Com. v. Antonovich, B.

J-S01044-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN THOMAS ANTONOVICH :
:
Appellant : No. 179 WDA 2022
Appeal from the Judgment of Sentence Entered January 5, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000508-2021
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: APRIL 11, 2023
Appellant, Brian Thomas Antonovich, appeals the judgments of sentence
imposed after he was convicted of stalking, terroristic threats, and
harassment.1 He challenges the discretionary aspects of his aggregate
sentence: two to four years’ imprisonment, to be followed by six years’
probation. Upon review, we affirm.
On October 7, 2021, Appellant waived a jury and proceeded to trial.
N.T. 10/7/21, 5-7. The trial court offers us the following summary of the
facts:
At trial[,] the Commonwealth presented the testimony of the
victim who testified that between April and May of 2020 she first
encountered [Appellant] when she was walking near a grocery
store in the Greenfield area of Pittsburgh. As she walked past
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2709.1(a)(2), 2706(a)(1), and 2709(a)(4), respectively.
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[Appellant], who sitting at a bus stop, he said to her, “I like your
ass in your pants[,]” and as she ignored him and continued
walking[,] he screamed at her, “I will F--- you up your ass.” The
victim then ran across the street and [Appellant] screamed at
her[,] “I am going to beat you the F--- up.” The victim testified
that she had eight to ten similar encounters with [Appellant] in
the Greenfield area over the ensuing months. The victim also
testified that on the night of January 7, 2021[,] she was in her
fenced[-]in front yard with her dog when [Appellant] approached
the fence, leaned over and began throwing punches at her dog.
When the victim pleaded for him to stop, [Appellant] stated: “I
am going to kill your dog[,]” and told the victim[,] “I am going to
get you[,]” and “I am going to beat you the F--- up.” The victim
did not know [Appellant’s] name at that point but subsequently
videoed him on other encounters and[,] after showing the video
to others in the neighborhood[,] was able to identify [Appellant].
After identifying [Appellant,] she was able to video him again
approaching her and yelling[,] “I will slam your door shut for real.”
The victim testified that[,] during the repeated encounters with
[Appellant,] he threatened to sexually assault her, beat her up[,]
and kill her and her dog. The victim testified that she not only
feared for herself but others in the neighborhood and posted
information regarding the threats by [Appellant] online. On cross
examination[,] defense counsel elicited testimony that the victim
only identified [Appellant] by name after showing the video she
made to others in the neighborhood and it was those other
individuals who provided [Appellant’s] name to the victim.
Further, [the cross-examination testimony included] that the
victim subsequently researched [Appellant’s] name on the
internet and found that [Appellant] had similar criminal offenses
and she then contacted the police. The Commonwealth also
presented evidence from the investigating officers that the victim
clearly identified [Appellant] from a photo array as the person
repeatedly threatening her.
Trial Court Opinion, 6/6/22, 2-3 (trial record citations omitted).
On October 14, 2021, the court found Appellant guilty of stalking by
repeatedly committing acts to cause fear, terroristic threats, and harassment
through the communication of lewd, lascivious, threatening, or obscene
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language. N.T. 10/7/21, 5; N.T. 10/14/21, 3; Bill of Information, 3/8/21.
Sentencing was deferred for the preparation of a pre-sentence investigation
report and a mental health evaluation. N.T. 10/14/21, 3; Mental Health
Evaluation Order, 7/12/21, 1. On January 5, 2022, the court imposed
consecutive terms of one to two years’ imprisonment and three years’
probation for stalking and terroristic threats, and no further penalty for
harassment.2 N.T. 1/5/22, 14; Sentencing Order, 1/5/22, 1. Prior to
announcing the terms of the sentence, the court told Appellant, “I find you to
be a clear and present danger to society and the victim here. You don’t seem
to take any remorse and responsibility. I feel that you’re definitely a threat
to her as well as the general public.” N.T. 1/5/22, 14.
Appellant timely filed a post-sentence motion seeking modification of his
sentence in which he claimed, among other things, that his sentence was
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2 Both imprisonment terms were within the standard range recommended by
the Sentencing Guidelines. The guidelines assigned offense gravity scores of
four for stalking and three for terroristic threats. 204 Pa.Code § 303.15
(offense listing; 7th ed., amend. 5). Appellant had a prior record score of five.
