each count, said
sentences to run
concurrent with one another. Exhibit C-1. The facts underlying those convictions were
summarized as follows:
On July 11 of 2010, at approximately 10:40, the defendant,
along with another individual, approached the victim, Dennis
Williams, on the street in the area of 2115 West Stella -- S TELL
A -- Street in Philadelphia.
The defendant and his co-defendant were both armed with a
firearm. The defendant and his co-defendant approached the victim
and demanded him to, quote, give up everything. The victim then
handed over his wallet and keys and either the defendant or the co-
defendant -- it is unclear from the reports, Your Honor -- then took
from the waistband of the victim a .40 caliber Smith and Wesson
handgun.
On July 15 of 2010, officers of the Philadelphia Police
Department were called to a location on Van Pelt Street -- V A N P
E L T -- Street. They responded there for [an unrelated matter].
When they responded, the defendant was in the location and they
recovered under a cushion at that location the stolen firearm from
the July 11, 2010, incident.
9
N.T. 1/24/19, at 117-118. At the conclusion of the sentencing hearing, the Defendant was
sentenced to an aggregate term of incarceration of forty to eighty years.
On February 1, 2019, the Defendant filed a motion for reconsideration of sentence. On
May 23, 2019, a hearing was held. At the conclusion of the hearing, the original sentence was
vacated and the Defendant was resentenced to an aggregate term of incarceration of thirty to sixty
years. For the armed robbery of Jonatan Nadav, Emily Nadav, Elle Nadav, C.N. and Manya
Gurevich (count 1), the Defendant was sentenced to the mandatory minimum sentence of ten to
twenty years incarceration. For the crime of Burglary (count 10), the Defendant was sentenced to
the mandatory minimum sentence of ten to twenty years incarceration. For the crime of
Criminal
Conspiracy to commit Robbery and Burglary (count 2), the Defendant was sentenced to the
mandatory minimum sentence of ten to twenty years incarceration. These sentences were imposed
to run consecutive to one another for an aggregate term of incarceration of thirty to sixty years.
For the crime of Possession of a Firearm Prohibited (count 9), the Defendant was sentenced to
five
to ten years incarceration. For the crime of False Imprisonment of a Minor, C.N., (count 16), the
Defendant was sentenced to five to ten years incarceration. For the crime of False
Imprisonment
of Jonatan Nadav, Emily Nadav, Elle Nadav and Manya Gurevich (count 24), the
Defendant was
sentenced to one to two years incarceration. For the crimes of Simple Assault of
Jonatan Nadav,
Emily Nadav, Elle Nadav, C.N., and Manya Gurevich (counts 30-34), the
Defendant was
sentenced to one to two years incarceration on each count. For the crime of Access Device
Fraud
(count 18), the Defendant was sentenced to one to two years incarceration. These
sentences were
all imposed to run concurrent to the sentence imposed on the Robbery
conviction. No further
penalty was imposed on the remaining ten counts. Restitution was ordered in the
amount of
10
$305,976.00 (joint and several). The Defendant was determined not to be an eligible offender
under the Recidivism Risk Reduction Incentive Act, 61 §4501 et seq. N.T. 5/23/19, at 71-73.
On May 23, 2019, new counsel was appointed to represent the Defendant for purposes of
direct appeal. On May 29, 2019, the Defendant filed notice of appeal. By order dated June 14,
2019, the Defendant was directed to file a Concise Statement of Errors Complained of on Appeal
(Statement) within twenty-one days of the entry of that order. On June 27, 2019, the Defendant
filed a timely Statement.
The Defendant challenges the discretionary aspects of sentence. The standards for
evaluating challenges to the discretionary aspects of sentence are 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." Commonwealth v. Bullock, 170 A.3d 1109,
1123 (Pa.Super. 2017) (quotation marks and citations omitted). A mere "error in
judgment" does
not constitute an abuse of discretion. Id. "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." Id.The Sentencing Code requires that, when imposing a sentence, a court must consider the
protection of the public, the gravity of the offense as it relates to the impact on the victim and the
community, the defendant's rehabilitative needs and the sentencing guidelines. 42 Pa.C.S.
