Com. v. Schweiger, T. ( 2023 )

J-S19015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY ANSON SCHWEIGER :
:
Appellant : No. 1525 MDA 2022
Appeal from the Judgment of Sentence Entered September 23, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001714-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY A. SCHWEIGER :
:
Appellant : No. 1526 MDA 2022
Appeal from the Judgment of Sentence Entered September 23, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004827-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY A. SCHWEIGER :
:
Appellant : No. 1527 MDA 2022
Appeal from the Judgment of Sentence Entered September 23, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004826-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S19015-23
:
v. :
:
:
TROY ANSON SCHWEIGER :
:
Appellant : No. 1528 MDA 2022
Appeal from the Judgment of Sentence Entered September 23, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002600-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: AUGUST 22, 2023
Appellant, Troy Anson Schweiger, appeals from the aggregate judgment
of sentence of 15 to 40 years’ incarceration, imposed after he pled guilty — at
four separate docket numbers — to multiple counts of robbery (18 Pa.C.S. §
3701(a)(1)(ii)), criminal conspiracy to commit robbery (18 Pa.C.S. § 903),
simple assault (18 Pa.C.S. § 2701(a)(3)), intimidation of a witness or victim
(18 Pa.C.S. § 4952(a)(5)), and fleeing or attempting to elude police officers
(18 Pa.C.S. § 3733). On appeal, Appellant solely challenges the discretionary
aspects of his sentence. After careful review, we affirm.
The trial court provided a detailed summary of the facts underlying
Appellant’s four cases, which we need not reproduce herein. See Trial Court
Opinion (TCO), 12/7/22, at 4-5. We only briefly note that Appellant’s robbery,
conspiracy, and simple assault convictions at CP-22-CR-0004826-2018 and
CP-22-CR-0004827-2018 stemmed from his and two cohorts’ committing
robberies of three convenience stores on May 25, 2018, and a frozen yogurt
shop on August 23, 2018. Appellant’s conviction of intimidation of a victim or
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witness at CP-22-CR-0002600-2019 stemmed from his sending an
intimidating and threatening letter, while he was incarcerated in January of
2019, “to his former girlfriend, … against whom he was charged [in a separate
case] with terroristic threats and simple assault.” Id. at 5 (footnote, citation
to the record, and unnecessary capitalization omitted). Finally, Appellant’s
conviction of fleeing or eluding a police officer at CP-22-CR-0001714-2021
arose from his leading police on a dangerous, high-speed chase when they
attempted to serve an arrest warrant for him in March of 2021. Id.
Appellant’s four separate cases were ultimately consolidated and, on
July 22, 2022, he pled guilty to the above-stated crimes. In exchange, the
Commonwealth withdrew an additional 18 counts with which Appellant had
been charged. There was no agreement as to Appellant’s sentence. After the
preparation of a pre-sentence investigation report, the trial court sentenced
Appellant to the aggregate term set forth, supra, on September 23, 2022.
Appellant filed a timely, post-sentence motion for reconsideration of his
sentence, which the court denied on October 4, 2022. Appellant then filed
timely notices of appeal at each of his four docket numbers.1 He also timely
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The court filed its Rule 1925(a)
opinion on December 7, 2022.
____________________________________________
1 We sua sponte consolidated Appellant’s appeals by per curiam order entered
on December 15, 2022.
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Herein, Appellant states one issue for our review: “Whether the
imposition of consecutive sentences created a substantial question where the
sentencing court failed to adequately consider the sentencing factors for total
confinement[,] and where the sentencing court abused its discretion in
sentencing [Appellant] to an aggregate sentence of 15 to 40 years in a state
correctional facility[?]” Appellant’s Brief at 4 (unnecessary capitalization and
underlining omitted).
Appellant’s issue implicates the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] 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 [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, … 909 A.2d 303 ([Pa.] 2006). Objections to the
discretionary aspects of a sentence are generally waived if they
are not raised at the sentencing hearing or in a motion to modify
the sentence imposed. Commonwealth v. Mann, 820 A.2d 788,
794 (Pa. Super. 2003), appeal denied, … 831 A.2d 599 ([Pa.]