N.T. 1/5/22, 6-7. Accordingly, the guidelines recommended minimum
imprisonment terms of nine to sixteen months, plus or minus three months
for aggravating or mitigating circumstances, for stalking, and six to sixteen
months, plus or minus three months for aggravating or mitigating
circumstances, for terroristic threats. 204 Pa. Code § 303.16(a) (basic
sentencing matrix; 7th ed., amend 5).
Appellant was charged for acts committed on or about April 1, 2020, through
January 14, 2021, a period of time that spanned the effective date of the sixth
amendment of the seventh edition of the Sentencing Guidelines. For our
purposes that amendment is not material because the fifth and sixth
amendments both recommended same minimum imprisonment terms.
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unreasonable, manifestly excessive, and contrary to the factors set forth
under 42 Pa.C.S. § 9721(b), and that the sentencing court failed to consider
his rehabilitative needs contrary to Section 9721. Post-Sentence Motion,
1/12/22, ¶¶ 6-7. After the court denied the motion, Appellant timely filed a
notice of appeal and a court-ordered concise statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Order Denying Post-Sentence
Motion, 1/12/22, 1; Notice of Appeal, 2/7/22, 1; Rule 1925 Order, 2/24/22,
1; Rule 1925(b) Statement, 3/17/22, 1-3.
Appellant presents the following question for our review: “Did the Trial
Court abuse its sentencing discretion by focusing entirely on the gravity of the
offenses and the impact on the victim in imposing [his] sentence?” Appellant’s
Brief at 5.
Appellant asserts that the sentencing court abused its discretion by
focusing entirely on the gravity of his offenses and their impact on the victim
and not giving any consideration to his mitigation evidence, including his
rehabilitative needs, his alcoholism and mental health diagnoses, and the fact
that he had a comprehensive treatment plan in place for rehabilitation.
Appellant’s Brief at 11. He alleges that this claim raises a substantial question
for our review because he states in his separate statement in his brief pursuant
to Pa.R.A.P. 2119(f) that the claim highlights the fact that the court abused
its discretion “by disregarding the mandates of Section 9721(b).” Appellant’s
Brief at 13. He also points out that combined claims of excessive sentences
and the failure to consider mitigating sentencing factors raises a substantial
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question for our review. Appellant’s Brief at 14, citing Commonwealth v.
Miller, 275 A.3d 530 (Pa. Super. 2022).
Challenges to the discretionary aspects of sentencing, such as the claim
presented here, “do not entitle an appellant to an appeal as of right.”
Commonwealth v. Perzel, --- A.3d ----, 2023 WL 2252159, *5 (Pa. Super.,
filed Feb. 28, 2023). Prior to reaching the merits of a discretionary sentencing
issue:
[W]e conduct a four[-]part analysis to determine: (1) whether
appellant has filed a timely notice of appeal[;] (2) whether the
issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence[;] (3) whether appellant’s brief
has a fatal defect[, see 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[.]
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). An
appellant must satisfy this four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence. Commonwealth
v. Salter, --- A.3d ----, 2023 WL 2053193, *4 (Pa. Super., filed Feb. 17,
2023), citing Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super.
2014). As to the last part of the test,
A substantial question will be found where an appeal advances a
colorable argument that the sentence imposed is either
inconsistent with a specific provision of the Sentencing Code or is
contrary to the fundamental norms which underlie the sentencing
process. At a minimum, the Rule 2119(f) statement must
articulate what particular provision of the code is violated, what
fundamental norms the sentence violates, and the manner in
which it violates that norm.
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Zirkle, 107 A.3d at 132 (citation omitted).
The Commonwealth raises no argument as to the timeliness of
Appellant’s notice of appeal and concedes that Appellant preserved his claim
before the sentencing court and included a required statement in his brief
pursuant to Pa.R.A.P. 2119(f). Appellee’s Brief at 9-10 & n.9. The
Commonwealth, while describing the nature of the Rule 2119(f) statement as
“anemic,” ultimately states that “it is likely appellant will be deemed to have
raised the requisite substantial question.” Appellee’s Brief at 10, citing
Commonwealth v. Derrickson, 242 A.3d 667, 680 (Pa. Super. 2020)
(acknowledging that claims that a sentencing court sentenced based solely on
the seriousness of the offense and failed to consider all relevant factors or
failed to consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense, and the rehabilitative needs of
an appellant, as required by 42 Pa.C.S. § 9721(b), present a substantial
question).
