Com. v. Valentine, M. ( 2021 )

J-S52028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS VALENTINE :
: No. 1854 EDA 2019
Appellant :
Appeal from the Judgment of Sentence Entered February 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001285-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS VALENTINE :
:
Appellant : No. 1855 EDA 2019
Appeal from the Judgment of Sentence Entered February 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001286-2018
BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 17, 2021
Appellant, Marcus Valentine, appeals from the judgments of sentence
entered in the Philadelphia County Court of Common Pleas, at two related
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S52028-20
dockets, following a jury trial and his convictions for robbery, possession of a
firearm by a prohibited person (firearm possession), strangulation, possession
of an instrument of crime (PIC), terroristic threats, and simple assault.1 On
appeal, he challenges the legality and discretionary aspects of his sentence.
For the following reasons, we affirm.
Appellant and Dante Bolden (Complainant) met in the summer of 2017
and became romantically involved.2 N.T., 11/14/18, at 40-41. At the time,
Complainant occupied a second-story, one-bedroom apartment with her six-
year-old daughter and 4-year-old son, M.G. Id. at 42, 53. Appellant moved
in with Complainant and started “help[ing] out with the kids[.]”3 Id. at 41.
He watched the children while Complainant worked during the day. Id. at 42,
82. Complainant purchased a cell phone for Appellant, id. at 143, and gave
her “EBT card” to Appellant so he could purchase food for the children. Id. at
62, 93.
____________________________________________
1 18 Pa.C.S. §§ 3701(a)(1)(ii), 6105(a)(1), 2718(a)(1), 907(a), 2706(a)(1),
2701(a), respectively. As we discuss infra, Appellant pleaded nolo
contendere to firearm possession following the jury’s convictions on the other
counts.
2 Appellant was known to the complainant as “Syfeer Carter.” N.T. Trial,
11/13/18, at 8-11, 18, 37; N.T. Trial, 11/14/18, at 40, 72, 170, 184; see
also Affidavit of Probable Cause, 12/7/17, at 2. However, Appellant was
arrested, charged, and prosecuted under his legal name, Marcus Valentine.
N.T., 11/13/18, at 14.
3 Also, Complainant’s two brothers periodically “stay[ed] there.” N.T.,
11/14/18, at 84-85.
-2-
J-S52028-20
We review in detail the offenses that occurred on October 4, 2017. That
day, Appellant accused Complainant of acting differently and questioned her
mood. N.T., 11/14/18, at 43. As the two sat next to each other in the
bedroom, Appellant grabbed Complainant by the hair. Id. at 43-44.
Complainant later testified at trial, “[Appellant] said he wasn’t going to let go
until I told him what was wrong with me.” Id. at 44. After Appellant let go
of her hair, Complainant fell from the bed, hitting her head on the radiator.
Id. at 44-45, 108-09.
The two continued to argue. Complainant informed Appellant she was
taking the children to their father’s house. N.T., 11/14/18, at 46-47.
Appellant told Complaint she “wasn’t going nowhere[,]” and began hitting the
Complainant “[a]nywhere he could.” Id. at 47-48. Appellant blocked
Complainant and her children from leaving and said, “I’m telling you right
now[,] go back upstairs, or it’s going to get ugly.”4 Id. at 220. Complainant
refused and Appellant put his hands around Complainant’s neck, choked her,
and told her that she and her children “are [his] property.” Id. at 46, 220.
Complainant told her daughter to scream for help and “try to get away from
him, because he wasn’t going to let us out the house.” Id. at 48.
____________________________________________
4 These statements were a part of the Affidavit of Probable Cause, read on the
record at trial by Philadelphia Police Detective Mary Kuchinsky. N.T.,
11/14/18, at 219-22.
-3-
J-S52028-20
The assault then continued outside. N.T., 11/14/18, at 45, 49.
Complainant testified that as she started to scream, Appellant pushed her
against a vehicle and again choked her. Id. at 49. Appellant released her
only after Complainant agreed to go back into the apartment. Id. at 52.
When Complainant attempted to walk toward the neighbor’s house, Appellant
grabbed her by the neck and pushed her towards the apartment building. Id.
at 52. In defiance, Complainant sat on the front-step and said, “We not
going.” Id. at 53. Appellant responded, “Yes, you are[,]” and grabbed
Complainant by the back of the neck and forced her towards the front door.
