Com. v. Terantino, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD TERANTINO
Appellant No. 1662 EDA 2014
Appeal from the Judgment of Sentence of April 30, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No.: CP-45-CR-0001847-2013
BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 06, 2015
Edward Terantino appeals his April 30, 2014 judgment of sentence.
Herein, Terantino alleges, inter alia, that the weight of the evidence did not
support the jury verdict and that the trial court abused its discretion when it
imposed an excessive sentence. Terantino’s counsel has filed a petition to
withdraw as counsel, together with an Anders brief.1 We find that
Terantino’s counsel has satisfied the Anders/Santiago requirements and
that Terantino has no meritorious issues to pursue on appeal. Consequently,
we grant counsel’s petition to withdraw as counsel, and we affirm
Terantino’s judgment of sentence.
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1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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On July 10, 2013, Pocono Mountain Police responded to a 911 call at
127 Nelson Drive, in Blakeslee, Pennsylvania. During the call, the dispatcher
heard arguing between Terantino and his stepdaughter, Dawn Loveland
(“Loveland”), heard Terantino say that he was going to “pull the trigger,”
and heard Loveland pleading with him to leave the residence. Loveland’s
five-year-old daughter, I.L., also was heard crying in the background of the
call. When officers arrived, they made contact with Terantino, who told an
officer that he would not negotiate, he would not leave the residence
willingly, and he would not allow Loveland and her daughter to leave.
Terantino subsequently allowed I.L. to leave the residence. I.L. told police
that Terantino was pointing a gun at Loveland. Terantino later released
Loveland and was taken into custody.
Terantino was charged with two counts of kidnapping, two counts of
false imprisonment, two counts of terroristic threats, simple assault,
unlawful restraint, endangering the welfare of a child, two counts of
recklessly endangering another person, possession of instruments of a
crime, and resisting arrest.2
On February 6 and 7, 2014, Terantino was tried by a jury. On
February 7, 2014, the jury found Terantino guilty of one count of false
imprisonment, one count of terroristic threats, simple assault, unlawful
____________________________________________
2
18 Pa.C.S.A. §§ 2901(a)(3), 4304(a), 2706(a)(1), 2701(a)(3), 2902
(a)(1), 4304(a), 2705, 907(a), and 5104, respectively.
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restraint, endangering the welfare of a child, possession of instruments of a
crime and resisting arrest. On April 30, 2014, Terantino was sentenced to
an aggregate term of four to eight years’ incarceration.
On May 2, 2014, Terantino timely filed a petition for reconsideration of
his sentence. On May 5, 2014, the motion was denied without a hearing.
On June 2, 2014, Terantino timely filed a notice of appeal. On June 3, 2014,
the trial court ordered Terantino to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 24, 2014,
counsel filed a statement of intent to file an Anders brief in lieu of 1925(b)
statement, and on July 8, 2014, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a).
Terantino raises seven issues for this Court’s consideration:
I. Whether the jury verdict rendered in this case was against
the weight of the evidence presented at trial?
II. Whether the Commonwealth engaged in prosecutorial
misconduct during the trial?
III. Whether the trial court erred in not granted a mistrial
based on the alleged misconduct of the Commonwealth
during trial?
IV. Whether the trial court erred in admitting the 911 call into
evidence and allowing it to be played to the jury during
trial?
V. Whether the trial court erred in not instructing the jury
regarding the inconsistencies in the testimony of [I.L.]?
VI. Whether the trial court erred in giving the jury a written
copy of the kidnapping charge during deliberations?
VII. Whether the trial court erred and abused its discretion
when sentencing [Terantino]?
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Anders Brief at 8.
Because counsel for Terantino proceeds pursuant to Anders and
Santiago, this Court first must pass upon counsel’s petition to withdraw
before reviewing the merits of the issues presented by Terantino.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Prior to withdrawing as counsel under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Santiago. The brief must provide the following information:
(1) a summary of the procedural history and facts, with
citations to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3) counsel’s conclusion that the appeal is frivolous; and
(4) counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a letter that advises the client of his rights to
“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court’s
attention in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see
also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).
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Finally, to facilitate our review of counsel’s satisfaction of his obligations, she
must attach to her petition to withdraw the letter that she transmitted to her
client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.
