Com. v. Botke, K.

J-S10019-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH BENJAMIN BOTKE
Appellant Nos. 1364 EDA 2014; 1365
EDA 2014; 1366 EDA 2014
Appeal from the Judgments of Sentence dated March 17, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at Nos: CP-45-CR-0001933-2013;
CP-45-CR-0002411-2013; CP-45-CR-0002412-2013
BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 20, 2015
Appellant Kenneth Benjamin Botke appeals from the March 17, 2014
judgments of sentence1 entered in the Court of Common Pleas of Monroe
County (trial court), after Appellant pled guilty to criminal attempt
kidnapping, criminal attempt robbery of a motor vehicle, theft by unlawful
taking (firearm), theft by unlawful taking (motor vehicle), escape, and theft
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*
Retired Senior Judge assigned to the Superior Court.
1
To the extent Appellant purports to appeal from the March 31, 2014 order
denying his post-sentence motions, we note that in a criminal context, an
appeal properly lies from the judgment of sentence, not an order denying
post-sentence motions. Accordingly, we have corrected the caption to
reflect the March 17, 2014 judgments of sentence. See Commonwealth v.
Dreves, 839 A.2d 1122, 1125 n. 1 (Pa. Super. 2003) (en banc).
J-S10019-15
by unlawful taking (movable property).2 Upon review, we affirm the
judgments of sentence.
On August 4, 2013, the Pocono Mountain Regional (PMR) Police
charged Appellant with, inter alia, attempted kidnapping and attempted
robbery at docket number 1933-2013 (First Case). The affidavit of probable
cause accompanying the complaint provided in part:
On Sunday, August 4, 2013 Officers from the [PMR] Police
department responded to the Stillwater Lakes Community to
attempt to apprehend [Appellant]. [Appellant] was wanted for
[b]urglary and other charges stemming from offenses that
occurred on August 3, 2013.
Police received information that [Appellant] was seen at a
residence on Nadine Boulevard. The resident on Nadine
Boulevard reported that [Appellant] was armed with two black in
color handguns. The resident reported that [Appellant] was
wearing a black in color hooded sweatshirt and blue jeans.
Police began to search the immediate area. [Appellant]
was spotted in the woods. Police were dispatched. . . . The
resident, [J.B.] reported that [Appellant] was armed with a
handgun, pointed it at [J.B.] and told [J.B.] that [Appellant]
wanted [J.B.’s] vehicle. [J.B.] stated that [J.B.] feared for his
life and the life of his girlfriend. [J.B.] said he began to scream
and cry for help. [J.B.] stated [Appellant] ran after [Appellant]
saw police closing in. The vehicle that [Appellant] attempted to
take was black in color Nissan Maxima. . . .
The police continued to pursue [Appellant]. [Appellant]
then entered a home belonging to [R.S. and T.S.]. . . . [They]
immediately recognized [Appellant] as the fugitive they saw on
the news. [They] had never met [Appellant] prior to this date
and [Appellant] wasn’t authorized to enter their home.
[Appellant] was armed with two black in color handguns.
[Appellant] pointed the firearms at the [couple] and told them
that he needed a ride to Effort. [Appellant] took the black
hooded sweatshirt off and threw it on the floor and said give it to
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2
18 Pa.C.S.A. §§ 901(a), 2901(a)(2), 901(a), 3702(a), 3921(a), 3921(a),
5121(a), and 3921(a), respectively.
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the cops. [Appellant] told [the couple] that the police were after
him. [Appellant] told them that [he] wouldn’t hurt them but
they had to go with him. At gunpoint [Appellant] had them
leave their residence and directed them to the vehicle located in
the driveway. In a subsequent interview the victims reported
that they feared for their lives. [R.S.] said [R.S.] was never so
scared in my life. At approximately 1243 hours the police
arrived as [Appellant] was attempting to force the [couple] into
their vehicle. The vehicle is a black in color Nissan Sentra. . . .
[Appellant] was brandishing both firearms pointing them at the
[couple.] Police engaged [Appellant and] gave him verbal
commands ordering [Appellant] to drop the guns and get down
on his knees. [Appellant] refused to obey the verbal commands
given and continued to threaten the police and the [couple.] At
one point, [Appellant] placed the firearms to his own head as he
told the police to kill him. The police utilized a taser to stop
[Appellant’s] actions. [Appellant] continued to resist and refused
to let go of the firearms. The police physically forced the
firearms from [Appellant’s] grip.