Id. Appellant then “swiped” Complainant’s 4-year-old son M.G. “out [of] the
way” and opened the door. Id. at 53-54. M.G. fell against the brick,
sustaining scratches on his back as a result. Id. at 54. Complainant lifted
M.G.’s shirt to see his injuries, but Appellant said M.G. was fine. Id. at 55.
Then, Complainant and Appellant entered the vestibule area of the building,
and the children ran upstairs to the apartment. Id.
Once inside, the violence continued. Appellant choked and hit
Complainant a third time. N.T., 11/14/18, at 56. According to Complainant,
Appellant was “ranting that . . . he’s getting tired of people doing him like this,
it’s not going to happen no more.” Id. at 56. He then shoved Complainant’s
shirt into her mouth to stifle her screams. Id. at 61, 129-30. Complainant
bit down on Appellant’s fingers and Appellant pulled his hand from
Complainant’s mouth. Id. at 130. Complainant fell to the ground and
-4-
J-S52028-20
Appellant pulled a black gun from his waist. Id. at 58. He pressed the gun
against Complainant’s neck and said, “Now you aint going to go nowhere.”5
Id. at 220. Appellant then complained that “girls was doing him wrong[,]”
and, “If he couldn’t have [Complainant], nobody can.” Id. at 58-59, 74.
Finally, Appellant placed the gun on the floor of the vestibule and went
upstairs to retrieve his belongings.6 N.T., 11/14/18, at 131-32. Complainant
got up from the floor and told Appellant to return her keys, phones, debit card,
and EBT card. Id. at 62, 135. Appellant responded he would leave
Complainant’s belongings in the mailbox. Id. at 60, 62, 135-36. However,
after Appellant left, Complainant “checked the mailbox, and [they were not]
there.” Id. at 63. Complainant went next door to a neighbor’s house and
called the police. Id. Appellant left with Complainant’s identification, debit
card, food stamp card, $10 cash, and two cellphones:7 a black iPhone 7 plus,
____________________________________________
5 These statements were a part of the Affidavit of Probable Cause, read on
the record at trial by Detective Kuchinsky. N.T., 11/14/18, at 219-22.
6 Complainant was unsure when Appellant retrieved the gun, but testified
Appellant “had to [have picked up the gun] because it wasn’t there no more.”
N.T. Trial 11/14/18, at 136-37.
7 One of the cell phones was purchased by Complainant for Appellant. N.T.
Trial, 11/14/18, at 93.
-5-
J-S52028-20
and a gold iPhone 7 plus.8 Id. at 221. Appellant later withdrew $100 using
Complainant’s debit card. Id. at 66.
The next day, October 5, 2017, Complainant was interviewed by
Philadelphia Police Detective Mary Kuchinsky. Detective Kuchinsky also
photographed both Complainant’s and M.G.’s injuries. N.T., 11/14/18, at 200.
Complainant had visible scratch marks and abrasions on her throat, as well as
bruising on her left-arm and elbow area. Id. at 201. M.G. suffered an
abrasion to his back. Id. Detective Kuchinsky drafted an Affidavit of Probable
Cause and an arrest warrant was issued for Appellant on December 7, 2017.
Almost 14 months later, Appellant was arrested on February 1, 2019.
On February 22, 2019, Appellant was charged, inter alia, with robbery, firearm
possession, strangulation, PIC, and terroristic threats at trial docket CP-51-
CR-0001285-2018 (Case 1285) with respect to Complainant. Appellant was
separately charged with respect to M.G. at docket CP-51-CR-0001286-2018
(Case 1286) with, inter alia, simple assault.
Appellant declined a plea offer. Relevant to his claims on appeal, we
acknowledge the offer included a sentence of 11½ to 23 months’ incarceration
and 5 years’ probation. See N.T., 11/13/18, at 27. The charges at both
dockets proceeded to a consolidated jury trial on November 13, 2018. On
____________________________________________
8 These statements were a part of the Affidavit of Probable Cause, read on the
record at trial by Detective Kuchinsky. N.T. Trial, 11/14/18, at 219-22.
-6-
J-S52028-20
November 16th, a jury returned guilty verdicts on the above charges.
Appellant then immediately pleaded nolo contendere to firearm possession in
a bifurcated proceeding.9 N.T. Trial, 11/16/18, at 18. The trial court ordered
a presentence and mental health evaluation, and scheduled a sentencing
hearing for February 8, 2019.