§9721(b). A sentencing court must also "make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons for the sentence imposed." Id.
However, although the record as a whole must reflect due consideration of the statutory factors, a
sentencing court "is not required to parrot the words of the Sentencing Code, stating every factor
that must be considered under 9721(b)." Commonwealth v. Bullock, 170 A.3d at 1126
(quotation
11
marks and citation omitted). Rather, the record as a whole must reflect the sentencing court's
consideration of the facts of the case and the defendant's character. Commonwealth v. Crump,
995 A.2d 1280, 1283 (Pa.Super. 2010). "In particular, the court should refer to the
defendant's
prior criminal record, his age, personal characteristics and his potential for rehabilitation."
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002).
In imposing sentence, this Court considered all of the factors set forth in the Sentencing
Code including the protection of the public, the gravity of the offense, the history, character,
condition and rehabilitative needs of the Defendant and the sentencing guidelines and concluded
that a very substantial term of incarceration was required. N.T. 1/24/19, at 176-178, 205. As this
Court noted at the time sentence was imposed, the mandatory sentencing provisions of the
Sentencing Code required imposition of three ten-year mandatory minimum sentences. These
mandatory sentences were reflected in the sentencing guidelines. The guidelines for the crimes of
Possession of a Firearm Prohibited, Recklessly Endangering Another Person and Simple Assault
called for the maximum sentence allowable by law in the standard range. N.T. 1/24/19, at 176-
178. In fashioning the sentence, this Court concluded that the offenses to which the
Defendant
pled guilty were separate criminal offenses for which separate sentences could be imposed.
In analyzing those offenses, this Court noted that although there was only one count of
robbery, five separate robberies occurred. N.T. 1/24/19, at 198. The Court also noted that the
Burglary charge only required the presence of one person at the time the offense was committed,
but here, five people were present, three generations of a family that included a minor and a
senior.
N.T. 1/24/19, at 186. This Court also found the nature of the Criminal Conspiracy to be
of
significance, noting that the Criminal Conspiracy the Defendant entered involved not just one
12
criminal objective but multiple criminal objectives and that the objectives of that conspiracy were
particularly violent and dangerous. N.T. 1/24/19, at 199-200.
In considering the nature of the offenses, this Court noted that this home invasion
robbery
was a sophisticated operation which required substantial preplanning and
preparation. The
conspirators scouted the location, chose to strike at 2:00 a.m. (a time when the occupants would
be most easily located and at their most vulnerable), outfitted themselves with dark
clothing,
gloves, and masks and quietly and efficiently gained entry. Each conspirator was armed and
proceeded immediately to a predesignated location in the home to effectively and efficiently isolate
and control the five people in the household. N.T. 1/24/19, at 178-181.
The force utilized was extreme. The conspirators threatened the lives of each family
member and demonstrated by the use of their handguns that they had the means to carry out
those
threats. Each member of the family was victimized in a different location in the home
by different
perpetrators who utilized different means. The twenty-five year old daughter awoke to find two
armed men in her bedroom. Those gunmen placed the barrels of their weapons
against her
forehead before they put her on the floor and bound her wrists. She was held captive
in her
bedroom throughout the incident. One of the gunmen then took her wallet and cell phone.
Before
the perpetrators left the residence, this daughter was told that if she called the police,
the family
would be killed. This threat included another sister who was not living at the
residence. To
demonstrate the seriousness of the threat, the conspirators identified the sister by name
and
accurately identified where she attended college and the type of vehicle she drove.
The
grandmother also awoke to find a gunman in her bedroom who immediately began to
scream at
her. She was forcibly removed her from her bedroom at gunpoint and was taken to the
bedroom
of Jonatan and Emily Naday. The gunman holding the grandmother at gunpoint, stole a
watch
13
from the drawer of a bedside table. The twelve -year -old daughter also awoke to find a
gunman in
her bedroom. She was also removed from her bedroom at gunpoint and taken to her
parents'
bedroom. Finally, the parents awoke to find a gunman pointing a gun at their twelve-year-old
daughter's head. That gunman threatened to shoot the child if the parents did not comply with his
demands. After the safe was opened and the items of value were removed, the family was put in
the closet and was instructed not to call the police. They were told if they called the police, they
would be killed. N.T. 1/24/19, at 178-185,192 -194, 201.