. . . . Police [later] determined that the handguns that
[Appellant] possessed were actually BB-guns that looked like a
real firearm.
Affidavit of Probable Cause, 8/5/13.
Thereafter, on September 9, 2013, in connection with the incident that
gave rise to this case, the PMR Police department charged Appellant with,
inter alia, theft by unlawful taking (movable property) at docket number
2412-2013 (Second Case). The affidavit of probable cause in the Second
Case provided in pertinent part:
On August 3, 2013 at 2045 hours, Officer Derek Metzger,
took a theft complaint. Upon Officer Metzger’s arrival . . . he
spoke with complainant [J.P.] who advised that her son,
[Appellant], had been stealing items from her other son’s locked
bedroom. The victim, identified as [A.B.], stated that
[Appellant] had stolen [A.B.’s] Play Station 3 gaming system and
16 games over the last 3 days. [A.B.] stated that the door to
[A.B.’s] bedroom is locked with a key. [A.B.] stated that the
door is lockable from the inside with a turn lock and that the
exterior of the door is opened with a key. When [J.P.] and
[A.B.] were asked how they determined [Appellant] stole the
items [J.P.] advised that she found the receipt in [Appellant’s]
pants to Game Stop where [Appellant] had traded the system
and games in for money. [A.B.] advised that [A.B.] has had $20
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in quarters stolen as well. [J.P.] advised [Appellant] was inside
right now and was not aware that police were present.
[J.P.] and [A.B.] were asked if [A.B.] ever gave [Appellant]
permission to enter his room or take the Play Station or sell any
items. [A.B.] advised that [Appellant] was not permitted to be
in his room and that [A.B.] did not give [Appellant] permission to
take anything either. [A.B.] confirmed that [A.B.’s] door was
locked and that a key is needed to unlock it from the hallway.
[J.P.] went in and obtained the receipt from Game Stop that
showed the Play Station and 10 games turned in for cash
totaling $110.14.
[Appellant] was asked if [Appellant] had any knowledge of
[A.B.’s] Play Station being removed from his room and
[Appellant] advised that he took it and sold it as ‘retaliation’ for
getting him arrested earlier in the week. [Appellant] was asked
how he was able to get into [A.B.’s] bedroom if the door was
locked and [Appellant] advised that he gets in just like [J.P.]
does. [Appellant] stated that he usually uses a card, like a
credit card, to slide in the jam and pop open the door.
[Appellant] was asked if this is how he got into [A.B.’s] locked
bedroom to get the Play Station and [Appellant] agreed.
After being interviewed [Appellant] fled and escaped from
Officer Metzger.
Affidavit of Probable Cause, 9/9/13.
On the same day, i.e., September 9, 2013, the PMR Police department
also charged Appellant with, inter alia, theft by unlawful taking (firearm),
theft by unlawful taking (motor vehicle), and escape at docket number
2411-2013 (Third Case). The affidavit of probable cause in the Third Case
provided in part:
On Saturday, August 3, 2013 [PMR] Police department
arrested [Appellant] for [b]urglary and related crimes. While
Officer Metzger was at . . . Nadine Boulevard obtaining
statements, [Appellant] stole Office Metzger’s patrol vehicle and
escaped from custody. The patrol vehicle was subsequently
located in the Stillwater Lakes community. The vehicle . . . was
. . . a 2008 Ford Expedition, marked and fully equipped police
vehicle valued at approximately $30,000. Officers then
discovered that [Appellant] had [also] stolen a [PMR] Police
department issue[d] Remington 12 gauge shotgun . . . that had
been secured inside the patrol vehicle, this shotgun is valued at
$500.
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On Sunday, August 4, 2013, at approximately 1244 hours,
[Appellant] was located in Coolbaugh Township and arrested.
Subsequently, Sgt. Lenning interviewed [Appellant, who]
admitted to stealing the Remington 12 gauge shotgun and giving
it to a friend, Wells. It should be noted that Wells was identified
as, Khyree Johvan Caldwell.
Affidavit of Probable Cause, 9/9/13.