At Case 1285, Appellant received consecutive sentences of: 8 to 20
years’ incarceration for robbery; 5 to 10 years’ incarceration for firearm
possession; 4 to 10 years’ incarceration for strangulation; 1½ to 5 years’
incarceration for PIC; and 1½ to 5 years’ incarceration for terroristic threats.
Sentencing Order, 2/8/19. At Case 1286, Appellant was sentenced to 1½ to
5 years’ incarceration, also to run consecutively, for the simple assault
committed against M.G. Sentencing Order, 2/8/19. In sum, Appellant was
sentenced to an aggregate term of 21½ to 55 years’ incarceration across both
dockets. Additionally, Appellant was subject to: a stay away order; anger
management with supervision by the Domestic Violence Unit; random drug
screens; and mandatory court costs of $756.25 and $447.25 respectively.10
____________________________________________
9 The parties agreed to bifurcated proceedings for the firearm possession
charge. N.T., 11/13/18, at 15, 21-22. The charge would proceed only if
Appellant was found guilty of PIC, because the Commonwealth alleged the
criminal instrument was a handgun. Id. at 22.
10 Appellant filed a pro se notice of appeal on February 21, 2019, later
withdrawn by order of this Court on May 3, 2019. See Commonwealth v.
Valentine, 1024 EDA 2019 (Pa. Super. May 3, 2019).
-7-
J-S52028-20
Appellant timely filed a motion to modify sentence. 11 Appellant
requested the trial court give greater weight to the mitigating factors
presented at sentencing, “including but not limited to his childhood, mental
health, and potential for rehabilitation[.]” Appellant’s Motion to Modify
Sentence, 2/19/19, at 2. Furthermore, Appellant asserted the imposition of
consecutive sentences “constitute[d] a legally excessive sentence.” Id. On
June 19, 2019, Appellant’s post-sentence motion was denied by operation of
law. Appellant then filed separate notices of appeal in each of his two dockets
on June 25, 2019.12
Appellant was ordered to file a Pa.R.A.P. 1925(b) concise statement,
which he timely filed on September 13, 2019. The trial court issued its
Pa.R.A.P. 1925(a) opinion on February 19, 2020. On April 22, 2020,
Appellant’s application for consolidation of appeals was granted by order of
this Court.
____________________________________________
11 The 10th day after the imposition of sentence was February 18, 2019,
Presidents Day. See Pa.R.Crim.P 720(a). The time stamp on the face of the
post-sentence motion indicates that it was timely filed on February 15th.
However, the corresponding trial docket entry reflects a February 19th date.
Even if we were to assume this latter date was the filing date, because
February 18th was a court holiday, “such day shall be omitted from the
computation.” Thus, the February 19th post-sentence motion was therefore
timely submitted. See 1 Pa.C.S. § 1908.
12 We note Appellant has thus complied with Pa.R.A.P. 341(a) and
Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018), which require
separate notices of appeal from a single order resolving issues spanning more
than one docket.
-8-
J-S52028-20
Appellant presents two issues for our review:
1. Is the sentence on the charge of terroristic threats illegal,
insofar as that sentence should have merged with the sentence
for robbery?
2. Was the total sentence of twenty-one and one-half to fifty-five
years incarceration manifestly excessive, unreasonable, and
disproportionate to [Appellant’s] conduct?
Appellant’s Brief at 4.
In his first question, Appellant argues his sentence for terroristic threats
is illegal because it should have merged with the sentence for robbery.
Appellant’s Brief at 16. He asserts the elements of terroristic threats “are
completely subsumed” within robbery / threatening serious bodily injury, since
“[a] threat to put someone in fear of serious bodily injury is clearly a threat
to commit a crime of violence.” Id. at 16, 18. Appellant also contends his
actions constitute a single criminal act, “the pointing of the gun,” and thus his
case is “indistinguishable” from Commonwealth v. Martinez, 153 A.3d 1025(Pa. Super. 2016). Id. at 18-19. Like the defendant in Martinez, Appellant
asserts his charging documents “did not allege criminal acts that constituted
terroristic threats as distinct from the conduct that constituted robbery.” Id.
