Com. v. Trentini, B. ( 2023 )


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  • J-S16044-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    BRYAN M. TRENTINI                          :
    :
    Appellant               :   No. 2471 EDA 2022
    Appeal from the Judgment of Sentence Entered July 19, 2022
    In the Court of Common Pleas of Bucks County Criminal Division at
    No(s): CP-09-CR-0006187-2021
    BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.
    MEMORANDUM BY McCAFFERY, J.:                          FILED AUGUST 29, 2023
    Bryan M. Trentini (Appellant) appeals from the judgment of sentence
    entered in the Bucks County Court of Common Pleas, following his open guilty
    plea on charges of stalking, terroristic threats, theft by unlawful taking,
    criminal mischief, loitering and prowling, and harassment.1      The trial court
    sentenced Appellant to a term of 30 to 60 months’ incarceration in a state
    correctional institution.     On appeal, Appellant claims the court abused its
    discretion by imposing a sentence that was manifestly excessive and failed to
    consider his rehabilitative needs, history, and character.        Based on the
    following, we affirm.
    ____________________________________________
    1 18 §§ 2709.1(a)(2), 2706(a)(3),              3921(a), 3304(a)(2), 5506, and
    2709(a)(3), respectively.
    J-S16044-23
    Appellant’s convictions stem from an incident on November 22, 2021,
    when his on-again/off-again girlfriend (the Victim) reported that Appellant was
    trespassing at her residence on Lakeside Drive in Levittown, Bucks County.
    See   N.T.,   7/19/22,   at   9.   Appellant   was   under   the   influence   of
    methamphetamine at the time of the trespass. See id. at 20.
    At this juncture, it merits mention that Appellant had four previous
    domestic assault cases involving the Victim. See N.T., 7/19/22, at 6-7. In
    2013, Appellant pled guilty to harassment, a third-degree misdemeanor, and
    received one-year probation. See id. at 7. In 2015, Appellant pled guilty to
    simple assault and received a sentence of four to 23 months’ incarceration.
    See id. In 2018, Appellant again pled guilty to simple assault and received a
    sentence of time served to 23 months. See id. In 2019, Appellant pled guilty
    to simple assault and received a six-to-23-month sentence. See id. At the
    time of his present sentencing proceeding, Appellant also had an open case in
    New Jersey for possession with intent to deliver and unlawful possession of a
    handgun. See id. at 7.
    Leading up to the incident on November 22nd, the Victim reported
    several instances of concern involving Appellant. See N.T., 7/19/22, at 9-11.
    On November 11, 2021, Appellant and the Victim got into a verbal argument
    where Appellant threatened to “choke the life out of” the Victim, after which
    she told him not to return to their residence. See id. at 9-10. The Victim
    reported that during the following days, Appellant repeatedly called and texted
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    her, was at her front door, and drove by her house.          See id. at 10. She
    suspected Appellant would “stay in the shed in her backyard [because] food
    and a music player were found in that shed.”          See id.    The Victim made
    additional reports via email to the police regarding Appellant’s “escalating
    concerning contacts.” See id. at 9-10. The Victim indicated Appellant also
    accessed her email and changed her passwords. Id. at 10-11. Moreover,
    Appellant accused the Victim of having an affair with the “affiant” police
    officer2 and threatened to harm that individual. See id. at 11.
    At the time of the November 22nd incident, Appellant was on
    “supervision.” See N.T., 7/19/22, at 7. Melanie Webb, a probation and parole
    officer, indicated Appellant violated his parole on four prior occasions. See
    id. at 12-19. While in custody for current case, Appellant had two misconducts
    for: 1) contacting the Victim despite parole and bail conditions of no contact,
    and 2) misuse of medication in January of 2022. See id. at 21-22.
    On April 11, 2022, Appellant entered an open guilty plea on charges of
    stalking, terroristic threat, theft by unlawful taking, criminal mischief, loitering
    and prowling, and harassment. On July 19, 2022, the trial court sentenced
    Appellant to a term of 30 to 60 months’ imprisonment for the stalking. The
    court imposed no further penalty regarding the remaining five convictions.