We do not find any impediment to us reaching the merits of Appellant’s
claim. Appellant timely filed a notice of appeal, preserved his instant claim by
raising a combined excessive-sentence and failure-to-consider-Section
9721(b)-sentencing-factors claim in his post-sentence motion, and
demonstrated that his instant claim raised a substantial question for purposes
of Rule 2119. See Commonwealth v. Snyder, --- A.3d ----, 2023 WL
1793573, *3 (Pa. Super., filed Feb. 7, 2023) (noting that a claim that a
sentencing court disregarded a defendant’s rehabilitative potential and
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sentenced her to a manifestly excessive sentence presented a substantial
question); Miller, 275 A.3d at 534 (concluding that a defendant raised a
substantial question where he contended that a sentencing court “focused
solely on the nature of the crimes,” “paid no more tha[n] lip service to [his]
strides toward rehabilitation and reform,” and imposed a “manifestly
excessive sentence”).
We apply the following standard of review when reviewing discretionary
sentencing 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.
Commonwealth v. Bankes, 286 A.3d 1302, 1307 (Pa. Super. 2022) (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 deferential standard is based on the recognition that “the nuances of
sentencing decisions are difficult to gauge from the cold transcript used upon
appellate review.” Commonwealth v. Perry, 32 A.3d 232, 236 (Pa. 2011),
quoting Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007).
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42 Pa.C.S. § 9721(b) offers the following guidance to the trial court’s
sentencing determination:
[T]he sentence imposed should call for total confinement that is
consistent with section 9725 (relating to total confinement) and
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.
42 Pa.C.S. § 9721(b).
Moreover,
[42 Pa.C.S. §] 9781(c) specifically defines three instances in which
appellate courts should vacate a sentence and remand: (1) the
sentencing court applied the guidelines erroneously; (2) the
sentence falls within the guidelines, but is “clearly unreasonable”
based on the circumstances of the case; and (3) the sentence falls
outside the guidelines and is “unreasonable.” 42 Pa.C.S. §
9781(c). Under 42 Pa.C.S. § 9781(d), the appellate courts must
review the record and consider the nature and circumstances of
the offense, the sentencing court’s observations of the defendant,
the findings that formed the basis of the sentence, and the
sentencing guidelines. The … weighing of factors under 42 Pa.C.S.
§ 9721(b) [is] exclusively for the sentencing court, and an
appellate court could not substitute its own weighing of those
factors. The primary consideration, therefore, is whether the
court imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for sentencing falling
outside the guidelines, or clearly unreasonable for sentences
falling within the guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012) (citation
omitted).
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors the court should refer to
the defendant’s prior criminal record, age, personal characteristics
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and potential for rehabilitation. Where pre-sentence reports exist,
we shall…presume that the sentencing judge was aware of the
relevant information regarding defendant’s character and
weighted those considerations along with mitigating statutory
factors.
Commonwealth v. Taylor, 277 A.3d 577, 593 (Pa. Super. 2022) (citation
omitted).
Additionally, we note the “imposition of consecutive rather than
concurrent sentences lies within the sound discretion of the sentencing court.”
Commonwealth v. Redmond, 273 A.3d 1247, 1254 (Pa. Super. 2022),
citing Zirkle, 107 A.3d at 133 (citation omitted). It is well-accepted that
“[i]n imposing a sentence, the trial [court] may determine whether, given the
facts of a particular case, a sentence should run consecutive to or concurrent
with another sentence being imposed.” Commonwealth v. Wright, 832
A.2d 1104, 1107 (Pa. Super. 2003) (citation omitted); see also
Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (42 Pa.C.S.
§ 9721 “affords the sentencing court discretion to impose its sentence
concurrently or consecutively to other sentences being imposed at the same
time or to sentences already imposed.”) (citations omitted).
Here, Appellant asserts in the heading of his argument that the
sentencing court abused its discretion “by focusing entirely on the gravity of
the offense and the impact of the victim in imposing [his] sentence.”
Appellant’s Brief at 16. Based on his tailored citation to 42 Pa.C.S. § 9781(c),
he intimates that this Court should vacate his sentence and remand because
the sentencing court imposed a sentence within the recommendations of the
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Sentencing Guidelines but the application of the guidelines would be “clearly
unreasonable” given the circumstances involved in this matter. Appellant’s
Brief at 16-17. As for those circumstances, he refers us to his counsel’s
arguments from the sentencing hearing about the role of his alcohol use and
mental health issues throughout his criminal history, his prior lack of any in-
patient or rehabilitation treatment, and his support for a Justice Related
Services (“JRS”) treatment plan to address these underlying causes of his
crimes. Appellant’s Brief at 19, citing N.T. 1/5/22, 3-5. After these
arguments which appeared to be in the same vein as the claim preserved in
his post-sentence motion, Appellant proceeds to segue into a separate claim
that the sentencing court erred by not offering an adequate explanation of the
reasons for its sentence at the sentencing hearing. Appellant’s Brief at 20.