2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
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with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Presently, Appellant filed timely notices of appeal, and he preserved his
sentencing claims in his post-sentence motion. He has also included a Rule
2119(f) statement in his appellate brief. Thus, we must decide if he has raised
a substantial question that his sentence is not appropriate under the
Sentencing Code.
In his Rule 2119(f) statement, Appellant contends that his sentence for
intimidation of a witness or victim was in the aggravated guideline range and
the court failed to state sufficient reasons to justify that sentence. See
Appellant’s Brief at 12. He also avers that the court abused its discretion by
imposing consecutive sentences without adequately considering the nature of
the crimes, including that Appellant only drove and did not enter the
convenience stores that were robbed, only fake guns were used, and no one
“received physical injury as a result of … [A]ppellant’s actions.” Id. at 18.
Appellant also insists that the court failed to account for his rehabilitative
needs and ignored certain mitigating factors, such as Appellant’s young age
and his mental health and addiction issues. In sum, Appellant maintains that
the court’s aggregate sentence of 15 to 40 years’ incarceration is excessive
and not appropriate under the Sentencing Code.
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We conclude that Appellant has presented a substantial question for our
review. See Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. Super.
2015) (stating that Swope’s “challenge to the imposition of his consecutive
sentences as unduly excessive, together with his claim that the court failed to
consider his rehabilitative needs and mitigating factors upon fashioning its
sentence, presents a substantial question”); Commonwealth v. Fullin, 892
A.2d 843, 850 (Pa. Super. 2006) (finding a substantial question presented
where Fullin argued that the “trial court failed to state on the record sufficient
reasons for imposing an aggravated[-]range sentence”).
In reviewing the merits of Appellant’s sentencing challenge, we are
mindful that,
[s]entencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Instantly, in considering Appellant’s sentencing challenges, we have
reviewed his brief, the Commonwealth’s response, the certified record, and
the applicable law. We have also considered the detailed and thoughtful
opinion of the Honorable Scott Arthur Evans of the Court of Common Pleas of
Dauphin County. We conclude that Judge Evans’ decision adequately
addresses each of Appellant’s sentencing claims. Further, Judge Evans’
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discussion of his sentencing rationale demonstrates that he did not commit an
abuse of discretion in fashioning Appellant’s individual sentences or aggregate
term of incarceration. Thus, we adopt Judge Evans’ opinion as our own, and
affirm Appellant’s judgment of sentence for the reasons set forth therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/22/2023
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Circulated 07/25/2023 02:28 PM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
:DAUPHIN COUNTY, PENNSYLVANIA
VS. :NO. 4826, 4827 CR 2018; 2600 CR 2019;
:1714 CR 2021
TROY SCHWEIGER
MEMORANDUM OPINION
On July 22, 2022, Defendant entered guilty pleas to the following offenses at the dockets
indicated:
4826 CR 2018 — three (3) counts of Robbery' and three (3) counts of Criminal
Conspiracy. 2
4827 CR 2018 — two (2) counts of Robbery3 and one ( 1) count of Simple Assault .4
2600 CR 2019 --- one (1) count of Intimidation of Witnesses or Victims; $ and
1714 CR 2021— one (1) count of Fleeing or Attempting to Elude Police Officers.$
The Commonwealth withdrew eighteen (18) counts between the four (4) dockets. There
was no agreement as to the sentence to be imposed.Sentencing was deferred for the preparation
of aPre-Sentence Investigation Report (PSI). [Notes of Testimony dated July 22, 2022,
hereinafter "N.T. GP", p. 29].
On September 23, 2022, the PSI having been completed and reviewed by the parties and
the Court, [Notes of Testimony dated September 23, 2022, hereinafter "N.T. Sent", pp. 2, 25],
1 18 Pa. C.S.A. §3701(a)(1)(ii)
Z18 Pa. C.S.A. §903
3 18 Pa. C.S.A. § 3701 (a)(1)(ii)
4 18 Pa. C.S.A. §2701(a)(3),
5 18 Pa.
