Com. v. Todd, R. ( 2023 )

J-S44006-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT TODD :
:
Appellant : No. 1756 EDA 2023
Appeal from the Judgment of Sentence Entered May 17, 2023
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0001004-2023
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 15, 2023
Appellant, Robert Todd, appeals from the judgment of sentence entered
May 17, 2023, as made final by the denial of his post-sentence motion on May
31, 2023. We affirm.
The facts and procedural history of this case are as follows. On
November 2, 2022, Appellant
stole copper piping from the Hammock Hotel (hereinafter “the
Hotel”) in Levittown, Bucks County, Pennsylvania, valued at
$2,000[.00]. The Hotel’s owner, Nishant Ghael, advised that[,
at the time Appellant stole the piping,] the Hotel was closed for
business due to renovations and that he did not authorize
Appellant to be on the property. Appellant entered the Hotel
from an opening where an air conditioning unit was previously
installed and ran from police when they arrived on scene.
Trial Court Opinion, 7/25/23, at 1.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S44006-23
On May 17, 2023, Appellant entered a guilty plea to criminal trespass,
theft by unlawful taking, and receiving stolen property.1 That same day, the
trial court imposed a mitigated-range sentence of nine to 23 months’
incarceration. Appellant filed a post-sentence motion on May 25, 2023, which
the trial court denied on May 31, 2023. This timely appeal followed.
Appellant raises the following issue on appeal:
Did the trial court abuse its discretion in sentencing Appellant
by imposing a manifestly excessive sentence and failing to
consider all relevant factors?
Appellant’s Brief at 7.
Appellant raises a challenge to the discretionary aspects of his sentence.
This Court previously explained:
It is well-settled that “the right to appeal a discretionary aspect
of sentence is not absolute.” Commonwealth v. Dunphy, 20
A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant
challenges the discretionary aspects of a sentence, we should
regard his[, or her,] appeal as a petition for allowance of appeal.
Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super.
2007). As we stated in Commonwealth v. Moury, 992 A.2d
162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of
his[, or her,] sentence must invoke this Court's
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine:
(1) whether appellant [] 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, [see] Pa.R.A.P. 2119(f);
____________________________________________
1 18 Pa.C.S.A. §§ 3503, 3921, and 3925, respectively.
-2-
J-S44006-23
and (4) whether there is a substantial question
that the sentence appealed from is not
appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
[Moury, 992 A.2d] at 170 [(citation omitted)].
Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original
brackets omitted).
Herein, Appellant filed a timely notice of appeal, preserved his
sentencing challenge by filing a post-sentence motion, and included a Rule
2119(f) concise statement in his appellate brief. See Appellant's Brief at 9-10.
Thus, we turn to whether Appellant raised a substantial question. A
substantial question exists when an appellant presents a colorable argument
that the sentence imposed is either (1) “inconsistent with a specific provision
of the sentencing code” or (2) is “contrary to the fundamental norms which
underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d
581, 585 (Pa. Super. 2010) (citation omitted), appeal denied, 14 A.3d 825(Pa. 2011). This issue is evaluated on a case-by-case basis. Id. at 587
(citation omitted). This Court will not look beyond the statement of questions
involved and the prefatory Rule 2119(f) statement to determine whether a
substantial question exists. Commonwealth v. Radecki, 180 A.3d 441, 468
(Pa. Super. 2018) (citation omitted). Moreover, for purposes of determining
what constitutes a substantial question, “we do not accept bald assertions of
sentencing errors,” but rather require an appellant to “articulat[e] the way in
-3-
J-S44006-23
which the court's actions violated the sentencing code.” Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. 2006).
Appellant’s Rule 2119(f) statement lodges two claims, neither of which
raise a substantial question. First, Appellant claims that “the trial court failed
to consider all relevant factors such as [his] family history, age, or
rehabilitative needs.” Appellant’s Brief at 9. Ostensibly, Appellant's argument
implies that the trial court failed to adequately consider mitigating factors.
Our case law is clear, however, that claims of inadequate consideration of
mitigating factors do not raise a substantial question. See Commonwealth
v. Crawford, 257 A.3d 75, 79 (Pa. Super. 2021); see also Commonwealth
v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022) (noting that the “weight accorded
to the mitigating factors or aggravating factors presented to the sentencing
court is within the [sentencing] court's exclusive domain.”).
Second, Appellant avers that the “sentence imposed by the trial court
was manifestly excessive and unreasonable.” Appellant’s Brief at 10.
Appellant, however, failed to “sufficiently articulate[] the manner in which the
sentence imposed violate[d] a specific provision of the Sentencing Code or the
norms underlying the sentencing process.” Commonwealth v. Derrickson,
242 A.3d 667, 680 (Pa. Super. 2020); see also Commonwealth v. Mouzon,
812 A.2d 617, 627 (Pa. 2002) (“[O]nly where the appellant’s Rule 2119(f)
statement sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the Sentencing
Code or a particular fundamental norm underlying the sentencing process, will
-4-
J-S44006-23
such a statement be deemed adequate to raise a substantial question so as
to permit a grant of allowance of appeal of the discretionary aspects of the
sentence.”). To the contrary, Appellant recognizes that the trial court
sentenced him in the mitigated range and offers no explanation of how, by
doing so, the trial court committed an error of law.
Because neither of Appellant’s claims raise a substantial question, we
will not review the merits of his discretionary sentencing claim.
Order affirmed.
Judge Nichols joins.
Judge Colins concurs in the result.
Date: 12/15/2023
-5-