    ____________________________________________
    2 A review of the record does not reveal the identity of the affiant officer.
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    Appellant filed a motion to reconsider sentence on July 29, 2022. The
    trial court denied his motion without a hearing on August 26, 2022.
    On September 2, 2022, Appellant filed a notice of appeal.             On
    September 29, 2022, the trial court ordered Appellant to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)
    within 21 days.    Following an extension of time, Appellant filed concise
    statement on October 18, 2022. The trial court issued a Pa.R.A.P. 1925(a)
    opinion on January 30, 2023.
    Appellant raises one issue on appeal:
    A. Did the trial court err in imposing a sentence that: (a)
    exceeded the sentence guidelines, (b) failed to give adequate
    reasons to justify a sentence in excess of the aggravated range of
    the sentencing guidelines, and (c) failed to take into account
    Appellant’s age, maturity, circumstances of the case, and
    Appellant’s personal circumstances and rehabilitative needs[?]
    See Appellant’s Brief at 7 (some capitalization omitted).
    Appellant challenges the discretionary aspects of his sentence.
    Appellant claims his sentence is manifestly excessive and the trial court
    committed an abuse of discretion because it “ignored” evidence concerning
    Appellant’s character and rehabilitative needs. Appellant’s Brief at 12. He
    points out that he has been sober since November 23, 2021, and has taken
    “significant strides to rehabilitate himself during his period of incarceration
    prior to sentencing.” Id. at 13. Additionally, he contends the court failed to
    consider the fact that he accepted responsibility for his actions and was
    committed to his recovery. Id. at 15. Furthermore, Appellant alleges the
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    court “did not mention” the Pennsylvania Sentencing Guidelines and did not
    “give any indication that the guidelines were even considered.” Id. at 15-16.
    Appellant also states “the trial court failed to adequately state its reasons for
    deviating” from the guidelines. Id. at 16. Appellant concludes “the trial court
    imposed an aggregate sentence that is manifestly excessive and unreasonable
    and constitutes too severe a punishment.” Id.
    As mentioned above, the trial court sentenced Appellant for the stalking
    offense to a term of 30 to 60 months’ incarceration. He had a prior record
    score of two and the offense gravity score for stalking is five.        See N.T.,
    4/11/22, at 15. The sentencing guidelines provide the following ranges: (1)
    restorative sanctions or probation for the mitigated range; (2) three to 14
    months’ incarceration for the standard range; and (3) at least 17 months’
    imprisonment for the aggravated range.           Id. at 15-16.    The statutory
    maximum     for   stalking,   a   first-degree   misdemeanor,    is   five   years’
    incarceration. Id. at 15. Accordingly, Appellant’s sentence fell outside the
    sentencing guidelines but did not exceed the statutory maximum.
    There is no automatic right to review of a challenge to the discretionary
    aspects of sentencing. Commonwealth v. Bankes, 
    286 A.3d 1302
    , 1306
    (Pa. Super. 2022) (citation omitted).
    Before [this Court may] reach the merits of [a challenge to the
    discretionary aspects of a sentence], we must engage in a four
    part analysis to determine: (1) whether the appeal [was timely-
    filed]; (2) whether Appellant preserved his issue; (3) whether
    Appellant’s brief includes a concise statement of the reasons relied
    upon for allowance of appeal with respect to the discretionary
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    aspects of sentence [pursuant to Pa.R.A.P. 2119(f)]; and (4)
    whether the concise statement raises a substantial question that
    the sentence is appropriate under the sentencing code. [I]f the
    appeal satisfies each of these four requirements, we will then
    proceed to decide the substantive merits of the case.
    
    Id.
     (citation omitted).
    Appellant has satisfied the first three prongs of this analysis, where he
    raised this challenge in a post-sentence motion, filed a timely appeal, and
    included in his brief a Rule 2119(f) statement. See Appellant’s Brief at 9-10.
