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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 LEE SMITH, :
:
Appellant : No. 1243 WDA 2014
Appeal from the Judgment of Sentence June 13, 2014,
Court of Common Pleas, Crawford County,
Criminal Division at No. CP-20-CR-0001090-2013
BEFORE: DONOHUE, SHOGAN and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED FEBRUARY 06, 2015
Edward Lee Smith (“Smith”) appeals from the judgment of sentence of
the Court of Common Pleas, Crawford County, following a plea of nolo
contendere to the charge of burglary, 18 Pa.C.S.A. § 3502(a). For the
reasons that follow, we affirm.
A brief summary of the relevant facts and procedural history is as
follows. On August 29, 2012, Jeffrey Maseman (“Maseman”) entered his
home to find Smith and an unidentified individual standing in the living
room, with the house in disarray. After Maseman retrieved his shotgun,
Smith and the unidentified individual fled from the home, allegedly with
Maseman’s daughter’s iPod. Police were able to acquire fingerprints from a
window that matched those of Smith.
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On April 28, 2014, Smith entered a plea of no contest to the charge of
burglary, 18 Pa.C.S.A. § 3502(a).1 On June 13, 2014, the trial court
sentenced Smith to 42-84 months of incarceration. Smith filed a motion for
modification/reduction of sentence on June 23, 2014, which the trial court
denied on June 24, 2014. Smith filed a timely notice of appeal to this Court
on July 22, 2014.
On August 15, 2014, Smith filed a statement of errors complained of
on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, wherein he raises the following issue for our review:
1. Whether the [trial c]ourt abused its discretion in
sentencing [Smith] to a term of forty-two to eighty-
four months in this case.
Smith’s Brief at 4.
Our standard of review for challenges to the discretionary aspects of
sentencing 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.
1
The Commonwealth nolle prossed the charges of criminal trespass,
18 Pa.C.S.A. § 3503(a)(1)(ii), and theft by unlawful taking, 18 Pa.C.S.A.
§ 3921(a).
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Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting
Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012), appeal
denied, 63 A.3d 774 (2013)).
This Court has held, “[w]here an appellant challenges the discretionary
aspects of a sentence, there is no automatic right to appeal and an
appellant’s appeal should be considered a petition for allowance of appeal.”
Commonwealth v. Crork, 966 A.2d 585, 590 (Pa. Super. 2009).
Before we reach the merits of this [issue], we must
engage in a four part analysis to determine: (1)
whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief
includes a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question
that the sentence is appropriate under the
sentencing code.
Commonwealth v. Clarke, 70 A.3d 1281, 1286 (Pa. Super. 2013) (citing
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa. Super. 2006)).
In this case, Smith filed a timely notice of appeal and preserved his
claim on appeal in a post-sentence motion as well as in his Rule 1925(b)
statement. Smith also included a concise statement of reasons relied upon
for allowance of appeal pursuant to Pa.R.A.P. 2119(f) in his brief. The
question remaining for our determination, therefore, is whether Smith raised
a substantial question.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
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A substantial question exists “only 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
citations omitted).
In his Rule 2119(f) statement, Smith contends that the trial court
imposed a “manifestly excessive and unreasonable sentence.” Smith’s Brief
at 8. Smith “argues that the sentence imposed for his burglary [charge]
should have been in the [] low end to the middle of the standard range
under the[] facts.” Id. In support of his argument, Smith asserts that the
trial court “focused solely on erroneous facts and characterizations of the
crime and disregarded all other factors[,]” when it imposed the sentence,
and “that the facts present in this case do not warrant the [trial] court’s
imposition of such a severe sentence.” Id. at 9.
This Court has established that “a generic claim that a sentence is
excessive does not raise a substantial question for our review.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citing
Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013)). In
addition, it is well settled that “a claim that a court did not weigh the factors
as an appellant wishes does not raise a substantial question.”
Commonwealth v. Zirkle, __ A.3d __, 2014 WL 7212598, *5 (Pa. Super.
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Dec. 18, 2014); see also Christine, 78 A.3d at 10-11 (stating, “an
allegation that the trial court failed to consider particular circumstances or
factors in an appellant’s case go to the weight accorded to various
sentencing factors and do not raise a substantial question.”). Accordingly,
we conclude that Smith has not raised a substantial question.
Finally, this Court has held that when a “sentencing judge imposed
sentences that were within the standard range of the applicable guidelines,
and that he fully stated his reasons for imposing those sentences, no
substantial question has been presented.” Commonwealth v. Kimbrough,
872 A.2d 1244, 1263 (Pa. Super. 2005). In the instant case, Smith admits
that his sentence is within the standard range of the guidelines, as he
contests only that it should have been in the lower rather than the upper
end of the range. See Smith’s Brief at 8. Moreover, the trial court also
placed its considerations on the record at the sentencing hearing. The trial
court stated that it considered the potential that existed for a violent and
deadly encounter considering Maseman grabbed a shotgun upon discovering
Smith, “the chilling-type of offense” at issue, the fact that Smith alleges that
he took sleeping pills that day and has limited recollection of the events that
occurred, and Smith’s prior criminal record. N.T., 6/13/14, at 14-15. The
trial court, however, expressed that the most critical factor in its
determination was the effect of the burglary on Maseman and his family.
See id. at 15-16.
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…that’s just one of the most frightening things that a
person can experience to see a stranger in their
home – in their home, the place where they have a
right to expect to be private and safe and free from
intruders and once an intruder is in your home, it’s –
it’s incredibly highly charged and you don’t know
what they are there for. You don’t know if they’re
going to assault a member of your family, try to
kidnap you or one of the members of your family.
And unfortunately, those tend to be the type of cases
that make the nightly news and cause an amount of
worry. So – and then he writes my daughter is
afraid to be left alone in the house.
That’s an awful thing when your – when your
child is telling you, “Gee, dad, don’t – don’t go away.
I – I don’t want to be here by myself.” Man, this is –
this just doesn’t call for anything close to a mitigated
range sentence. If anything, it is an aggravated
sentence but I’m not going to do that. So the
sentence order reads as follows.
Id.
For these reasons, Smith has not presented a substantial question for
our review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/6/2015
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