This Court also discussed how the nature of the offenses reflected on the Defendant's
character and his amenability to rehabilitation. N.T. 1/24/19, at 183-185. This Court
specifically
noted that, despite the extreme violence and apparent raw fear and emotional trauma
inflicted, the
Defendant's emotional response was not one of remorse or regret. Rather, he expressed "glee"
and "excitement" following these horrific events. N.T. 1/24/19, at 185-186, 192. This
Court also
took into account the nature of the individuals with whom the Defendant chose to conspire,
noting
that the Defendant was aware of their violent character and still made a conscious
decision to
participate. This Court also noted that, given the number of conspirators, their violent
tendencies,
the fact that they were all armed, and the unpredictability of victims' responses to
their physical
incursion, the Defendant knew or should have known that there was a substantial risk
that the
situation could have gotten out of control and someone could have died or have been
seriously
injured. N.T. 1/24/19, at 183, 200.
In imposing sentence, this Court also considered the substantial impact violent
home
invasions by multiple armed and masked subjects have on the victims and the community.
N.T.
1/24/19, at 195-197. This Court also took into account that the Defendant had a
chance to
ameliorate the impact these crimes had on the victims and the community by cooperating
with
14
police so as to assist in the prosecution of the individuals identified as having
participated in the
crimes as well as identifying those who have not been identified and who remain at
large. The
Defendant's cooperation could have significantly decreased the fear the victims and
the
community were experiencing. This Court found the Defendant's unwillingness to
mitigate the
damage he caused to be a relevant factor in considering his amenability to
rehabilitation and in
evaluating whether his statements of remorse were sincere. This Court found that his
decision
demonstrated a lack of concern for the safety of the victims, a lack of concern for the
safety of his
girlfriend -a cooperating witness - and a lack of concern for the safety of the community. This
Court therefore found his statements of remorse to be hollow and amenability to
rehabilitation to
be lacking. N.T. 1/24/19, at 187-189; N.T. 5/23/19, at 58.
In considering the Defendant's history, character, condition and rehabilitative
needs, this
Court found that, despite the intervention of both the juvenile and adult criminal
justice system,
the Defendant's criminally violent behavior had escalated from Possessing
Instruments of Crime
and for Firearms not to be carried without a License, to armed Robbery involving
one accomplice,
and finally to armed home invasion Robbery involving multiple actors and
multiple victims. N.T.
1/24/19, at 186, 192. In light of this escalation, this Court concluded that the
sentence imposed
was necessary to prevent the Defendant from engaging in future acts of
violence. N.T. 1/24/19, at
205.
In imposing sentence, this Court considered all of the factors set
forth in the Sentencing
Code including the protection of the public, the gravity of the offense,
the history, character,
condition and rehabilitative needs of the Defendant, the applicable mandatory sentences and the
sentencing guidelines. This Court's decision was based on the evidence presented without
partiality, prejudice, bias or ill will. The reasons for the sentence were placed on
the record as
15
required. There is therefore no basis to conclude that the sentence imposed constituted an abuse
of discretion or was otherwise "excessive."
The Defendant argues that "[t]he sentence was excessive considering [the Defendant]'s
remorse, guilty plea and adjustment following parole." Statement, ¶ 1. He argues that
"[s]entencing [the Defendant] consecutively raised the aggregate sentence to, what appears upon
its face to be an excessive level considering [the Defendant]'s background and
criminal conduct
at issue in this case." Statement, ¶ 2. It is well -settled that a claim that a court did not weigh
the
factors as a defendant might wish is not sufficient to support a claim for appellate
relief.
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.Super. 2014) (" [W]e have held that a claim that
a court did not weigh the factors as an appellant wishes does not raise a
substantial question.").
The Defendant is therefore not entitled to relief based on the assertion that more
weight should
have been given to the factors cited by the Defendant.