    Therefore, we now consider whether Appellant has raised a substantial
    question:
    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.
    Commonwealth v. Swope, 
    123 A.3d 333
    , 340 (Pa. Super. 2015) (citation
    omitted).
    This Court has previously determined a “contention that the sentencing
    court exceeded the recommended range in the [s]entencing [g]uidelines
    without an adequate basis raises a substantial question for this Court to
    review.” Commonwealth v. Sheller, 
    961 A.2d 187
    , 190 (Pa. Super. 2008).
    Furthermore, a claim that a court imposed an excessive sentence after not
    considering mitigating evidence and rehabilitative needs raises a substantial
    question. See Commonwealth v. Caldwell, 
    117 A.3d 763
    , 770 (Pa. Super.
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    J-S16044-23
    2015) (en banc) (stating that an excessive sentence claim, that encompasses
    the court’s failure to consider mitigating factors, raises a substantial
    question); see also Commonwealth v. Baker, 
    72 A.3d 652
    , 662 (Pa. Super.
    2013) (citation omitted) (concluding a challenge that the trial court imposed
    a sentence that was “unreasonable and contrary to the fundamental norms of
    the Sentencing Code” and did not consider the appellant’s rehabilitative needs
    raised a substantial question) (citation omitted).3 We interpret Appellant’s
    claims to fall under these types of substantial questions. Therefore, we may
    proceed to consider the merits of his argument.
    ____________________________________________
    3 To the extent that Appellant argues the trial court “did not mention” the
    sentencing guidelines, this Court previously has determined that kind of
    argument does not raise a substantial question. See Commonwealth v.
    Rush, 
    162 A.3d 530
    , 543 (Pa. Super. 2017).
    Moreover, the Pennsylvania Supreme Court previously has stated that
    “guidelines have no binding effect . . . they are advisory guideposts that are
    valuable, may provide an essential starting point, and that must be respected
    and considered; they recommend, however, rather than require a particular
    sentence.” Commonwealth v. Walls, 
    926 A.2d 957
    , 964-65 (Pa. 2007).
    This Court has previously held that “[w]hen the record demonstrates that the
    sentencing court was aware of the guideline ranges and contains no indication
    that incorrect guideline ranges were applied or that the court misapplied the
    applicable ranges, we will not reverse merely because the specific ranges were
    not recited at the sentencing hearing.” Commonwealth v. Griffin, 
    804 A.2d 1
    , 8 (Pa. Super. 2002).
    Here, the trial court set forth the guideline ranges at Appellant’s April
    11, 2022, guilty plea proceeding, and Appellant does not argue that they are
    incorrect. See N.T., 4/11/22, at 15-16. Accordingly, we may presume the
    court was aware of the specific ranges at issue. Therefore, Appellant’s claim
    has no merit.
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    J-S16044-23
    The relevant standard of review is well-settled:
    Sentencing is a matter vested in the sound discretion of the
    sentencing judge, and a sentence will not be disturbed on appeal
    absent a manifest abuse of discretion. In this context, an abuse
    of discretion is not shown merely by an error in judgment. Rather,
    the appellant must establish, by reference to the record, that the
    sentencing court ignored or misapplied the law, exercised its
    judgment for reasons of partiality, prejudice, bias or ill will, or
    arrived at a manifestly unreasonable decision.
    Commonwealth v. Clemat, 
    218 A.3d 944
    , 959 (Pa. Super. 2019) (citation
    omitted).   “[W]hen imposing sentence, the trial court is granted broad
    discretion, as it is in the best position to determine the proper penalty for a
    particular offense based upon an evaluation of the individual circumstances
    before it.” Commonwealth v. Mulkin, 
    228 A.3d 913
    , 917 (Pa. Super. 2020).
    This Court has also stated:
    [W]hen imposing a sentence, the sentencing court must consider
    the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
    protection of the public, gravity of offense in relation to impact on
    the victim and community, and rehabilitative needs of the
    defendant. . . .