He then restates the court’s remarks that prefaced the imposition of his
sentence, calling them “exceptionally minimal,” and argues that the limited
remarks demonstrated that the trial court “gave no consideration to [his]
mitigating evidence as required by Section 9721(b).” Appellant’s Brief at 20.
We do not discern an abuse of discretion upon reviewing these arguments.
To the extent that Appellant presents for the first time on appeal an
argument that the trial court abused its discretion by not offering an adequate
statement of reasons for the sentence pursuant to Section 9721(b), that part
of his argument is waived as it was never preserved below either in an
objection at the sentencing hearing following the imposition of his sentence or
in his post-sentence motion. See Commonwealth v. Hartman, 908 A.2d
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316, 319 (Pa. Super. 2006) (appellant waived a discretion sentencing claim
by not preserving it at sentencing or in a timely post-sentence motion);
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)
(discretionary sentencing claim waived where, although appellant filed a post-
sentence motion for reconsideration of sentence, the motion did not include
the specific claim raised on appeal); Pa.R.A.P. 302(a) (“Issues not raised in
the trial court are waived and cannot be raised for the first time on appeal.”).
The claims preserved below were that the sentencing court failed to consider
Appellant’s rehabilitative needs and imposed an excessive sentence – not that
the court failed to offer an adequate statement of reasons pursuant to 42
Pa.C.S. § 9721(b). See Post-Sentence Motion, 1/12/22, ¶¶ 6-7 (“At
sentencing, this Honorable Court failed to consider [Appellant’s] rehabilitative
needs, in violation of 42 Pa.C.S. §§ 9721(a) and (b). … Based on the foregoing,
[Appellant] submits that his sentence is unreasonable, manifestly excessive,
and contrary to factors set forth under 42 Pa.C.S. § 9721(b), 42 Pa.C.S. §
9725, and the Sentencing Code generally.”).
In any event, the court offered a statement of reasons for the sentence
but Appellant suggests that it was inadequate because it failed to address the
court’s consideration of his mitigation evidence. In support of that argument,
he relies solely upon this Court’s decision in Commonwealth v. Coulverson,
34 A.3d 135 (Pa. Super. 2011). Appellant’s Brief at 17-20. He argues that
because the sentencing court’s statement was “exceptionally minimal,” “as in
Coulverson,” the record fails to “evince that the [sentencing] court …
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considered anything other the severity of [the] offenses and their impact on
the victim.” Appellant’s Brief at 20.
Coulverson, a well-reasoned opinion by an esteemed member of this
panel, does not support a finding of an abuse of discretion here. In that case,
the defendant pleaded guilty to rape, involuntary deviate sexual intercourse,
sexual assault, aggravated indecent assault, robbery, unlawful restraint,
terroristic threats, and two counts of indecent assault that he committed when
he was 19 years old. Coulverson, 34 A.3d at 138-39. The sentencing court
imposed an 18-to-90-year aggregate term of imprisonment, which included
the imposition of multiple consecutive statutory maximum sentences to
accomplish the upper end of the sentence. Id. at 139. On appeal, we found
that the imposition of a 90-year maximum sentence on a 19-year-old
defendant was “clearly unreasonable” as the trial court imposed a virtual life
sentence, failing to give any consideration to the defendant’s characteristics
and improperly basing its sentencing on its determination that defendant
should “spend as much of his life in prison as the court could order[.]” Id. at
148.
In the instant case, Appellant does not develop an argument that his
sentence was “clearly unreasonable” for purposes of 42 Pa.C.S. § 9781(c).
Instead, he is only arguing that the sentencing court’s statement of reasons
showed a disregard for mitigating evidence and that was an abuse of
discretion based on Coulverson. But the result in Coulverson did not hinge
on an improper or inadequate statement of reasons. See id. at 146
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(“Although we do not dispose of this appeal on that basis, we are troubled by
the court’s cursory treatment of so weighty a matter, as the 90-year
aggregate maximum potentially consigns a 19-year old defendant with mental
health problems to life in prison without even a nod to relevant sentencing
factors.”) (emphasis added). This Court vacated the sentence and remanded
because the maximum aggregate sentence was “clearly unreasonable” and
the court’s stated reasons appeared to “ignore the continuum of circumstances
underlying a defendant’s criminal conduct, society’s need for rehabilitation, or
the statutory factors enunciated in our Sentencing Code on the way to
imposing a maximum sentence.” Id. at 150.
