Com. v. Coates, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM COATES
Appellant No. 2909 EDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012799-2009
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ADAM COATES
Appellant No. 2910 EDA 2013
Appeal from the Judgment of Sentence September 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009004-2010
BEFORE: MUNDY, J., OLSON, J., and WECHT, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 26, 2015
Appellant, Adam Coates, appeals from the September 13, 2013
aggregate judgment of sentence of seven and one-half to 15 years’
imprisonment imposed following his convictions for two counts of criminal
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trespass and one count of possession of an instrument of crime.1 After
careful review, we affirm.
The certified record reveals the following factual and procedural history
of this case. On September 21, 2009, Joyanna Brady left her Philadelphia
home at 7:00 a.m. N.T., 8/27/13, at 33. When she left, the doors were
locked, the windows were shut, and the lights inside her home were turned
off. Id. 33-34. She returned at 7:00 p.m. that evening with her two young
children and immediately noticed a light was on in her home. Id. at 33.
When she looked around her home, she discovered a bike that was hanging
in her back room was missing, the lock on her window was broken, and her
backdoor, which was locked with both a deadbolt and a lock on the doorknob
when she left her home that morning, was unlocked. Id. at 35-36. Brady
called the police, and Officer Luis Cordero responded to the call. Id. at 35,
46. Officer Cordero conducted an investigation of the property and observed
that Brady’s window was “broken and pushed in.” Id. at 47. Officer
Cordero then began dusting the area around the window and lifting
fingerprints. Id. at 47-48. The fingerprints Officer Cordero lifted were sent
to the Latent Print Unit of the Philadelphia Police Department and
determined to be a match with Appellant’s fingerprints. Id. at 58, 76.
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1
18 Pa.C.S.A. §§ 3503(a)(1)(ii) and 3921(a), respectively.
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At approximately 11:30 p.m. on September 21, 2009,
Horace Eggleston was in bed when police officers began knocking on his
door. N.T., 4/30/2013, at 19. The police officers informed Eggleston that a
neighbor had reported seeing someone enter Eggleston’s house. Id. At the
time, Eggleston lived alone. Id. at 16. Police officers discovered Appellant
in a closet in Eggleston’s basement. Id. at 23-24; 46; 73. Police then
recovered pliers from Appellant’s pocket. Id. at 46; 75. Prior to entering
the residence, police observed a bike leaning against the chain link fence
surrounding Eggleston’s property and observed that two screens from
Eggleston’s porch were cut. Id. at 42.
On July 22, 2010, the Commonwealth charged Appellant with burglary,
criminal trespass, theft by unlawful taking, receiving stolen property, and
criminal mischief, at docket number CP-51-CR-0009004-2010, in connection
with the events that occurred at the Brady residence on September 21,
2009.2 Criminal Information, 7/22/10. Appellant proceeded to a four-day
jury trial, commencing on August 27, 2013. At the conclusion of the trial,
the jury found Appellant guilty of criminal trespass. N.T., 8/30/13, at 8.
The jury was deadlocked on the charges of burglary and theft, and the trial
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2
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 3921(a), 3925(a), 3304(a)(2),
respectively.
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court granted a mistrial on those charges. Id. at 11. The remaining
charges were nolle prossed.
On October 15, 2009, the Commonwealth charged Appellant with
burglary, criminal trespass, possession of an instrument of crime, and
criminal mischief, at docket number CP-51-CR-0012799-2009, for the events
that occurred at Eggleston’s residence on September 21, 2009.3 Criminal
Information, 10/15/09. On April 30, 2013, Appellant proceeded to a three-
day jury trial. At the conclusion of the trial, the jury found Appellant guilty
of criminal trespass and possession of an instrument of crime. N.T., 5/2/13,
at 9. The jury acquitted Appellant of burglary. Id. at 8. The charge of
criminal mischief was nolle prossed.
On September 13, 2013, the trial court sentenced Appellant at both
docket numbers to an aggregate judgment of sentence of seven and one-
half to 15 years’ imprisonment. Specifically, the trial court sentenced
Appellant to 30 to 60 months’ imprisonment for his conviction for criminal
trespass on docket number CP-51-CR-0009004-2010. N.T., 9/13/13, at 10.