2005).
Our review of counsel’s petition to withdraw and the accompanying
brief demonstrates that counsel has satisfied the Anders requirements.
Counsel has provided a procedural history detailing the events relevant to
this appeal with appropriate citations to the record. Anders Brief at 9-10.
Counsel also has articulated Terantino’s position and has analyzed the
information presented to the sentencing court in favor of his appeal with
appropriate citations to the record and case law. Ultimately, counsel has
concluded that Terantino has no non-frivolous bases for challenging his
sentence. Id. at 23.
Counsel also has sent Terantino a letter informing him that she has
identified no meritorious issues to pursue on appeal; that counsel has filed
an application to withdraw from Terantino’s representation; and that
Terantino may find new counsel or proceed pro se. Counsel has attached
the letter to her petition to withdraw, as required by Millisock. See Petition
to Withdraw as Counsel, 10/7/2014. Accordingly, we conclude that counsel
has complied substantially with Anders’ technical requirements. See
Millisock, 873 A.2d at 751.
We must now conduct an independent review of the record to
determine whether this appeal is, as counsel claims, wholly frivolous, or if
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any meritorious issues may remain. Santiago, 978 A.2d at 355 (“[T]he
court—not counsel—then proceeds, after a full examination of all the
proceedings, to decide whether the case is wholly frivolous. If it so finds it
may grant counsel’s request to withdraw[.]”) (quoting Anders, 386 U.S. at
744).
In Terantino’s first issue, he claims that his convictions were against
the weight of the evidence presented at trial. Anders Brief at 12. We
disagree.
Our standard of review on this matter is well settled:
The finder of fact is the exclusive judge of the weight of the
evidence, as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment for
that of the finder of fact. Therefore, we will reverse a jury’s
verdict and grant a new trial only where the verdict is so
contrary to the evidence as to shock one’s sense of justice. A
verdict is said to be contrary to the evidence such that it shocks
one’s sense of justice when “the figure of Justice totters on her
pedestal,” or when “the jury’s verdict, at the time of its
rendition, causes the trial judge to lose his breath, temporarily,
and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.”
Furthermore,
where the trial court has ruled on the weight claim below,
an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether
the trial court palpably abused its discretion in ruling on
the weight claim.
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Commonwealth v. Cruz, 919 A.2d 279, 281-82 (Pa. Super. 2007)
(citations omitted). “A weight of the evidence claim concedes that the
evidence is sufficient to sustain the verdict.” Commonwealth. v. Lyons,
79 A.3d 1053, 1067 (Pa. 2013) (quoting Commonwealth v. Widmer, 744
A.2d 745, 751–52 (Pa. 2000)).
Preliminarily, we observe that Terantino actually challenges the
sufficiency and not the weight of the evidence. See Lyons, supra.
Moreover, during Terantino’s trial, the Commonwealth introduced the
testimony of a number of police officers who were on scene at the time of
the incident. Notes of Testimony (“N.T.”), 2/6/2014, at 41-47, 55-105. The
Commonwealth also introduced the testimony of both victims, N.T.,
2/6/2014, at 50-55; N.T., 2/7/2014, at 2-32, the handgun in Terantino’s
possession during the incident, and the recording of the 911 call made by
Dawn Loveland during the incident. In his defense, Terantino testified to his
state of mind, his remorse, and explained why he was arguing with Loveland
the day of the incident. N.T., 2/7/2014, at 117, 126-27, 131.
We have reviewed the record and, as demonstrated above, the
evidence was more than adequate to support the verdict, and we will not
substitute the jury’s credibility determinations for our own. Consequently,
the verdict did not shock the conscience of the trial court, and we conclude
that the court acted within the bounds of its discretion in ruling on the
weight claim. We reject Terantino’s claim that the verdict was against the
weight of the evidence. This issue would not merit relief.
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In Terantino’s second issue, he claims that the Commonwealth
committed prosecutorial misconduct during the trial. Anders Brief at 14-15.
We disagree.
“[P]rosecutorial misconduct does not take place unless the unavoidable
effect of the comments at issue was to prejudice the jurors by forming in
their minds a fixed bias and hostility toward the defendant, thus impeding
their ability to weigh the evidence objectively and render a true verdict.”