On December 24, 2013, Appellant pled guilty in all three cases. In the
First Case, Appellant pled guilty to attempted kidnapping and attempted
robbery. In his written guilty plea colloquy, Appellant acknowledged the
facts and elements necessary for conviction for attempted kidnapping and
attempted robbery. Specifically, Appellant acknowledged “[o]n August 4,
2013 in Coolbaugh Township, Monroe County, I attempted to take [R.S.] a
substantial distance in an attempt to facilitate flight from the police. On the
same day in the same municipality I attempted to take a vehicle possessed
by [J.B.] without his permission.” Guilty Plea Colloquy First Case, 12/24/13,
at ¶ 3. Appellant also acknowledged that the deadly weapons enhancement
(possession) would apply in the First Case at sentencing. Id. at ¶ 7. The
Commonwealth nolle prossed the remaining charges in the First Case.
In the Second Case, Appellant pled guilty to theft by unlawful taking
(moveable property). In the written guilty plea colloquy, Appellant
acknowledged that “[o]n August 3, 2013 in Coolbaugh Township, Monroe
County, Pa. I took a game system belonging to [A.B.].” Guilty Plea Colloquy
Second Case, 12/24/13, at ¶ 3. The Commonwealth nolle prossed the
remaining charges in the Second Case.
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In the Third Case, Appellant pled guilty to theft by unlawful taking
(firearm), theft by unlawful taking (motor vehicle), and escape. In the
written guilty plea colloquy, Appellant acknowledged “[o]n August 3, 2013 in
Coolbaugh Township, Monroe County Pennsylvania I took a 12 gauge shot
gun belonging to [PMR] Police, as well as a patrol vehicle after I was lawfully
arrested and removed myself from official detention.” Guilty Plea Colloquy
Third Case, 12/24/13, at ¶ 3. The Commonwealth nolle prossed the
remaining charges in the Third Case.
Sentencing occurred on March 17, 2014. With respect to the First
Case, the trial court sentenced Appellant to 36 to 84 months’ imprisonment
for attempted kidnapping and 24 to 48 months’ imprisonment for attempted
robbery. The sentences were to run consecutively. In the Second Case, the
trial court sentenced Appellant to 3 to 12 months’ imprisonment for theft by
unlawful taking (movable property), running consecutively with the
sentences imposed in the First Case. In the Third Case, the trial court
sentenced Appellant to 18 to 36 months’ imprisonment for theft by unlawful
taking (firearm), 12 to 24 months’ imprisonment for theft by unlawful taking
(motor vehicle), and 15 to 36 months’ imprisonment for escape. The
sentence imposed in the Third Case was to run consecutively with those
imposed in other cases. As a result of the consecutive nature of Appellant’s
sentence, his aggregate sentence is 108 to 240 months’ imprisonment, i.e.,
9 to 20 years in prison.
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Following the trial court’s denial of Appellant’s post-sentence motions
on March 31, 2014, Appellant appealed to this Court on May 1, 2014. The
trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of errors
of complained of on appeal. Appellant complied. In response, the trial court
issued a brief Pa.R.A.P. 1925(a) opinion, in which it merely stated:
the [trial court] adopts in [its] entirety the Presentence
Investigation Report [(“PSI”)] prepared in this matter, including
the aggravating factors contained therein, and the arguments of
the Commonwealth made at the time of sentencing. For those
reasons, as well as for the reasons placed on the record by the
[trial court] at the time of sentencing, all of which are contained
in the Transcript of Proceedings dated March 17, 2014, [the trial
court] believe[s] [it] has adequately, properly, and fully
addressed the issues raised by [Appellant] on appeal.
Trial Court Opinion, 6/19/14.
On appeal,3 Appellant challenges only the discretionary aspects of his
sentence.4 In so doing, he argues the aggregate sentence imposed is
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3
When reviewing a challenge to the sentencing court’s discretion, our
standard of review is as follows:
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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-
will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).
4
In the “statement of the questions involved” section of his brief, Appellant
raises eight other issues for our review. Appellant’s Brief at 9. Appellant,
however, fails to develop them in the argument section of his brief, which
(Footnote Continued Next Page)
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unreasonable and excessive given the trial court’s (1) failure to give proper
weight to his prior record score (“PRS”) and juvenile history, and (2)
application of non-existent aggravating factors. Appellant’s Brief at 15.
Before we may address the merit of Appellant’s case, we must decide
the Commonwealth’s contention that this appeal be quashed as untimely
filed. In support of its argument, the Commonwealth points out that
Appellant filed the instant appeal on May 1, 2014, after the trial court denied
his post-sentence motions on March 31, 2014. Although we agree with the
Commonwealth that Appellant’s appeal is facially untimely, such
untimeliness, however, may not be attributed to Appellant.