Appellant’s challenge to the legality of his sentence is raised for the first
time in his brief, as he did not include the challenge in his post-sentence
motion nor Pa.R.A.P.1925(b) concise statement. Ordinarily, issues not raised
in the trial courts cannot be raised for the first time on appeal. See Pa.R.A.P
302(a). Nevertheless, claims involving sentencing merger fall within the
narrow class of claims challenging the legality of a sentence. See Martinez,
-9-
J-S52028-20
153 A.3d at 1030. Challenges to the legality of a sentence are non-waivable
claims that may be raised for the first time on appeal as a matter of right.
See 42 Pa.C.S. § 9781(a); Martinez, 153 A.3d at 1030 n.2. Thus, this Court
has jurisdiction to review Appellant’s first question.13
In proceeding to the merits of Appellant’s first question, we are mindful
of our standard of review. As stated above, a claim that crimes should have
merged for sentencing purposes raises a challenge to the legality of a
sentence. Martinez, 153 A.3d at 1030. Thus, our standard of review is de
novo and the scope of review is plenary. Id.
Crimes merge for sentencing purposes only if: (1) all the statutory
elements of one offense are included in the statutory elements of the other;
and (2) the crimes arise from a single criminal act. 42 Pa.C.S. § 9765; see
also Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Under
____________________________________________
13 Before proceeding to the merits of Appellant’s first claim, we clarify a
discrepancy in the record. Our careful review of the record shows Appellant
was charged under 18 Pa.C.S. § 3701(a)(1)(i) with robbery/infliction of
serious bodily injury. Yet in its opening and closing arguments at trial, the
Commonwealth, referred to the elements of Subsection 3701(a)(1)(ii),
robbery/threatening serious bodily injury. N.T., 11/14/18, at 23-24; N.T.
Trial, 11/15/18, at 41-42. Furthermore, at the charging conference, the
parties agreed to instruct the jury on robbery/threatening serious bodily
injury. N.T., 11/15/18, at 50-51. The parties also stipulated, “[S]erious
bodily injury was not inflicted[.]” Id. at 51. As a result, the trial court
instructed the jury, and responded to a jury question, stating the elements of
robbery/threatening serious bodily injury. Id. at 67, 74; N.T., 11/16/18, at
9-10. The resulting guilty verdict was therefore a conviction under 18 Pa.C.S.
§ 3701(a)(1)(ii) for robbery/threatening serious bodily injury.
- 10 -
J-S52028-20
such circumstances, a court may only sentence the defendant on the higher
graded offense. 42 Pa.C.S. § 9765. The merger doctrine is a rule of statutory
construction, designed to determine whether the legislature intended the
punishment of one offense to encompass that of another offense arising from
the same criminal act. Baldwin, 985 A.2d at 835 (citation omitted).
In this Commonwealth, one is guilty of robbery if “in the course of
committing a theft, he . . . threatens another with or intentionally puts him in
fear of immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).
Similarly, one commits terroristic threats if he “communicates, either directly
or indirectly, a threat to . . . commit any crime of violence with intent to
terrorize another[.]” 18 Pa.C.S. § 2706(a)(1).
First, we agree with Appellant that “a threat to put someone in fear of
serious bodily injury is clearly a threat to commit a crime of violence.” See
Appellant’s Brief at 18. This Court has previously determined “it would be
championing a distinction without a difference to conclude that threatening
serious bodily injury . . . was not the functional equivalent of a threat of
violence intended to cause terror.” Martinez, 153 A.3d at 1033. Thus, we
agree the statutory elements of terroristic threats are subsumed by
Subsection 3701(a)(1)(ii) of the robbery statute.
We must also determine whether Appellant’s crimes result from the
commission of a single criminal act. This Court has explained:
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the
- 11 -
J-S52028-20
chain of criminal activity. The issue is whether the actor commits
multiple criminal acts beyond that which is necessary to establish
the bare elements of the additional crime, then the actor will be
guilty of multiple crimes which do not merge for sentencing
purposes.
In determining whether two or more convictions arose from a
single criminal act for purposes of sentencing, we must examine
the charging documents filed by the Commonwealth.
Martinez, 153 A.3d at 1030-31 (citations and quotation marks omitted).