Commonwealth v. Judy, 978 A.2d 1015, 1020 (Pa. Super. 2009) (quoting
Commonwealth v. Holley, 945 A.2d 241, 250 (Pa. Super. 2008)).
Here, Terantino argues that a certain moment of disagreement
between the trial court and the Commonwealth triggered prosecutorial
misconduct. Anders Brief at 15. Their conversation, in pertinent part,
proceeded as follows:
[The Commonwealth]: So she was lying the other day when she
said that you threatened to shoot her?
[Terantino]: Sir, it won’t be the first time.
[The Commonwealth]: Oh, okay, So she’ [sic] just a liar?
The Court: That’s argumentative. What’s your next question?
[The Commonwealth]: Your Honor, if you could wait for the
defense to make an objection.
The Court: No. I will interrupt you when necessary[.]
N.T. 2/7/2014, at 141.
This single instance of such an exchange between the trial court and
the prosecutor did not amount to prosecutorial misconduct, as it did not
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prejudice the jurors, or impede their ability to weigh the evidence
objectively. In fact, Terantino fails to explain why this brief spat between
the trial court and the Commonwealth amounted to prosecutorial
misconduct. Anders Brief at 15-16. Even had the jurors been affected,
Terantino would have benefited from the perception of the court siding
against the Commonwealth, which would mitigate in his favor. Thus, he
cannot show that this incident caused the jury to form a fixed bias and
hostility against him. Therefore, this issue is frivolous and without merit.
In his third issue, Terantino argues that the trial court erred by not
granting a mistrial, based upon the alleged prosecutorial misconduct of the
Commonwealth during trial. Anders Brief at 16. Again, we disagree.
It is well-settled that the review of a trial court’s denial of a
motion for a mistrial is limited to determining whether the trial
court abused its discretion. An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused. A trial court may grant a
mistrial only where the incident upon which the motion is based
is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict. A mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.
Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa. Super. 2014)
(citations omitted).
Pennsylvania Rule of Criminal Procedure 650(b) provides: “When an
event prejudicial to the defendant occurs during trial only the defendant may
move for a mistrial; the motion shall be made when the event is disclosed.
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Otherwise, the trial judge may declare a mistrial only for reasons of manifest
necessity.” Pa.R.Crim.P 650(b). Accordingly, if the defendant fails to
request a mistrial, the issue of whether the trial court erred by not ordering
a mistrial is ordinarily waived on appeal. Pa.R.A.P. 302(a). Therefore,
because Terantino failed to move for a mistrial, see N.T., 2/7/2014 at 141,
this issue is now waived. Moreover, even if Terantino had filed a motion for a
mistrial, we have already determined that he failed to demonstrate how the
dialogue between the trial court and the prosecutor “formed in the jurors’
minds a fixed bias and hostility toward him such that they could not weigh
the evidence objectively and render a fair verdict.” Commonwealth v.
Arrington, 86 A.3d 831, 853 (Pa. 2014). Therefore, Terantino is not
entitled to the grant of a new trial on his meritless claim of prosecutorial
misconduct. Id. Accordingly, we find that this issue is also frivolous and
without merit.
In Terantino’s fourth issue, he claims that the trial court erred by
admitting a recording of a 911 call into evidence, and allowing the jury to
hear it during trial. Anders Brief at 18. Specifically, he challenges the
admission of the 911 call made by Loveland from her cellphone during the
incident at issue, and her conversation with the dispatcher, which was the
subject of the recording. We disagree.
Our standard of review of challenges to the admissibility of evidence is
well settled:
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Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion. Admissibility depends on
relevance and probative value. Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a
fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)
(citation omitted).
The 911 call was introduced by the Commonwealth to establish
elements of Terantino’s crimes of false imprisonment, possession of
instruments of a crime, and simple assault. Terantino essentially argues
that the admission and playing of the 911 call was prejudicial.
Because all relevant evidence presented by the Commonwealth is
meant to prejudice a defendant, exclusion is limited to evidence so
prejudicial that it would:
inflame the jury to make a decision based upon something other
than the legal propositions relevant to the case. As this Court
has noted, a trial court is not required to sanitize the trial to
eliminate all unpleasant facts from the jury’s consideration
where those facts form part of the history and natural
development of the events and offenses with which [a]
defendant is charged.