    Furthermore, [a] trial court judge has wide discretion in
    sentencing and can, on the appropriate record and for the
    appropriate reasons, consider any legal factor in imposing a
    sentence[.] The sentencing court, however, must also consider
    the sentencing guidelines.
    Clemat, 218 A.3d at 960 (citation omitted).          Moreover, the sentencing
    guidelines are advisory as they “have no binding effect, create no presumption
    in sentencing, and do not predominate over other sentencing factors.”
    Commonwealth v. Glass, 
    50 A.3d 720
    , 727-28 (Pa. Super. 2012) (citation
    omitted).
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    When imposing [a] sentence, the trial court is required to
    consider the particular circumstances of the offense and the
    character of the defendant. The trial court should refer to the
    defendant’s prior criminal record, age, personal characteristics,
    and potential for rehabilitation.
    Clemat at 959-60 (citations omitted).
    We are also guided by the following:
    When reviewing a sentence outside of the guideline range,
    the essential question is whether the sentence imposed was
    reasonable. Commonwealth v. Walls, 
    926 A.2d 957
    , 567 (Pa.
    2007). An appellate court must vacate and remand a case where
    it finds that “the sentencing court sentenced outside the
    sentencing guidelines and the sentence is unreasonable.” 42
    Pa.C.S.A. § 9781(c)(3).         In making a reasonableness
    determination, a court should consider four factors:
    (1) The nature and circumstances of the offense and the
    history and characteristics of the defendant.
    (2) The opportunity of the sentencing court to observe the
    defendant, including any presentence investigation.
    (3) The findings upon which the sentence was based.
    (4) The guidelines promulgated by the commission.
    42 Pa.C.S.A. § 9781(d). A sentence may be found unreasonable
    if it fails to properly account for these four statutory factors. A
    sentence may also be found unreasonable if the “sentence was
    imposed without express or implicit consideration by the
    sentencing court of the general standards applicable to sentencing
    [as found in Section 9721].” Walls, [926 A.2d at 964].
    Commonwealth v. Sheller, 
    961 A.2d 187
    , 190-91 (Pa. Super. 2008). “A
    sentencing court, therefore, in carrying out its duty to impose an individualized
    sentence, may depart from the guidelines when it properly identifies a
    particular factual basis and specific reasons which compelled [it] to deviate
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    J-S16044-23
    from the guideline range.” Commonwealth v. Shull, 
    148 A.3d 820
    , 
    836 Pa. Super. 2016
    ) (citation and quotation marks omitted). Moreover, “in every
    case where a sentencing court imposes a sentence outside of the sentencing
    guidelines, the court must provide in open court a contemporaneous
    statement of reasons in support of its sentence.” Shull, 
    148 A.3d at 835-36
    .
    The court can “meet the requirement of a contemporaneous written statement
    by placing its reasons for departure on the record during sentencing.”
    Commonwealth v. Feucht, 
    955 A.2d 377
    , 383 (Pa. Super. 2008) (citation
    omitted).   Additionally, the on-the-record disclosure requirement does not
    require the trial court to make “a detailed, highly technical statement.”
    Commonwealth v. Hunzer, 
    868 A.2d 498
    , 514 (Pa. Super. 2005) (citation
    omitted).
    A review of the record reveals the following.    At Appellant’s July 19,
    2022, sentencing proceeding, there is no indication whether the trial court had
    the benefit of a pre-sentence investigation (PSI) but it merits mention that
    this case was Appellant’s fifth appearance before the court system for crimes
    committed against the Victim.     Moreover, the Commonwealth did present
    several domestic violence investigation (DVI) reports from prior years. See
    N.T., 7/19/22, at 5-6.    The Commonwealth also recited Appellant’s prior
    criminal history with respect to the Victim and pointed out the following: (1)
    he was unsuccessfully discharged from “batterer’s intervention for continuous
    issues with either missing or being late for group and admitting to having
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    ongoing contact with the [V]ictim[;”], (2) he continued to test positive for
    drugs, including multiple times for methamphetamine; and (3) while in
    custody for the present crimes, he had two misconducts (one for contacting
    the victim and the second for misuse of medication).           Id. at 6-8.     The
    Commonwealth further stated: "Your Honor, the [V]ictim . . . lives in fear and
    terror of [Appellant]. She feels that she’s only safe from [him] when he’s in
    custody, and she . . . is concerned . . . for herself and their shared son[.]” Id.