C.S.A. §4952(x)(5)
6 75 Pa, C.S.A. §3733
7Two (2)other dockets, 4829 CR 2018 and 1713 CR 2021 ,were entirely withdrawn by the Commonwealth.
1
1•) — 1'•
we sentenced Defendant to an aggregate terra of not less than fifteen (15) nor more than forty
(40) years in astate correctional institution. [N.T. Sent. 291. 8 On October 3, 2022, Defendant
filed aPost-Sentence Motion to modify his sentence. We denied said Motion on October 4, 2022.
On October 31, 2022, Defendant filed Notices of Appeal for 4826 CR 2018 and 2600 CR
2019. On November 1, 2022, Defendant filed Notices of Appeal for 4827 CR 2018 and 1714 CR
2021. On November 23, 2022, Defendant filed aConcise Statement of Errors Complained of
Upon Appeal Pursuant to Pa. R.A.P. 1925(b) at each of the instant dockets. On December 6,
2022, Defendant filed an Amended 1925(b) Statement at 4827 CR 2018.
Defendant has raised the following allegations of error relating to the discretionary
aspects of the sentences imposed:
4826 CR 2018
1. This Court abused its discretion in sentencing [Defendant] to 36-100 months,
when the guidelines called for asentence of 40-54 months, when the Court
treated the robberies as separate, when the robberies all occurred on one night,
in the span of less than two hours, and not treating the robberies as one
continuous course of conduct.
2. The Court abused its discretion in treating [Defendant] substantially
differently from his co-defendants, and the fact [Defendant] did not enter the
place of business in the conspired robbery.
3. The Court abused its discretion in its overall sentencing of [Defendant] by
failing to account for [Defendant's] age and lack of criminal history prior to
his criminal experience, the role of drugs and alcohol in the offenses, failing
to adequately consider [Defendant's] remorse, failing to take into
consideration [Defendant's] family's testimony, and all other factors raised in
[Defendant's] post-sentence motion.
4827 CR 2018
1. The Court abused its discretion in its overall sentencing scheme of [Defendant] by
failing to account for [Defendant's] age and lack of criminal history prior to his
BIn addition to the dockets noted in Footnote 7, supra, which were withdrawn by the Commonwealth, Defendant
was sentenced at three (3) additional dockets for which no appeals have been taken: 5462 CR 2018, 807 CR 2019,
and 1715 CR 2021.
2
criminal experience, the role of drugs and alcohol in the offenses, failing to
adequately consider [Defendant's] remorse, failing to take into consideration
[Defendant's] family's testimony, and all other factors raised in [Defendant's]
post-sentence motion.
2. The Court abused its discretion in running the sentence at this docket consecutive
to docket 4826 CR 2018, as such asentence does not comport with the
rehabilitative needs of [Defendant] bnd disregards his mitigating evidence. 9
2600 CR 2019
1. The Court abused its discretion in sentencing [Defendant] to 18-48 months, when
the guidelines called for 6-14 months, thereby imposing an aggravated range
sentence without providing acontemporaneous justification as to depart from
those guidelines.
2. The Court erred in its sentencing scheme when it sentenced [Defendant] by failing
to account for [Defendant's] age and lack of criminal history prior to his criminal
experience, the role of drugs and alcohol in the offenses, failing to adequately
consider [Defendant's] remorse, failing to take into consideration [Defendant's]
family's testimony, and all other factors raised in [Defendant's] post-sentence
motion.
3. The Court abused its discretion in imposing this docket's sentence consecutive to
4827 CR 2018, disregarding [Defendant's] mitigating evidence and rehabilitative
needs.
1714 CR 2021
1. The Court abused its discretion in sentencing [Defendant] to 6-12 months, when
the guidelines called for aR5-9 sentence, by failing to account for [Defendant's]
age and lack of criminal history prior to his criminal experience, the role of drugs
and alcohol in the offenses, failing to adequately consider [Defendant's] remorse,
failing to take into consideration [Defendant's] family's testimony, and all other
factors raised in [Defendant's] post- sentence motion.
2. The Court abused its discretion in imposing asentence consecutive to docket
2600 CR 2019, by disregarding [Defendant's] rehabilitative needs and mitigating
evidence.