Additionally, the trial court sentenced Appellant to consecutive terms of 30
to 60 months’ imprisonment for criminal trespass and 30 to 60 months’
imprisonment for possession of an instrument of crime for his convictions on
docket number CP-51-CR-0012799-2009. Id. The sentence imposed on
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3
18 Pa.C.S.A. §§ 3502(a), 3503(a)(1)(ii), 907(a), and 3304(a)(4),
respectively.
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docket number CP-51-CR-0009004-2010 is consecutive to the sentence
imposed on docket number CP-51-CR-0012799-2009. Id.
On September 23, 2013, Appellant filed a motion for reconsideration of
the sentences imposed on both docket numbers. Motion for Extraordinary
Relief and/or Reconsideration of Sentence, 9/23/13, at 1-3. The trial court
denied Appellant’s motion on September 30, 2013. Trial Court Order,
9/30/2013. On October 17, 2013, Appellant filed separate, timely notices of
appeal from the sentences imposed on docket numbers CP-51-CR-0012799-
2009 and CP-51-CR-0009004-2010. On November 1, 2013, Appellant filed
an application to consolidate the two appeals, which this Court granted on
November 25, 2013. Appellant’s Application to Consolidate Appeals,
11/1/13; Per Curiam Order, 11/1/13. The trial court ordered Appellant to
file a concise statement of errors complained of on appeal, within 21 days,
for both cases pursuant to Pennsylvania Rule of Appellate Procedure 1925(b)
on March 13, 2014. Trial Court Order, 3/13/14. On April 8, 2014, Appellant
filed a petition to file a statement of matters complained of on appeal nunc
pro tunc in each case. Appellant’s Petition to File Statement of Errors Nunc
Pro Tunc, 4/8/14, at 1-2. The trial court granted Appellant’s petition, and
Appellant filed his identical 1925(b) statements for each case on April 8,
2014. Trial Court Order, 4/8/14; Rule 1925(b) Statement, 4/8/14.
Thereafter, on May 28, 2014, the trial court filed its identical Rule 1925(a)
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opinions addressing the errors complained of on appeal filed by Appellant in
each case. Rule 1925(a) Opinion, 5/28/14, 1-14.
On appeal, Appellant raises the following issues for our review.
1. Did not the sentencing court violate the
requirements of 42 Pa.C.S.[A.] § 9721(b) of the
Sentencing Code which states that the sentence
imposed should call for confinement that is
consistent with 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, as the lower
court seemed to exclusively focus on [A]ppellant’s
criminal conduct rather than his rehabilitative needs,
mitigating circumstances or mental health status?
2. Was not the lower court’s sentence violative of
the precepts of the Pennsylvania Sentencing Code,
and contrary to the fundamental norms underlying
the sentencing process, and therefore was it not
manifestly unreasonable, excessive, and an abuse of
discretion?
Appellant’s Brief at 4.
Both of Appellant’s claims challenge the discretionary aspects of his
sentence. We adhere to the following standard of review over such claims.
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.
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Commonwealth v. Gonzalez, --- A.3d ---, 2015 WL 252446, at *14 (Pa.
Super. 2015), quoting Commonwealth v. Hoch, 936 A.2d 515, 517-518
(Pa. Super. 2007). However, an appellant is not entitled to review of issues
challenging discretionary aspects of a sentence as a matter of right.
Commonwealth v. Tejada, --- A.3d ---, 2015 WL 62931, at *8 (Pa. Super.
2015). In order to invoke this Court’s jurisdiction, we need to assess
whether Appellant has satisfied the following requirements.
(1) [T]he appellant preserved the issue either by
raising it at the time of sentencing or in a post[-
]sentence motion; (2) the appellant filed a timely
notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
appellant raises a substantial question for our
review.
Id. (citation omitted).
Instantly, Appellant has preserved his issue by filing a post-sentence
motion, a timely appeal, and including a concise statement for reasons
relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief.
Therefore, we next determine whether Appellant has raised a substantial
question for our review.
The determination of whether a particular issue
raises a substantial question is to be evaluated on a
case-by-case basis. In order to establish a
substantial question, the appellant must show
actions by the trial court inconsistent with the
Sentencing Code or contrary to the fundamental
norms underlying the sentencing process.