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Commonwealth v. Serge, 837 A.2d 1255, 1261 (Pa. Super. 2003)
(quoting Commonwealth v. Palmer, 700 A.2d 988, 992-993 (Pa. Super.
1997)). The recording of the 911 call was relevant to establish elements of
Terantino’s crimes, as it provided the jury a perspective into the home
during the ongoing incident, and was direct evidence that Terantino was
armed and held the two victims in the home against their will. Thus, we
conclude that the probative value of the call outweighed the danger of unfair
prejudice. Moreover, both victims, including Loveland, who made the call,
testified at trial. N.T., 2/6/2014, at 8-12, 17-32, 53-55; N.T., 2/7/2014, at
161-62. Therefore, Terantino had the opportunity to confront Loveland and
cross-examine her. The trial court did not abuse its discretion when it
admitted the 911 call and allowed it to be played to the jury. Consequently,
this issue is frivolous and without merit.
In his fifth issue, Terantino asserts that the trial court erred by failing
to convey an inconsistency in I.L.’s testimony to the jury during instructions.
Anders Brief at 18. We disagree.
Preliminarily, Terantino failed to preserve this challenge by objecting
to the trial court’s instructions at the trial. Pa.R.A.P. 302(a). Moreover, this
challenge would not merit relief.
“In addressing challenges to jury instructions, we consider the
challenged portions in light of the entire instruction, and we acknowledge
that trial courts have broad discretion in phrasing the charge so long as the
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law is clearly, adequately and accurately described.” Commonwealth v.
Cam Ly, 980 A.2d 61, 88 (Pa. 2009).
Here, Terantino contends that the trial court was obligated to bring
I.L.’s inconsistent testimony to the jury’s attention. In her testimony, I.L.
stated that she was present at the home with her mother the entire time
that her mother was held inside the home by Terantino. N.T., 2/6/2014, at
49-55. However, a police officer testified that I.L. was released from the
home around 12:06 p.m., id. at 63, and that her mother did not exit the
home until 1:40 p.m. Id. at 65.
“Questions concerning inconsistent testimony and improper motive go
to the credibility of the witnesses. [The Court] cannot substitute its
judgment for that of the jury on issues of credibility.” Commonwealth v.
DeJesus, 860 A.2d 102, 107 (Pa. 2004). The trial court instructed the jury
on its duty to determine the credibility of the witnesses and their testimonies
without objection, and without a request for a specific instruction regarding
the inconsistent testimony. N.T., 2/7/2014, at 197-99. Because the jury
alone was responsible for questions concerning inconsistent testimony, the
trial court had no further obligation to alert the jury to any inconsistencies in
I.L.’s testimony. Therefore, the trial court did not err when giving the jury
instructions. This issue would not merit relief.
In Terantino’s sixth issue, he claims that the trial court erred in giving
the jury a written copy of the elements of his kidnapping charge during
deliberations. Anders Brief at 19. We disagree.
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Pennsylvania Rule of Criminal Procedure 646(B) states that “[t]he trial
judge may permit the members of the jury to have for use during
deliberations written copies of the portion of the judge’s charge on the
elements of the offenses, lesser included offenses, and any defense upon
which the jury has been instructed.” Pa.R.Crim.P. 646(B).
Here, the jury returned during deliberations with several questions for
the trial court. One particular question involved the elements of the charge
of kidnapping. See N.T., 2/7/2014, at 216. The trial court decided, without
objection from either side, to send written copies of the elements of the
crime of kidnapping out to the jury. Id. The trial court only supplied the
jury with the elements of kidnapping, and the jury acquitted Terantino of
both counts of kidnapping. Because the trial court was permitted under Rule
646(B) to provide the jury with a written copy of the elements of
kidnapping, it did not err in doing so. Furthermore, Terantino suffered no
prejudice, as he was acquitted of the kidnapping charges. Consequently, we
conclude that this issue is frivolous and without merit.
In Terantino’s seventh and final issue, he claims that the trial court
erred and abused its discretion when imposing his sentence because his
sentence was excessive and the court disregarded mitigating factors. See
Anders Brief at 21. We disagree.