9The issues recounted herein were contained in Defendant's original 1925(b) Statement and his amended Statement.
It appears, therefore, that Defendant's intention was to forego aclaim initially presented rather than to add issues.
Accordingly, we will only address those allegations included in the amended Statement.
3
STATEMENT OF FACTS
On May 25, 2018, Defendant, age twenty (20), Nathan Strausser, age twenty (20),
and Dave Deibert, age sixteen (16), engaged in three (3) distinct Robberies at three (3)
distinct locations. Defendant was the driver of the vehicle and engaged in the planning of
the crimes. [N.T. GP 14].
The first Robbery occurred at the Turkey Hill on Jonestown Road. [N.T. GP 14].
Dave Deibert entered the store with afake assault rifle and demanded money. He
obtained $ 100.50. [N.T. GP 14].
The second Robbery occurred approximately forty (40) minutes later at aSheetz
in Palmyra. [N.T. GP 15; Commonwealth's Sentencing Memorandum, hereinafter
"Memo"]. This time, Strausser entered the store with the fake rifle, but he quickly
abandoned the plan and left without obtaining any money or merchandise.
Following the second Robbery, Defendant drove himself and his cohorts to his
home for them to get new clothes. [Memo]. They then drove to the Sheetz in Halifax,
where Deibert entered the store with the rifle and obtained $300.00. [N.T. GP 171. For his
participation in these Robberies, Deibert was adjudicated delinquent and committed to a
secure residential treatment facility. [Memo].
Strausser suffers from inteliectual disabilities. He has an intelligent quotient (IQ)
of 55. At the time of sentencing, he resided in agroup home, and it was expected that he
would continue to do so indefinitely, if not for the remainder of his life. He is unable to
accomplish basic tasks such as counting money or keeping time. After confirming the
extent of Strausser's mental limitations, the District Attorney decided to seek anolle
prosequi of all charges. [Memo].
4
On August 23, 2018, Defendant, acting alone, again utilizing afake assault rifle,
entered the Sweet Frog frozen yogurt store in South Hanover Township. [N.T. OP 19].
He pointed the fake rifle at numerous employees and customers, demanded money, and
obtained $617.01. [N.T. GP 19; Memo].
On January 28, 2019, Defendant sent aletter from prison to his former girlfriend,
Paige Balshy, against whom he was charged with Terroristic Threats 10 and Simple
Assault.I I [
N.T. GP 23-24]. The letter employed intimidation and implicit threats to
dissuade her from testifying against him. [N.T. GP 24-25; Memo]. The underlying
charges of Simple Assault and Terroristic Threats involved Defendant punching Balshy
in the face and sending very threatening text messages. The text messages included
threats to kill her accompanied by apicture of Defendant pointing agun at the camera,
the statement that Defendant would "do life for [her] murder", and the declaration that
Defendant would "sneak up to [her] after work catch [her] in the dark wait for the flash."
[Memo]."
On March 10, 2021, the Pennsylvania State Police (PSP) attempted to serve an
arrest warrant on Defendant. [N.T. GP 25-26]. Defendant fled on amotorcycle and
engaged Troopers in ahigh-speed chase. [N.T. 26-27]. Defendant traveled over ninety
(90) miles per hour in aforty (40) mile per hour zone, passed vehicles by entering
opposing lanes of traffic and the shoulder, and passed vehicles around blind curves.
Defendant's actions endangered the Troopers, other motorists, pedestrians, and areas of
active road work. [Memo].
10 18 Pa. C.S.A. §2706(a)(1)
11 18 Pa. C.S.A. §2701(a)(1)
17 Defendant pled guilty to these allegations at 807 CR 2019. Although that docket is not part of the instant appeal,
we believe the facts are relevant to the sentence imposed at 2600 CR 2019 for Intimidation of Witnesses or Victims.