In the present case, as opposed to Coulverson, the trial court imposed
two imprisonment terms within the standard range recommended by the
Sentencing Guidelines that did not extend to the statutory maximum. Also,
the court’s statement of reasons for the sentence did not demonstrate a
fixation to keep Appellant “in jail for life,” id. at 149 n.3, to the total disregard
of the relevant sentencing factors under Section 9721(b). Here, the trial
court’s statement – while short and certainly not to Appellant’s liking –
reflected consideration of the mandatory sentencing factors under Section
9721(b). The court’s findings as to Appellant being “a clear and present
danger to society and the victim” and a “threat to [the victim] as well as the
general public” reflected consideration of the factors concerning the need to
protect the public and the gravity of the offense as it relates to the impact on
the life of the victim and on the community. N.T. 1/5/22, 14. At the same
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time, the court’s statement to Appellant, “You don’t seem to take any remorse
and responsibility,” N.T. 1/5/22, 14, appeared to reflect consideration of his
need for rehabilitation, the remaining mandatory factor for imposing an
imprisonment term under Section 9721(b).
The trial court could have elaborated on its remarks prior to the
imposition of the sentence but we cannot characterize the offered statement
of reasons as evincing a disregard for the mandatory statutory sentencing
factors as in Coulverson. To the extent that Appellant suggests that the trial
court had to address the points and statements made by his counsel to reflect
its consideration of the mitigation evidence, Appellant does not cite any
caselaw to that effect. Indeed, “a lengthy discourse on the trial court’s
sentencing philosophy is not required. Rather, the record as a whole must
reflect the court’s reasons and its meaningful consideration of the facts of the
crime and the character of the offender.” Commonwealth v. Malovich, 903
A.2d 1247, 1253 (Pa. Super. 2005) (citations omitted); see also
Coulverson, 34 A.3d at 145 (“The court is not required to parrot the words
of the Sentencing Code, stating every factor that must be considered under
Section 9721(b).”) (citation omitted).
In this instance, we can presume that the sentencing court was
aware of the statutory sentencing factors and considerations about Appellant’s
character and properly weighed them because the record reflects the court’s
possession of a pre-sentence investigation report. N.T. 1/5/22, 2 (the court
asked Appellant’s counsel about whether he had a chance to review the report
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and whether there were any additions or corrections to it); see
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-
sentence reports exist, we shall continue to presume that the sentencing judge
was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.);
accord Commonwealth v. Rosario, 248 A.3d 599, 614 (Pa. Super. 2021);
Commonwealth v. Wallace, 244 A.3d 1261, 1279 (Pa. Super. 2021).
Furthermore, Appellant’s reliance on Coulverson is misplaced because
he fails to demonstrate that his sentence is “clearly unreasonable” such that
the trial court committed a manifest abuse of discretion when it sentenced
him. The trial court only imposed two consecutive standard-guideline-range
sentences resulting in a four-year maximum possible imprisonment term and
six years of probation. This is a reasonable sentence where Appellant
reoffended after serving a prior lengthy imprisonment term for prior sex
offenses and the instant charges involved him threatening additional sex acts
and violence against the victim in this case. N.T. 10/7/21, 18-19; N.T. 1/5/22,
4, 7. Moreover, the court acted within its discretion by opting for consecutive
sentences where the underlying charges involved eight to ten encounters that
Appellant had with the victim. N.T. 10/7/21, 19. Appellant was not entitled
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to a volume discount for his crimes.3 Commonwealth v. Swope, 123 A.3d
333, 341 (Pa. Super. 2015).
We find that the aggregate sentence is not grossly disparate to
Appellant’s conduct and does not appear “clearly unreasonable” for purposes
of 42 Pa.C.S. § 9781(c). Accordingly, we conclude that Appellant is entitled
to no relief on the grounds raised before us.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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3 We also note that the fact that victim’s testimony addressed that Appellant
“started throwing physical punches” at her dog and made threats to kill the
animal during one of the encounters is particularly troubling and additionally
speaks to the rehabilitative needs of Appellant that might be addressed by the
sentence imposed. N.T. 10/7/21, 20.
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