    at 11. In recommending a state sentence, the Commonwealth emphasized
    the following:
    We’ve seen it, now this is the fifth time [Appellant] has been in
    front of th[e trial c]ourt or a court in this county for the same type
    of behavior, escalating behavior. . . .
    Your Honor, I think [Appellant] has shown through his
    actions over at least the last nine years that he is unsafe to the
    [V]ictim, he is unsafe to the community, and the only place where
    he seems to do relatively okay is when he’s incarcerated.
    Id. at 35-36.
    The trial court also heard from Probation and Parole Officer Webb
    regarding Appellant’s history of parole and probation violations.      See N.T.,
    7/19/22, at 14-19. Officer Webb did not provide the trial court with a sentence
    recommendation but stated the court should determine whether Appellant
    receive concurrent or consecutive sentences. See id. at 19.
    Appellant also invoked his right to allocution, admitting his guilt and that
    he was under the influence of drugs at the time. See N.T., 7/19/22, at 20.
    Appellant explained his reasons for the violations while in custody, stating that
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    J-S16044-23
    he had written a letter to the Victim to discuss their child in December 2021,
    and the misuse of medication misconduct was for not taking his medication.
    See id. at 21-22. Appellant testified that he has made efforts to rehabilitate
    himself while incarcerated prior to sentencing, including the completion of six
    programs at Bucks County Jail. See id. at 22-23. Appellant also completed
    the H.O.P.E. program for drug and alcohol treatment.           See id. at 23.
    Appellant stated that after completing the H.O.P.E. program, he became a
    leader in the organization and created materials for it. See id. at 24. He
    provided the trial court with a letter of recommendation from his program
    supervisor and certificates of recognition in personal accountability and
    responsibility, good work ethic, and community involvement. See id. He also
    participated in a course to address substance abuse and mental health
    disorders. See id. Appellant testified that he had been diagnosed with Post-
    Traumatic Stress Disorder, Attention-Deficit/Hyperactivity Disorder, and
    Obsessive-Compulsive Disorder. See id. Lastly, he expressed remorse for
    his actions, and read a letter to the court which highlighted accomplishments
    and lessons from the H.O.P.E. program and expressed a commitment to
    improving himself. See id. at 26, 28-29.
    At the conclusion of the proceeding, the trial court set forth its reasons
    for Appellant’s sentence, stating:
    [Appellant] has been the example of I’m not doing what anybody
    tells me to do. He just has not done anything. He refuses to
    comply with terms of supervision. He refuses to follow the orders
    of the Court when they tell him not to have contact with people or
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    J-S16044-23
    they must – he must do this, and he doesn’t, and he’s refused,
    and that’s why we’re here.
    But we put him in Bucks County, and I appreciate the fact
    that he has completed the H.O.P.E. program which is a significant
    program there. It’s a difficult program to compete. And for the
    first time he has completed it, and I will give him credit for that,
    significant credit. But [Appellant does not] get to do one thing
    right and think that that fixes everything. It just doesn’t.
    I’m proud of [Appellant], and . . . I was going to send [him]
    to a [SCI] for a significant period of time, and I’ve changed my
    mind as to the length of the time, but [Appellant has] burned
    every bridge in Bucks County and Bucks County Adult Probation
    and Parole. [Appellant has] just done that. So I think that it’s
    appropriate for a state sentence, but I’m going to give [Appellant]
    the credit for the H.O.P.E program and the fact that the prison
    considers that [he is] a leader there, that [he has] changed.
