J-S40044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEWARD MICHAEL LAZARUS
Appellant No. 219 MDA 2014
Appeal from the Judgment of Sentence November 20, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-CR-0005165-2012
CP-CR-0005166-2012
CP-CR-0005171-2012
CP-CR-0005172-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 04, 2014
Appellant, Steward Michael Lazarus, appeals from the judgment of
the Honorable Howard F. Knisely, Court of Common Pleas of Lancaster
County, following his guilty plea to, inter alia, 28 counts of burglary. On
appeal, Lazarus challenges the discretionary aspects of his sentence. No
relief is due.
The trial court summarized the history of this case as follows:
On March 19, 2011 and April 19, 2011, police received a
report of a burglary in Millersville, PA. Between March 1, 2012
and September 18, 2012, police received thirty-five (35) reports
of residences burglarized in Millersville and contingent
townships. Police discovered signs of forced entry and received
reports from victims of missing jewelry, coins, cash, paintings,
firearms, and various other items. On September 16, 2012,
J-S40044-14
officers responded to a burglary in progress at a Millersville
residence. Upon arrival, officers established a perimeter and
located [Lazarus] in the home. [Lazarus] could not provide a
lawful reason for his presence and was placed under arrest.
While officers escorted [Lazarus] to a police cruiser, [Lazarus]
indicated there were other suspects in the house. When the
officers turned to look toward the house, [Lazarus] pulled away
and escaped custody; he was taken back into custody at his
home address.
[Lazarus] was taken to the police station, where he was
advised of his Miranda warnings and interviewed. In the
interview, he admitted to breaking into the residence where he
was originally found with the intent to commit theft. He was
questioned about the numerous other burglaries in the area and
confirmed his involvement in several of them. Police seized
hed the property,
and had the victims of the various burglaries identify items that
belonged to them. As a result of this investigation, [Lazarus]
was charged at docket 5172-2012 with 25 counts of Burglary,
one count of Escape, three counts of Criminal Attempt, four
counts of Theft by Unlawful Taking, and one count of Possession
of Marijuana with Intent to Deliver. At docket 5171-2012,
[Lazarus] was charged with eight counts of burglary. At docket
5166-2012, [Lazarus] was charged with one count of Burglary.
At docket 5165-2012, [Lazarus] was charged with one count of
Burglary and one count of Theft by Unlawful Taking.
On August 26, 2013, [Lazarus] pled guilty on docket 5172-
2012 to 20 counts of Burglary, one count of Escape, there counts
of Criminal Attempt, four counts of Theft by Unlawful Taking,
and one count of Possession of Marijuana with Intent to Deliver;
on docket 5171-2012 to six counts of Burglary; on docket 5166-
2012 to one count of Burglary; [and] on docket 5165-2012 to
one count of Burglary and one count of Theft by Unlawful Taking.
[Lazarus] was sentenced on November 20, 2013. On docket
5172-2012, [Lazarus] was sentenced to 1-2 years for each of
the burglaries, to be served consecutively to each other and the
bation for escape, to be served
each of the criminal attempt counts, to be served concurrently
with each other and concurrent with the escape count; 1-2 years
for each of the theft by unlawful taking counts where firearms
were taken, to be served consecutively with each other and the
burglary counts. On docket 5171-2012, [Lazarus] was
-2-
J-S40044-14
sentenced to 1-2 years on each of the burglary counts, to be
served consecutively with each other and the other dockets. On
docket 5166-2012, [Lazarus] was sentenced to 1-2 years for
[b]urglary, to be served consecutively with the other dockets.
On [d]ocket 5165-2012, [Lazarus] was sentenced to 1-2 years
for the [b]urglary, to be served consecutively with the other
dockets and 1-2 years for the Theft by Unlawful Taking where a
firearm was taken, also to be served consecutively. The
aggregate sentence imposed on [Lazarus] as to a State
Correctional Institution was 33 years to 66 years. [Lazarus] was
sentenced within the standard range of the guideline sentence.
On November 26, 2013, [Lazarus] filed a Motion to Modify
Sentence, requesting the sentence be modified so as to permit
[Lazarus] to serve the bottom of the standard range of his
guidelines, resulting in
incarceration. On December 20, 2013, the Commonwealth filed
Modify Sentence, explaining in the order the reasons for denial.
The instant timely appeal followed.
Trial Court Opinion, 2/28/14 at 1-3 (footnotes omitted).
On appeal, Lazarus argues that his aggregate sentence was clearly
unreasonable under the circumstances of this case and improperly
constituted a virtual life sentence. See
standard when reviewing sentencing matters 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. 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. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted).
-3-
J-S40044-14
Lazarus challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute. See Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super.
2004).
An appellant challenging the discretionary aspects of his
four-part test:
[We] conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Lazarus filed a timely appeal and challenged his sentence in a
post-
cumulative sentence of thirty-three to sixty-
unreasonable, and so manifestly excessive as to constitute an abuse of
discretion. See
focused exclusively on the gravity of the offense in imposing the sentence.
Even assuming these claims raise a substantial question, Lazarus is not
entitled to relief.
-4-
J-S40044-14
Here, Lazarus does not dispute that the individual sentences imposed
are indisputably within the guideline range, notwithstanding the trial court's
imposition of consecutive sentences. Although Lazarus claims that the trial
court erred in imposing a sentence that was inconsistent with the protection
of the public, the gravity of the offenses, and his rehabilitative needs, we
note that the trial court had prepared and reviewed a pre-sentence report.
See id. at 17. Where the trial court had the benefit of reviewing a pre-
sentence report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court's discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
As the trial court in this case did have the benefit of a pre-sentence report,
we must presume that he considered all relevant sentencing factors and did
not impose a sentence based solely on the gravity of the offenses.
-5-
J-S40044-14
We are further satisfied that the trial court adequately stated its
reasons for imposing the sentence as follows:
is a theme, much of what you heard already. But those themes
are items that must be taken into account by the [c]ourt in
rendering a sentence. For example, stole our sense of security
and innocence; defenseless, elderly people asleep in their beds
were burglarized; priceless items taken; the feeling of no longer
being safe in a loving town.
Most people who were burglarized and who were victims of
thievery were people known to you. An elderly man has his
home burglarized four-and-a-half months after his wife passed
away and you knew that. All feel violated, frightened and
insecure. Many felt extremely threatened and vulnerable,
showing extreme anxiety. People, if not most, afraid to be alone
in their homes.
You stole family histories, not only in jewelry, but other
possessions.
th
birthday party and
burglarized his home within a month. Children were frightened
to the point of illness, to the point of hiding their personal
possessions.
This rang out throughout not only Millersville, though
charges are from West Lampeter, the second from Southern
Regional, the third from Manor Township. But the vast majority
from Millersville Borough.
Incarceration is warranted because a lesser sentence
would depreciate the seriousness of the crimes.
N.T., Sentencing, 11/20/13 at 28-29.
-6-
J-S40044-14
sentence appears, on its face, manifestly excessive. Accordingly, we discern
no abuse of discretion in the sentence imposed by the trial court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/4/2014
-7-
Com. v. Lazarus, S.
Combined Opinion