Generally, an appellate court cannot extend the time for filing an
appeal, but may grant relief where there is a breakdown in the processes of
the trial court. See Commonwealth v. Patterson, 940 A.2d 493, 498-99
(Pa. Super. 2007), appeal denied, 960 A.2d 838 (Pa. 2008). A breakdown
in the processes of the court occurs “when the trial court or the clerk of
courts depart[s] from the obligations specified in” Rule 720. See id. at 499.
Here, the record indicates a breakdown in the trial court’s operation that
excuses the otherwise untimeliness of this appeal. Specifically, the trial
_______________________
(Footnote Continued)
barely spans two and one-half pages consisting largely of block quotes
detailing case law and statutes. See id. at 14-16. Accordingly, we deem as
waived the remaining eight arguments. See Commonwealth v. Beshore,
916 A.2d 1128, 1140 (Pa. Super. 2007) (“The failure to develop an adequate
argument in an appellate brief may result in waiver of the claim under
Pa.R.A.P. 2119.”), appeal denied, 982 A.2d 509 (Pa. 2007).
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court’s order denying Appellant’s post-sentence motions failed to inform
Appellant of his appeal rights and the time limits for taking an appeal. See
Pa.R.Crim.P. 720(B)(4)(a). Accordingly, we decline to quash this appeal as
untimely filed.
We now turn to Appellant’s argument that the trial court abused its
discretion in imposing an unreasonable and excessive aggregate sentence.
In support of his argument, Appellant notes:
At the time of sentencing [Appellant] appeared before the
sentencing court with a [PRS] of zero. [Appellant] also had two
adult paroles none of which were ever revoked.[5] Yet the lower
court focused on [Appellant’s] past as a juvenile. The lower
court looked at [Appellant’s] juvenile record which was fair.
However, nothing in [Appellant’s] young adult life depicted him
as a[.][6]
Appellant’s Brief at 15. Appellant essentially argues the trial court failed to
give proper weight to his PRS of zero and improperly focused on his juvenile
history.7 Appellant also argues the trial court abused its discretion in
applying aggravating factors when no such factors existed.
“Initially, we note that when a defendant enters a guilty plea, he or
she waives all defects and defenses except those concerning the validity of
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5
As the Commonwealth notes, and the PSI confirms, Appellant was never
granted parole nor was parole ever revoked. See Appellee’s Brief at 8, n.9.
6
As the blank space after the words “depicted him as a” indicates, Appellant
failed to complete the last sentence of the quoted paragraph.
7
The PSI reveals that Appellant was adjudicated delinquent for simple
assault. See N.T. Sentencing, 3/17/13, at 17.
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the plea, the jurisdiction of the trial court, and the legality of the sentence
imposed.” Commonwealth v. Stradley, 50 A.3d 769, 771 (Pa. Super.
2012) (citation omitted). “Our law presumes that a defendant who enters a
guilty plea was aware of what he was doing. He bears the burden of proving
otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011) (citation omitted). “However, when the plea agreement is open,
containing no bargained for or stated term of sentence, the defendant will
not be precluded from appealing the discretionary aspects of h[is]
sentence.”8 Commonwealth v. Roden, 730 A.2d 995, 997 n.2 (Pa. Super.
1999) (citation omitted).
It is well-settled that “[t]he 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, an appellant’s appeal should be
considered 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
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
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8
The record in this case reveals that Appellant entered into open guilty
pleas.
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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, 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.A. § 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.
Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
2119(f) statement in his brief.9 We, therefore, must determine only if
Appellant’s sentencing issue raises a substantial question.
We have found that a substantial question exists “when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super.
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9
Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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2008) (citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). This
Court does not accept bald assertions of sentencing errors. See
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).
When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur 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.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
A Rule 2119(f) statement is inadequate when it “contains incantations of
statutory provisions and pronouncements of conclusions of law[.]”
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Here, Appellant’s two-page Rule 2119(f) statement largely contains
incantations of statutory provisions and pronouncements of conclusions of
law. See Appellant’s Brief at 12-13. To the extent Appellant raises any
substantive argument in his Rule 2119(f) statement, it is limited to the
following bald assertion of error: The trial court abused its discretion “in
imposing an aggregate sentence of nine years to twenty-four[10] years in
light of the charges that Appellant plead [sic] to, as well as the fact that he
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10
As noted, Appellant’s aggregate sentence was nine to twenty—not twenty-
four—years’ imprisonment.