    N.T., 7/19/22, at 36-38.
    In its Pa.R.A.P. 1925(a) opinion, the trial court supplemented its
    statements at sentencing with the following:
    This sentence does not follow a first-time offense, nor a
    second, third or fourth, but rather a fifth offense with the same
    victim. We considered the conduct, character, criminal history,
    and impact of Appellant’s actions on the community and found
    that Appellant . . . has a lack of respect for authority, as he
    continues to accrue misconducts and violations of his parole.
    Appellant . . . was advised of the maximum penalties and
    the sentencing guidelines during the guilty plea proceeding on
    April 11, 2022. While Appellant was sentenced to the statutory
    maximum on Count III, Stalking — Repeatedly Communicating to
    Cause Fear, no further penalty was given on any of the other
    counts. The sentence imposed falls within the total number of
    months that could have been imposed if each count was sentenced
    in the aggravated range of the sentencing guidelines and were to
    run consecutively. If each count was sentenced in the aggravated
    range and ran consecutively, Appellant would be facing [42]
    months, at the minimum. We implicitly understand the benefit of
    a sentence on one count versus multiple; Appellant remains tied
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    J-S16044-23
    to the system, yet this ultimately avoids inconsistency in violations
    and parole.
    Admittedly we did not issue a contemporaneous written
    statement detailing our reasoning for a sentence outside the
    sentencing guidelines, however, one was not necessary under
    Pennsylvania law. As indicated by the Pennsylvania Superior
    Court in Commonwealth v. Feucht, 
    [supra,]
     the written
    component was satisfied by our express reasoning given on the
    record during sentencing. Appellant . . . has exhausted the
    treatment options available to him in Bucks County. He refused
    to comply with the rules and regulations of probation and parole
    supervision in Bucks County.          He has been unsuccessfully
    discharged from a required treatment program, namely batterer’s
    intervention.    Appellant continues to use drugs while on
    supervision. He has incurred misconducts while in Bucks County
    Correctional Facility for this case for contact with the victim, and
    misuse of medication. . . .
    We felt strongly that it was appropriate to end his
    supervision by Bucks County and begin anew with state
    supervision. Appellant’s completion of the H.O.P.E. program is
    significant but does not absolve Appellant from the behavior he
    has consistently exhibited.
    Trial Ct. Op. at 7-8.
    Under our standard of review, we find the trial court did not abuse its
    discretion with regard to Appellant’s sentence. Contrary to his arguments, it
    is evident from the July 19th sentencing hearing, and the Rule 1925(a) opinion
    that the court considered the mitigating evidence, Appellant’s acceptance of
    responsibility and his rehabilitative needs, in addition to the required factors
    under Section 9721(b). However, the court emphasized the gravity of offense
    in relation to impact on the Victim and Appellant’s lack of potential for
    rehabilitation based on his numerous encounters with the court system.
    Moreover, the court acknowledged its understanding of the sentencing
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    J-S16044-23
    guidelines at the April 11th guilty plea proceeding and its Rule 1925(a)
    opinion, and articulated a sufficient statement of reasons for the sentence
    imposed.     Lastly, to the extent Appellant complains the trial court did not
    provide a contemporaneous written statement regarding its reason for a
    deviation, the court did “place[ ] its reasons for departure on the record during
    sentencing.” Feucht, 
    955 A.2d at 383
    .4
    Accordingly, we find Appellant has failed to demonstrate the sentence
    imposed was unreasonable and that the trial 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.
    Johnson, 
    125 A.3d 822
    , 826 (Pa. Super. 2015).
    For the foregoing reasons, Appellant’s challenge to the discretionary
    aspects of his sentence fails.
    Judgment of sentence affirmed.
    ____________________________________________
    4 It merits mention that Appellant did receive the benefit of a “volume
    discount” at the time of sentencing where he pled guilty to six crimes but was
    sentenced only for one crime.
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/29/2023
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