5
LEGAL DISCUSSION
All Defendant's issues challenge This Court's discretion in sentencing. It is
undisputed that sentencing is amatter vested in the sound discretion of the sentencing
judge, and asentence will not be disturbed on appeal absent amanifest abuse of
discretion. Commonwealth v Fullin, 892 A.2d 843, 847 (Pa. Super. 2006). In this
context, an abuse of discretion is not shown merely by an error in judgment. 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 amanifestly unreasonable decision. Icy Indeed, the sentencing judge
has broad discretion in determining the proper penalty as the sentencing court is in the
best position to view the defendant's character, displays of remorse, defiance,
indifference, and the overall effect and nature of the crime. Commonwealth v. Walls, 926
A.2d 957, 961 (Pa. 2007) (quotations and citations omitted).
When imposing asentence, the sentencing court must consider "the protection of
the public, the gravity of the offense as it relates to the impact on the life of the victim
and on the community, and the rehabilitative needs of the defendant." 42 Pa. C.S.A.
§9721(b). A "court is required to consider the particular circumstances of the offense and
the character of the defendant." Commonwealth v Grim, 804 A.2d 1, 10 (Pa. Super.
2002). "In particular, the court should refer to the defendant's prior criminal record, his
age, personal characteristics and his potential for rehabilitation." Icy
However, when atrial court has the benefit of aPSI, it can be assumed that the court is
aware of relevant information regarding Defendant's character and has weighed those
considerations along with mitigating statutory factors. Commonwealth v. Devers, 546 A.2d 12,
6
18 (Pa. 1988). See Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) ("Since the
sentencing court had and considered apresentence investigation report, this fact alone was
adequate to support the sentence, and due to the court``s explicit reliance on that report, we are
required to presume that the court properly weighed the mitigating, factors present in the case").
This Court had and considered aPSI. [N.T. Sent 2, 25]. Therefore, despite Defendant's
assertion to the contrary at all four (4) dockets, we did consider his age, criminal history, and the
role of drugs and alcohol in the offenses, as he suggests we should have. We also heard
testimony from six (6) of Defendant's family members. [N.T. Sent 5-14]. Our comments at
sentencing demonstrate that we were attentive to that testimony and considered it in the
formulation of our sentence. [N.T. Sent 25]. Finally, we afforded Defendant the opportunity to
speak, and he did so at length. [N.T. Sent 1420]. Therefore, we believe we adequately
considered all the very sentencing factors Defendant has argued we ignored.
Apart from the broad sentencing challenges already discussed, Defendant has presented
several more specific claims of error. We begin with two (2) such claims pertaining to 4826 CR
2018.
First, Defendant contends that we erred in treating the Robberies charged at this docket as
separate rather than "as one continuous course of conduct." It is undisputed that each Robbery
occurred at different establishments, in different municipalities, and involved different victims.
The second Robbery occurred approximately forty (40) minutes following the first Robbery. The
third Robbery was perpetrated after abreak to change clothes at Defendant's home. Each
Robbery was preceded by some intervening period during which Defendant had the opportunity
to ponder his actions and not engage in additional criminal activity.
7
Such was not the case in Commonwealth v. Diehl, 140 A.3d 34 (Pa. Super. 2016). The
defendant in that case argued that his sentences for Homicide by Vehicle, Homicide by Vehicle
while Driving Under the Influence, and Accidents Involving Death or Personal Injury should not
have been consecutive because they were "based on asingle course of conduct." Id. at 44. The
Court disagreed, stating:
[T]he course of events comprised distinct aspects of consciously drinking before
driving, disregarding obvious signs of an emergent situation on the highway
indicating aneed for cautious driving, and proceeding away from the scene after a
serious collision, which, taken together, placed this matter within the court's
province to impose consecutive sentences.
Id. at 45.
From alay standpoint, there is at least some colorable merit to Diehl's argument. He
engaged in one motor vehicle accident. He did not have three (3) distinct traffic accidents, in
three (3) distinct municipalities. He did not make the conscious decision to commit more crime
after having already completed his initial crimes. He only victimized those individuals that were
part of the singular accident for which he was charged. Yet the Superior Court held that
consecutive sentences were appropriate to vindicate the "distinct aspects" of what appears to be a
lone incident of criminal conduct. In other words, consecutive sentences are appropriate to
punish each distinct crime adefendant commits as part of acriminal episode. 13
We are also struck by another argument put forth by the defendant in Diehl that reminds
us of one made by Defendant. In Diehl, the defendant suggested that allowing consecutive
sentences in his case amounted to a "volume mark-up." Id. at 45. Here, Defendant wants a
"volume discount' for committing multiple crimes. He contends that he should be sentenced as if
13 The limitation on this principle is the doctrine of merger. See, 42 Pa. C.S.A. § 9765. Defendant herein has not
raised any argument that any of the offenses for which he was sentenced should merge for purposes of sentencing.