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Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014)
(citation omitted). “At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what fundamental
norm the sentence violates, and the manner in which it violates that norm.”
Commonwealth v. Zirkle, --- A.3d ---, 2014 WL 7212598, at *4 (Pa.
Super. 2014) (citation omitted).
In his Rule 2119(f) statement, Appellant claims the sentence imposed
“violates many norms of the Sentencing Code, is unreasonable and
excessive.” Appellant’s Brief at 10. Appellant asserts the trial court did not
provide “adequate and appropriate reasons for imposing a sentence greatly
in excess of the guidelines …[.]”4 Id. at 11. Appellant further avers the trial
court did not individualize Appellant’s sentence or fashion a sentence
“consistent with 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.” Id. at 12. We conclude Appellant
has failed to raise a substantial question.
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4
Appellant provides no analysis or argument in support of his contention
that his sentence exceeded the guidelines. See generally Appellant’s Brief
at 1-24. The trial court’s sentences were within the standard guideline
range, and the trial court discussed each sentence at the sentencing hearing
and their imposition in the trial court opinion. N.T., 9/13/13, at 5; Trial
Court Opinion, 5/28/14, at 6-12.
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The essence of Appellant’s arguments is that the trial court failed to
weigh Appellant’s rehabilitative needs in favor of a shorter term of
imprisonment, and the trial court’s sentence was excessive because it
imposed consecutive, rather than concurrent, sentences. See id. at 12, 15,
20. Specifically, Appellant claims the trial court “seems to exclusively focus
on the seriousness of the underlying crimes rather than taking into
consideration [A]ppellant’s history of substance abuse and mental health
problems.” Id. at 18. However, this Court has held “a claim that a court did
not weigh the factors as an appellant wishes does not raise a substantial
question.” Zirkle, supra at *5 (citation omitted). Further, “an allegation
that the sentencing court ‘failed to consider’ or ‘did not adequately consider’
various factors does not raise a substantial question that the sentence was
inappropriate.” Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.
Super. 2013) (citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013).5
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5
Alternatively, we note Appellant would not be entitled to relief on his claim
the trial court did not properly consider his rehabilitative needs. We observe
that the trial court ordered a presentence report on Appellant in this case.
Our Supreme Court has stated, “[w]here pre-sentence reports exist, we shall
continue to presume that the sentencing judge was aware of relevant
information regarding [appellant’s] character and weighed those
considerations along with mitigating statutory factors.” Gonzalez, supra at
*15 (Pa. Super. 2015), citing Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988). Additionally, the trial court explained its rationale at the time of
sentencing Appellant and in its trial court opinion. N.T., 9/13/13, at 8-12;
Trial Court Opinion, 5/28/14, at 6-12. We also note that the fact that the
crimes occurred the same evening does not afford Appellant leniency in
sentencing. See Zirkle, supra (observing that the fact that appellant
(Footnote Continued Next Page)
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Moreover, it is within the trial court’s discretion to impose a
consecutive rather than a concurrent sentence. Zirkle, supra (citations
omitted). Significantly, “[a] challenge to the imposition of consecutive
rather than concurrent sentences does not present a substantial question
regarding the discretionary aspects of sentence.” Id. Nevertheless, “we
have recognized that a sentence can be so manifestly excessive in extreme
circumstances that it may create a substantial question.” Id. (citation
omitted). The focus in such determinations is “whether the decision to
sentence consecutively raises the aggregate sentence to, what appears upon
its face to be, an excessive level in light of the criminal conduct in this case.”
Id. (citation omitted).
In the instant case, the criminal conduct included two counts of
criminal trespass into the homes of strangers and one count of possession of
an instrument of crime. Notably, one of the instances of criminal trespass
occurred late in the evening while the homeowner was in bed. Under the
circumstances surrounding the criminal conduct in this case, we cannot
conclude the imposition of consecutive sentences is so manifestly excessive,
on its face, as to raise a substantial question. See id.
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(Footnote Continued)
committed the crimes subjecting him to the challenged sentence in one
spree did not entitle him to a “volume discount” at sentencing). Therefore,
we would conclude the trial court did not abuse its discretion in fashioning
Appellant’s sentence. See Gonzalez, supra.
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Accordingly, we conclude Appellant has not raised a substantial
question as to the discretionary aspects of his sentence, and we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
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