Here, Appellant relies on Martinez, 153 A.3d 1025, in arguing his
conduct constitutes a single criminal act because his charging documents “did
not allege criminal acts that constituted terroristic threats as distinct from the
conduct that constituted robbery.” Appellant’s Brief at 18-19. In Martinez,
the defendant was convicted of robbery and terroristic threats. Martinez,
153 A.3d at 1027. Martinez approached the victim in a dark alley and asked,
“[W]hat do you got?” Id. After the victim said he had nothing, Martinez
brandished a silver revolver and pressed it to the victim’s cheek. Id. Martinez
then slammed the victim against the hood of a nearby car and searched the
victim’s pockets. Id. at 1027-28. Martinez took $50 cash and a cellular
telephone, then ran away. Id. at 1028. On appeal, Martinez argued his
sentences for robbery and terroristic threats should have merged because
terroristic threats is a lesser-included offense within robbery. Id. at 1029.
This Court agreed, and also concluded his conduct constituted a “seamless
event occurring in the course of a theft.” Id. at 1032. Critically, the Court
found “neither the charging information nor supporting documents of
- 12 -
J-S52028-20
record describe the operative facts in such a way as to distinguish the specific
conduct underlying the offenses of robbery and terroristic threats[.]” Id.
(emphasis added).
After thorough review of both the instant record and events giving rise
to the underlying offenses, we conclude Appellant committed separate and
distinct criminal acts. Appellant asserts “[t]he criminal information offers only
a generic recitation of the offenses and the statutory elements of each[.]”
Appellant’s Brief at 19. The information states:
COUNT 2: Robbery-Inflict Serious Bodily Injury – (F1)
On or about: 10/04/07 18 § 3701§§A1I
In the course of committing a theft, inflicted serious bodily injury
upon another. Victim: Dante Bolden. Age: 25.
* * *
COUNT 10: Terroristic Threats W/Int to Terrorize Another – (M1)
On or about: 10/04/07 18 § 2706 §§A1
Communicated, either directly or indirectly, a threat to commit a
crime of violence with intent to terrorize another. Victim: Dante
Bolden. Age: 25.
Information, 2/22/18, at 1-2. Unlike Martinez, the supporting documents of
record in Appellant’s case reveal his conduct was not a “seamless event
occurring in the course of a theft.” See Martinez, 153 A.3d at 1032. Rather,
Appellant’s conduct appears to be a series of assaults, interspersed with
threats and culminating in a theft. Complainant’s statements to the police
detective, in summary, include: telling Appellant “nothing was wrong,” he
grabbed her by the hair and said, “I’m not gonna let you go until you let me
- 13 -
J-S52028-20
know what’s wrong with you,” Complainant attempted to escape, but
“[Appellant] kept pulling her back by the hair;” when Complainant refused to
“[g]o back upstairs,” Appellant threatened, “I’m tellin you right now, go back
upstairs or it’s gonna get ugly;” as Appellant choked her, Complainant told
him to stop, he replied “You’re my property and your kids are my property;”
Appellant pushed her and her son, M.G., back into the house, placed a black
handgun to her neck and said, “Now you ain’t goin nowhere.” Affidavit of
Probable Cause, 12/7/17, at 2.
The foregoing testimony, corroborated by the evidence at trial, proves
Appellant committed the robbery as a part of an ongoing violent domestic
assault, which started in the couple’s bedroom, then moved outside, N.T.,
11/14/18, at 45, 49, before ending inside Complainant’s home. Appellant’s
ongoing conduct was sufficient to sustain separate convictions for
robbery/threatening serious bodily injury and terroristic threats. See
Commonwealth v. Butcher, 644 A.2d 174, 176 (Pa. Super. 1994)
(sustaining terroristic threats conviction where appellant grabbed victim from
inside her car, pushed her against the vehicle, and said in a “forceful voice,
‘Don’t make me get physical[.]’”). Therefore, Appellant is entitled to no relief
on his first issue.
In his second question, Appellant argues his aggregate sentence of 21½
to 55 years’ incarceration violates the Sentencing Code because the sentence
is “manifestly excessive, unreasonable, and disproportionate” to his conduct.
- 14 -
J-S52028-20
Appellant’s Brief at 20. He insists the trial court did not meaningfully consider
the sentencing factors in imposing “essentially a life sentence[,]” in a case
“where no serious bodily injury was caused[,]” by “a defendant whose only
prior criminal contacts as an adult were misdemeanors and one escape
charge.” Id. at 20, 26. Additionally, Appellant argues the trial court erred in
applying an incorrect offense gravity score (OGS) of 12 for
robbery/threatening serious bodily injury. Id. at 8-9.
A challenge to the discretionary aspects of sentencing is not appealable
as of right. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015) (en banc). Our jurisdiction to review such a challenge is dependent
upon the satisfaction of a four-prong test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [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.