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has a zero [PRS].” Appellant’s Brief at 13. Given the nature of his Rule
2119(f) statement, we cannot conclude he has raised a substantial
question.11 See Bullock, supra; see Malovich, supra; see also
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (holding
that “a bald claim of excessiveness … will not raise a substantial question”).
Even if we were to conclude Appellant raised a substantial question for
our review, his claims are nonetheless without merit. As we stated earlier,
our standard of review of a sentencing challenge 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (citation
omitted), appeal denied, 63 A.3d 774 (Pa. 2013).
Here, contrary to Appellant’s assertions, the trial court properly
considered Appellant’s PRS of zero and his history with the juvenile courts.12
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11
Insofar as Appellant suggests the trial court failed to consider any
mitigating factors in fashioning his sentence, he fails to articulate or identify
what those factors are. Accordingly, we find no substantial question. See
Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997)
(finding absence of substantial question where appellant argued the trial
court failed to adequately consider mitigating factors and to impose an
individualized sentence).
12
“A child who continues his pattern of serious and violent anti-social
activity into adulthood, should not receive the benefit of a cloak of immunity
(Footnote Continued Next Page)
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The trial court had the benefit of a PSI report,13 which indicates that the trial
court was aware of Appellant’s character and circumstances, and weighed
those considerations in imposing the sentence. See Moury, 992 A.2d at
171 (“Where the sentencing court had the benefit of a [PSI], we can assume
the sentencing court was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors.”) (internal citation omitted). Referencing
Appellant’s stint in the juvenile system, the trial court remarked at
sentencing:
My point is, if I look at your conduct, the things that you did to
your own family, you haven’t been on the outside to even be
able to show that you’ve changed, and don’t give me the words
because talk is cheap, it’s the actions that really tell and are the
measure of the man, but that’s my point, after everything that
juvenile tried to do with you, and after having
experienced that, you were still on the outside long
enough to prove that you haven’t changed, and you were an
adult and you kept making mistakes and you kept committing
offenses.
N.T. Sentencing, 3/17/14, at 26-27 (emphasis added).
Furthermore, Appellant’s argument that the record does not contain
any aggravating factors is belied by the record itself. In fact, the trial court
noted at sentencing that “multiple aggravating factors” existed. Id. at 30.
Appellant also admitted in his brief that “the PSI indicated aggravating
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(Footnote Continued)
regarding that behavior, when it is relevant to predicting future behavior and
the public safety is at risk.” Commonwealth v. Lilley, 978 A.2d 995, 1000
(Pa. Super. 2009) (citation omitted).
13
Appellant did not object to the PSI.
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factors to include the arrest of [Appellant] for unrelated charges, charges
which never made it passed [sic] the preliminary hearing stage, as well as
the fact that substantial police resources had to be used in [Appellant’s]
continuing cases.”14 Appellant’s Brief at 15-16. Additionally, the record
reveals that Appellant acknowledged the application of deadly weapons
enhancement (possession) for purposes of sentencing in his attempted
kidnapping and attempted robbery convictions.15 See Guilty Plea Colloquy
First Case, 12/24/13, at ¶ 3.
In light of the foregoing, we conclude the trial court did not abuse its
discretion in sentencing Appellant to nine to twenty years’ imprisonment.
Accordingly, we affirm the judgments of sentence.
Judgments of sentence affirmed.
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14
Appellant suggests the trial court abused its discretion in considering as
an aggravating factor the fact that Appellant was out on bail when he
committed the offenses sub judice even though the case triggering the bail
was dismissed. We reject such suggestion as incredulous. Appellant
provides no legal authority—nor does our research yield any—to support this
argument. Additionally, we observe the dismissed case involved Appellant’s
family members as victims. See N.T. Sentencing, 3/17/13, at 10.
15
Appellant also suggests the trial court abused its discretion in considering
as aggravating factors the theft of the PMR Police shotgun and Ford
Expedition because they already “were part and parcel of the offense[s].”
Appellant’s Brief at 16. Not only does Appellant fail to specify what those
offenses are, but he also fails to support this argument with any record
citation. Assuming, arguendo, Appellant is correct, we still could not
conclude the trial court abused its discretion, because the record contained
other aggravating factors.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2015
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