8
he had committed only one ( 1) Robbery; as if he had not consciously decided to drive to new
locations and victimize more people; to steal more money.
To accept Defendant's logic would be unfair to similarly situated defendants who had the
sense to stop robbing people after their first Robbery, or their second Robbery. The absurdity of
Defendant's argument is best illustrated by examining its public policy consequences. Why stop
committing crime if every crime on any given day is a "freebie" after the first one? Neither
punishment, nor retribution, nor rehabilitation can be effectively exacted by ignoring the breadth
and extent of adefendant's criminal conduct.
Second, Defendant challenges his sentence on the grounds that he was treated
"substantially differently from his co-defendants, and the fact [that he) did not enter the place of
business in the conspired robber[ies]." "The law is well-settled that co-defendants are not
required to receive identical sentences." Commonwealth v. Mastromarino, 2A.3d 581, 589 (Pa.
Super. 2010). All that is required is for the sentencing court to give reasons particular to each
defendant for the respective sentences imposed. Commonwealth v Cleveland, 703 A.2d 1046,
1048 (Pa. Super. 1997). In doing this, however, the court need not specifically refer to the
sentence of aco-defendant, Id.We believe we thoroughly discussed the basis for the sentences imposed. As already
referenced, we considered the PSI and it is, therefore, presumed that we also considered all
relevant statutory factors and mitigating circumstances. Devers, supra, and Fowler, supra.
However, at the time of sentencing we also specifically referenced various factors unique to
Defendant.
We took note of the fact that Defendant engaged in numerous instances of criminal
activity, and that they occurred over anearly three (3) year period. [N.T. Sent 25]. We also
9
credited the Commonwealth's arguments that, despite not entering the stores and personally
committing the Robberies on May 25, 2018, Defendant was the ringleader of the conspiracy.
Defendant was an adult, whereas Deibert was asixteen ( 16) year old juvenile. Strausser was
intellectually challenged to the extent that we do not believe he could have planned the crimes or
carried them out on his own. [N.T. Sent 25]. This belief is supported by how quickly he
abandoned the plan upon entering the Sheetz in Palmyra. Considering Defendant's argument, we
are struck by the idea that his not entering the stores himself but sending in achild and an
intellectually challenged individual is more of an aggravating factor than amitigating factor.
Finally, we reasoned that Defendant's intimidation of Paige Balshy and high-speed flight from
PSP demonstrated an indifference to others that made him dangerous to the community. [N.T.
Sent 26].
Furthermore, we suggest that there were no other "co-defendants" at this docket. Deibert
was not a "defendant" who committed crimes. He was a "child" who committed "delinquent
acts." See, 42 Pa. C.S.A. §6302. Strausser's charges were withdrawn by the Commonwealth, so
he was neither convicted nor sentenced for any crimes. Therefore, we fail to understand
Defendant's argument. Would he have us treat him as ajuvenile because he, as an adult, chose to
enlist ajuvenile in his crime spree? Would he have us dismiss all his charges because he, as a
person with the capabilities to know better, enlisted someone of limited mental faculties in his
crime spree?
Finally, we wish to point out that the sentences imposed at 4826 CR 2018 are far below
what Defendant could have received under the Sentencing Guidelines. "[W]here asentence is
within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate
10
under the Sentencing Code." Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010),
citing Commonwealth v Critz-Centeno, 668 A.2d 536 (Pa. Super. 1995).