Id. (citation omitted).
Here, Appellant filed a timely notice of appeal and preserved the issue
in a timely post-sentence motion. See Appellant’s Motion to Modify Sentence,
2/19/19, at 2. Furthermore, Appellant’s brief properly includes the required
Pa.R.A.P. 2119(f) statement. See Appellant’s Brief at 11-14. Thus, we
consider whether Appellant “sufficiently articulates the manner in which the
sentence violates either a specific provision of the sentencing scheme set forth
- 15 -
J-S52028-20
in the Sentencing Code or a particular fundamental norm underlying the
sentencing process.” See Caldwell, 117 A.3d at 768 (quotation marks and
citation omitted).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Caldwell, 117 A.3d at 768. Ordinarily, a
challenge to a court’s exercise of discretion in imposing consecutive sentences
does not raise a substantial question. Id. at 769 (citation omitted). Instead,
the imposition of consecutive sentences presents a substantial question in
“only ‘the most extreme circumstances, such as where the aggregate sentence
is unduly harsh, considering the nature of the crimes and the length of
imprisonment.’” Id. (citations omitted).
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a substantial
question.
Id., quoting Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013). Additionally:
In determining whether a substantial question exists, this Court
does not examine the merits of whether the sentence is actually
excessive. Rather, we look to whether the appellant has
forwarded a plausible argument that the sentence, when it is
within the guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question determination does not
require the court to decide the merits of whether the sentence is
clearly unreasonable.
- 16 -
J-S52028-20
Id. Excessive sentencing challenges may present a substantial question if the
collective sentence “appears upon its face to be, an excessive level in light of
the criminal conduct at issue in the case.” Commonwealth v. Austin, 66
A.3d 798, 808 (Pa. Super. 2013) (citation omitted).
In the case sub judice, we conclude Appellant’s challenge to the
consecutive nature of his sentences, alone, does not present a substantial
question. See Caldwell, 117 A.3d at 769. The aggregate sentence does not
appear to be excessive “in light of [Appellant’s] criminal conduct[.]” See
Austin, 66 A.3d at 808. However, Appellant’s claim that the trial court
miscalculated the OGS for robbery presents a substantial question for our
review. See Commonwealth v. Archer, 722 A.2d 203, 210-11 (Pa. Super.
1998) (en banc). Additionally, his excessive sentence claim, together with his
assertion the trial court did not meaningfully consider the sentencing factors,
does present a substantial question invoking this Court’s jurisdiction. See
Caldwell, 117 A.3d. at 770.
When reviewing a challenge to the discretionary aspects of sentencing,
we are required to assess whether the trial court has abused its discretion.
Caldwell, 117 A.3d at 770. We note:
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.
- 17 -
J-S52028-20
Id (citation omitted).
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. McLaine, 150 A.3d 70, 75-76 (citation omitted).
“[W]here the trial court is informed by a pre-sentence report [(PSI)], it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128, 1135
(Pa. Super. 2009).
First, we note that at the sentencing hearing, the parties disagreed as
to proper OGS for Appellant’s robbery conviction. Appellant argued it was 10,
while the Commonwealth averred it was 12. N.T. Sent’g, 2/8/19, at 10. At
this juncture, we note Appellant’s is correct that robbery/threatening serious
bodily injury, under Subsection 3701(a)(1)(ii), carries an OGS of 10. See 204
Pa. Code § 303.15. Meanwhile, the OGS for a conviction under Subsection
3701(a)(1)(i), robbery/inflicting serious bodily injury, is 12. Id. It appears
the trial court applied an OGS of 12. However, the trial court also specified
its “intention to deviate from the guideline calculations for the myriad of stated
cogent reasons.” Trial Ct. Op. at 17; see N.T., 2/8/19, at 27 (“[M]y sentence
will deviate from any guidelines, I acknowledge that.”). Thus, Appellant’s
argument that the trial court miscalculated the standard range guideline does
- 18 -
J-S52028-20
not merit relief, as the court specified it was deviating from the standard range
anyway.
The trial court maintains “the imposed Orders of Sentence were not
unreasonable and the rationale for imposition was clearly recited.” Trial Ct.