A claim that a sentence is excessive presents a challenge to the
discretionary aspects of sentence. Commonwealth v. Ahmad, 961 A.2d
884, 886 (Pa. Super 2008). “A challenge to the discretionary aspects of a
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sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849
A.2d 270, 274 (Pa. Super. 2004).
To obtain review of the merits of a challenge to the discretionary
aspects of a particular sentence, an appellant must include a Pa.R.A.P.
2119(f) statement in his brief. Therein, “the appellant must show that
there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code.” McAfee, 849 A.2d at 274. A substantial
question requires a demonstration that “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.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)). “Our inquiry
must focus on the reasons for which the appeal is sought, in contrast to the
facts underlying the appeal, which are necessary only to decide the appeal
on the merits.” Id. (quoting Commonwealth v. Goggins, 748 A.2d 721,
727 (Pa. Super. 2000) (en banc)) (emphasis omitted). “An appellant’s
failure to comply with Rule 2119(f) may be waived if the Commonwealth
does not object to the defect.” Commonwealth v. Pollard, 832 A.2d 517,
525 (Pa. Super. 2003) (citations omitted).
In the instant case, Terantino failed to file a Rule 2119(f) statement,
but the Commonwealth, having elected not to file a brief in this matter, has
raised no objection to its omission. Moreover, even if the Commonwealth
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had objected, we still would be obliged to make an independent
determination as to whether this issue is wholly frivolous. See
Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa. Super. 1990).
Consequently, we review Terantino’s judgment of sentence to determine
whether it presents a substantial question regarding excessiveness, and, if
so, whether any such argument warrants the preparation of an advocate’s
brief by appointed counsel or vacatur of the sentence. “[T]his Court has
held that an excessive sentence claim—in conjunction with an assertion that
the court failed to consider mitigating factors—raises a substantial question.”
Commonwealth v. Samuel, 102 A.3d 1001, 1007 (Pa. Super. 2014).
Therefore, we will proceed to review the merits of the claim.
Sentencing is a matter that is within the sound discretion of the trial
court, which will not be disturbed on appeal absent an abuse of that
discretion. Commonwealth v. Dykes, 541 A.2d 1, 6 (Pa. Super. 1988).
To constitute an abuse of discretion, a sentence must either exceed the
statutory limits or be patently excessive. Commonwealth v. White, 491
A.2d 252 (Pa. Super. 1985).
Here, the trial court imposed the sentence after reviewing a pre-
sentence investigation and hearing statements from Terantino offering his
remorse. Sentencing Notes of Testimony (“Sentencing N.T.”), 4/30/2014, at
5-6. Terantino was sentenced to consecutive prison terms within the
aggravated range for his convictions of endangering the welfare of a child
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and unlawful restraint. The trial court stated its reasons for imposing the
sentences in the aggravated range:
I do think there are aggravating factors here. I understand why
Ms. Loveland continues to have fear and suffers from anxiety
over what she was put though that day and worries that she
may have to deal with it again in the future. I think that’s an
aggravating factor. I also feel that Mr. Terantino has not come
to grips with his actual problem here, and that is his
unwillingness to allow Ms. Loveland to live her own life and be
free of his influence. Once she expressed her desire to do that,
that’s what should have happened, and instead we have this
situation with a gun being introduced.
Id. at 11.
In addition, Terantino was sentenced to a consecutive term in the
standard range for his conviction of terroristic threats, and to a concurrent
term in the standard range for possession of instruments of a crime. The
total aggregate sentence imposed by the sentencing court was four to eight
years’ incarceration. Id. at 12-13. Therefore, because the sentence
imposed was within the statutory range of each crime of which Terantino
was convicted, and based upon the underlying history of this case and the
trial court’s detailed explanation for the sentence it imposed, id. at 8-11, we
discern no abuse of the broad discretion vested in the trial court when
imposing Terantino’s sentence.
As set forth above, we have reviewed counsel’s Anders brief carefully,
and find that it complies with the technical requirements imposed by those
precedents. We further find that counsel has taken all steps necessary to
ensure that her client’s interests are protected. We have conducted an
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independent review of the record and conclude that counsel’s
characterization and analysis of the record are accurate, and that no non-
frivolous challenges to Terantino’s judgment of sentence will lie. Moreover,
our review has revealed no other non-frivolous issues that merit
consideration on appeal.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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