Defendant's sentence at each of the Robbery counts at this docket, thirty-six (36) months,
was in the mitigated range of the Sentencing Guidelines. Furthermore, we declined to impose
any sentence at the three (3) counts of Criminal Conspiracy, each with astandard range of twelve
(12) to twenty-four (24) months. Accordingly, Defendant was sentenced at this docket to a
minimum term of nine (9) years. We could have imposed aminimum term of nineteen and one-
half (19 %:) years within the standard range.
Moving on to issues raised in the remaining dockets, Defendant argues that we abused
our discretion by directing all dockets to be served consecutively. "[L]ong standing
precedent... recognizes that [the Sentencing Code] affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed." Commonwealth v. Marts, 889 AN 608, 612 (Pa. Super.
2005). The only limitation on this broad discretion is where the aggregate sentence "viscerally
appear[s] as patently unreasonable." Commonwealth v. GonzalezDejusus, 994 A.2d 595, 599
(Pa. Super. 2010).
We cannot conclude that there is anything "viscerally unreasonable" about the sentences
imposed. We already discussed the sentence at 4826 CR 2018 and its relationship to the
Sentencing Guidelines. Examining the entire sentencing scheme in relation to the Guidelines
further underscores the reasonableness of that scheme, at least as far as Defendant should be .
concerned.
At 4827 CR 2018, we imposed standard range, concurrent sentences at the two (2)
Robbery counts. We imposed no sentence for Simple Assault, which would not have merged for
11
sentencing purposes because it was directed at adifferent victim from the Robberies. Therefore,
while we imposed an aggregate minimum term at this docket of four (4) years, we could have
imposed more than nine and one-half (9'/x) years and still been within the standard range.
2600 CR 2019 is the only docket where we imposed asentence outside of the standard
range. The eighteen (18) month sentence exceeded the standard range of six (6) to fourteen ( 14)
months. Defendant has alleged that we sentenced within the aggravated range without providing
justification for doing so. We disagree.
As already discussed, we took special note at sentencing of the Intimidation of Witnesses
or Victims charge at this docket, pointing out Defendant's indifference to other people and his
dangerousness to the community. [N.T. Sent 26]. Defendant's actions regarding this charge
strike us as especially heinous considering the intensely frightening nature of the threats against
Ms. Balshy in the underlying assault case. We stated the following at sentencing:
The other discerning aspect of the case is the involvement with his former
girlfriend with the terroristic threats and simple assault which an interesting
insight takes place when you review the texts and what was sent. The fact that the
woman cannot bring herself to be present in court today just for fear of flaming
the fires of what may occur when the Defendant gets out. l4
[N.T. Sent 25-26].
While the underlying text messages were certainly frightening, the aspect of Defendant's
actions we find chilling and aggravating is the letter sent from prison giving rise to the
I
Intimidation charge. It is that letter that affirms Defendant's unique danger to Ms. Balshy and the
community. This was not asimple text sent off quickly in afit of rage. This was ahandwritten
letter placed in the United States mail. It was drafted and sent long after an opportunity to cool
off and reflect on his actions. It is the single item of evidence in this case that tends to vitiate
11 Ms. Balshy's victim impact statement, in which she expressed her fears of Defendant and of coming to court, was
attached as Exhibit 2to the Commonwealth's Sentencing Memorandum
12
Defendant's claims of remorse and prospects for rehabilitation in the short term. Therefore, an
aggravated range sentence was warranted.
At 1714 CR 2021, we imposed asix (6) month sentence within the standard range of
Restorative Sanctions (RS) to nine (9) months. Therefore, if we examine the entire sentencing
scheme among the four (4) dockets, we find that we could have imposed aminimum term of
thirty-one (31) years within the standard range at all counts of all dockets. We believe our
sentence of fifteen ( 15) years is "viscerally" excessively reasonable.
For the foregoing reasons, we urge the Superior Court to affmn the judgment of sentence.
C-,
BY THE COURT:
E= i
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..V =:
Distribution: 1-11-1 Ian °`` •-Jl C'
Stephen Zawisky, Esq., District Attorney's Office :FD
Ryan Lysaght, Esq., District Attorney's Office
Spencer Bradley, Esq., Public Defender's Office=
Prothonotary, Superior Court of Pennsylvania M sai
I3