With regard to the issue of consecutive sentences, it is well -settled that a bare
challenge
that the trial court erred in imposing consecutive sentences does not raise a substantial
question.
Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa.Super. 2010). Only in extreme
circumstances will imposition of consecutive sentences raise a substantial sentence, such as
where
the aggregate sentence is "unduly harsh, considering the nature of the crimes and
the length of
imprisonment." Id. In light of the facts and circumstances involved in this case,
consecutive
sentences cannot be deemed to be "unduly harsh."
The Defendant next argues that this Court failed to consider the Defendant's
"remorse,
guilty plea and adjustment following parole," his "background and criminal
conduct," his
"rehabilitative needs," his "adjustment to the community upon release from a state
sentence
completed in 2014, his strong family background and employment," and the fact that he
"entered
16
a guilty plea." Statement, ¶¶ 1-4, 6. The Defendant's assertion that these factors were not
considered is belied by the record. As explained above, this Court considered whether the
Defendant was remorseful, his background and criminal conduct, and his rehabilitative needs. A
review of the record also demonstrates that this Court considered his adjustment to
the community
following his release on his prior robbery conviction, his family relationships and his
employment.
N.T. 1/24/19, at 190-192. The record also reflects that this Court found the
Defendant's age and
the fact that the Defendant entered a guilty plea as a mitigating factor in his
favor. N.T. 1/24/19,
at 195; N.T. 5/23/19, at 70. This Court also found the evidence presented at the
reconsideration
hearing regarding the Defendant's relationship with his mother and his training
education and
employment as a dental technician to be of mitigating value. N.T. 5/23/19, at 70. As stated
above,
the fact that this Court may not have weighed the factors as the Defendant might
wished is not a
sufficient basis to warrant relief.
Finally, the Defendant claims that "[t]he court erred in conditioning the length of
[the
Defendant]'s sentence upon his ability and/or willingness to implicate his
co-defendants."
Statement, ¶ 5. The sole basis for objecting to consideration of the Defendant's lack of
cooperation
was that "there could be other reasons for his failure to disclose."3 N.T.
1/24/19, at 133. This
claim lacks merit. That there may be alternative explanation for a person's conduct
is not a basis
to exclude relevant evidence. Moreover, the Defendant had the
opportunity to present evidence
regarding his reasons and, in fact, did so. The Defendant testified that he chose
not to provide
information about the crime of the individuals involved in its commission because he was
"scared
for [his] family's life" and that he didn't want them to have to "watch over their
shoulder's"
3 The Defendant offered no other legal basis to support this claim at the time of
sentencing, in his motion for
reconsideration of sentence or in his Statement. The Defendant may not now raise a new
theory to support his
objection. Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.Super. 2003).
17
because of what he did in a courtroom. N.T. 1/24/19, at 164. The Defendant stated that
he did not
want to put them in "harm's way" when he would not "be there to protect them...."
N.T. 1/24/19,
at 165. This Court considered this testimony but did not find the
Defendant's explanation of
sufficient weight to overcome other considerations. Specifically, this Court noted that,
while his
cooperation would have been a mitigating factor for purposes of sentencing, his refusal to
provide
any information regarding the crimes or those involved in their commission and
his reason for that
decision was relevant and admissible to establish the dangerous nature of those
with whom he
chose to conspire, the degree of his professed remorse, the degree to which he was
willing to accept
responsibility and his rehabilitative needs. N.T. 1/24/19, at 132-135, 194-195,
212-213; N.T.
5/23/19, at 58. Since the "other reasons" were presented and properly considered,
the Defendant
suffered no prejudice as a result of this Court's ruling.
For the reasons set forth above, this Court finds the Defendant's claims to be
without merit.
BY THE COURT:
Date DIANE E. GIBBONS, J.
18
Antonetta Stancu, Chief Deputy District Attorney
Bucks County District Attorney's Office
100 N. Main Street
Doylestown PA 18901
Wm. Craig Penglase, Esquire
18 North Main Street, Suite 100
Doylestown PA 18901