Op., 2/19/20, at 15. The court acknowledged its review of the facts, the PSI,
as well as “all relevant sentencing factors[,] particularly in view of
[Appellant’s] commission of prior offenses[.]” Id. at 16. The court also
viewed Appellant’s refusal to speak with the mental health evaluator, “cavalier
lack of remorse for his actions[,]” and “[ ]overall defiant conduct as a ‘level of
arrogance that is most disconcerting[,]’” reinforcing the court’s “perception
that [Appellant] constitutes a clear and present danger to the community.”
Id., quoting N.T. Sent’g, 2/8/19, at 23-24. The trial court emphasized
Appellant’s resistance to rehabilitation and criminal history:
[A]t the mere age of [17] and as a juvenile he had been arrested
three times. As an adult, Appellant had incurred [12] arrests, [7]
convictions, [3] violations of probation and [1] pending violation,
and [2] revocations of sentence. Additionally, Appellant had
amassed [14] misconducts and facilitated [1] escape while in
custody.
Trial Ct. Op. at 16. The court insists Appellant’s sentences resulted from a
reasonable exercise of the court’s discretion and “fell within the statutory
maximum[.]” Id. at 17. The trial court concludes the sentences were
“imposed only after careful consideration of all relevant sentencing factors[,]
including the paramount need for protection of the public, the gravity of the
offense, and Appellant’s poor prospect of rehabilitation.” Id. at 20.
- 19 -
J-S52028-20
After thorough review, we find no merit in Appellant’s disproportionality
argument — that his sentence is manifestly unreasonable because “no serious
bodily injury was caused[,]” and his “only prior criminal contacts as an adult
were misdemeanors and one escape charge.” See Appellant’s Brief at 20
(emphasis added). His contention, that “no serious bodily injury was caused,”
is not persuasive, as the infliction of serious bodily injury was not an element
of the crimes for which Appellant was convicted. Appellant arguing to the
absence of serious bodily injury further minimizes the impact of his crimes
and reinforces the trial court’s conclusion he lacks remorse for his actions.
Indeed, Appellant continues to deny the assaults against the victim and her
son.14 See Trial Ct. Op. at 16.
Finally, at sentencing, the trial court provided a thorough description of
Appellant’s extensive, criminal history in support of its “grave concerns about
____________________________________________
14At sentencing, Appellant stated:
But I feel as though the DA don’t know me. She going off what
she is reading off the past history. Yes, I admit to some of the
stuff I have done in my past, but as far as the assaults go, they
never even occurred. Once females found out who I was as far as
my actual name, that is what tends to happen. When they find
out about my kids’ mothers — find out about kids that I have, that
is what they tend to do, make up stories. And whatever a female
say to the cops, they automatically go with it.
N.T., 2/8/19, at 22-23.
- 20 -
J-S52028-20
[Appellant’s] behavior in the future” and demonstrated resistance to
rehabilitation. N.T., 2/8/19, at 24-25. The court stated:
This case involved very serious charges. I recall not only the
physical injuries that you inflicted upon this victim, but the
circumstances involving the children who witnessed and suffered
the effects of your intentional violence upon their mother and as
to [M.G.,] intentionally as to him.
Your overall perception of what you can and cannot do is
reflected in the statements made to this [C]omplainant during this
event reflected a mindset, sir, that you feel entitled to treat human
beings as your property. I believe you stated words to that effect
during the event. That reflects a mindset, sir, of not only lacking
in remorse for your actions as evidenced today again, but
someone who is going to — if and when given the opportunity —
harm others in the future without regard or remorse. So to the
extent that my sentence will deviate from any guidelines, I
acknowledge that.
Id. at 26-27. The court’s sentence also considered that at the time of the
incident, Appellant “was absconding from probation [for] a prior domestic
violence case, and “the presentence investigator noted that [Appellant’s] three
prior arrests have been assaults of women.” Id. at 17, 20.
Under these facts, we conclude Appellant’s sentence was not manifestly
unreasonable. See Caldwell, 117 A.3d at 770. The trial court reviewed
Appellant’s PSI, and we presume it was aware of all appropriate sentencing
factors. See Ventura, 975 A.2d at 1135. This Court’s comprehensive review
of the record supports the conclusion the trial court did not ignore or misapply
the law in its consideration of the sentencing factors, nor did it impose the
sentence with partiality, prejudice, bias or ill will. See id. We therefore
- 21 -
J-S52028-20
decline to find the trial court abused its discretion in imposing Appellant’s
aggregate sentence. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
- 22 -